JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 8, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call to order the twelfth meeting of the Standing Committee on Justice and Human Rights. This morning we'll be hearing witnesses on Bill C-24, an act to amend the Criminal Code and to make consequential amendments to other acts.

Before calling on our witnesses, let me just say that it is always the case that the earliest of witnesses have to prepare the most quickly. The turnaround time that is necessary for the first witnesses to react makes it most difficult. I want witnesses to be aware of the fact that the committee is aware of that, and appreciates very much the effort made to accommodate the parliamentary schedule.

With that, we have as witnesses this morning, from le Barreau du Québec, Madame Carole Brosseau and Madame Anne-Marie Boisvert, and from the Canadian Civil Liberties Association, Mr. Alan Borovoy.

Has any discussion taken place in terms of who would like to go first? If not, we'll go in order of our agenda as presented.

[Translation]

Ms. Brosseau or Ms. Boisvert.

Ms. Carole Brosseau (Lawyer, Research and Legislation, Barreau du Québec): Good morning. Let me introduce myself to those of you who don't know who I am. My name is Carole Brosseau and I work as a lawyer in the Research and Legislation Department of the Barreau du Québec. With me this morning is Ms. Anne-Marie Boisvert, who chairs the Barreau's Criminal Law Committee and who is also a Criminal Law Professor at the University of Montreal.

First of all, I'd like to point out to the committee that we could not complete our submission on time, given that we were asked to appear on rather short notice. But we are going to table it. Next Monday, following our convention, the president of the bar should okay it and you should get it in time for the clause-by-clause review.

I'll now ask Ms. Boisvert to outline our concerns about Bill C-24.

Ms. Anne-Marie Boisvert (Lawyer, Barreau du Québec): Good morning and thank you. I was told I had five minutes. So I'll be brief.

First, I'm going to give you our general opinion about the bill, and the rest of my comments this morning will be on that portion of the legislation which, the way we see it, gives the police new law-breaking powers in the course of their investigations. We have many more comments which will be included in our submission.

Generally, we think that the definition of “criminal organization” is very broad; three people are a crowd. We recognize that the wording is the same as in the United Nations convention signed by Canada. I'll simply say that, in general, although the bill is presented this morning as a tool to fight organized crime, it is—and it's a point the Barreau du Québec wants to stress—an instrument which goes far beyond fighting organized crime. Essentially, there are in this legislation some general provisions which could apply to the whole Criminal Code and to all kinds of investigations, whatever the nature of the crime.

This comment applies to the bill as a whole and, more particularly, to the provisions dealing with the new powers of the police, because section 25.1 and the following clauses, which grant a form of immunity to police officers, apply to all investigations, not only those concerning organized crime. It's something we should keep in mind.

The Barreau du Québec has already stated that it is against the basic principle in section 25.1. We believe that, even with a wording a little less awkward and offensive, recognizing that it's not immunity that is granted and that some cautionary measures are in place to ensure that the rule of law prevails in Canada, the message would still be that, under certain conditions, police forces are above the law. We think that, in a free and democratic society, this is not acceptable.

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I will not belabor the point that, as far as we are concerned, the traditional necessity defence and prosecutorial discretion of the Attorney General were sufficient. We think it has not been demonstrated that all the tools currently available to the police to conduct investigations have been used efficiently. We believe that, although caution is exercised, the accountability system proposed in the bill, which is essentially that annual reports are to be tabled before Parliament, is clearly not sufficient.

Basically, once granted the ministerial authorization, police forces are going to be able to work on their own and the Barreau du Québec is concerned about potential abuses. As you know, in Quebec, we haven't yet drawn all the conclusions from an important board of inquiry on the operation of our national police force. The Barreau du Québec believes that the Quebec police forces are basically no different from those that operate in other provinces, and that our concerns about potential abuses are justified.

We live in a system where there is in fact almost no civil monitoring of the police forces, and we think this is dangerous. The Criminal Code talks about a defence, a justification. We believe people should be aware that this new defence is in fact a new power granted to the police. Clearly, as far as we are concerned, once this new power is granted, it will be impossible to go back. We won't be able to reverse the process.

These new powers granted to the police—because, in fact, that's what it's all about—not only are outrageous and threaten the rule of law, but there is even a chance that they might distort completely the policy of evidence law. The bill is weak on the issue of how these new powers and evidence law can be articulated.

There is, of course, a section—the number of which I don't recall—where it says that the new provisions do not give the police the right to engage in any illegal wiretapping. That's to be expected. But what will happen when police officers engage in unlawful acts only to say, after the fact, that they had reasonable or probable cause to... which, at the end of the day, will allow them to get a judicial authorization?

I can understand why judges are not particularly thrilled with the idea to be called upon to authorize the perpetration of unlawful acts. In any event, when the protection of reasonable expectations regarding privacy is at issue, a preliminary judicial review is required and precautions are taken. But when it's damages to property or even people's physical integrity—because these acts might include punches in the mouth—which are at issue, it will be enough for police forces to say that using such techniques was necessary and proportionate to their investigation.

We believe we should—and it's hard to do, I agree—try to anticipate and link a little better to evidence law what is going to happen when the police exercise these new powers.

Finally, because, my five minutes are already up, I have a question. This morning, in the answer she gave to a question she was asked, I heard the minister talk about the "poor victims" of "bad criminals". The Barreau would like to know what happens to people who are the victims of "good criminals". And what happens to people whose barn burned down because police officers have committed an unlawful act? Besides informing them of that fact, is there not any compensation we could offer to victims of the fight against crime?

Thank you.

The Chair: Thank you.

Mr. Borovoy.

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[English]

Mr. A. Alan Borovoy (General Counsel, Canadian Civil Liberties Association): Thank you very much, Mr. Chairman.

I appreciate your opening remarks. They apply with special force to me. Not only did we have so little time to prepare, but the person in our organization most familiar with these issues is not able to attend. That brings up the first real point we have to make—that is, the process by which this bill is being considered.

I'm told that there will be only two days of hearings for the general public.

The Chair: At this point we're looking at four days at least.

Mr. Alan Borovoy: I see. Well, four days at least is, of course, less bad than two days at least. Our view would be, however, that the process ought to be slowed down. I'm sufficiently familiar with the bill to know there are complex and difficult issues with far-reaching implications, therefore it ought to be slowed down, with more hearings and more lead time for the witnesses.

Having disposed of the process point, I turn to the substance. I too am mindful of the time limitations and will address only the issue of permissible law-breaking.

We start from the proposition that we believe there is universal agreement that in a democratic society, there must be a strong presumption that everyone, without exception, has to obey the law, and that this presumption applies with even greater force in a situation such as some of those contemplated by this bill in which agencies of the state are allowed to inflict otherwise unlawful harm on innocent citizens.

In order to overcome this presumption, it should require the most compelling of circumstances, and the government has the onus of demonstrating the existence of those circumstances.

The closest the government has come, at least so far as our information is concerned, is its reference to a recent ruling of the Supreme Court of Canada in the Campbell and Shirose case in which the court declared that police no longer have a general immunity for law-breaking committed in the course of law enforcement.

The fact is, they never had such an immunity. The McDonald commission pointed out to us some twenty years ago that they never had that kind of immunity.

The government went on and said that as a result of this case it has been hobbled. The police have been obliged to discontinue a number of their investigations. But that explanation simply doesn't hold water.

In any event, the legislation at least has been changed to accommodate the deficiencies exposed by the Campbell and Shirose case. It is now permissible for police to engage in what is called “reverse sting operations”, as they could not at one time.

This too demonstrates another proposition, that there's no particular objection to granting some limited law-breaking powers in narrowly defined circumstances, but there's a big difference between that and the kind of general power available in Bill C-24.

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Like a lawyer, I want to argue in the alternative. To whatever extent any explanation emerges that we have not now heard and that some justification is offered for this kind of additional police power, we are suggesting that at least the following minimum conditions apply.

First, any claim to exercise such power must be not only helpful but also necessary for the protection of any overriding interests.

Second, acts and threats of physical violence should be forbidden. And let me take just one moment about that. It says that no bodily harm can be committed. I floated an idea with a number of colleagues. Suppose an officer, in the course of an undercover operation, wanted to really impress his targets. Could he commit a kidnapping at gunpoint? Could that be done without causing bodily harm? Our view is that such a gross deed ought not to be even arguably permissible.

Third, as far as non-violent illegalities are concerned, there should be no permission to instigate them.

Fourth, the power to delay notice to the victims of such law-breaking should reside not in a cabinet minister or in any police officials but in a court.

Fifth, in any event, there ought to be compensation required in every case that law-breaking has caused injury to any innocent citizens.

Finally, no police force should be allowed to engage in the kind of conduct envisioned here unless the governing jurisdiction provides for independent audits of the way this is being carried on. An agency, independent of the police, the government, and every other interested party, should have ongoing access to police records, police facilities, and police personnel so that they can conduct probes and ultimately report publicly on the way these powers are being exercised, much in the way that the Security Intelligence Review Committee now does in the case of CSIS.

I return to our major point, that unless a more compelling justification emerges than the public has thus far heard, this part of the bill, at the very least, should be defeated.

This is, as always, respectfully submitted.

The Chair: Thank you very much, Mr. Borovoy. The fact that you were rushed to put this together clearly has not affected negatively your capacity to put it forward in a very compelling way.

Mr. Sorenson, for seven minutes.

Mr. Kevin Sorenson (Crowfoot, CA): I too want to thank the three of you for coming today and for bearing witness to this bill from your own vantage points. I guess it's always a balancing act, and that's what we have to find. You're concerned about the intrusion on rights. I guess we're all concerned about that.

As you see it right now, is this going to contradict the charter? Back in about 1996 or 1997, we had the Feeney case, where the police went in and took evidence. I guess it wasn't really where the crime took place, but they went in and took evidence. The courts then said it contravened the rights of the accused.

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I guess what we're trying to do here is establish how much leeway the police force has. I think some of the comments by you have been excellent. We all break the law on occasion. I'm a law-abiding citizen myself, but if my wife is pregnant and I'm taking her to the hospital, I break the law and drive a little faster than I should.

We're in a war with crime, and that's what the police are saying. The police are saying they need to have the tools to fight a war. When they're fighting a war, the perspective may be that there are rights that are going to be hindered or hurt.

Do you believe the Supreme Court could come out against this bill, as it stands right now, in regard to the rights and freedoms of individuals?

Ms. Anne-Marie Boisvert: It's to be expected. You spoke about the Feeney case. Let's say it's not my favourite one. I agree with... and we did not talk to each other before. But I think this is something especially important. I understand that we are in a war against organized crime, but I think the debate has to be made.

I understand that police forces were kind of conveniently stunned by the decision of the Supreme Court of Canada in Campbell and Shirose. I don't think they've ever had the power to commit crime, but on some occasions they had the traditional necessity defence, the same defence you have if you go a little too fast to go to the hospital. This is a defence where there is a proportionality test, and there is an after-the-fact review by a judicial body if ever the prosecution has used its power to prosecute in the first place. There are checks and balances in the old system.

I think we are in a state of unwarranted emergency here. Nothing was changed by the decision of the Supreme Court of Canada. It was only told in passing that of course they didn't have the right to commit offences. So what? To me it was not a novelty. I think what we are preparing ourselves to do here is to give sweeping powers—and I repeat myself—in all kinds of inquiries, not only on organized crime. I think the question has merit. This is my personal point of view.

How much money, public money, am I ready to give to policemen going week after week after week soliciting lap dancers? That's also what we're talking about. I think a public debate on these issues cannot be done in the climate of emergency we're entertaining here on that issue.

Mr. Kevin Sorenson: So you agree there is an emergency.

Ms. Anne-Marie Boisvert: No.

Mr. Kevin Sorenson: You don't agree there's an emergency?

Ms. Anne-Marie Boisvert: No, I don't agree there's an emergency on that issue.

Mr. Kevin Sorenson: Okay. Well, there's a good start.

Mr. Spencer may want...

The Chair: Mr. Borovoy.

Mr. Alan Borovoy: When you talk that way about an emergency, I've just read—I grant not deeply, but rather cursorily—a number of recent newspaper stories that tell us about all these busts that are being made against organized crime. They have 2,000 officers here; they've arrested a whole slew there; there have been convictions. At the same time we're told there's an emergency. It's a little difficult to square these two reports we're getting.

In any event, just to address your question about balance, first of all, you must appreciate that there are going to be any one of a number of challenges under the charter. That is inescapable. A lot of these things are very close to the line. There are strong charter arguments. It's always hard to predict exactly what a court will do. We're not clairvoyant, but we know there are some good arguments.

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In any event, the charter sets out the minimum standards that have to be met. We like to think we can aim a little higher than that, that is, if they can demonstrate a need for a particular power, then grant only insofar as they're able to demonstrate they have a need for it. Arguably, they did that in the wake of the Campbell and Shirose case. So a limited power was created to meet that problem. This is not an excuse for a general power to break the law. It is only a basis for a narrow one in some very confined circumstances.

The Chair: Thank you very much. That brings us to a close... Mr. Bellehumeur?

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much. Well, I'd like first to thank you for appearing here on such short notice and for being quite well informed about the legislation.

I don't necessarily agree with everything you said, but your approach raises important issues. The main one is probably the risk —and I am going to repeat what you said—that we might distort completely the policy of evidence law. You give wiretapping as an example. You don't give it the same meaning I gave to the example I used when the minister was before us, but I don't find it more reassuring.

In fact, with these new powers, could police officers fabricate evidence to be able to get a judge to authorize wiretapping? This example has prompted serious doubts in my mind, which add to the fact that the courts have no means to supervise all this.

Is it agreed that, according to the Criminal Code, officers who want to commit such acts as wiretapping or searches have to be authorized to do so in advance? Then, the judge who reviews the case, checks a few aspects of it. Right? Because he doesn't want that decision to invalidate a ruling he might have to make on appeal or in some other circumstances. He is also charged with ensuring that certain rights are respected, that the law is enforced and all that.

In the case at hand, that is the unlawful acts police officers might commit, even if you are opposed to such practices, would it improve things a bit if these officers were obliged to present to the judge who has to review the case—something could be added to that effect in the bill—evidence that such acts are committed in the context of an investigation dealing with organized crime, and if the judge were to check that this is in fact the case. To get their requests approved by the judge, officers would have to clarify what they intend to do, when—no date, but time limits—and who they are planning to give contracts to.

Would you find that more re-assuring than what is now in the bill?

Ms. Anne-Marie Boisvert: Briefly, I would tell you that I understand it might be difficult to have a kind of judiciary authorization in advance. However, if, within certain limits, this power were to be used as other powers that encroach upon the rights of citizens and that are used by the police, for the time being, we would feel better if it were required to get a judiciary authorization in advance.

I would add, regarding wiretapping and other investigating methods the Canadian public has always considered intrusive, that the police must demonstrate that other investigating techniques have already been used to no avail. None of these criteria are mentioned here. You could reasonably assume that it would be useful to commit unlawful acts, whether or not the other investigating methods have failed. On this point, I agree with Mr. Borovoy's earlier comment. There should be, at least, somewhere, a way to check the necessity of using such investigating techniques under certain conditions much more narrowly defined.

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Mr. Michel Bellehumeur: I have another brief question regarding your first comment, about the scope of the definition of “criminal organization”. Some of your colleagues in Quebec have done a pretty good job, I think, by applying, in some cases, section 467.1. I was surprised when I heard, right after the ruling, these prosecutors say that they were satisfied, that they had demonstrated that... etc. However, they also said that it was quite complicated and finally, they suggested to the law-makers to review the definition and to make it a little easier for the Crown prosecutors to get the necessary evidence. I understand that as many Crown prosecutors as defence attorneys are members of the Barreau du Québec. Are you a defence attorney?

Ms. Anne-Marie Boisvert: I am a professor.

Mr. Michel Bellehumeur: You are a professor, so you don't have to take sides. In terms of the definition of "criminal organization", doesn't that answer the concerns of these prosecutors and of police officers, among others, but particularly of Crown prosecutors who, even if they were satisfied, were asking for further changes?

Ms. Anne-Marie Boisvert: Well, the answer I'm going to give you will only be half good, but that's the story of my life. I'll just say that part of the complexity of these provisions—and that's what the Barreau du Québec has said repeatedly—is due to the proliferation of urgent amendments, to the fact that we now have a Criminal Code which is an incredible patchwork to which, unfortunately, this bill is going to add yet other pieces. True, when you look at the bill, it won't really be a piece of cake to prove that some offences have been committed when that requires you prove they have been committed intentionally. In some cases, it will be possible to prove it, but I'd say that right now, we find a lot of provisions difficult.

We live in a world of double or triple references, which leads us to various interpretations, partly because we have piecemeal legislation, without any vision, I'd say, without any concern about having something a little more consistent, a little more... One of the problems with the kind of provisions which are proposed here—and I come back to the answer given earlier—is that they can easily be criticized and lead to all sorts of constitutional challenges, which is usually a burden for the Crown prosecutors who have both to prosecute criminals and support the law they work with. That's one of the things that greatly contribute to the complexity of their position..

The Chair: Thank you very much. Mr. Borovoy.

[English]

Mr. Alan Borovoy: There's another factor about the definition of a criminal organization that is potentially disturbing. On the one hand you want to ensure that with it you catch some of the people you want to catch. On the other hand it creates the risk of catching some people who I wouldn't think you would want to catch. For example, could it be said that a group of the aboriginal fishermen who are ramming boats around the Maritimes—

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): They were getting rammed.

Mr. Alan Borovoy: For the moment I don't have to decide who is doing the ramming. Let's say a group of fishermen trying to protect what they see as their self-interest is ramming boats. That is a serious offence within the definition here. They're doing it for financial or material gain. For some of them this may be a main activity.

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This may happen in the case of some labour unions during a strike when they engage in obstructing access to a plant.

Ms. Anne-Marie Boisvert: That was my example.

Mr. Alan Borovoy: I'm sorry to steal it from you.

We don't want these people committing these offences. We do have to enforce the law against them. But do we want to have legislation that would subject them to the same kind of regime to which you want to subject biker gangs? That, in our view, just isn't worth it. It's not worth creating those kinds of risks.

The Chair: Thank you.

Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Chairman, I'm tempted to engage in the argument as it's going here. It would seem to me that arguably these people are not members of gangs. They're members of a trade union, a fishermen's association, or whatever. My own understanding of the legislation is that it's not designed to catch people who happen to be acting in consort with others, but rather people who are acting in consort with others who belong to a gang. Maybe the distinction is hard to make.

But I wondered if either or both of the witnesses could expand on the point that was made that the Supreme Court decision in Campbell and Shirose doesn't really change anything. A lot of the argument that's being made for the provisions in this bill kind of hinges on whether or not something significant happened in that case. You referred to the McDonald commission, Mr. Borovoy, establishing 20 years ago that there was no such immunity. Perhaps you could elaborate on that and give us a short history lesson as to the way in which the Supreme Court decision isn't necessarily what it's being made out to be by the government, or by others for that matter.

Mr. Alan Borovoy: This is one of the few times, Mr. Blaikie, when it's an advantage to be a little older. As a result, I can remember the McDonald commission with a clarity that others who were just babes at the time don't have.

One of the big controversies at the time of the McDonald commission centred around the issue, can you break the law to enforce the law? That was a big theme surrounding the McDonald commission, because the RCMP had admitted to having engaged in a host of law-breaking activities, including burglary, theft, mail opening, and barn burning. They were arguing that it was necessary and that there was a power to do this.

The McDonald commission probed these issues extensively for some four years and declared that there was no such power in our law. It said that certain immunities could be created from time to time. Of course, that's what a search warrant or a wiretap authorization is. It is immunity from what otherwise would be an offence so that they can engage in it. The McDonald commission pronounced upon that as a matter of law.

Interestingly enough, it also counselled against creating a general power to break the law where covert operations for national security are concerned, the most important area you could be talking about. This we should not lose sight of. In other words, Bill C-24 represents a rejection of the advice provided this country by the McDonald commission.

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Ms. Anne-Marie Boisvert: I will just add that in the climate of emergency, because we have learned what we have been told over 20 years ago—that's where the emergency lies.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: In other words, you're saying there is no emergency.

Ms. Anne-Marie Boisvert: Yes. And maybe this country has a right to change its mind, but take more than five minutes to do it.

Mr. Alan Borovoy: In any event, rather than just talk about whether there is an emergency or not, what I would suggest be done is that there be a relationship established between what facts do you see, what need is there, and what power are you creating to meet that need. In other words, we shouldn't just say there's an emergency, therefore anything goes. Ask what is the need and what particular power is needed to address that particular need. I think that would be a much more sensible way for us to proceed.

Mr. Bill Blaikie: I think, Mr. Chairman, this raises the question of process. Are we going to undo in four days what the McDonald commission took four years to establish? I think this is something we should keep in mind. And the process question was raised earlier. Perhaps we need to...

The Chair: Our work is being informed even as we work.

Mr. Bill Blaikie: I just say that as a comment. They may want to comment on my comment.

The Chair: I think the point has been made.

Mr. MacKay, seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chair.

[Translation]

I thank you all for your contribution.

[English]

We appreciate very much getting your perspective on this.

One of the concerns that I had immediately was the special designation that officers will receive that does appear to be quite general. It is general in terms of its finite definition, but also in terms of how long that officer remains designated. Once they receive these special powers and they're anointed Batman, there are checks and balances, and apparently the supervision is supposed to be there, the training, the reasonable and proportional limitations that are supposed to exist. Can you delve into that for us a little more in detail as to this designation that an officer would receive and it being indeterminate as to how long it might be?

My feeling is if an officer is given these powers there's going to be a natural inclination to test those powers, and as time goes by, if they are acting in this capacity, there is a great danger, in my view, that they would be inclined to push the limits further and further.

Ms. Anne-Marie Boisvert: I would just say that in some way I agree with you. I recognize that some precautions are taken, but the authorizations have the potential to look pretty much like the old...

[Translation]

How do you say les mandats de main forte?

[English]

The search warrants that were granted...the writs of assistance, which were declared unconstitutional by the Supreme Court.

Mr. Peter MacKay: Do you feel—and it seems obvious that you do, given the Campbell and Shirose case, and Feeney has been mentioned—that it might have been beneficial to have a Supreme Court reference on this issue, that this might have answered some of the constitutionality questions and avoided this situation that I believe Ms. Boisvert referred to, in the sense that the prosecutors will essentially be carrying that load and not only prosecuting the case but essentially arguing this constitutional element throughout each and every case?

Ms. Anne-Marie Boisvert: We've been saying that these provisions will be open to constitutional challenge. We haven't discussed this, but my personal answer is that if ever this country, after I hope more reflection, decides to give that kind of power to its police force, I think in our society it would be better for Parliament to make the decision than to refer it to the courts. I think it's a decision to be made by members of Parliament.

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Mr. Peter MacKay: The issue with respect to how bad it is, or the state of emergency that might exist regarding organized crime, is arguable. I think there is ample evidence to suggest that it is escalating. Certain areas in particular I think are more vulnerable. Coastal communities appear in particular to be areas designated where contraband materials can be brought in, and other areas seem to thrive—extortion, prostitution, illicit drugs, weaponry.

However, to be the devil's advocate, we've just borne witness in the past month to sweeping arrests and an incredible victory, apparently, on the side of the police, in advance of this new law, which then begs the question, is it necessary? Are the police able, within the current Criminal Code provisions, to combat organized crime?

[Translation]

Mr. Michel Bellehumeur: We'll see the result.

Ms. Carole Brosseau: To answer your question, I'll say that organized crime raises complex issues and that what I would call the legislative inflation of the last few years has not allowed us to fight it properly.

I have participated in other fora, including the review of a bill to amend the Quebec Police Act, and one of the comments that were made was that to fight organized crime, the objective should be to get the police forces to cooperate better, which they don't do at the moment, that it would be an important tool.

Also, a journalist who was investigating criminal organizations, particularly bikers gangs, pointed out—and it has been demonstrated—that they were now organizing in small cells, which is very different from the way organized crime has been operating over the last 30 years.

These are the tools available to the police. I believe they are all currently in the Criminal Code. I don't think this bill will create other tools to really fight organized crime, because it has to be done at the international level, not locally. I don't think this bill is going to have the impact we expect.

[English]

Mr. Peter MacKay: Granted, we haven't seen the prosecution, necessarily, of all of the cases that were recently part of this sweep. But what is your reaction as, in some instances, participants in the justice system to the new protections that will be afforded? That to me appears to be a very positive aspect of this, with respect to witnesses, intimidation of prosecutors, lawyers, judges, police officers.

Are there elements of this legislation that you feel are very positive, that you embrace?

Ms. Anne-Marie Boisvert: In one way I have nothing against what is... The only thing the Barreau du Québec wants to stress—and we've stressed it in many interventions—is that we are a little wary of this discourse saying that the code protects us. I mean, rape is illegal, but it doesn't protect me against rape.

I think at one point it might become dangerous to give the public the false impression that by writing repressive laws we are protecting ourselves and the public. Many offences that are created to protect witnesses or members of juries are superfétatoires, not necessary, because there are already instruments in the code. We are deluding ourselves if we think that now we will be protected against ruthless people.

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The Chair: Mr. Borovoy.

Mr. Alan Borovoy: I share a lot of what has just been said. One other point struck me when I looked at those protections for the participants in the justice system. Again, they are way broader than I think a lot of people would intend.

It talks about one of the participants...well, it includes members of Parliament and the Senate, and that, I assume, includes the Minister of Justice, and the Solicitor General. It says that you cannot, with a view to impeding them in the operation of their duties, beset and watch a place where they are working.

Does that mean we cannot picket their offices in order to try to pressure them to change their minds about some of their policies?

Then there is this business about not being able to engage in numerous communications with them. Now, I know that one political tactic that's often used is to flood the minister's office with mail. Does that run afoul of the clause as well?

So there again you have overkill, and that, I would suggest, really does create some risk of a charter challenge, because you are talking about freedom of expression, about freedom of assembly—very vital ones. In this bill why in the world would you want to protect cabinet ministers, members of Parliament, elected officials, from being watched and beset at least in their places of work?

Remember that the Criminal Code has an exception for that where picketing is concerned. I don't see any such... I think, incidentally, that the exception that currently exists is too narrow for legitimate picketing. Be that as it may, this doesn't contain anything comparable to that at all. So there again, you see, I think you're dealing with a situation of overkill and real threats to basic liberties.

The Chair: Thank you, Mr. Borovoy.

Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): I perhaps might begin by stating parenthetically that I appeared with Mr. Borovoy before the McDonald commission.

Mr. Alan Borovoy: You're dating yourself. You were so much younger.

Mr. Irwin Cotler: I was then in my earlier incarnation as special counsel.

This brings to mind two questions, which was part of the discourse of the time before the McDonald commission. I'd like to hear the comments of either of both of the witnesses on this.

One, the issue not that the police need more powers, but they don't effectively use the powers they now have. Two, the issue is not more powers, but the necessary resources to use the powers they have. Here, I will use the situation in Quebec as an example in the matter of the prosecution of bikers' gangs and the like.

I've heard a number of concerns from prosecutors in Quebec. The first is that there simply is not enough prosecutors.

Two, they are underfunded, and the result is that some of them are leaving to go maybe to Ontario where they can get twice as much money, or become defence attorneys themselves.

Three, they are overworked, carry too many dossiers, and in fact suffer from burnout. There have even been instances, tragically, of some suicides amongst prosecutors.

Four, they don't have the technical resources. For example, you have an absurd situation where prosecutors in Quebec don't have access to computers, and yet the defence counsel does. It is an almost impossible way to effectively prosecute any organized crime in that kind of asymmetrical situation.

Finally, they do not have enough protection by the government to carry out their job, which has been part of the apprehension.

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To sum up, my concern is, number one, do you have anything to say about the fact that maybe the existing powers are not effectively being used, and two, that there are not enough resources, and if there were, they could make more effective use of existing powers?

Ms. Anne-Marie Boisvert: Two things—that's what we say. I remember the first joint operation between different police forces in Quebec. It just didn't work. Now we hear it's because they didn't have enough resources. But I remember that we were in negotiations for a collective agreement, and the means chosen by the union was to have these operations abort. I don't think it's a lone example.

In terms of what you said about the prosecutors, that is the situation. I will add to what you said that one thing Quebec prosecutors have is talent. So let's imagine that they succeed. It's always difficult to manage the situation in the prisons. Look at all these bikers who have been arrested. If they are convicted, how are we going to manage in the incarceration system? I know the federal penitentiaries will be solicited, but it's not everything to catch them.

The Chair: Mr. Borovoy, do you want to respond to Mr. Cotler?

Mr. Alan Borovoy: I think it was answered.

The Chair: Madame Allard.

[Translation]

Ms. Carole-Marie Allard (Laval East, Lib.): Good morning and thank you for being here today, Ms. Brosseau, Mr. Borovoy and Ms. Boisvert.

I am a member of the Barreau du Québec and I am a bit surprised to learn this morning about its position and to hear you say publicly that it's not urgent that we take new measures to fight organized crime.

I am reacting to your position in favor of the status quo. We have left these bikers gangs expand their activities within our society, and I am wondering whether your position is going to reassure the Quebec population who is pressing for harsher actions to fight organized crime.

I am thinking about Michel Auger, the journalist, and this bar owner who was beaten to death. Examples like these are many in Quebec. So I find it hard to understand how an organization like the Barreau du Québec can be in favor of the status quo.

However, I understand your reservations. You are concerned about the proliferation of various legislative measures which might further complicate the Criminal Code. I want to stress one aspect of this bill: membership in a gang. People are walking around sporting the Hells Angels emblems. Isn't there a middle term, between doing nothing and the status quo, that might satisfy the Barreau du Québec?

Ms. Anne-Marie Boisvert: I'm glad you asked this question because that gives me a chance to clarify something.

I agree with you when you say that there is an emergency, and I don't think the Barreau du Québec will ever say that it's not urgent to fight organized crime, that this issue is not important and that it does not deserve our particular and urgent attention.

When I talked about an emergency situation, it was, in particular, in the context of the consultation documents about the new immunity granted to police officers. Following the Supreme Court decision in the Shirose-Campbell case, people seemed to think that there was something new in the Court's ruling. We say it hasn't changed anything, it hasn't created any emergency. What the Court said, as a three-line aside, we knew since at least the MacDonald Commission, and it's in reference to this particular point that the Barreau du Québec said we should wait, that there was no need to wrongly create an emergency. This issue is particularly sensitive; we should take our time to discuss it further.

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Thank you for giving me an opportunity to raise this. Regarding the fight against organized crime, I wouldn't want people to think that my comments mean that there is no urgency.

[English]

The Chair: Mr. Spencer.

Mr. Larry Spencer (Regina—Lumsden—Lake Centre, CA): I'd like to ask a question. I really wanted to ask it of the minister awhile ago, but you seem to be quite familiar with this as well.

You are concerned about giving the police the opportunity to do things that are outside the law, and do those directed towards one suspected of criminal activity. My concern is that in the bill there appears to be a lack of addressing the damages that may be done by a police operation to the barn—as you mentioned, the barn burning.

Ms. Anne-Marie Boisvert: It was an innocent example.

Mr. Larry Spencer: Is there anything in the bill that would protect the property of innocent bystanders or those involved in this, and how do you feel about that?

Ms. Anne-Marie Boisvert: There is nothing. There is only this process saying that, when feasible, the citizen whose barn has been burnt will receive at one point a letter saying, “Poor you, it's the government that burned your barn”. If what I received is a slap in the face, there will never be a letter saying that it was a policeman who slapped me, and that's it.

I know that in victim's compensation there are these federal-provincial difficulties, but from the moment where the Criminal Code allows police forces to commit offences, I think we have to think about compensation for victims. But there's nothing.

Mr. Larry Spencer: Is there anything in the bill that would hinder a citizen from being able to pursue compensation for damage?

Mr. Alan Borovoy: No, but do you really want to impose that kind of obligation on an innocent citizen who has been the victim of state-directed illegality, put the burden on the citizen to go chasing them for compensation? Sure, he should have the right to do it, but there ought to be a requirement of compensation in those cases as well.

Ms. Anne-Marie Boisvert: And I would add that the code makes it—this is my understanding, and it might be a little theoretical—a justification. Something that is justified, following the law, is legal. An arrest is a justified use of force, and an arrest is legal, and it's not a tort. A citizen who has been lawfully arrested has no claim against the government. So when a citizen will be the “victim” of a legal illegality, I'm not sure they will have a recourse.

Mr. Alan Borovoy: It's not clear.

The Chair: Thank you, all. We'll go to Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chair.

I'm probably the last member of this committee that you would expect to want to give the police any more legal power, let alone the power to override our laws. But that said, in the last 15 or 20 years I've watched my city change. We now have drugs, we have prostitution, we have massage parlours, we have strip joints, all controlled by organized crime—controlled or supplied. Whether the individual businesses are owned by organized crime makes no difference, they are supplied by them.

We have a reasonably good police force, but they do their best work when they go undercover. I believe they need this allowance to disobey the law in order to do effective undercover work. It scares me, but I believe they do.

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As for the statement made that organized crime has now gone into small cells, that's not true in my case. My local motorcycle gang is in the process of patching over to a huge international motorcycle gang.

I want the police to have this power even though I am frightened giving it to them. It's something I feel I have to do. I realize I'm not going to get my city back to where it was. That never happens. But I want to stop the progression of this evil that's happening to our cities.

Now, I know that's not a question, but I'm sure you'll mount a spirited defence of your position, from which we'll all learn something.

Thank you.

Ms. Anne-Marie Boisvert: I will just say a little word. I think I've stressed our position, and we're not going to start to argue. We don't have the time, and I would just repeat myself.

But I will repeat one thing, and that is that your concern is organized crime. The power that is given here is for all kinds of enquiries. Once it is taken out of this bill and incorporated into the code, it's good for everything.

Mr. Alan Borovoy: There's an interesting question that arises from the question you asked. Whenever I've looked at any government materials that try to use examples of what kinds of powers they might be talking about—they might be talking about drugs, gambling, prostitution, counterfeiting, contraband, things of that kind—all of them are essentially what we call victimless offences. I suggest to you that you might want to consider making a distinction. This is further than what I think they have demonstrated a need for, but if you wanted to give them a little more leeway, make the leeway for those kinds of offences. Don't place the leeway in a situation in which they can inflict otherwise unlawful harm on an innocent citizen.

I would suggest to you that if you are thinking in those terms, you might make that the divide, not virtually anything except for the very few extreme cases they've mentioned. That might be something that might commend itself to you. Have we heard anybody suggesting that they need a power to burn down a barn, or that they need the power to assault people where they don't inflict bodily harm? If they don't need that power, why should we even remotely consider it?

The Chair: Thank you very much.

Mr. Bellehumeur, you have three minutes.

[Translation]

Mr. Michel Bellehumeur: History shows that Quebec police officers were even making bombs. So there is the barn-burning issue, but also the bombs issue.

When the minister presented her white paper, on the subject of the officials'immunity, the reaction was exactly that we should target organized crime more precisely. So I don't think you are arguing in vain. We might be able to convince the minister.

Regarding the Spring 2001 operation, everyone agrees it has been quite a success in terms of police work. However, before we claim victory and say that, at that level, the legislation is one hundred per cent adequate and the Criminal Code might not need to be amended to get such results, I want to wait and see, when the judicial process is over, how many of the 100 or so criminals who have been arrested are convicted of gangsterism and are sentenced. I won't be satisfied until I see the final result.

You don't have much time to answer my question and elaborate on this important point, but I'm probably going to be able to read your comments in your submission. You give the example of a union picketing in front of a minister's house or in front of his office, but as hard as I try, I can't find a connection between, on one hand, the definition of criminal organization and what is said in section 423 on intimidation and, on the other hand, the legitimate picketing of a union in front of a house, even for 25 days, and I fail to see what is your message. Moreover, in the definition of criminal organization, it says that it has to be the main activity, that it applies to serious offences, and there is a series of criteria which, for me, do not cover the action of a union.

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In section 423, it says: "uses violence or threats..." It's the parents and the children of this person who are supposed to be threatened. It also says "... persistently follows..." I don't see the connection there either, but maybe I'm wrong. I'd like you to explain that in detail in your submission, for my own

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Bellehumeur.

Who's anxious to go first?

[Translation]

Mr. Michel Bellehumeur: I think he wants to answer briefly.

Ms. Anne-Marie Boisvert: Briefly, you can let your imagination run a bit more wild and, as this is developed, think about the executive of some unions and some job actions such as making holes in fire hoses, knocking trucks over, damaging cars. Think about that.

Mr. Michel Bellehumeur: Is that punishable by five years behind bars. Are there people who get a five-year sentence for making holes in fire hoses?

Ms. Anne-Marie Boisvert: No, but it could be covered by the definition.

[English]

Mr. Alan Borovoy: No. They don't have to be doing it for five years or more. I think, however, you're confusing two clauses. First of all, there is the definition of a criminal organization. All clause 27 says is “one of its main purposes or main activities”, and one of a group's main activities over a period of time may well be committing acts of obstruction. Don't confuse the definition clause with the other clause that talks about prohibited conduct.

Under prohibited conduct, clause 11 says that for the purpose of impeding the justice system participant in the performance of his duties, one of the acts is “besetting or watching the place where a justice system participant” works. That could fit picketing. That's what picketing is, watching and besetting.

[Translation]

Mr. Michel Bellehumeur: Unfairly and without any authorization... In any case...

The Chair: Thank you very much.

Mr. DeVillers.

[English]

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

I just want to take issue with some of the comments that have been made about the process by members and by witnesses. I don't think we should confuse the hearings of this committee with the entire process. For instance, many of the amendments have come as a result of the work of a subcommittee that had extensive hearings. Also, there was a white paper produced and there was consultation done by departments, etc., leading up to that.

Specifically, concerning Mr. Borovoy's examples on the fishers' association and ramming and on trade unions, when you look at the section dealing with the new definition of a criminal organization, clause 27 says it means:

a group, however organized, that is composed of three or more persons and that has as one of its main purposes or main activities the facilitation or commission of one or more serious offences

Surely in those examples either the ramming, illegal picketing, or obstruction would certainly... Is it your contention that for trade unions or these fishers' associations, that's their main objective or main purpose? Would they not be arguably incidental and on an extreme basis?

Mr. Alan Borovoy: What I'm suggesting is that there may be periods of time in which for groups of them—because remember, it could be a group of just three—such activities become a main activity for a period of time, that is, committing acts of obstruction. That's mischief, and that would be a serious offence, or could be, if it's in relation to property worth more than $5,000. So it might fit in those kinds of situations during a certain period of time because the bill doesn't indicate anything about time limits.

Mr. Paul DeVillers: So you're saying three individual picketers might become a group within rather than the union as the group.

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Mr. Alan Borovoy: That's right. There could be a group within the union. There might be a group of 12 of them within the union involved, let's say, during the course of a strike, in a number of unlawful activities. If it's going on and they're plotting it day in and day out, as unlawful as that may be, the difficulty is that this might...and I can't say it will for sure, but I am saying that this language is awfully elastic and might well include that kind of activity.

Mr. Paul DeVillers: So even if Monsieur Bellehumeur had his way and we made membership in the gang the illegal activity, you could still have that problem within three individual members of it.

Mr. Alan Borovoy: If he had his way in that respect, with all respect, he would be making the situation even worse.

Mr. Paul DeVillers: Merci.

The Chair: Mr. Toews, three minutes.

Mr. Vic Toews (Provencher, CA): I have a brief comment. I didn't catch all of your presentations, but we've heard here today that there isn't an emergency among police operations that makes this necessary.

In fact, I recall reading not very long ago about the numbers of police operations that had to be shut down as a direct result of the Supreme Court of Canada decision. They have been stymied in their operations by a loss of a power they assumed they had. Whether they had it or not, they have indicated they had proceeded on that basis. They've had to shut down a number of operations.

I'm very concerned about some of the suggestions you've made. I think it's also a concern I have regarding some of the charter processes, generally. Police officers have told us that it used to take them an hour or two to process an arrest. Now it takes them three, four, or five hours to process the same arrest. And in the opinion of many of these officers, there hasn't really been an increase in the appreciable quality of the justice. What we are simply seeing is more paperwork, more legal hurdles for them to jump, so that lawyers have things to pounce on when they go to court.

Because police officers will set some of these standards following the legislation about who gets the authority and what, and it doesn't involve the judiciary, there seems to be a suggestion now that you're saying that we should involve the judiciary in the day-to-day operations of police forces, and that causes me a lot of concern.

I accept that the charter has brought the judiciary into a general review of a particular prosecution, and in that context, the police officers' operation. But if you're suggesting that we now get the judiciary involved, on a day-to-day basis, with a police operation, I think we will gradually see the effectiveness of our police officers, and their investigations, grinding down to a halt. I can only say that I think the proposal brought forward by the Liberals and the minister in this respect is a measured and very reasonable response to a very dangerous problem that I think many in our society do not realize is there.

I'm hoping that some of the police witnesses we get will put a little more balance into some of these comments.

Mr. Alan Borovoy: I would like to to respond primarily to your opening remarks in which you say that, as a result of the Campbell and Shirose case, a lot of investigations had to be shut down.

Please understand that the defects that were exposed in the ability of the police to investigate as a result of that case have since been corrected by legislation. The very thing the police were told they could not do—that is, engage in a reverse sting operation, pose as the vendors of illicit drugs—has now been corrected.

Then I ask, in view of that correction, where is the need to give them additional power to break the law? What need has been demonstrated? Who has done it? What is it? It is no answer to say we are facing an urgent situation with organized crime. I can grant that. It doesn't demonstrate that the police need a power to break the law in order to deal with it. I'm waiting to hear a demonstration of that need, with all respect.

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The Chair: This side, Madam Sgro.

Ms. Judy Sgro (York West, Lib.): Thank you. My apologies for not being here earlier, we're in and out. They keep us on a variety of committees and sometimes you're needed in different rooms for 15 minutes here and there.

Mr. Borovoy, I share much of the concern of the deputants actually in the issue of giving the police the sweeping powers, but at the same time I recognize, as you do, their need to have the ability to do certain things. The question is, how do we find the balance that respects people's rights and still deals with some very serious issues out there? The police are often hamstrung, as we all know, with trying to get the evidence they need.

You talk about it being too broad, that we need to narrow it. Under this bill, they're not going to be able to just go out and do it; they still have to go to a public official and get permission, to my understanding, in order to be able to carry out that activity. This means they have to be able to make a case for why they need to venture out. They're not going to have a blanket that says, “Here now, under Bill C-24 we can go off and do anything we feel necessary in order to achieve the objective at the end of the day”. That's my understanding in the brief time I've had a chance to look at this.

Mr. Alan Borovoy: It is no answer to this, in my view, to say that they have to go to one of their own officials to justify it. Remember that their own officials basically share their law enforcement priorities, which, of course, are very important, but they must be balanced, as we're all saying, against the individual rights involved, the liberties of the citizen involved. You don't strike a balance by having people in the same institution okay it for you. You may remember we faced that in a somewhat different context awhile ago. So that doesn't really answer it.

Moreover, in the criteria they're talking about they don't say “necessary to preserve life”. They talk about “reasonable and proportional” with respect to a wide range of potential offences. But reasonable and proportional in whose judgment? Who are we going to rely on to do this? This is very risky stuff.

Sometimes we have to take those risks, but that's why I come back to saying if you want us to take those risks, demonstrate the need for it. The only thing the government has told us is they need it because of the Campbell and Shirose case, but that's already been answered. They have the power they didn't have for purposes of that case. So where is the need for it? That's what we come back to. I suggest to you that in a democracy we should not consider giving anybody the power to inflict unlawful harm on innocent citizens without an awfully strong case being made for it. I'm waiting to hear it.

Ms. Anne-Marie Boisvert: We are not naive. Right now part of these checks and balances lie with the traditional necessity defence and prosecutorial discretion. Were they prosecuted, the policemen in Campbell and Shirose? Because that's what we hear now: “We cannot do it because we will be prosecuted.”

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Mr. Alan Borovoy: Can I interrupt for a moment? Because I have a better example.

Concerning all those RCMP officers committing offences for 30 years that we were told about, the only prosecutions against them were in the province of Quebec. I don't think any of them were convicted, either. But never mind that; in the exercise of prosecutorial discretion at the federal level and at every provincial level, not a single one of them was prosecuted.

The Chair: A final question.

Ms. Judy Sgro: We have to change these rules, Mr. Chairman. We never get to ask any questions.

Mr. Borovoy, who do you suggest they should be going to, if not a public official, for direction to be able to carry out when they feel it truly necessary?

Mr. Alan Borovoy: I think you're asking the wrong question. The question is, apart from the law as we know it—that is, there is already a defence of necessity. If you have to do something to save a life in imminent peril or something like that, you can do it. So there already is a defence of necessity, and prosecutors already can exercise discretion.

Thus, the question should not be “Who do you go to get permission to break the law?” but “Why do you need to create an additional power to break the law?” That remains the question. As I say, it's no answer to say that we face a dangerous situation with organized crime. That doesn't tell us you have to break the law in order to deal with them.

It's interesting in this connection. We asked a number of scholars about this in the last few days in the United States—and I won't presume to try to lecture anybody on American law—and they say there's nothing comparable to what we're talking about here in the American system. And goodness knows, they have faced problems from organized crime much greater than we have, for much longer. They do have some limited powers, and as I say, those things we can argue about, but nothing of this sort.

The Chair: Thank you very much.

I would like to thank the witnesses very much and again observe that, notwithstanding the rush, certainly your arguments have been put very coherently, and we welcome very much your interventions.

Members, I would like to bring to the attention of the committee a couple of items of business.

Generally speaking, the plans for the next week on this bill include hearings this afternoon with witnesses, and then tomorrow we'll be hearing from the Solicitor General on the main estimates. There will be another morning of hearings on Bill C-24 on Thursday. There will be additional hearings on Bill C-24 on Tuesday, May 15, and at this moment, it would be our plan to go to clause-by-clause that afternoon.

I want to correct the record. One of the witnesses made the point that we were giving it two days. I said I thought it was four, but I was thinking of panels as against days. But we will be hearing from five panels, including the ministers, over a period of three days. I just wanted to bring everybody up to speed on our plans.

Thank you very much. The meeting is adjourned.