STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 10, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call this, the fifteenth meeting of the Standing Committee of Justice and Human Rights, to order.

Today we are receiving witnesses to speak to Bill C-24, an act to amend the Criminal Code and make consequential amendments to other acts.

Welcome to our distinguished panel of witnesses, and also to members of the committee at this relatively early hour for our deliberations.

Today we have as witnesses, representing the Royal Canadian Mounted Police, Commissioner Zaccardelli; the Toronto Police Service, Chief Julian Fantino; the Winnipeg Police Service, Chief Jack Ewatski; and the Criminal Lawyers' Association, Irwin Koziebrocki and Michael Lomer. Welcome to you all. As you know, each group has ten minutes to present an opening statement. Then you will be receiving questions from our committee members. Since we have until 11 o'clock, we'll begin immediately with the first name on the list, Commissioner Zaccardelli.

Commissioner Guiliano Zaccardelli (Royal Canadian Mounted Police): Thank you, Mr. Chairman.

I was here yesterday, and I spoke extensively about this topic. For the benefit of the committee, I'd pass on making a statement, so that we can engage in a good dialogue on this topic. I'm more than willing to answer all the questions here.

The Chair: I appreciate that, and I'm certain Mr. Fantino will take your ten minutes.

Some hon. members: Oh, oh.

Chief Julian Fantino (Toronto Police Service): Mr. Chairman, you've done your homework.

First, to the honourable members of the committee, I do wish to express our appreciation for the opportunity to come here and speak about a very significant issue that we're all very concerned about. However, I don't think I need to take up a whole lot of time either with regard to the profound issues about which we speak, issues that clearly go to the very fabric of our Canadian society. This is, of course, that whole business of organized crime and its impact. Your own committee material points to a whole lot of those impacts and the economic crime cost to Canadians, and there's no need to articulate that time and time again.

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However, we do have some issues that need to be addressed: the whole business of drug trafficking in our society and the ancillary crime that's associated with that, right down to the community level; the whole business of money laundering, home invasions, extortions, high-tech commercial crime. All of these things are not only the kinds of issues that make the nightly news, if you will, but we have real victims and real citizens who are constantly being victimized because of all of these issues.

I do want to get a perspective, though. I have found over the years that organized crime, in the main, has been glamorized by movies and television. It's become, I think, in the mindset of many people a source of entertainment. And I think in some cases it's almost received respectability. Organized crime is none of these things. Organized crime is the elderly being swindled out of their life savings, immigrants being forced into a life of prostitution, one of the threats to our youth. And of course, we all know about very unfortunate, only too frequent incidents of young people overdosing on drugs and so forth. The bottom line, which we all have to appreciate, is that this is a greed-driven activity. It's mercenary in its nature, it has no conscience, and it's only done for money.

So taking the profit out of organized crime certainly is a very significant tool that needs to be put into the program for maintaining some semblance of safety, security, and quality of life and protecting our nation from the threats posed by the activities of organized crime, which are multifaceted and international in nature—it's global, as we all know.

So I wanted to come here today—and I appreciate the opportunity—to applaud the initiatives that are being proposed in Bill C-24. As you well know, Mr. Chairman, you've been on the forefront with a lot of these things, and we've been at this for a great many years. The issues we have brought forward consistently to you, the policy-makers, have been community-based. I feel that I'm here today, privileged to represent my community, to bring forward community-based issues on behalf of the citizens of the City of Toronto. That is the purpose and intent of my comments, absolutely.

Many of the amendments in Bill C-24 are absolutely critical. But I also wish to state with all candour that, as you would expect, we would hope for more work in this area, to keep the radar screen alive and continue the good work that has now resulted in Bill C-24. It's a work in progress—that's the point I wanted to make, Mr. Chairman.

In order to make significant gains in the war against organized crime, we need even more of the kinds of initiatives contained in this particular bill. I also suggest that some of the provisions contained in Bill C-24 can still be improved, to give us the intended results, which I believe are laudable indeed. For example, Mr. Chairman, members of the committee, the whole area of proceeds of crime is an excellent item. Also, the team investigative prosecution concept that is embodied in the spirit and intent of the legislation, funding to put teams in place at ground zero, if you will, to do this kind of work is very laudable. But it has to go beyond the federal offences to include some of the other offences that are hybrid in nature, but nonetheless not specifically included, as I see it, in the current proposal.

There also is a need, of course, for the federal government and the provinces to work more closely together on some of these issues, especially in the area of prosecutions and the proceeds of crime, the asset forfeiture provisions, etc. We desperately need funding to allow the Department of Justice, the provincial court attorneys, the RCMP, and our municipal and provincial police services to develop a higher effort in this area, to put together what we have termed an all-star team to combat organized crime at a national level.

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We need to have these deterrent sentences for organized criminals, including mandatory minimum sentences, with no parole until the full sentence has been served. We need, of course, in appropriate cases, lifetime provisions when offenders are released. We also need to have measures put in place to prevent the continuation of the business of organized crime while offenders are in prison. That's an area that has to be looked at, because merely putting people in jail is not the end of the problem, as I understand it. We need mechanisms to work in partnership with law enforcement agencies in other countries, and these partnerships, of course, need to be all-encompassing, because of, as I stated earlier, the international aspect of what we're dealing with here.

I also wanted to very quickly highlight a couple of items that I think need to be looked at. The business of recruitment into organized crime activity, I think, needs to be dealt with, because in a leadership position you don't get leaders going out and recruiting soldiers to work in these gangs. That's done at arm's length. The leadership offence, to me, has to be made much clearer, in that if you're a leader, you're a leader, you don't necessarily have to go out and recruit in order to qualify as a leader, as appears to be explicit in Bill C-24.

I also would like to suggest that this committee look at the issue of the wearing of badges. I know there may be some concern about the provisions of section 2, freedom of expression, of the Charter of Rights and Freedoms. However, there should be some presumption issue identified in that area, where the wearing of certain badges that clearly reflect the activity in an organized crime gang should be a reverse onus situation.

As well, there's the matter of mandatory sentences. Minimum sentences, we feel, should be embodied in the legislation dealing with organized crime offences.

I would also like to suggest that in certain circumstances the expansion of police power should be in place to detain, search, and investigate members of criminal organizations—identified, recognized, known criminal organizations.

To quickly move along, what is presently proposed in the bill does not extend to provincial legislators and their families—this is the whole threat and intimidation area—working on issues dealing with organized crime, even municipal people. I'll give you a very quick example. A municipal councillor working on an activity to close down outlaw biker premises is no less vulnerable than I would be in my job. So I think we have to broaden that scope to include all those people who in their lawful execution of mandated duties are working, in effect, for some kind of outcome to counter the activities of organized crime. I urge you to consider embodying in this legislation specific protection for all those people, right down to municipal councillors. They are very much part of the team and we need to have them and their families protected.

Finally, the immunity section I know is an item of great debate. Well, Mr. Chairman and members, you should give us the tools to do the job as we know it and meet the extraordinary challenges we face, and deal with a greater public good here, not hung up on the notion that you give the police a bit more power and authority or a wider scope of mandate, and all of a sudden there will be abuses. That's not this country. That's not how we operate here. We have accountability in our country. Checks and balances need to be put there, I agree with that totally. But I find it objectionable that men and women who are on the front line facing extraordinary danger should not be given the tools and protection to do a very dangerous, very difficult job.

If it's the will of this country that we not do that, then let's have that clear. But I take exception to all these issues being put forward as if giving police authority to do certain things means that all of a sudden we're going to go off and abuse them. Checks and balances and accountability, absolutely, but I don't think you can say that 25,000-plus men and women in Canadian law enforcement would be corrupt just because we intend to address the greater public good.

I know time is running out, Mr. Chairman. I'll have more to say later, I hope.

• 0850

The Chair: You did very well, Mr. Fantino.

Next is Chief Jack Ewatski of Winnipeg.

Chief Jack Ewatski (Winnipeg Police Service): Mr. Chairman, honourable members, thank you very much. It certainly is a pleasure to be here this morning and I thank you for this opportunity.

As the chief of police of one of the major metropolitan areas of this country, I come before the committee today to speak about the most serious threat to public safety in Canada today, that being organized crime.

As a member of the Canadian Association of Chiefs of Police organized crime committee as well as a member of the Criminal Intelligence Service Canada executive board, I can bring forward the fact that organized crime is a national law enforcement priority.

Organized crime is a real and present threat to our society here in Canada as well as to nations around the world. We cannot view organized crime activity in jurisdictional isolation because sophisticated organized crime groups operate in a global economy setting.

The social, financial, and public safety impacts of organized crime are real. The cost in human suffering as a result of activities such as prostitution and drug abuse cannot be measured by dollars alone. The negative impact to our social fabric can be seen by those who have been caught up in the web of deviant lifestyles and dependence resulting from criminal activities and by those whose actions promote a feeling of hopelessness and fear.

When one considers the financial losses associated with organized criminal activities by various criminal acts, not only to individuals but also to our economy in general, it can easily be established that organized crime costs Canadians billions of dollars each year.

Thefts, robberies, drug sales, extortion, and fraudulent acts, to name a few, account for staggering amounts of money and goods that are siphoned from the pockets of honest people, laundered through a network of illegitimate establishments, and put in the hands of those who choose to live outside of society's rules.

Safety, and more importantly, the perception of safety, is negatively affected by criminals, organized or not. It is the fear and intimidation of organized crime that strikes terror into the hearts of Canadians when accounts of violent, ruthless, and senseless acts are reported on.

The feeling of fear can be described as a silent killer of community, health, vibrancy, and spirit.

The Canadian Association of Chiefs of Police understands, as any public safety issue, that organized crime has to be attacked in a multidisciplinary three-pronged approach. Awareness, education, and enforcement are the components of this approach, and strategies must be developed for each one. One of the biggest challenges is ensuring that the Canadian public is aware of the threat that organized crime poses to our country. The heightening of this awareness must be done responsibly to ensure we are not contributing to the feeling of panic, without losing sight that organized crime is real and alive in our country.

Communication strategies must put a face on organized crime to counter the perceptions held by many who believe it only exists in other societies and not in Canada.

We must tackle the problem at the grassroots level with the youth who need to know that organized crime or any criminal lifestyle is not something to aspire to. The glamour of the gangster culture, as expressed in the name of entertainment, is not real. What has to be shown are the real consequences of criminal behaviour, including incarceration and/or a violent early death.

Enforcement needs to be swift, strong, and consistent when criminal activity occurs. Police and all the players in the criminal justice system need the tools to get the job done. We all play a role in this endeavour, and whether it's resources, training, or legislation, these tools must be available to us when needed.

As I said before, organized crime is real in this country. My peers from other jurisdictions can speak with much greater authority about criminal activity in their areas. I can tell this committee that in Manitoba organized crime exists. Motorcycle gangs, culturally based gangs, and enterprising criminals who band together in a non-traditional organized crime model have made their presence known in my province.

Drugs, prostitution, extortion, violent crime, money laundering, and credit card frauds are just some of the activities that have been linked to organized crime groups in Manitoba.

Although the level of sophistication between an international motorcycle gang and a local street gang may differ, they all have one thing in common: they prey on society by various means for their own lawless, selfish purposes, not caring about the damage they do to others.

The proposed legislation contained in Bill C-24 is in my mind a step in the right direction to enhance the capabilities of the criminal justice system to stay ahead of organized crime. These are some of the legislative tools that we as chiefs across this country have been asking for. These tools will be used by our front-line officers to be as effective as possible in dealing with this serious criminal activity.

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We must be very clear in the message we want to say to those who believe in a lifestyle of organized crime. The message must come from a united voice of those tasked with public safety. And it must say loudly that Canada is the absolute worst place in the world for organized crime to operate in.

Thank you.

The Chair: Thank you very much.

The Criminal Lawyers' Association is next.

Mr. Irwin Koziebrocki (Vice-President, Toronto, Criminal Lawyers' Association): Thank you, Mr. Chairman.

With me is Michael Lomer, who is the treasurer of our association. Both of us are co-chairs of the legislation committee.

It's always been a privilege for the Criminal Lawyers' Association to be asked to attend before this honourable committee. On many occasions in the past we have accepted your gracious invitation and hopefully provided you with assistance with respect to proposed criminal law legislation.

Before going any further, we must acknowledge that the issues addressed in this proposed legislation are of the highest order. There is no doubt that this House has a duty to address issues of criminal responsibility. If organized crime and gangs are as serious a problem as portrayed, then that problem must be addressed. The real question is whether this proposed legislation is a proper balancing of the needs to protect the public from crime, at the same time balancing the obligation to protect the public from unwarranted over-reaching by policing authorities.

The need to fight crime cannot come with the abdication of responsibility and that right to policing authorities. Philosophically, our position would be that the police, like any other citizen, ought not to break the law. That has been the position of this and other democratic countries for the last 200 years. It is a fundamental tenet of our democracy.

Having said that, we do recognize that the position of the proposed legislation has come some distance from its original form, and a number of issues have been addressed. My colleague Mr. Lomer and Ms. Janet Leiper took part in a Department of Justice round table in October of last year, where the original proposed legislation was presented. Our position was presented to the Department of Justice with suggested changes. Some of those were in fact addressed and adopted at the next stage.

In January of this year I was invited to attend the Department of Justice, at the invitation of Monsieur Roy, where a revised proposal was presented. Again suggestions were made specifically with respect to political public accountability. Reading the proposed legislation before you, some of those suggestions were in fact adopted. And that is a step, in my respectful submission, in the right direction.

It is important that this House and Attorney Generals and Solicitor Generals across the country be held accountable when police break the law. There are many questions that need to be answered with respect to this particular proposed legislation. I'd like to address some of the highlights.

While the legislation is addressed as organized crime legislation and it is intended to provide the tools to fight the type of crime, it is not necessarily so. The legislation is far-reaching. Policing authorities are not limited to organized crime types of offences; they can break the law in many areas. They can go into areas of virtue testing... those who may be susceptible or suspected of criminality.

• 0900

As you know, we've had several royal commissions in the past where the police have broken the law, and not only the courts but also this honourable House have set up royal commissions to determine why and how that happened. Targets can include not only organized crime but also members of legislatures who are believed to be corrupt, other police officers, and lawyers. It depends on who is doing the investigating and what their particular bias is. In effect, this is the type of legislation where the caveat “buyer beware” has to be attached to it. It can go far beyond the definitions that are applied to organized crime.

The definition of organized crime in the legislation has become expansive. In my respectful submission to you, it has little to do with organized crime. There is presently a definition in the Criminal Code, which was put into that code two or three years ago. It requires five members of an organization and a certain course of conduct over a period of five years.

The first prosecutions with regard to that legislation are presently before the courts. The constitutionality of that legislation is being tested in the courts. It appears to have survived at least the first test, and it is proceeding through the courts. We are now asked to change that legislation to provide a definition of organized crime that includes three people who commit indictable offences.

Once upon a time I was involved as a prosecutor with an organization called the special enforcement unit, a joint forces operation, which some of the members of the panel will remember, and our definition of organized crime was a little different.

This definition would include, for example, three young people who decide to break into several cottages on a sunny afternoon or over a weekend up in cottage country. This definition of organized crime would include three grannies who sit in the basement and decide to pass some bum cheques because their pension isn't enough to get them through the month. You have indictable offences, three people, and serious. They would fit the definition of organized crime that you have in this proposed legislation. The consequences are consecutive sentences; no parole unless you serve half your sentence; and if you happen to be the ringleader of those three young lads who are breaking into cottages, the prospect of life imprisonment.

That's the type of issue that we suggest is addressed in this legislation. What is happening here is an overreaching of the purpose of this legislation.

One of the main issues is whether the police should break the law and with regard to that, the issue of accountability of public and police officials. The legislation has gone some way to put accountability where it belongs. In the past in dealing with any kinds of breeches of or interference with private rights, you had an authority such as a judicial officer okay that accountability. For example, in search warrants you have a justice vet the material to decide whether or not a search warrant should be issued. With regard to the authorizations of intercepted private communications, you have a superior court judge determine whether or not it's appropriate.

In these circumstances, probably the most serious change in our law in the last couple of hundred years, what you have is the Solicitor General of Canada appointing certain senior police officers, who then can appoint some subordinate police officers to break the law.

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The issue of accountability and delegation is basically given to the policing authorities. There is no requirement that those people in authority, who could be accountable in a public way, are held accountable. A judge isn't asked to authorize the breaking of the law. A minister of the government can stand up in the House and explain why particular laws were broken in certain circumstances, but they are not asked to be accountable, say, for those people they appoint. There is a serious breach in the link here.

If you're being asked to delegate such an important authority, we would suggest that at the very least those people who are accountable should stand up and say yes, we knew the circumstances, and we authorized the breach of the law. It doesn't happen here.

You are authorizing the breach of the law in almost every serious case, save for murder and sexual assault. In effect, in their work the police can do anything short of murder, serious bodily harm, or sexual assault. For example, they can commit robbery if it is important to do so in their undercover work. There are serious breaches that are left to a senior police officer to authorize. On some occasions it's not the senior police officer who authorizes them, but rather the officer in the field or those people working for the police, such as informants, who are usually criminals. Those are serious matters that one ought to consider in these circumstances.

There are, as you can see, other issues that need to be addressed with regard to this legislation, including the creation of a new offence of first degree murder under proposed subsection 231(6.2).

There is the offence under proposed section 423.1 of interfering in the administration of justice. In that particular proposed section, and we might discuss it, all kinds of issues arise, including the phrase “a person known to him or her”. You can intimidate a person in the justice system or persons known to him or her. I presume that means known to the person in the justice system. Does that include that person's butcher or newspaper delivery person? The proposed section is very broad, and it may include all kinds of people.

It provides for activities that in themselves might not constitute first degree murder. For example, there are circumstances that might be manslaughter in a normal situation that now become first degree murder. That part ought to be looked at seriously.

Proposed subsection 467.11(1), involving assistance to organized crime, creates a problem in itself and may have constitutional ramifications. It says that anyone who knowingly contributes to any activity with regard to a criminal organization commits an offence. If you are renting land or property to the Hell's Angels, are you committing a criminal offence because you happen to know the general reputation of Hell's Angels? The section says you don't have to know who the people are, you don't have to know what criminal offences they're committing, and you don't have to know what your assistance does to assist in the particular crime. Delivering groceries to the Hell's Angels may be an assistance to them in their criminal enterprise.

• 0910

Next, I have questions with respect to jury provisions, proposed subsection 631(3.1).

The Chair: Could you bring this up in a couple of minutes?

Mr. Irwin Koziebrocki: I'm going to finish in a minute.

The Chair: Okay.

Mr. Irwin Koziebrocki: Do you wish to protect jurors? You speak about jurors in terms of their anonymity in certain cases. You speak about protecting their privacy rights. With respect, privacy rights ought not to be the determining factor as to whether an accused person knows the jury of his or her peers with respect to who will try that person. Their safety may certainly be an issue, but privacy rights have never been considered to be an appropriate basis for juror protection.

Basically, what we say to you is that when you look at this legislation, you may well wish to look at it from the perspective of whether it's overreaching, whether it goes beyond what you intend to do, and whether we effectively curtail the rights of the public in some serious fashion in the effort to resolve what is certainly a serious problem, but a problem that can be contended with in a more measured manner.

Thank you, sir.

The Chair: Thank you very much.

I go to—

Ms. Judy Sgro (York West, Lib.): Mr. Chairman, I have a point of order. Would it be possible just in order to save time, since we're so limited in the amount of time we have for questions, to see if any other panelists would like to respond to the comments made by the Criminal Lawyers' Association?

The Chair: I'm in your hands. Do we have consent?

Mr. Chuck Cadman (Surrey North, CA): I would like to get the first round over with first.

The Chair: Okay. Mr. Cadman would like us to perhaps do the first round and then come back to having each of the members perhaps... So if you have any—

Mr. Chuck Cadman: We don't want a fist fight.

The Chair: If you have any questions you'd like to direct or some responses you'd like to direct to... please keep that in mind.

Now we'll go to Mr. Cadman for seven minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I thank all the witnesses for appearing. It's been a long week on this committee.

This is for the chiefs. We had the representatives from the Organized Crime Agency of B.C. in here a couple of days ago, and we talked to some extent about the funding that's being made available. In their opinion, from the way it was broken down on paper it seemed reasonably adequate. However, by the time it was broken down in reality and you saw what was actually getting to the front lines, the money that was going to be allocated to actually doing the fighting, doing the policing, didn't seem to be very much.

I'd just like to get your opinions, each of your perspectives, on that, on the funding. Is it adequate? Is there enough? Does there need to be more? Should there be a reallocation? I'd just like your perspectives on that, on the funding and resources.

Commr Guiliano Zaccardelli: Mr. Chairman, since I was the recipient of those funds, maybe I can speak first.

Yes, we were very pleased to get the funding. Is it all the funding we wanted and need to do everything we want to do? No. But it certainly was a substantial enhancement to our ability to deal with organized crime.

It is not only money and resources that will help us, we have to work better. We have to leverage our resources together as a collective community, not only in policing but with other sectors of society. There are a multitude of factors.

To answer your direct question, I'm pleased with the money we got. We could use more, but with what we've got we're going to be able to provide a much better service to the Canadian public.

Chief Julian Fantino: Mr. Chairman, I'm not pleased.

I'll qualify that, if I may. This is truly a national issue, and truly it's even more than that, of course. It's an international situation. Nonetheless, let me just talk about our own responsiblity as a nation in this particular area.

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The city of Toronto is the largest municipality in this country, and I'm told it's the fifth largest in North America. A great deal of the activities we recognize to be organized crime and the very significant impact that results permeate right down to the community level: our neighbourhoods, the schools, our children, and the quality of life in our neighbourhoods.

I can tell you that, yes, we do work very well with our other agencies. There are all kinds of joint integrated efforts going on, and there is more to be done, as the commissioner has stated. However, I feel totally inadequate in my ability to direct resources away from the day-to-day pressing issues I have to contend with. I call it a production line; I have no control over the speed, nor can I stop it.

We receive some eight million calls for service annually. We drive 33 million kilometres a year in our city, and that's just doing routine police work.

I want to make it clear that the significant activities that are recognized to be organized crime are happening in my community, at the street level in my neighbourhoods. I do not have any direct federal funding to help me dedicate the necessary resources to sustain the very labour-intensive, difficult work that has to be done in this area to the extent we should. We're doing our best, but every day I feel like a beggar trying to find the resources to do the kinds of things that are of national priority.

Thank you.

Chief Jack Ewatski: Mr. Chairman, I'll just echo Chief Fantino's comments, coming as I do from a municipality.

The issues surrounding organized crime have become so complex and the investigations have been so complex that business cases have to be put together relative to investigations. We certainly don't want to be put in a position where we have to decide our priorities based strictly on business cases. I think sometimes it's the appropriate thing to do and is what has to be done to fight some of these activities.

It makes it very challenging for police chiefs across this country who, faced with limited resources, must carry on our day-to-day activities and then be faced with a very complex and expensive investigative process to deal with some of these sophisticated groups. We've experienced that in Manitoba recently.

I could tell you that I feel the same way. We have to work really hard to try to do things better, but there comes a point where our resources are stretched to the limit. Getting into some of these very complex investigations puts tremendous pressure on our routine policing activities.

The Chair: Mr. Cadman.

Mr. Chuck Cadman: Yes, thank you.

To the Criminal Lawyers' Association, you express some concerns about the definitions, that is, about how the organized crime group is defined. Some other people have expressed some concerns over that too. We're all here to learn, to find out how can we do things better.

If you're concerned about somebody like the Organized Crime Agency above) of British Columbia going after the Raging Grannies for conspiring to block a logging road in Clayoquot Sound, this is a group I'm not sure we really want to target. How would you define it? How should we change it? How should the definition of an organized crime gang be worded? We certainly don't want to go after the Raging Grannies.

Mr. Irwin Koziebrocki: My view is that at this stage we've gone through step one. Step one was to provide a definition that, when you looked at it, reasonably reflected what we believed organized crime was all about: a group of people who dedicated their lives to committing criminal offences. It sets up a definition that is fairly standard throughout the western world, certainly, such as in the RICO statutes in the United States. There they talk about five people over a period of time that's defined in the legislation, that is, five years committing a series of crimes. Though you may not be able to prove each particular crime, you can show a pattern of criminal activity that would get you within that definition.

You've just started—literally just started—the prosecution aspect of that particular definition of criminal offences, and you want to change it. You haven't seen how that works yet. In fact, right now there are matters that are before the courts. The last I heard, the constitutional aspect of that legislation at the trial level had been upheld. Convictions had been successfully obtained with respect to that particular prosecution, and I expect it will move its way up.

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What's effectively wrong with what you've done so far? Why do you have to do this? This doesn't give you any more with respect to the people who we would traditionally consider to be organized crime people.

For the rest of the people, there are the Criminal Code and the Controlled Drugs and Substances Act. There are conspiracy charges, there are aiding and abetting charges, and there are accessory charges, and they're all there in the Criminal Code. Nothing's changed with respect to that.

It is this particular aspect of criminality you want to address; to change what you've already gotten and are in the process of testing, there is the issue in terms of the definition. I like the definition, and I can live with the definition you have now for the purposes of criminal organizations.

This, of course, is subject to the caveat that the day I get to go to the Court of Appeal and the Supreme Court of Canada, I'll then say that it interferes with constitutional rights.

Mr. Chuck Cadman: Thank you, Mr. Chair.

[Translation]

The Chair: Mr. Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I won't be able to stay for a second round because I have a Committee meeting. I do hope that you will be more lenient to me with time as I will only be there once.

I totally disagree with the assertion that...

[English]

Control yourself.

[Translation]

Will that curtail my time, Mr. Chairman?

[English]

The Chair: You've already spent 19 seconds.

[Translation]

Mr. Réal Ménard: I have four questions and one comment.

One of the questions concerning parliamentarians deals with the quite broad notion of immunity that we are planning to give. On the one hand, I would like to know why the notion of immunity as it is proposed in the bill should not be circumscribed to acts of gangsterism instead of applying to all criminal investigations. On the other hand, I would like to know why a judge and the judiciary could not intervene as is the case with seizures or other similar arrangements in criminal law. I would like you to give us very precise examples because that is an issue that preoccupies the Bloc sufficiently to table an amendment. That is my first question.

Second question. Mr. Fantino, you talked about the violation having to do with the leadership position having to be clarified. I would like you to give us more information on that. It is the same thing when you want to broaden the search powers that are related right now to the Seized Property Management Act. I would like you to give us some explanation.

You also talk about the wearing of jackets and badges. I understood that it was an indication contributing to the evidence of the offence defined in section 467.1. Tell me if I understood you right and, if it is not the case, what you would like exactly.

As for the assertion of the criminal lawyers, I am willing to bet a large beer that what they are maintaining is not plausible for the very simple reason that when you mention...

[English]

You aren't listening to me, I think. I'm going to have to question. Oh, you can't work. Okay, I'm going to ask a question for you.

[Translation]

I was saying that when you mentioned that three youths deciding to break-and-enter in a cottage could be considered part of a criminal organization and that we cannot uphold that before the committee within the terms of the legislation that says that the definition does not include a group of individuals formed randomly to commit a single offence.

Therefore, I hope that you will explain to us how you intend to demonstrate that offences committed randomly regarding, for instance, a cheque without provisions or breaking-and-entering into a cottage are possible. I will stop my questions here in the hope of getting answers.

• 0925

[English]

Commr Giuliano Zaccardelli: You asked many questions. I do not support this being put in front of a judge in terms of the immunity aspect for police officers. I believe there should be clear separation. The judicial part of our system should not be involved in any way with the investigative process. I believe the accountability process with the minister and with the chiefs of police is the proper way to go.

I know that a correlation has been made, or the question has been asked: what about wiretaps, affidavits, and so on? Those are for very set parameters, very limited timeframe, and so on. I don't believe those are the two... and they shouldn't be. We shouldn't involve the judges in this process. I believe there's clear accountability through the minister to the chief of police, and there is no group in society that is more monitored and more scrutinized than police forces in this society.

Clearly the accountability is there, and, as Chief Fantino has said, the chiefs in this country are very responsible. We compare ourselves to any country in the world, and we will come out ahead in terms of how we behave, the integrity of our organizations, and the standards that we have upheld in terms of providing quality policing. I have no question about that.

[Translation]

Mr. Réal Ménard: Why would a judge not be able to do it? Is it because it is not possible when you are investigating? Give us some explanation.

I do not doubt the integrity but we live in a society of law and nobody is able to explain to us why it is possible for wiretaps, for seizure, and impossible during the course of an investigation. Give us an example.

[English]

Commr Giuliano Zaccardelli: I can't give you an example. It is possible. You could write the legislation to give it to a judge. I don't deny that. It is possible. I believe it's the wrong way to go. I believe that in our system it would be a mistake to involve the judiciary in anything related to a criminal investigation or the criminal process where the investigative people are involved. We have clear accountability through our ministers, who are elected officials, and I believe that is the way it should go—within that system. You have a number of alternatives. I simply believe it is the wrong way to go in our system. I'm not saying it's not possible. You could do it. I believe it would be a serious mistake.

Chief Julian Fantino: Mr. Chairman and members, I won't elaborate further as to what the commissioner has stated.

I do wholeheartedly agree with the position that he has articulated. I do wish to highlight the fact that I'm absolutely and totally in favour of very stringent accountability with respect to these issues. We do that now with many, many different things. I have to tell you that the most vulnerable position on any police department is the chief because I, as police chief—no matter what any of my people do, no matter what circumstances prevail—am ultimately accountable for all of their actions and everything that happens in my service. I don't know how much more accountability than that you would wish to have. My head's on the block all the time, on every decision taken by all of my people, and I accept that. That's part of our system, and I buy into that.

However, I do want to reinforce the fact that we ought not to confuse the role of the police with the independent role of the judiciary or any of the politics that play into the role we are mandated to do. That's my view.

Mr. Réal Ménard: It's not an explanation. We need some more explanation to understand why. It's when the process of the inquiry is difficult to stop. We want to have more explanation to understand why you need this kind of way.

Chief Julian Fantino: If you're looking for a very specific explanation, first, it's a philosophical one that is entrenched in the way we do business in this country. There's a very clear separation between the role of the police and the political role and all of that, and the accountability that goes with it.

But there's also urgency here. We now have a tele-warrant system, for instance. Well, we have one heck of a time getting access to the things we need immediately to be done. I can tell you as well that in very difficult circumstances—this is our life—decisions are made in the split second. You don't have time to consult with lawyers and call a committee meeting when decisions need to be taken as to whether or not a certain thing needs to be done. Very often, these are life-and-death, threatening situations. We need to have that kind of latitude to, in effect, do our job honourably, ethically, professionally, and in keeping with the exigencies that prevail.

• 0930

Let me give you a very quick quote here, which I love to share with people. This is a quote by Jeffrey Robinson, author of the book The merger: how organized crime is taking over Canada and the world. He states:

As long as we live in a world where a 17th-century philosophy of sovereignty is reinforced with an 18th-century judicial model, defended by a 19th-century concept of law enforcement that is still trying to come to terms with 20th-century technology, the 21st century will belong to the transnational criminals.

So organized crime seems to have a green light on every issue, including the lack of teeth in our current system. Yet we want to put handcuffs on the police. Well, if that's what the people want in this country, then it's up to you do to that. We are duty-bound to follow the rules, and we will.

But I think it's a false notion that the police, by having extraordinary powers... which we do today, by the way. What's so different about all the other things we do today? By putting handcuffs on the police, you're going to acquire a balance? I've got news for you—there are no bounds with the criminal element. But, anyway, you make your decisions on the basis of your conscience and what you think is proper. I'm just giving you how it is on the front lines, where I work, and where I live, and where I operate, and where my people are.

I want to go very quickly, because I know time is flying here, to the business of the badge issue. The bill now of course attaches consequences, as we know, to the wearing of badges or other manifestations of membership in a criminal organization. I don't think it's strong enough.

I did acknowledge earlier that I'm not obviously a legally trained person. I don't know that an out-and-out prohibition would withstand the charter issues. However, I think that we have to recognize full well that wearing a boy scout's badge to me is different from wearing a one percenter badge on the shoulder or the arm or the jacket of a reputed, well-known organized crime member, i.e., biker gang members.

There are clear, clear advertisements that go with those badges. Although we can't have an out-and-out prohibition, I think there ought to be a reverse onus. When such things are very clear as to what they represent, then that reverse onus should be embodied in the interpretation given. I think that's called a rebuttal presumption of participation based on the wearing of badges. I think you should consider that.

I think the final item from the member, as I recall, was the business of the leader. As presently drafted, the proposed crime requires that the crown prove beyond a reasonable doubt that the accused instructed, for instance, a person to commit an indictable offence for the purpose of benefit and in association with a criminal organization—the organized crime piece.

This has been an issue for us in that we need to dismantle these organizations, and we need to get to the leadership. Very often the leadership is insulated and well protected by all of the other underlings who work in the hierarchy, as we well know. Much of the work is done by subordinates, for instance. The heads of large criminal organizations do not often personally engage, instruct people, or otherwise lead people in criminal activities. They are too smart for that.

From our point of view, attaching liability to leaders of criminal organizations on the basis of a requirement that they occupy a position of power or authority or control within the criminal organization and knowingly receive rewards or benefits, etc., as consideration for occupying this position would be a preferable, more realistic approach to this thing than what is now presently identified in the bill, or as we interpret what is proposed in the bill.

I hope I've answered your questions, sir.

The Chair: Thank you very much.

Mr. Lomer.

Mr. Michael Lomer (Secretary, Criminal Lawyers' Association): Thank you very much, Mr. Chairman.

Dealing first of all with the question of the definition of a criminal organization and how it wouldn't encapsulate three youths who go on a break-and-enter spree one weekend, all you have to do is say, well, if they break into more than one cottage, you would no longer have a single offence. If they know each other from—

The Chair: In the interest of the translators, could you twist those mikes a little bit more?

Mr. Michael Lomer: Certainly.

Chief Julian Fantino: I always like to help the lawyers.

• 0935

Mr. Michael Lomer: As well, if the three youths met at school, they didn't meet randomly. I know of no prosecutor who couldn't get around the “forms randomly” issue, because nothing forms randomly. The reality is that is almost a limitation without a limitation to it, because “forms randomly”... If they all met at a bar, it wasn't random; they met at a certain place and that's how they got together. So it wouldn't be random. It wouldn't be that they all showed up at the cottage at the same time with the same idea. So you will be able to get over that very low hurdle without any difficulty.

So the reality is that, yes, you can get more than what you wanted to with this legislation.

With respect to the issue of judicial authorizations of the immunity, as opposed to giving it within the police services, I note that you can't break into somebody's house, even a police officer, without a search warrant or absent certain very limited exigent circumstances. You can't wiretap an individual, because the Criminal Code says it's illegal without a judicial authorization. In logic, there's no reason why, if you were going to authorize other types of what would otherwise be criminal behaviour, you can't get prior judicial authorization for it. So there is no logical reason why it shouldn't be there.

I recognize that it would be an impediment to the police, because search warrants are an impediment to the police, and so are wiretap authorizations. But it's one of those balancings we do in our public affairs that say we are not going to give them a completely easy way of getting the evidence—they're not going to be able to wiretap at random; they have to have an authorization.

With respect to the mention of these emblems and leaving aside the serious issue of the constitutionality of proposed section 467.11, which we won't even get into, suffice it to say that this would be challenged almost immediately in any prosecution. Not every teenager who wears a Che Guevara T-shirt is a revolutionary. The first thing you are going to see, if these badges and emblems become somehow the common coin of criminality, is you're going to have them marketed like Toronto Maple Leafs crests and things like that. What other way would you expect them to deal with that sort of thing? It's a very difficult thing to try to create criminality by a mere status offence and identify that by what they wear.

The Chair: Thank you very much.

Mr. MacKay, welcome.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

Welcome to our guests. I apologize for not being able to attend your presentation.

I have a question with respect to the special designation that will be afforded police with respect to immunity. I will state at the outset that I do feel that there are limited circumstances where that designation can be granted, and I'm somewhat comforted by the after-the-fact accountability that will be required in terms of the reporting, in terms of the review.

One aspect of it that does trouble me is the fact that there doesn't appear to be any set designation of expiration; that is, once they've got their 007 status, there doesn't appear to be even any review, other than the reporting scheme that's set up. And I certainly take to heart what's been said by Mr. Lomer just recently that there is going to surely be a constitutional challenge.

Does this lack of set period of designation concern you? And secondly, is there some merit in perhaps having a constitutional reference on this issue? I know that would be some delay, perhaps, in the commencement of this legislation, but it appears it is inevitable that this is going to wind up before the court. I have some sympathy for prosecutors who are going to be carrying the load in the sense of prosecuting a case while at the same time doing the Department of Justice's bidding in the first instance, because this is going to make its way through the courts and within a year it's going to be before our judiciary at the highest level in any event.

I would invite comment on any of those remarks.

• 0940

Mr. Michael Lomer: With respect to constitutional references, the Supreme Court is of course there to take whatever reference the government chooses to give to it. That certainly may be a way of getting prior sense of it. The difficulty with that is that they have no facts basis to work from. That's always been a difficulty when it comes to a constitutional reference.

I share your concern with respect to the fact that it does seem not time-limited. It's sort of reminiscent of the old writs of assistance that the RCMP used to have, where you'd give it to an officer and it would sort of stay with him until he retired.

It seems to me that is certainly something that if it's not in the legislation would be of some concern, particularly if you choose not to have judicial authorizations, but have it as sort of a political... or the Solicitor General and that sort of thing. Once you let it go, how do you ever protect yourself and have some sort of accountability at the end of the day when you don't know if five years later it may come back in another form completely unexpectedly? So they are legitimate concerns.

I don't think there's anything else I can add right now. Irwin?

Mr. Irwin Koziebrocki: In terms of a constitutional reference, assuming that the legislation stays in the fashion it is, I have some sympathy with that particular approach, given the fact that much to my chagrin I was one of the counsels who argued Campbell and Shirose in the Supreme Court of Canada, which seems to have opened this gigantic can of worms, if I can call it that.

When I appeared in the Supreme Court of Canada I thought that I was basically arguing a tenet of law that had existed for a hundred years. The Supreme Court of Canada was reaffirming that no one was above the law. But it appears that there are those who feel that curtailed the ability of the policing authority to do their proper investigation.

I may beg to differ on that particular view, because for many years the police have been able to investigate with the tools they've had, and they've now indicated that they are handicapped in their approach.

I would think that what you are being asked to do in this piece of legislation, which is so contentious, is change a course of our democratic system and laws. If you want some authority from the highest authority, aside from the highest authority that we have here, it might well be appropriate to test it and see whether the various components and the accountability that's built into this section are sufficient.

My view is that they're not sufficient, that the determination of who commits criminal offences and how those criminal offences are committed and what criminal offences are committed are given to policing authorities. They ought not to be there. They should either be with judicial authorities or they should be with the Solicitor General of Canada or the Solicitors General or the Attorneys General of the provinces, so that we are all accountable in those circumstances.

The Chair: Is there another comment?

Commr Guiliano Zaccardelli: Mr. Chairman, you asked if we could comment on what our friend from the defence bar said before. I would like to make an appropriate intervention here to comment on my friend, Irwin Koziebrocki, who I haven't seen for many years. We worked together, actually, once upon a time, and very well. He was a great prosecutor, by the way, but a strong defender of the police's right to do their investigations.

Mr. Irwin Koziebrocki: I still am.

Commr Guiliano Zaccardelli: I can't pass up on commenting on what he just referred to, saying that the police have always had the authority to do their investigations and they have all the powers they need, and they still have them.

• 0945

The fact is he was there at Shirose and Campbell, and Shirose and Campbell did change the landscape in this country. As police officers we used to be able to do things under the common law that were accepted. They weren't illegal; they were accepted in our system as powers and as means the police needed to carry out their duty in society. I'm not a lawyer, as Julian Fantino said, but my interpretation is that we are asking, as police organizations, to simply return to a level playing field, to where we were before Shirose and Campbell.

Shirose and Campbell simply said, in my honest opinion, that what you were doing before you now need authorization for. There's legislation to do that. That's what they were saying.

So what we need, perfect examples that I can give you... Before Shirose and Campbell, a police officer could go and buy a stolen credit card, stolen property, and they were not prosecuted for that. It wasn't considered illegal. It was considered part of what the police had to do in order to identify a pattern of activity, to determine whether or not this was a single transaction or whether this was part of a bigger issue.

The federal government in the last number of years has invested tremendous amounts of money trying to bring under control the whole issue of smuggling alcohol and tobacco in this country, which had become a crisis. And they have brought it under control. How did we do that? We did that through various reductions in taxes and so on, but we also gave certain resources to the police to investigate. And how did we use those resources? Part of what we did was we actually went out and, lo and behold, bought illegal alcohol and illegal tobacco. We were able to do that before.

Since this case, we can't do that. We haven't been doing that. This means there are criminal organizations that are profiting and taking advantage of what's going on in society, as Chief Fantino has said. So I can't send my police officer and pretend to be a smuggler or pretend to sell or buy illegal goods. So these are real practical issues.

Credit cards used to be considered a nickel and dime business. It's now a multi-million-dollar business. Criminal organizations are involved in it. How do we go and test to see whether there are illegal or counterfeited credit cards?

Protecting the currency of our nation, how important is that? I can't send a police officer to buy sophisticated counterfeit currency now because of our need to respect the law—and we do respect it.

This is what we're talking about. We're not talking about committing illegal acts. We didn't commit illegal acts before, and we don't want to commit them now. But we need somehow to gather the tools to be able to do this.

It's very interesting, and there have been a number of scenarios put out, some of these scary scenarios. I'm really glad Irwin talked about the three cottages. He didn't talk about the barn, and I'm really glad. As a member of the RCMP, I'm really glad for that, Irwin. Thank you.

Mr. Irwin Koziebrocki: I'm sensitive to dealing with the RCMP.

Commr Guiliano Zaccardelli: Thank you.

In 1997 a new Controlled Drugs and Substances Act was brought in. That act gave the police the authority to actually sell drugs. How many times have we done that? We've done it once. We're allowed to grow drugs for our investigative purposes. Once, since 1997. Is that an abuse? Is that bringing the administration of justice into disrepute?

I think that's responsibility. I think it's living to the highest standards that are imposed upon us. I think that's about accountability. That's what we're talking about here, ladies and gentlemen. As Chief Fantino said, if we haven't got the means... I realize there's this balance, and there will forever be this balance, and we should be given powers very reluctantly in our society. But we do need some basic powers, some basic tools. That's what this argument is all about.

We can talk about the kids and the cottages, but Irwin would have kicked me out of the office if I'd have come in with the cottage story and the three kids. You know that, Irwin.

Mr. Irwin Koziebrocki: But not everyone is like me.

Commr Guiliano Zaccardelli: We could talk all day about defining organized crime, but when we're dealing with an organization we know instinctively whether they're organized crime or not.

The Chair: As a matter of fact, we can't.

We go to Judy for seven minutes. Or if you'd like, before some of you arrived we decided that after the first round we were going to give the panel an opportunity. I think maybe they found their opportunity, whether we gave it to them or not. Perhaps in the course of the next hour we're going to be able to do that. In any case, we go to Ms. Sgro.

• 0950

Ms. Judy Sgro: My first question is to the lawyers, and to Irwin. And I don't want to waste my time, because seven minutes can disappear quickly. I'll be short with my questions and please be short with your answers.

You live in this country. You have to be concerned about organized crime and the amount of it that's in this country. What do you suggest the police do, and what tools should we be giving them to do it?

Mr. Irwin Koziebrocki: If Commissioner Zaccardelli says to you, “I need the right to buy stolen goods”, why can't you have a specific provision in the Criminal Code that says the police, in the course of their investigation, can purchase stolen goods?

If Commissioner Zaccardelli says to you, “We need the right to purchase stolen liquor, or the liquor that breaches our customs laws”, give him the right to buy the stolen liquor. If he needs the right to purchase counterfeit money, give him the right to purchase counterfeit money.

Those are things police officers need to do in order to do their investigation. They don't need necessarily to sell drugs. That was the problem in Campbell and Shirose. They decided they weren't going to be purchasers of drugs any more, they were going to be sellers of drugs. The court said “You can't do that, you're not entitled to break the law, no one's above the law”.

You give them a blanket-type circumstance here, where a police officer can go undercover into an organized crime outfit. Let's say they're bikers, for example, and the biker says “Let's go do this robbery”. Do you go along as a police officer and take part in that particular robbery? This legislation would allow you to do that. Is that right? I'm not sure that's right.

Take a look at this particular legislation. It says you can do everything short of murder and sexual assault, effectively. The undercover police officer goes into the organization and they want to test his virtue. What do they do? If they're really bad guys, like the police say they are, they're going to ask you to do one of the crimes that are prohibited: “Go out and kill that guy. He's a fink. Prove that you belong. And go out and rape that poor woman over there, because we want you to show your mettle.” What do you do when you're an undercover police officer in those circumstances?

That's the problem with this legislation. It's open-ended and it provides for virtue testing of those people who are going undercover in these circumstances. If you want specific immunities that are important for police to do their investigations, there's nothing wrong with that. You can do that. You can say that police can buy stolen goods. They can buy credit cards. They can set up a shop where people who steal things come and sell it to them. They can set up a finance company where the bad guys are going to launder their money.

Ms. Judy Sgro: But with all due respect, you realize how many volumes of documents would be required to continue to put these things in there in terms of what you're allowed to do. Technology changes. They'd have to be coming back every time you turned around to add more things in there.

Mr. Irwin Koziebrocki: That's why you're here. That's why we'll come here.

Ms. Judy Sgro: We're far enough behind as it is. We'd be about forty years behind, for sure, in the legislation.

Mr. Michael Lomer: You changed by regulation the Controlled Drugs and Substances Act to allow for the sale of drugs. Why can you not put in your legislation a change by regulation? Regulation moves much quicker.

It's really a fundamental philosophical difference that we see. Are you going to have a priori, before the fact, supervision by the legislature of the types of what would otherwise be criminal behaviour but are perceived to be obvious and necessary police tools? The traffic in any type of contraband seems to be obvious to me, and it was an example that was used in the white paper. They make a list: these are the things we need that are obvious, and the things that are less obvious—

Ms. Judy Sgro: Mr. Lomer, I have a lot of questions, and they'll cut me off quickly, but it sounds like the 17th century article Mr. Fantino referred to.

The Chair: I think Mr. Fantino wants to respond to this too, Judy. I'll let you have more time.

Chief Julian Fantino: Thank you, Mr. Chairman.

Very quickly, the objection that's been raised here with regard to this issue seems to be the extremes. It's always the extremes. But for someone who's been in the trenches, and who has done the actual work—undercover investigations and whatever—many of the things we face on a moment's notice are those you can't plan.

• 0955

You can't, for instance, just say “Excuse me, I have to go and get permission to do these things”. You can't just pull out the badge and say “No, no, I'm a cop, forget it, I'm outta here”. We're talking about critical, split-second issues that come up and face—just like that—an undercover police officer who's not in any way, shape, or form intending to commit any kind of criminal offence but who is nonetheless faced with these propositions. I've been there. I've done that in the line of duty, before the Campbell and Shirose decision.

So the rules of engagement have changed. We have to get it through our heads that we have to level the playing field. This is not a question of abuse of police powers and authority. It's a fundamental entitlement that the citizens of this country have to level the playing field, and it's a fundamental requirement that we owe our men and women who are doing these very serious investigations that impact on their safety and the well-being of their families. We need to give them some kind of protection. Otherwise, we will fly the white flag of surrender and say that no longer will we do undercover investigations.

I'll tell you honestly, as a police chief, I will never send one of my police officers, in any circumstance, where the laws of the land and our system of justice do not give them optimum protection for their own safety and also for consequences later. In this country, we're making lawyers rich now with litigation.

Thank you.

The Chair: Judy.

Ms. Judy Sgro: You referred to handcuffs earlier. Know where we're coming from. We're trying to move forward on legislation—we were given it two days ago, I think—very quickly. We recognize the need, and we want to get it through quickly. I'm interested in what else we could possibly do to make things move along better and make it easier. At the same time, there's the issue of accountability, which we are responsible to make sure is there.

Give me a scenario now that you can't do today, under the current law, that you would be able to do. Would this be restricted specifically to organized crime units? Or once this bill is passed and you have this ability, is it to general police services as a whole?

Commr Guiliano Zaccardelli: To speak from an RCMP perspective, clearly there are two words that I really like in this legislation, “reasonable” and “proportionality”. You see, what police do must be reasonable and proportional to the type of investigation or the type of offence, the seriousness of it. That's very important. If that isn't in balance, we're in serious trouble.

From an RCMP perspective, we are going to be identifying people who clearly are working in this specific area. This isn't going to be broad designation. This is very specific. I know somebody raised the issue that once they get the designations, they're there forever. You have the designation as long as you're in that particular area.

Most of these people who work in these areas will be involved in major cases, because we don't have the resources, frankly, to do every little case that we would like to do. We restrict it to the most serious cases. Those serious cases, for those who may not be aware, are subjected to an operational plan that goes right to the very top of our organizations, approved by very senior officers. So it is very methodically thought out and reviewed many times before anyone is approved to participate in certain types of activity.

Now, there are situations where you have to be able to react, so you have to have the tools at the time, but most of these will be well planned in advance. So you can foresee, there is a review, and there is accountability.

I submit to you here that I will accept the most severe and most strict reporting restrictions that you want to put on us as an organization. I will do that. Whatever you want me to report on, I will do that, but we need the flexibility, as Chief Fantino has said.

It does sound good in theory to say “Why don't you just legislate everything, every single event?” The problem is, things change. Societies change. Commodities changes. Organizations work a multitude of commodities. We don't talk about commodities any more, we talk about criminal organizations, because they're smuggling people today, doing credit cards tomorrow, and doing drugs the next day. They do whatever is most profitable.

In reality, yes, you need that flexibility. What you need then is to have the right controls and accountability. I believe that all my colleagues, as chiefs and commissioners, would subject themselves to the strictest accountability structures imposed upon us.

• 1000

The Chair: Thank you very much.

We go to Mr. Cadman for three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I'll come back to something I believe both Chief Fantino and Chief Ewatski alluded to, the whole issue of public awareness, education, and the glamorization of organized crime—I think we can all refer to one specific, highly rated television show. On public education and public awareness, have you got any ideas or suggestions on how we can get out to Canadians the seriousness of the problem? Not everybody watches CPAC—they've got lives, I hope. How do we increase the awareness, especially among the youth, of the seriousness of it, where this stuff is going, that there's nothing glamorous about this?

Chief Julian Fantino: One of the things we have not done well, collectively, including the police, is convincing the public about the direct relationship that exists between the activities of organized crime and its many different commodities, the direct impact, not only the added cost of doing business in this country. For instance, there is credit card fraud. Somebody's paying for all that financial impact and the services. But more than that, there is the direct impact on the quality of life and all that ancillary crime we have to deal with at the community level.

As an example, drugs are imported, they're manufactured, they're grown at the highest level. In fact, Canada today in the United States and worldwide, I suppose, is recognized as a source country for hydroponically grown marijuana. Also with illegals going into the States, we're a significant transfer point. For the reality, look at the consequences of drugs in our community, where they're coming from, how they're manufactured, who's involved, and then look at how it reaches the most common denominator at the most vulnerable community level, our young people, our troubled, vulnerable neighbourhoods. Think about it.

And you must consider all the other crime that's associated, because it feeds on itself. That's organized crime. It's just a food chain. All that is feeding the organized crime, and we have not done a good job of getting people to appreciate that it's in all of our pockets, we're all affected by it, our children, our neighbourhoods. People think of it as if it's a cloud of radioactive dust they can't see, but I can tell you we can see it, and we feel it, and it's affecting all of us all the time at the community level—including the violence, the carnage that's happened with the biker gangs in Quebec. Where in the world, in a sophisticated society, do we tolerate that kind of mayhem and havoc, bombings, killings, so much of it, the attack on the institution of justice? It's happening, that's organized crime, it's a reality, but with the communication and the information piece and people's denial, we're not getting there.

Chief Jack Ewatski: I did talk about a three-pronged approach, and I think we have to use it with every public safety issue. There have to be awareness, education, and enforcement, or we're going to be very ineffective. We have done that in my jurisdiction. We were the first jurisdiction actually to move forward with an investigation under Bill C-95 by participating in an organized crime group with the Manitoba Warriors case, which was much publicized.

The biggest challenge we had was convincing the public that we did have an organized crime problem within our jurisdiction. It was difficult to do that, because people seemed to think, as I mentioned, that organized crime exists in some other form and not in their own backyard. I think we made a very strong case to prove that we had a sophisticated criminal organization operating on the streets of Winnipeg and in the province of Manitoba. That was brought forward through the judicial process. I think the whole trial process awoke a lot of people to the magnitude of the problem.

We have been, I think very unfairly, classified as the street gang capital of Canada—I think we've all seen the headlines relative to that. It's a designation I certainly do not agree with, but we have not approached the issue of organized street gangs just through enforcement. We have put programs in place with our partners to deal with our young people, to show them that a criminal lifestyle, especially an organized criminal lifestyle, is something not to aspire to, that there are real consequences to it.

• 1005

We have gone into the schools, and we've had to go to the lowest level, to the six- and seven-year-olds, who looked up to some of these individuals they saw, whether they be family members or neighbours, participating in these organized crime groups as something they wanted to aspire to. We have to deal with that generation. We have to show them that there are severe consequences to being involved.

And we have to give them alternatives, because we have to look at the roots of the problem. Why do people enter gangs in the first place? There are a number of reasons for doing so. Some of them are strictly based on financial profit, but it's societal issues that we have to deal with also, offering our young people an alternative, giving them a sense of hope. The helplessness is out there with our young people. In my city I see that every day, the sense of helpless. There's no one to turn to, there's no future, so I may as well join a gang, I may as well become involved in these activities, because only the gang is going to take care of me and I could profit from it. If I end up going to jail, so be it—that's the price of my lifestyle. That's an unfortunate thing, a tragedy in the society we live in today.

So I agree, educational programs have to be part of any type of strategy for dealing with organized crime. There are some, though, for whom the organized crime lifestyle has become entrenched, and they are so sophisticated in their activities. Those are the hard-core organized criminals that we need the tools to be effective against in moving forward with this.

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): Thank you, Chief.

Mr. Owen, please.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Mr. Chair.

Officers, counsel, thank you very much for coming before us today.

I think the overwhelming majority of Canadians appreciate and feel richly served by our police services, for many of the reasons that have been stated today and we're all aware of. One of the reasons we are so richly served and are so appreciative is found in the high standards we've had. In some other areas of the world, where security and police forces have been allowed to act outside the rule of law, that has begun a very slippery slope towards threatening their democracies. This has happened in many countries, and it's not because the security forces have wrenched away authority, but because the society itself, often a democratic society, has felt itself to be, and has been, under severe threat. And so a public feeling of support for enhanced police or security force authority develops, and this authority, democratically, is given. That has led in other places to difficulty.

When now we face, as Canadians, with a growing awareness, the extraordinary threat and reach of organized crime, we have to make sure that we provide our police forces with the tools, without going so far as to risk unaccountable actions outside the rule of law. And it has to be very measured. In the past there were case-specific and preauthorized situations, such as search warrants and part VI authorizations.

So we are now belatedly aware of the magnitude of the threat of organized crime and are faced with this difficulty. The task for us, with your advice, is to find the right measured, incremental, cautious, but appropriate, extra tools you need. We've talked a lot about that this morning and on other days, and I appreciate your further elaboration. I think it's helped us understand the issue.

I'd like to switch quickly, though, to the issue of resources, particularly given the dramatically changed nature of organized crime, which we are becoming aware of and you're very intimately aware of, that being a change from the old traditional Mafia, monolithic style, an hierarchical organization that is competitive with other criminal organizations, highly secretive, competitive, as well as highly ruthless, to networks across criminal organizations, across the world, small cells, closely held information, but shared within a certain network for a particular crime. We appreciate that law enforcement agencies will have to mimic that type of operation. You've even shown leadership in this country, with joint force operations and such.

• 1010

There are two aspects that I think bear on our success and our resources in this regard. One is that in many ways law enforcement agencies have proceeded in much the way the old classic hierarchial Mafia has, and have been distrustful of each other, often for good reason, because of security of information. But intelligence has not been pooled, shared, analysed, and handed out on a need-to-know basis, in the most effective way.

First, are you seeing an improvement in your capacity to gather information in a secure way, have it properly analysed, have it fed back on a very case-specific, need-to-know basis? Is that improving among law enforcement agencies?

Secondly, there is the new approach of joint force operations. Ontario has been practising it for some time, Alberta and British Columbia are moving in that direction, and Quebec has shown some real recent success in it. By this approach, notwithstanding how stretched all of your agencies are for resources, by uniquely composing a joint force operation, pulling together exactly the right resources and skills, you actually most effectively and efficiently apply the resources you have. Is that new approach working, and is the intelligence sharing, analysis, and feeding out starting to work better? I know you have been concerned that it wasn't working in the past.

Commr Guiliano Zaccardelli: The short answer is I believe the police community in Canada is leading the world in this area.

I think you only have to look at the recent success in Quebec and in Alberta on these major operations. To think we would have had that type of operation in Quebec a few years ago was a long stretch. We had over 1,000 police officers who worked on an operation for over three years; it was as good as it gets. There is nobody doing that better in the world. I have travelled the world as a commissioner and I've seen it.

I can tell you we're not satisfied. We're not satisfied, but we are doing it extremely well and we are targeting our limited resources against the greatest threats to this country. We are sharing better, we are collaborating better. We've had extraordinary meetings where we meet on a regular basis. It's not just the police who are meeting; we are including other sectors of society, because we recognize this is not a police problem, this is a societal problem.

So yes, to all your answers. We are leading the world, but there's still more to do.

Chief Julian Fantino: I agree wholeheartedly with the commissioner's comments;

We do have very fine examples. The most recent organized crime takedown on the bikers is one. There are permanent joint forces operations; some are presently well entrenched and there are others planned. We are very much moving toward these integrated joint forces, either permanently or on a case-by-case basis, in situations where we can maximize our resources.

We're also raising our own bar, big time, with regard to our own focus about how to deal with organized crime. We're no longer dealing with cases of opportunity. We're working very hard to develop the right intelligence and target the organizations to optimize our success and of course hopefully spend in the most efficient way the taxpayer dollars.

The final point I wanted to make on this particular area is that we're not alone in all of this. Some of the activities happening in our country that are clearly organized crime also go to fund terrorist activities elsewhere. That's something that has not been talked about here, the direct relationship that sometimes does occur between the activities of organized crime and acts of terrorism that go on elsewhere. That's organized crime as well.

That's something we need to be very concerned about in this country, also. With us bidding for the Olympics, I can tell you that in Toronto a major issue in the Olympic bid was with regard to how we are prepared to deal with those issues. That's looking at Canada from the global perspective. It isn't just the public safety issue with regard to managing the large crowds, it's the terrorist threat. Canada is not immune from any of that.

The Chair: Thank you very much, Mr. Owen.

Mr. MacKay.

And I would remind members that the three minutes is supposed to include both the question and the answer.

• 1015

Mr. Peter MacKay: Thank you, Mr. Chair. I have a couple of quick questions along the lines of the forfeiture aspect.

It seems to me, and it's often repeated, that really the most effective way to combat organized crime is to cut off the flow of cash. I think most Canadians are startled to know that some of these criminal organizations are so far-reaching that they can actually continue to operate even within the prison system. And perhaps the most dangerous situation for a police officer to be in is to be undercover in a federal penitentiary trying to penetrate some of these organizations. From the police perspective, is there more that can be done in that instance to try to ensure that even after the fact these criminal cells are not permitted to continue?

With respect to some of the overall tools available, although Bill C-24 goes a long way if it's passed in its current form with these designations, can we do more to streamline the criteria for things like warrants, electronic wiretaps, this type of thing? It is a common complaint that it takes reams and reams of paper under the existing laws to allow police the judicially authorized interventions they're seeking.

Chief Julian Fantino: You're quite right. I think it was mentioned earlier that we had the tools before to do the job, but over the years those tools have been evaporating very quickly. Applications for warrants, or part VI applications, now go on into thousands of pages in some cases. I don't even know if everybody reads that material, but it seems now that we have to amass it. It's no longer the substance; it's how much paper you collect, the volume of the briefs, that seem to be a benchmark as to whether you make the case or not.

Having said all of that, there is one item that I think should be considered in the proposed legislation, and that is the proceeds provision needs to be broadened beyond the specified or the designated offences, which encompasses all of the indictable offences in the federal legislation. I think that's too restrictive, because very often at the prosecution stage it would mean under these circumstances that forfeiture will no longer be available in relation to hybrid offences when the crown, for instance, elects to proceed by way of summary conviction.

That is a critical issue, and it's a point I wanted to make. I appreciate the opportunity to raise this. It may exclude such offences as theft, fraud, and money laundering, depending on how the crown elects to proceed with these particular issues. So I think we have to look at that and look at the hybrid offences issues and especially when we talk about proceeding by the crown, which is a choice they make, by summary conviction. We should embrace those offences as well.

Mr. Peter MacKay: That often has time limitations as well.

The Chair: That was very well done, I should say.

Over to Mr. DeVillers. See if you can do so well.

Mr. Paul DeVillers (Simcoe North, Lib.): I will try, Mr. Chair.

I'm always comforted when we have these hearings and we have Chief Fantino telling us we're not going far enough and Mr. Koziebrocki telling us the reverse, that we're going too far. It tells me that perhaps the legislation has achieved some of the balance we're trying to find.

However, I did hear Commissioner Zaccardelli and Chief Fantino bragging about not being lawyers. I am a lawyer. Not only that, I'm a left-leaning, bleeding heart liberal lawyer.

A voice: The worst kind.

Mr. Paul DeVillers: In spite of that, I'm able to support this legislation.

Having been on the subcommittee that did a lot of our investigation and our hearings, we learned that in regard to Mr. Koziebrocki's objection and concerns over the change in the numbers in the definition of a criminal organization, in fact what was happening is organized crime is adapting to that very legislation and breaking themselves up into cells of fewer than five people and operating in those circumstances in reaction to the legislation.

• 1020

So I think this is a situation that does require extraordinary legislative measures to deal with it, because organized crime, as we learned on the subcommittee, is very adaptable. Similarly with the authorization, if it were specific, as is suggested, then they would curtail their activities to circumvent many of the provisions that might be put into the legislation.

That's something we learned, that organized crime is very adaptable and will adjust to the legislation. So I wonder if we could get a reaction to those concerns that we heard as a subcommittee.

Mr. Michael Lomer: Are you not then worried about the virtue testing you're putting into the legislation when you're actually specifying the offences that the police officers can't commit, that those are precisely the offences they're going to be asked to commit? It seems to me that you have a problem there.

Mr. Paul DeVillers: But if we did the reverse and said they're authorized to commit only these offences, then I think organized crime would have the game plan in advance and would curtail their activities accordingly.

Mr. Michael Lomer: I've always been of the view that an officer in an undercover capacity is operating in exigent circumstances in any event and has available to him defences of necessity or duress. In fact, the reality is, I would suggest, we've never seen an officer working in an undercover capacity charged for committing an offence that he felt obliged to do for fear of his own safety or something of that nature.

So what you're doing now is really creating a red flag by saying this is something you can't do, and if you're correct with respect to what you say about the subcommittee findings, that organized crime is adapting to the legislation, then this is precisely an adaptation that I don't think anybody would want to see.

The Chair: Thank you.

Did you want to respond, Commissioner?

Commr Guiliano Zaccardelli: You must remember on the idea that we should go back to pre-Shirose and Campbell, I'm all for that.

Mr. Michael Lomer: I actually think there has been a grave misreading of Shirose and Campbell and that you still have and have always had available to you with respect to your undercover officers defences of duress and necessity, and that's the reason you don't see any of those officers ever charged, and for good reason. I'm not saying they should be.

Commr Guiliano Zaccardelli: But the reality of life is that it is not simply a situation of an undercover operator in an exigent or emergency circumstance. There are well-thought-out, planned operations that require specific actions by people, be they agents or operators.

So in those circumstances, every legal opinion we've received says we can no longer do what we used to do before Shirose and Campbell. So this is part of the problem we're facing.

Mr. Michael Lomer: I didn't suggest to you that you use the regulation offences. In the Supreme Court of Canada case where you changed one of the types of narcotics after you did a search warrant, you took a sample of the narcotic and found out that it was not one that was in a schedule of narcotics because they had changed the molecule slightly. You went back and changed the regulation, and then you arrested them for trafficking in that narcotic. The Supreme Court of Canada said if you're going to play close to the line—that is, the criminal—you're going to have to be very aware of what is illegal or not.

So you can change by regulation quite quickly if you see something you want to be empowered to do and your legislature says you can do.

The Chair: Thank you very much.

Mr. Sorenson, for three minutes.

Mr. Kevin Sorenson (Crowfoot, CA): First of all, I've really enjoyed the last hour here. I apologize for coming in late and missing your presentations. I really wish I had heard them, and I look forward to seeing the transcripts.

In studying this bill a little bit, first of all, I have a family member who is an undercover police officer, and I've heard some of the stories they're involved in when they do go undercover. Before coming into this position as an MP, I would sit and listen almost in horror sometimes to the degree to which they may have to compromise moral standards in order to infiltrate or go undercover in order to sell themselves as being one of the criminal aspects. It was not a glorified thing he was telling us about, and I realized that these guys are really putting their lives on the line.

• 1025

I sat and listened to both sides of this. I listened to the members of the lawyers' association, and they make good points. I see where they're coming from. Then I listened to the police force, the ones who are on the front line, and I see the concerns they have.

The truth of the matter is that there's a war with organized crime, and I would suggest that we're losing it. So what we have to do is consider legislation that would better allow our police force the ability to fight this war.

In studying for this bill, I read somewhere that someone had said—it may have been one of you folks—the problem with organized crime is that they simply have too much money; the difficulty we're faced with is that we don't have enough.

So there are two things. There's the legislation that we've talked about, and there's also resourcing.

Canada is a haven for organized crime. We have generally accepted fairly light sentences. We've seen light sentences being handed down. That may be open for question, but that's one of them. We have a large boundary that, as far as smuggling contraband goods and things like that is concerned, which has already been mentioned, is a concern. But we also have not enough resources.

I missed your presentation, and I would like to ask this question. In my constituency, I hear basically from the Royal Canadian Mounted Police forces that morale is low because of lack of resources. Part of what this bill does, which we haven't talked about much since I came in, is increase resources what I would consider minimally, as far as financial resources are concerned—$200 million over five years, if I'm not mistaken.

So my question to you is, do you have the adequate manpower, and in your estimation, do you have the adequate resources to do an effective job? In this battle with organized crime, how do you keep morale up? Even in rural Alberta, with the RCMP maybe not so much involved with organized crime, we're seeing middle-aged RCMP officers leaving the force because morale is low, with cutbacks, position cuts...

So what is your response to the $200 million over five years and to the manpower resources?

The Chair: Thank you, Mr. Sorenson.

I remind the answerers that, notwithstanding the question, we've been over this ground earlier today.

Mr. Kevin Sorenson: Okay, I apologize.

Commr Guiliano Zaccardelli: As the commissioner, I believe the morale is not low. I believe the morale is very good.

Putting things in perspective, Canada, if not the safest country in the world, is certainly one of the top two or three countries. So let's keep that in perspective. In part, it is one of the safest countries in the world because we have very effective and efficient policing. But policing is not done in a vacuum. That means we get a lot of help from society. This is a societal thing. So we provide excellent policing.

Can we use more resources? Yes, we can. We have been given a lot of resources in the last several years by the federal government, but also at the provincial and municipal levels there has been an injection of money into policing. Canada has excellent policing.

The RCMP provides good quality service. We can use more money, we can use more resources, but it's not only a question of resources. We have to work a lot better, work a lot smarter, and we're doing that in collaboration with our colleagues in policing and with the broader community. So it is not simply a question of resources, although we can use more resources.

I believe we are very well financed to do the job we have to. We can't do everything. That's why we have an effective way of using intelligence, prioritizing and assessing the greatest threats against this country, and targeting our resources against those threats.

The Chair: Thank you very much.

I will go to Mr. Myers, for three minutes.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chair.

Chief Ewatski, something you said, and I think Chief Fantino and the commissioner did as well, reminded me about the pervasiveness of organized crime. You take any level, the violence we talked about, or date-rape drugs, or Ecstasy taken by our young people, or the kinds of insurance premiums that we have to pay as a result of increased organized crime.

So it seems to me appropriate, then, that the Solicitor General has repeatedly said that organized crime is our number one, top law-enforcement priority. It disturbs me, quite frankly, when I hear some of the people talk about clipping your wings in terms of doing your job, hogswoggling you and hobbling you in terms of your ability as police officers on the front line to do the kind of effective job that you need to do in order to fulfil the mandate of this government, which is to curb organized crime.

• 1030

So I make the plea to colleagues here and elsewhere that we ensure that the kinds of things that are necessary are indeed in place there for you, and that will be my position.

I want to ask Mr. Koziebrocki a question. Was it Stinchcombe in 1991 that was now the disclosure of crown evidence to the accused? I think that's become an issue. The organized crime subcommittee, of which Mr. DeVillers spoke about a minute ago, looked at that. In fact there was some recommendation that came forward from the subcommittee that we amend the Canada Evidence Act to put that into some sort of codified and simplified form that would in fact be of benefit and of note. Bill C-24 does not address that.

I want to ask you whether you thought the rules are in fact fair as they are now, or should there be changes, and if so, why or why not? I'd also like to know whether you thought it should in fact be in legislative form. I'd also be interested in your response as to whether there should be some sort of reciprocal evidentiary disclosure obligation on the part of the accused as well.

Mr. Irwin Koziebrocki: That's the next bill, I think.

Mr. Lynn Myers: I'm sorry.

Mr. Irwin Koziebrocki: That's the next bill.

Mr. Lynn Myers: Well, perhaps you could address all those issues.

Mr. Irwin Koziebrocki: Stinchcombe was a dramatic development in the administration of criminal justice, I think, for everyone—for policing authorities, for prosecutors, and clearly for defence counsel—because, if we talk about equal footing, it basically put everyone on an equal footing. Generally speaking, with certain reservations that we all understood, everybody had the same information. Therefore, when cases went to court, you knew where you stood. Nothing was a surprise.

I recall the days when I was prosecuting. We had very little; the defence counsel had even less. You discovered your case when you went to either a preliminary hearing or trial. It wasn't a very particularly satisfying scenario. We come to the criminal justice system on a much better footing knowing what the case is about, because cases can be prosecuted effectively and resolved effectively, if they require to be resolved. The accused knows it's time to give up—plead guilty—because the evidence is there.

Should it be codified? I don't see why it isn't a good opportunity to put into either the Criminal Code or the Canada Evidence Act that it is a requirement to provide disclosure. We have the Supreme Court of Canada telling us it's a requirement anyway, and I would think that generally speaking that information is there. It would be nice to have a mechanism in place where you could follow that mechanism to deal with it in front of a court in the circumstances where you don't have it, and an explanation given as to why it's not there. I think everyone would be better for it in that respect.

The Chair: Thank you very much.

Mr. MacKay.

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

I have a question on what Mr. Myers has asked with respect to the quite rigorous and proper disclosure—rules of evidence. I had some peripheral attachment to the Westray file in Nova Scotia, which was perhaps—

Mr. Irwin Koziebrocki: Which side?

Mr. Peter MacKay: The prosecutorial side.

It was perhaps the best example of trial by avalanche that we've ever seen in this country. There was literally enough paper to fill this room, and lawyers, prosecutors, and defence were left arguing over whether there were copies of copies being introduced into evidence. So my question to Messrs Fantino, Zaccardelli, and Ewatski and the defence counsel is what your perspective is on electronic disclosure.

This is something that has become quite topical in some areas where you have reams of evidence and documents. It seems to me that there is some considerable merit in being able to transmit documents on disk. In terms of the police being able to make disclosure to the crown even, there is a great deal of time-saving in terms of actual documents being put into a paper form. It seems there's a great deal of merit for all, if we can get into some elements of greater use of technology of transmitting documents.

• 1035

Mr. Irwin Koziebrocki: You can say that's the omnibus bill that's coming up next, I think. We've always taken the position at the Criminal Lawyers' Association that we wholeheartedly supported the electronic elements and changes that are in that particular bill, because we all understand that courts in Toronto—and Ottawa, I expect—have become computerized and computer literate. In fact, in my office we've had a case where 175,000 documents were put on 10 computer disks. That translated into about 150 boxes of material. The very nature of certain cases requires that. We would support that wholeheartedly.

The Chair: Thank you very much.

Mr. Grose.

Mr. Ivan Grose: Thank you, Mr. Chairman.

I felt I was in the last few days being whipsawed between the police associations and the bar associations. That's as it should be. We hear both sides of the argument. Am I uneasy about giving extra powers to police to break the law? Darn right I am. But I've seen what's been happening in my city, which is a fair-sized city very close to Chief Fantino's city. In the last 20 years we've had drugs, prostitution, massage parlours, strip joints—all of them serviced by organized crime.

I want this progression stopped. So I'm going to have to go along with the bill to give the police these powers. I'm sure that my constituents are with me at this moment, but if the police abuse the powers or screw up, my head's going to be on the chopping block alongside Chief Fantino's.

I don't feel uncomfortable there. My attitude is that organized crime has come to the point where they're making damn fools of us, and they're destroying our society. My attitude is let's go get them.

Thank you.

The Chair: Mr. Lomer.

Mr. Michael Lomer: If the rationale for the immunity provisions is this war on organized crime, then why is it that the application of the immunity goes beyond organized crime? If you want to have a limited targeted response, then you say we're going to allow the police with respect to organized crime offences to do it. But in this case, the legislation, as I read it, will apply to everything and anyone, including individuals, regardless of whether it's organized crime.

Mr. Lynn Myers: That's a rhetorical question.

The Chair: Let's see if there's a response.

Mr. Fantino.

Chief Julian Fantino: Mr. Chairman and members, I think it's been said time and time again that these are not blanket tools that one is seeking or expecting. I think there has to be justification, and I think the spirit and intent of the legislation has to be taken in the context with which it comes forward.

I hardly think we would roll out the prisoner wagon to go out and arrest three little old ladies debating about whether or not they're going to cheat at bingo. Let's get real here. We're talking about significant critical public safety issues at the highest level of this democracy in this country, and that's where our head is at. The fear-mongering about how the police are going to run away with this and become the army of occupation, that's bunk and that's nonsense in this country.

We pride ourselves in being diligent—not perfect—and being very accountable to the public of this country, who give us the legitimacy to exist to begin with. We're very mindful of that, and this is not a running away with the issues.

I think it was Winston Churchill who said give us the tool to do the job, please do, otherwise there's no point in keeping score any more, because we're losing.

The Chair: Thank you.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

Earlier, Chief Fantino, you alluded to the involvement of organized crime in international terrorism. I wonder if you would care to elaborate on that just to give us an idea of the scope of that involvement. Perhaps the commissioner would have something to say on that too.

Mr. Guiliano Zaccardelli: Yes, I can comment.

I think yesterday it was referred to by the director of CSIS. There is evidence of linkages of people who are involved in potential terrorist activity who get involved in certain types of criminal activity to support themselves and so on. You clearly see that, and that happens. It is an international phenomenon, and on a worldwide basis you see that, because ultimately terrorists have to finance themselves, and one of the ways to do that is to get involved in criminal activity.

• 1040

In certain cases around the world you have alliances that are created by the two groups that mutually help themselves, so that is something that exists on an international basis. We have to be aware of it, because we are no longer immune to that. So if it exists somewhere in the world, we have to be aware that it can potentially come to us and be a factor here. So that's what I believe to be the situation.

The Chair: Is there any other response?

Mr. Chuck Cadman: What I was asking for was just what is the level of involvement of organized crime in Canada in relation to that, or is there... Because Chief Fantino mentioned it earlier.

Chief Julian Fantino: We have to look at, as the commissioner stated, our place in the world hierarchy, if you will. A lot of the things that happen in this country have links and ties on the international level—including the smuggling of aliens into our country, for instance.

Certainly there are indications that activities that are particular to organized crime—the profits derived from some of those activities—go elsewhere to fund other activities on an international scale.

Narco-terrorism is now well talked about—the whole business of drug dealing to finance things that happen in other places of the world. Drug trade is on an international level. International criminals traffic drugs into Canada. The dollars made here obviously go to some of those endeavours. It would be naive of us to believe that we're in a tower or insulated from all these things.

The Chair: Thank you very much.

Madame Allard.

[Translation]

Ms. Carole-Marie Allard (Laval East, Lib.): I am a new Liberal Member of Parliament and I represent the riding of Laval East, in the province of Quebec.

Mr. Koziebrocki, I was listening to you earlier and telling myself that it might be easy for you to play mind games and to say that this might put our police officers in a situation where they might be witnessing a crime being committed or even helping to commit a murder.

I am a lawyer myself and I was able to look into the definition of circumstantial evidence. Is that not the reason why organized crime was allowed to thrive as much as it did in Canada? Do criminal lawyers have moral problems when they send thieves or bad guys back into society for whatever reason?

We have had at home, in the province of Quebec, a sensational trial, the case against Maurice “Mom” Boucher, involving an informer. Justice Jean-Guy Boilard, I think, gave the jury an instruction that led to the acquittal of “Mom” Boucher, and the Court of Appeal clearly said—it is circumstantial evidence in that sense—that the instruction given to the jury was unjustifiable and ordered a new trial. The Supreme Court refused to intervene.

We are now in a situation of circumstantial evidence where it is very difficult to get clear condemnations for criminals. Would having more faith in our police officers be a necessary approach to eliminate organized crime? We could maybe count on your association to put pressure on lawyers so that they don't perform so well in court. This might be the solution. Then maybe we would not need to expect so much from our police officers.

Right now we know that defence lawyers are quick to invoke just about anything—and maybe it is normal as they are defending their clients—but I think that we need a just balance.

[English]

Mr. Irwin Koziebrocki: With respect, I trust police officers to the highest degree. The police officers you have here are the finest officers you will find in this country. I have known two of them all of my legal career, and I have the highest regard for their ability and for the fact that they will make appropriate decisions in appropriate cases. That's not what I'm talking about here.

• 1045

When we deal with people who are charged with criminal matters, I, as a defence counsel, do not perform. I do my job. My job is part of the democratic system of the advocacy in a criminal trial where I have a particular responsibility, and those defence counsels in the case you were talking about have a responsibility to present the various arguments that are available to an accused person to the court.

If a judge or a jury finds, on the law as it stands in this country, that evidence wasn't admissible, or it should have been charged in a certain fashion, or that the evidence doesn't stand up to the scrutiny that we think is appropriate in a democratic system, so be it. I don't interfere with the police in terms of their investigative methods. If there isn't the evidence, there isn't the evidence. I'm not going to stand back and say a case should be proved because the police haven't been able to prove it, or the prosecution hasn't been able to prove it. I have a responsibility, and don't expect any defence counsel to stand back and do anything less in the circumstances.

I don't disagree that the police should have the tools to do the jobs that they are mandated to do. I've put my position to your committee here as to how those tools should be exercised and what restraints there should be on them because there are other issues. It's not that we stand over here and say, we are supportive of organized crime—hardly so. That's the last thing that I would say to you. In fact, the more people you charge, the better it is, as far as I'm concerned.

The Chair: Colleagues, we have a bit of a problem. I have two speakers left, I have less than ten minutes, and I have about two minutes' business to do before we leave the room.

Mr. MacKay, and then Mr. McKay.

Mr. Peter MacKay: I wanted to give the opportunity to the police to give their view on electronic disclosure. I'd also like to ask them about the possible inclusion in future legislation of a designation akin to the dangerous offender application process for heads of organized crime units—that is, a special recognition in the criminal code of that type of offence that could lead to potentially extended periods of incarceration if the case can be made.

Commr Giuliano Zaccardelli: Very quickly, I totally support the electronic disclosure. As much as I want to put the bad guys in jail, we want to be careful when we start really singling people out that way. I'm not saying that we shouldn't do it, but I think we have to be very careful and reflect long and hard before we start doing that.

Chief Julian Fantino: On the issue of electronic disclosure, certainly at the Toronto Police Service that is going to be the way to go—one-time entry of data from a computer in the police car to the crown attorney's office, basically. For us, it's a necessary item, and it's one that we're all moving towards anyway. I think everyone's pretty well on that issue.

On the special designation, I think that there ought to be some aggravating features brought forward, certainly when sentencing is factored in, about the status, the position, or the activities of certain people. And yes, leaders, people who are organizing at the highest level, obviously have the greatest amount of accountability, and they should get the appropriate amount of sentencing accordingly.

The Chair: Thank you, Mr. Fantino.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

I apologize insincerely for being late. I was chairing the national prayer breakfast this morning. Probably we should start our justice committees at the national prayer breakfast, given the dilemmas we're faced with here.

On the issue on limited immunity, basically, as I see it, you've got four choices. You can basically have no immunity for police officers. You could go to a kind of a common-law freelance system and find out after the fact as to whether you did or didn't have immunity. You could go to the scheme as proposed by the act, which has a personal element tracking right up to the Solicitor General, or you could have a judicially authorized immunity.

Is it the position of the defence counsel that the scheme of personal liability involving the Solicitor General is a flawed scheme, or is it just simply a non-starter as a scheme, in that it should be supervised by the judiciary?

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Secondly, what does the word “personal” after the Solicitor General of Canada add to the scheme?

The third question is with respect to proposed subsection 467.13.(1), where it's not necessary for the prosecutor to prove that the accused knew the identity of all those persons. How is that different from a simple conspiracy charge under the Criminal Code?

Mr. Michael Lomer: To start off, when the white paper came forward our initial position was that the appropriate way was for the legislature to actually take responsibility, which is in fact the fifth way. They could do that by putting in the counterfeiting legislation, for example, that police officers are not precluded from trafficking in that type of contraband in order to facilitate arrests, or alternatively, by using the regulation process and to do it that way.

As it developed, the alternative was proposed that at least there had to be some responsibility outside of the police, whether it was by judicial authorization or by the head of the police service, the Solicitor General. The Solicitor General or the various attorneys general were preferable to having the police authorizing themselves to be above the law. That was the position that ultimately was put into this legislation.

I think that answers your first question. It was always our view that the easiest and simplest way was to amend the legislation to allow for the authorization of police to commit certain otherwise criminal acts, usually trafficking in contraband.

The Chair: Thank you very much. Is there any other response?

Mr. Irwin Koziebrocki: What's missing, as we discussed earlier, is the link between the Solicitor General and the bill itself—where you have the authorization. You have the Solicitor General authorizing the police officers, who then authorize those below them to do the act. We don't have the link up to the Solicitor General or to attorneys general or solicitors general of a particular province.

So effectively, it's abdicating what I would say is the responsibility of the elected official in a serious matter such as this.

The Chair: Thank you. We've done.

I would ask the members to please stick around.

I thank the witnesses for their informed interventions. It's always a pleasure.

For members of the committee, I would like you to take a look at three documents that are going to be distributed. There is a list of those people who have contacted the clerk and wish to appear on the omnibus bill.

You'll receive a proposed witness list prepared by staff that is intended to respond to these invitations, recognizing that there is some duplication in arguments. If you have any comment to make with regard to the witness list, I'd like you to direct your comments to the clerk.

Finally, you will find a schedule is being distributed. I want to be very clear about this. We intend to proceed after more witnesses on Tuesday morning with clause-by-clause on Tuesday afternoon, and then we'll be going to the omnibus bill, Bill C-15.

I would also bring to your attention the fact that Mr. Toews has already made an intervention that caused us to change the list on the second grouping, on cruelty to animals. That will also include the Canadian Cattlemen's Association, at the request of Mr. Toews.

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If anybody has anything they'd like to bring forward, please do so to the clerk ASAP.

Thank you very much. If there's no comment, the meeting is adjourned.