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Criminal Code - Bill to Amend—Third Reading—Debate Adjourned

Hon. Serge Joyal: Honourable senators, I rise to speak today on third reading on Bill S-4 because there is an important issue related to the rule of law in the bill, which we considered at the committee stage during our study of Bill S-4 and that I would like to bring to your attention today.

First, I would like to commend Senator Wallace for sponsoring the bill. I know it was his baptême de feu, his christening, if I can use a religious expression, and he did it very well. We were pleased to have him as a new recruit at the Standing Senate Committee on Legal and Constitutional Affairs.

My concern, honourable senators, relates to sections 7 and 9 of the proposed bill. Senator Wallace has not alluded to those two sections of the bill, but they are very important for the principle at stake.

Sections 7 and 9 of the bill allow a person to commit forgery in good faith at the request of a police force or the Canadian Forces. An employee of any government agency could be requested by a police officer to make a forgery. It could be a birth certificate, a driver's licence or one of the documents that the bill already enumerates. It gives a kind of blessing to everyone. An employee who is requested by the police to duplicate or to make a fake document — a fake passport, for instance — would be absolved of any wrongdoing. To paraphrase clause 9; No public officer is guilty if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity.

A police officer who uses a fake passport, birth certificate, marriage certificate or any kind of public document in the context of a covert operation would not be found guilty under the Criminal Code, because we are creating a new offence.

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Those two clauses were of great concern to the Canadian Bar Association when they testified at the committee. In their brief tabled at the committee, they said:

Our fourth recommendation to you deals with the exception for police and other official acts. Clauses 7 and 9 propose another exemption for certain activities of public officers as defined by section 25.1 of the Criminal Code. Given the existing legislative scheme, it is unclear why another exemption might be necessary.

The CBA Criminal Justice Section has strongly opposed an exemption for criminal liability for police and their agents, arguing that the law should apply to everyone, but acknowledges the existing sections contain detailed procedural safeguards and reporting requirements. The section sees no reason why the acts specified by Bill S-4 would be inadequately addressed by the existing scheme and are opposed to creating further exemptions of this sort. The Criminal Justice Section recommends that police activities in clauses 7 and 9 of the Bill S-4 be removed.

In other words, the Canadian Bar Association has requested for us literally to delete those two clauses of the bill.

Honourable senators, I am not standing here this afternoon to ask you to delete those two clauses. Covert operations are a part of police reality.

I went back to the Bible of police activities, the McDonald commission report. You will see that I am consistent in using my religious vocabulary today. I am inspired by Senator St. Germain.

The McDonald commission, in its 1981 report, had a lengthy chapter on undercover operations — chapter 9. Paragraph 28 states:

The kind of support documentation used varies with the operation involved. Several common types of false documentation have been brought to our attention. They include:

- driver's licences
- S.I.N. cards
- passports
- credit cards
- motor vehicle registrations
- licence plates
- birth certificates
- education certificates

Honourable senators will remember that the McDonald commission investigated wrongdoings of the RCMP following the FLQ crisis in Quebec — Senator Rivard will certainly remember that. The commission came forward with many recommendations, but they recognized that covert operations were an essential element of any police investigation.

The McDonald commission report clearly stated the principles of our criminal justice system. I am turning to Senator Grafstein at this point. The first of those principles is the Bill of Rights. The 1689 English Bill of Rights is the foundation of our criminal justice system. Section one states:

That the pretended power of suspending of laws, by Regal authority, without consent of Parliament, is illegal.

That the pretended power of dispensing with laws, or the execution of laws, by Regal authority, as it hath been assumed and exercised of late, is illegal.

The foundational principle of our criminal justice system is that the rule of law applies to everyone. That principle is well enshrined in the doctrine or textbook of criminal law documentation: "It is an established principle of constitutional law that official position and superior orders, whether of the Crown or of a private master, are not in themselves a justification for committing an act that would otherwise be a legal wrong." In other words, you cannot say that you have been authorized by your superior to commit a wrongdoing as an excuse for committing a criminal offence. This principle is foundational to our criminal justice system.

Honourable senators, we had to deal with that issue before. We claim that our house has an institutional memory. I call on you to remember our debates in 2001 when we adopted Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement). The situation was similar in 2001.

Bill C-24 was adopted and received Royal Assent on December 18, 2001. Police were requesting from Parliament special powers to break the law in order to fight organized crime. It could be for a police officer to buy drugs on the market to show that he is part of a gang or to break and enter a premise to steal something with another member of the gang, et cetera. When police infiltrate a gang organization, they are part of the lifestyle of the group that they are infiltrating and they might be called on to break the law.

We were very concerned with the issue because we thought it was essential for the police to have that power in the same way as it is for police to use forged documents — passports, driver's licences, et cetera.

However, eight years ago, in 2001, we could not let that bill go forward without "framing" that power. A police officer cannot be free to decide on his own that he will buy drugs on the market because sometime down the road he might be called to an investigation where he will be asked to infiltrate a gang. Similarly, a police officer cannot request a departmental employee to make a fake passport because he thinks it will be needed in a covert operation sometime.

We amended the government bill in 2001. I was sitting on the government side at the time, as was Senator Moore. We were on the Standing Senate Committee on Legal and Constitutional Affairs. We proposed at third reading an amendment to the then bill, which is now section 25.2 of the Criminal Code. This was the amendment adopted at that time to try to frame the power of a police officer to commit a crime:

25.2 Every public officer who commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) or (b) shall, as soon as is feasible after the commission of the act or omission, file a written report with the appropriate senior official describing the act or omission.

When a police officer commits a crime under the organized crime bill, he or she must report that to his or her superior in writing. It remains within the confines of the department and will be reported in the usual chain of operation.

There is a counterweight in the system. When we had the debate in the chamber, senators on both sides spoke in support of that amendment. Senator Moore declared on December 5, 2001 — and I informed Senator Moore that I would quote him:

. . . the Canadian Bar Association and the Barreau du Québec . . . expressed concerns about these provisions. There were concerns that expressly allowing law enforcement officers to engage in conduct that would otherwise constitute offences could undermine the rule of law in Canada.

I have informed the Honourable Senator Andreychuk that I would be quoting her today. She said:

It is time that there be some mechanism — be it in the Senate, the House of Commons or jointly — to address the continual reduction of the safeguards and protections we have built up in our system in order that police officers do not become arbitrary and government ability to use police cannot become dictatorial. There is a fine balance between the need for security and the need to protect the individual freedoms that make this country different from other countries.

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I think this principle is fundamental to our discussion today. Of course, when we were concerned about this issue, the report that the Standing Senate Committee on Legal and Constitutional Affairs tabled in support of Bill C-24 at that time, raised similar concerns. Members of the Canadian Bar Association and Barreau du Québec, along with representatives and practicing defence lawyers were unanimous in their concern that the exemption from criminal liability provisions in Bill C-24 would fundamentally change our criminal justice system. They were requesting amendments.

Today, honourable senators, we are in the same position as far as the principles are concerned. A police officer could now use any kind of fake document in a covert operation and would not have to report it, as much as an employee who would be asked by police to make a fake document would not be compelled to report it to his superior.

Therefore, honourable senators will understand that the concern of the bar associations and the concerns of witnesses we heard last week at the committee are of tremendous importance for the principles of our criminal justice system.

That is why, at third reading of Bill S-4, especially regarding clauses 7 and 9, I informed the honourable senators attending the debate that it needs further reflection and that, at third reading, I reserved the right to introduce an amendment to those two clauses — not to delete them. Again, the bar asked for them to be deleted. I am not asking the chamber to delete those clauses.

I am proposing to frame that power so that the employee or police office will have to present a written submission to his superior. Additionally, if the superior decides to report it at the appropriate time and not identify any of the parties or any of the times it was used, it be noted that they had to resort to breaking the law to try to fight crimes or use documents that might be needed in the course of their investigation.

Motion in Amendment

Hon. Serge Joyal: Therefore, honourable senators, I move:

That Bill S-4, as amended, be not now read a third time but that it be amended,

(a) in clause 7, on page 5, by adding after line 17 the following:

"(6) The Minister responsible for an entity referred to in subsection (5) that has requested a person to make a false document shall disclose or cause to be disclosed each year, in a report that is published or otherwise made available to the public, the number of times that the entity made such a request during the immediately preceding year.

(7) For the purposes of subsection (6),

(a) the Minister of Public Safety and Emergency Preparedness is the Minister responsible for the Royal Canadian Mounted Police;

(b) the Minister responsible for policing in a province is the Minister responsible for a police force constituted under the laws of that province;

(c) the Minister of National Defence is the Minister responsible for the Canadian Forces; and

(d) the Minister who has responsibility for a department or agency of the federal government or of a provincial government is the Minister responsible for that department or agency."; and

(b) in clause 9, on page 6,

(i) by replacing line 15 with the following:

"368.2 (1) No public officer, as defined in sub-", and

(ii) by adding after line 22 the following:

"(2) Subject to subsection (3), every public officer who commits an act that would, but for subsection (1), constitute an offence under any of sections 366 to 368.1 shall, as soon as is feasible after the commission of the act, file a written report with the appropriate senior official describing the act.

(3) A public officer who commits more than one act referred to in subsection (2) involving the same forged document is not required to make more than one report under that subsection in respect of those acts within any twelve month period.

(4) A competent authority, as defined in subsection 25.1(1), may designate senior officials for the purposes of this section.

(5) The competent authority shall include in the annual report referred to in subsection 25.3(1) the number of acts that were reported under subsection (2) to senior officials designated by the competent authority.

(6) In this section, "senior official" means a senior official who is responsible for law enforcement and who is designated under subsection (4).".

Honourable senators, I know it is very technical. However, it is to the same effect that we have under sections 25.1 and 25.3 of the Criminal Code, in as much as the laws against organized crime was adopted and voted on in this chamber eight years ago.