JUST Committee Report

THE STATE OF ORGANIZED CRIME IN CANADA: SUPPLEMENTARY REPORT FROM THE OFFICIAL OPPOSITION

Since 2009, New Democrats have worked collaboratively with other parties on the Standing Committee of Justice and Human Rights with the objective of recommending new strategies for the Federal government in its fight against criminal organizations. The resulting Report identifies many of the outstanding issues that require urgent action by the Federal government as we collectively seek to improve the safety and security of communities across the country.

New Democrats have consistently promoted an effective and balanced approach to combating organized crime. This approach involves prevention, policing and prosecution and is founded on the conviction that the fight against organized crime must be taken to its root: the recruitment of youth. New Democrats also believe in providing the judiciary with the necessary tools to effectively and efficiently prosecute members of criminal organizations to the full extent of the law. To this effect, New Democrats worked together with the Government to pass Bill C-2, the mega-trials bill, in June 2011. It is through the lens of a balanced and effective approach that New Democrats support the majority of the recommendations proposed in this Report.

However, this Report cannot be considered in isolation. Instead of tackling organized crime sensibly, the Conservative government has proven to Canadians, through overreaching bills such as C-10 and C-30, that it is willing to put ideology ahead of levelheaded legislation. The Conservative government has also too readily run roughshod over common law and criminal justice traditions that have been carefully developed over centuries.

 New Democrats oppose a number of the recommendations in this Report that reflect provisions contained in Bills C-10 and C-30 and that erode established judicial discretion, by imposing ineffective mandatory minimums, and that unduly intrude on the privacy rights of law-abiding Canadian citizens. Furthermore, New Democrats are concerned that certain recommendations appear in the report without textual backing, while other significant issues, raised by experts during committee hearings, are entirely absent from the Report and Recommendations. The Official Opposition will continue to offer practical, evidence-based solutions that address organized criminal activity at its root in Canada.

SENTENCING: MANDATORY MINIMUMS

New Democrats have grave concerns with the Government’s agenda to impose mandatory minimum sentences instead of focusing on appropriate sentencing and rehabilitation. All evidence points to the very expensive result of mandatory minimums, most notably in terms of increased costs associated with higher incarceration rates and increased sentence terms.  Instead of spending billions of dollars at both federal and provincial levels, the allocation of scarce financial resources would be better served on inmate rehabilitation services and prevention programs.  Victims of crime would benefit much more from this approach than one determined by outdated modes of extreme criminal punishment and deterrence, founded on an ethos of a vindictive sense of righteousness.

As well, mandatory minimum sentences subvert the discretion of the judiciary to impose a just sentence upon hearing all the facts and circumstances of an individual case including the role and contributions of organized criminal activity to the commission of an offense. Judicial independence and discretion have long histories in Canada, and around the world, of reducing costs associated with criminal justice and preserving a more humane and reasoned practice of criminal law. New Democrats believe in these principles and oppose recommendations that weaken judicial independence and discretion.

Consequently, the Official Opposition finds objectionable the first recommendation following paragraph 100 of the Report, which recommends the amendment of the Criminal Code to impose mandatory minimum sentences for criminal organization offences. Members of criminal organizations who instruct individuals to commit an offence are already liable to imprisonment for life under section 467.13 of the Criminal Code.

PROPOSED DISCLOSURE MODEL

The second recommendation following paragraph 96 of the Report, calling for the creation of an electronic disclosure model to serve as a standard Crown brief, also elicits concern from New Democrats. In its application, it is not clear whether this recommendation would force defense lawyers to disclose their defense before the trial. If indeed the case, this recommendation would stand in stark opposition to established criminal justice tradition, and the right to make full answer and defense to any charge could be compromised.  New Democrats thus propose the addition of the following words to the recommendation to rectify this ambiguity: “…not include disclosure that could identify a confidential informant or reveal a secret police investigative technique and does not require defense counsel to disclose a defense plan to the Crown.”

LEGAL ACCESS

New Democrats support legislative changes to ensure that police have the powers to address the emerging threats posed by cyber crime, and support efforts to bring policing into the digital age.  Paragraph 140 of the Report states that, “electronic eavesdropping legislation has not kept pace with recent changes in telecommunications.” The NDP recognizes that the structure of Part IV of the Criminal code, pertaining to electronic surveillance, has remained largely unchanged since 1974. The rights afforded to the state for the purposes of public safety are indeed dated, given the advent of the digital age.

However, the NDP wishes to highlight the crucial difference between updating the investigative tools available to the law enforcement authorities and deepening the surveillance powers of the state, thus allowing greater access to the private lives of law-abiding Canadians. The necessity of the former should not justify the promulgation of the latter. New Democrats believe that it is important to protect basic rights and freedoms and opposes the erosion of privacy rights and the expansion of unchecked surveillance powers contained within two recommendations emanating out of this Report.

The recommendation following paragraph 144 calls for the establishment of statutory mechanisms to enable law enforcement agencies to acquire basic subscriber identification from telecommunication service providers without a warrant.

The objections of the New Democrats to this recommendation can be summed up in two points:

1. Defending judicial oversight: The NDP believes that judicial oversight and discretion are essential to maintaining the balance between the surveillance powers of the State and the privacy rights of Canadians. As such, the NDP cannot support a recommendation that seeks to sidestep judicial oversight by allowing authorities to access personal identifiers without a warrant.  The provisions for obtaining warrants to access information not readily available under existing law, could be facilitated by the use of telephone warrants for example, as a means to enable expedited police intervention, where required.
2. Unnecessary expansion of powers: The Report states in paragraph 142: “According to law enforcement agencies, it is difficult to consistently obtain from telecommunications service providers such basic information as their clients’ names and addresses.” While the NDP respects the opinion of law enforcement officials who have testified at the Justice Committee in favor of warrantless access to subscriber identifiers, other evidence suggests that these measures are not necessary. According to data obtained from the Ministry of Public Safety and Emergency Preparedness, currently 95% of requests to TSPs for identifier information by law enforcement officials are granted. Therefore, it is not apparent that law enforcement investigations are being systematically undermined by the current statutory status quo.

The first recommendation following paragraph 141 of the Report calls for legislation to require TSPs and telecommunication device manufacturers to build the ability to intercept telecommunications into their networks.

New Democrats are concerned by the financial repercussions of this recommendation on TSPs, ISPs and, ultimately, on Canadians. Building intercept capability into TSP and ISP networks will be costly, particularly for smaller service providers. Indeed, on February 22^nd, 2012 Public Safety Canada admitted that the implementation of bill C-30 would cost the telecommunication industry at least $80 million over four years.  In a market dominated by a few large companies, small TSPs/ISPs offer consumer choice and ultimately a more competitive marketplace, bringing down prices for consumers. The implementation of this recommendation, treated in isolation, could incur a disproportionate cost on the bottom line of small TSPs and ISPs, either causing them to go out of business or to increase their fees. Ultimately, the internet users could bear the financial burden of deepened surveillance capabilities.

Furthermore, the NDP is concerned about the absence of a concurrent recommendation establishing an enhanced oversight mechanism to ensure the accountability and respect for privacy rights of subscribers, when TSPs/ISPs and law enforcement agencies utilizing these new interception capabilities. Increasing interception capabilities by the State must be balanced by an effective and credible oversight mechanism dedicated to protecting the privacy rights of Canadians.

Finally, the Committee heard testimony suggesting that both the ease of access to and ability to be anonymous when acquiring cell phones were serious hindrances to the efforts of law enforcement in their investigations of criminal organizations. New Democrats find problematic the recommendation after paragraph 145 of the Report, which calls on the government to examine the possibility of requiring cell phone merchants, and possibly telecommunication service providers, to verify the identity of purchasers and subscribers. It is clear to New Democrats that this recommendation lacks foresight. Evidence suggests that the implementation of this recommendation would impose enormous costs on telecommunication companies, particularly small and medium sized enterprises, and would inevitably be passed on to the consumer.

INADEQUATE JUSTIFICATION

New Democrats find that the recommendation following paragraph 132, as well as the first following paragraph 160 appear in the Report without sufficient justification. New Democrats are concerned that these recommendations do not flow out of testimony heard during committee hearings on this study. Consequently, some of the content in these recommendations emerges without justification. To this effect, New Democrats oppose the recommendation following paragraph 132, which calls for the lowering of the requirement to report, by select firms, all cash transactions of $7,500 or more, from $10,000 or more. This is particularly concerning, when extended to law firms, considering the impact this could have on solicitor-client confidentiality requirements. In the same vein, this recommendation flies in the face of the existing agreement between FINTRAC and provincial law societies. New Democrats find this recommendation both unjustified and unrealistic.

In relation to the first recommendation following paragraph 160, New Democrats, quite simply, question the relevance, to a study on organized crime, of a recommendation to empower the Superior Court of Justice to rule on claims of national security privilege and to remove the ability to appeal such rulings.

Furthermore, in regards to the second recommendation following paragraph 160, to amend the Criminal Code to provide the power to appoint counsel for a self-represented accused, New Democrats don’t agree that a sufficient evidentiary basis has been made to overturn the existing Criminal Code and the ruling of the Supreme Court of Canada on this issue.

LEGAL AID

Over the course of two years of testimony, the Standing Committee on Justice and Human Rights heard from many expert witnesses, raising crucial issues that are absent from the Report and recommendations. Among them, witnesses spoke of the growing underfunding of Legal Aid programs across the country. Testimony from committee meetings reveals that accused, with affiliations to criminal organizations, often see their assets seized, leaving them without means to finance a defense. Underfunded Legal Aid can cause shortages in defense lawyers resulting in delays in trials and often longer trials because fewer experienced criminal defense lawyers are available for legal aid on complex matters. New Democrats believe individuals accused of organized criminal activity must be prosecuted to the full extent of the law, however the weakening of the proper administration of justice caused the underfunding of Legal Aid programs, perpetuated by the Conservative government, is undermining the fairness of the system.

New Democrats will continue to push the Government to adopt balanced and effective strategies to combat organized criminal activities that jeopardize the security of Canadian streets and communities. Our party sees the majority of the recommendations in this report as taking Canada in the right direction. Yet, through bills such as C-10 and C-30, the Conservative government has proven its penchant for expensive, overreaching and ideologically-driven legislation. New Democrats oppose this approach that appears in certain recommendations in this report. An effective fight against organized crime must be evidence-based, practical and respect the rights of law-abiding Canadians. The Official Opposition will continue to hold the Government to account to push for smart legislation that fights against organized crime, while respecting evidence-based research, the rights of law-abiding Canadians and tax-payer dollars.