C-17 Committee Meeting

37th PARLIAMENT, 2nd SESSION

Legislative Committee on Bill C-17

EVIDENCE

CONTENTS

Tuesday, January 28, 2003

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1535

The Chair (Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.))

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.)

The Chair

Mr. Claude Bachand (Saint-Jean, BQ)

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1540

The Chair

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance)

The Chair

Mr. Gary Lunn

The Chair

Mr. Gerry Barr (Co-Chair, International Civil Liberties Monitoring Group)

The Chair

Mr. Gerry Barr

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1545

¹

1550

The Chair

Mr. Jean-Louis Roy (President, International Centre for Human Rights and Democratic Development)

¹

1555

º

1600

º

1605

The Chair

Mr. Gary Lunn

The Chair

Mr. Gerry Barr

º

1610

Mr. Gary Lunn

Mr. Jean-Louis Roy

The Chair

Mr. John O'Reilly

The Chair

Mr. Jean-Louis Roy

º

1615

Mr. Gerry Barr

The Chair

Mr. Claude Bachand

Mr. Jean-Louis Roy

º

1620

Mr. Claude Bachand

The Chair

Mr. Jean-Louis Roy

The Chair

Mr. Steve Mahoney (Mississauga West, Lib.)

º

1625

The Chair

Mr. Gary Lunn

The Chair

Mr. Jean-Louis Roy

The Chair

Mr. Gerry Barr

º

1630

Mr. Gerry Barr

The Chair

Mr. Rex Barnes (Gander—Grand Falls, PC)

Mr. Gerry Barr

The Chair

Mr. Rex Barnes

Mr. Jean-Louis Roy

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1635

The Chair

Mrs. Bev Desjarlais (Churchill, NDP)

Mr. Roch Tassé (Coordinator, International Civil Liberties Monitoring Group)

Mr. Jean-Louis Roy

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1640

Mrs. Bev Desjarlais

Mr. Gerry Barr

The Chair

Mr. John O'Reilly

Mr. Gerry Barr

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1645

Mr. John O'Reilly

Mr. Gerry Barr

Mr. John O'Reilly

Mr. Gerry Barr

The Chair

Mr. Claude Bachand

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1650

The Chair

Mr. Jean-Louis Roy

Mr. Claude Bachand

Mr. Jean-Louis Roy

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1655

The Chair

Mr. Steve Mahoney

Mr. Gerry Barr

»

1700

Mr. Jean-Louis Roy

The Acting Chair (Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Mr. Steve Mahoney

The Acting Chair (Mrs. Marlene Jennings)

Mrs. Bev Desjarlais

»

1705

Mr. John O'Reilly

Mrs. Bev Desjarlais

Mr. Gerry Barr

Mrs. Bev Desjarlais

Mr. Gerry Barr

Mrs. Bev Desjarlais

Mr. Gerry Barr

Mrs. Bev Desjarlais

Mr. Gerry Barr

Mrs. Bev Desjarlais

Mr. Gerry Barr

Mrs. Bev Desjarlais

Mrs. Marlene Jennings

»

1710

The Chair

Mrs. Bev Desjarlais

The Chair

Mr. Gerry Barr

The Chair

Mr. Jean-Louis Roy

The Chair

Mr. John O'Reilly

Mr. John O'Reilly

Mr. Steve Mahoney

The Chair

Mr. Steve Mahoney

The Chair

Mr. Rex Barnes

»

1715

Mr. Jean-Louis Roy

The Chair

Mr. Jean-Louis Roy

Mr. Rex Barnes

The Chair

Mr. Jean-Louis Roy

The Chair

Mr. Gerry Barr

»

1720

The Chair

M. Roch Tassé

The Chair

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CANADA

Legislative Committee on Bill C-17

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NUMBER 005

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, January 28, 2003

[Recorded by Electronic Apparatus]

¹  (1535)  

[English]

    The Chair (Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.)): Colleagues, I'd like to call this meeting to order. I welcome all of you back from the Christmas recess, as we continue our study of Bill C-17.

    First of all, let me begin by introducing and welcoming our witnesses today.

[Translation]

    First of all, we have Mr. Gerry Barr, who is the Co-chair of the International Civil Liberties Monitoring Group and the Chief Executive Officer of the Canadian Council for International Cooperation; he is accompanied, I believe, by Mr. Roch Tassé. Welcome, gentlemen.

    We are also joined by Mr. Jean-Louis Roy, President of

[English]

the International Centre for Human Rights and Democratic Development.

    Before we proceed to the submissions, I'd like to bring to the attention of our colleagues on both sides that the submission that I have here and that we have not circulated to you yet is from the International Centre for Human Rights and Democratic Development. I suspect it might be a misunderstanding, given that we have asked that all of our documents be entirely in French and in English before being circulated. In this case, the document has been presented to us in a bilingual format, but more specifically, it alternates with one paragraph in French and one paragraph in English. I know the clerk will make sure that for future witnesses, we don't have that margin for error.

    I'm in your hands. I would hope that, with your approval, I might be able to ask the clerk to circulate this to the membership of the committee.

[Translation]

    Are there any objections given the circumstances?

[English]

    Mr. O'Reilly.

    Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): It has always been my tradition to speak against the submission of any document that isn't in both official languages, and I would record that now.

    The Chair: Are there any other objections?

[Translation]

    Mr. Bachand.

    Mr. Claude Bachand (Saint-Jean, BQ): It happens often that groups come and their documents have not been translated. Now, if I fully understand the situation, the anglophones are penalized as much as the francophones are, since the paragraphs alternate between French and English. I would like to go on the record saying that I find the situation deplorable. I would also like the clerk to ensure that in the future people who make presentations do so in both official languages.

    As for me, I will work with that. So if you want to distribute the document, I will work that way today, but I would appreciate it if in the future, the clerk could tell groups that they must present their briefs in both official languages.

¹  (1540)  

    The Chair: I fully agree with you, and we are going to take the necessary steps to prevent these circumstances from recurring.

    I'm going to start by distributing the brief that I have in front of me in its “bilingual” format. I assure you that as soon as this committee has completed its work today, these documents will be sent to translation.

[English]

Everyone will then receive full copies both in French and in English.

Mr. Lunn.

    Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): When you say they're alternating paragraphs, are you sure they're not the same paragraphs being repeated?

    The Chair: No, they're not, and that's why I say I think there has been a slight misunderstanding in this case.

    Mr. Gary Lunn: So we're only getting half of it on each side.

    The Chair: Exactly, and as Monsieur Bachand has already pointed out, it equally treats anglophones as francophones. Notwithstanding that, as has already been pointed out by Mr. O'Reilly and based on our own motions in preparation for the work we've undertaken on Bill C-17, our practice is that all submissions have to be submitted in both official languages, entirely in French and entirely in English. Notwithstanding the circumstances of today, which I think are probably just due to a slight misunderstanding, we will endeavour through our clerk to see that this does not repeat itself with any of our future witnesses. I will have this submission in its present form circulated to you, with the undertaking that these will go to translation immediately after our meeting today. As quickly as possible, you will then receive the entire text in both languages, French and English.

    I'm prepared to proceed with the business at hand with our witnesses.

[Translation]

    Mr. Barr, you have the floor.

[English]

    Mr. Gerry Barr (Co-Chair, International Civil Liberties Monitoring Group): Thank you very much.

    I wonder if I could ask the chair whether or not the clerk has been able to distribute copies of our brief?

    The Chair: Yes, copies have been distributed.

    Mr. Gerry Barr: Terrific. Thank you very much.

    I'd like to thank you for having us here today to speak to the House of Commons Legislative Committee on Bill C-17. The International Civil Liberties Monitoring Group is composed of a number of Canadian civil society organizations, and was created in the wake of the adoption of anti-terrorist legislation in 2001. We share concerns about the impact of the new legislation on civil liberties, human rights, refugee protection, political dissent, governance of charities, international cooperation, and humanitarian assistance.

    That legislation passed by Parliament in late 2001, together with measures currently before it or under study, such as Bill C-17, provide the police, security, and intelligence services with intrusive investigative powers and enforcement tools never before imagined outside of the War Measures Act. In our view, many of these measures are off on the wrong foot, neither appropriate nor warranted in the context of the acknowledged real threat to democracy and order in the world today.

    Security legislation post-September 11 looks to us to have been prepared hurriedly, without much reference to fundamental and universal human rights frameworks like those found in the Universal Declaration of Human Rights and the covenants of the United Nations to which Canada is a party. Further, there are parts of these laws that look as if they conflict with sections of the Canadian Charter of Rights and Freedoms, as well as with specific guarantees to the rights of Canadians in such laws as the Privacy Act.

    The Privacy Commissioner of Canada has done a service for us all, citizens and lawmakers alike, by focusing public attention on the impact of Bill C-17 and related initiatives on existing human and civil rights protections. He invited and circulated commentary—primarily directed to the implications of Bill S-23 and the advance passenger information/passenger name record database project—from a former Minister of Justice, a former Deputy Minister of Justice, and a retired Supreme Court Justice.

    The retired Supreme Court Justice Gérard La Forest reminds us of guarantees under section 8 of the charter against unreasonable search or seizure, and a broad and general right of privacy and control through consent or its refusal over personal information. In short, Bill C-17 permits the seizure of personal information without any provision for consent.

    Former Deputy Minister of Justice Roger Tassé cites the legal doctrine of overbreadth. This can be summarized as the question of whether Bill C-17, in its broad scope and scale, restricts liberty far more than is necessary to accomplish the goal.

    Finally, former Minister of Justice Marc Lalonde asserts that “the legitimate interests of the State requiring the collection of personal information must be balanced with the fundamental right to privacy of all Canadians.”

    The International Civil Liberties Monitoring Group is convinced that both the database project and the provisions of Bill C-17 are indeed overbroad. If you'll allow me to set our preoccupations in a context, we are concerned about the fundamental trends embodied in an initiative such as the U.S. Total Information Awareness project. This database will combine all existing private information from both commercial and governmental sources, and we see it as leading toward information mining, monitoring, and pattern analysis equivalent to or worse than practices of the most reprehensible of security forces in dictatorships, antithetical to a free and democratic society. We're further concerned that a direct diplomatic pressure related to the harmonization of the border, as well as less direct spillover influences, will lead to sharing of information related to Canadian citizens and residents in this intrusive U.S. system.

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    The Canadian Council of Chief Executives has called for a series of common regulatory and administrative instruments leading to a common approach to borders, trade, immigration, security, and defence. CCCE president Tom d'Aquino calls it “reinventing the border”, but we understand the proposal to essentially mean reinventing Canada as part of the United States, and we oppose measures that would effectively and severely weaken Canadian sovereignty and diminish the capacity of the Canadian government and its institutions to ensure the security of and to protect the freedoms of Canadian citizens on the basis of Canadian rights and values.

    In the face of these internal and external pressures, we assert the priority of maintaining and strengthening Canadian autonomy and of defending the constitutional rights and protections of Canadians, including their privacy rights. The development of a Big Brother database on the foreign travel activities of Canadians by the Canada Customs and Revenue Agency represents a deeply troubling move toward what can only be viewed as a cornerstone for a system parallel to the draconian U.S. security regime. We agree with the Privacy Commissioner that this database is a violation not only of the Privacy Act, but also of sections 7 and 8 of the Charter of Rights and Freedoms.

    In this brief period of time, we cannot address all aspects of the present bill, but we do wish to draw the committee's attention to central issues of the right to privacy and to control of personal information. If we take a step back for a minute to the right to privacy as put forward in the Personal Information Protection and Electronic Documents Act, the relevant “Guide for Canadians” states:

The Act gives you control over your personal information by requiring organizations to obtain your consent to collect, use or disclose information about you.

    Bill C-17, on the other hand, provides for mandatory self-identification of Canadians through the use of airline passenger information and its provision to law enforcement agencies for a significant period of time. It would permit government agencies to sift through the personal information of law-abiding Canadians; to review the travel information of domestic as well as international travellers; to do so without the consent of Canadians for purposes beyond travel security, for which the information is provided to airlines and the travel industry; to seek out persons on warrants for Criminal Code offences having nothing to do with terrorism, transportation security, or national security; and to subject all Canadians, and particularly those with common names, to errors of identification and possible mistaken arrest or investigation. In sum, the proposed new powers would turn all Canadians in some measure into suspects, at least those travelling by air.

    Consequently, we recommend that Bill C-17 be amended and radically refocused, in combination with a revision of the provision setting up the Big Brother API/PNR database itself. We agree with the Privacy Commissioner that the bill fails to distinguish between intelligence and information, violating the privacy and presumed innocence of the many without adequate payoffs in terms of intelligence relevant to potential terrorism by the very few.

    Several other aspects of Bill C-17 also need revision. We share the concern of the Canadian Bar Association that specified, controlled-access military zones may be used to inhibit legitimate dissent. We're concerned that the power given to ministers to issue interim orders without the approval either of cabinet or Parliament conflicts with democratic accountability. We're concerned as well that the access of individual Canadians to any information being held by the state through measures established by this legislation needs to be addressed, as does the need for transparent, regular parliamentary review of the conduct of agencies and officials granted powers in this legislation.

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    We think this legislative committee, Parliament itself, and the government need to reassert a commitment to the essential rights and protections of Canadians as embodied in the Constitution. They need to test proposed legislation, including that dealing with security and concerns like international terrorism in the light of its impact on those rights and protections.

    Bill C-17, of course, is not the last proposed step in extending intrusive and extraordinary state incursions into the lives of Canadians. The lawful access initiative currently put forward for discussion by Justice Canada would make our Internet and telephone communications subject to an unprecedented level of scrutiny.

    Canada is under persistent direct and indirect pressure from the United States to bring our laws and practices into conformity. The Homeland Security project, Total Information Awareness, the profiling and registering of residents from particular geographic regions, religious backgrounds, and gender, and many other initiatives, raise challenges to Canadian norms and traditions and to both national and universal rights. The conclusion I'd like to leave with you is contained in some words used by Sophia Macher, commissioner of the Truth and Reconciliation Commission in Peru. To paraphrase what she quoted the president of that commission as having said, we cannot defend our democracies if we abandon respect for due process and for fundamental rights. When public order is put above the civil liberties of citizens, then that democracy has adopted the tactics and principles, or lack of principles, of its enemies and has been partially defeated.

    Thanks very much for your time.

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

[Translation]

    I will now ask Mr. Jean-Louis Roy to make his presentation, and then we will move on to questions.

    Mr. Roy, please proceed.

    Mr. Jean-Louis Roy (President, International Centre for Human Rights and Democratic Development): Thank you, Mr. Chairman. I am somewhat surprised to find myself in front of your committee. I have spent the last 15 years of my life in Africa, Asia, and the Caribbean, fighting to improve human rights in all societies, and today I find myself at a committee of the Canadian Parliament for the first time, to comment on a loss of rights and freedoms in our country.

[English]

    In a few weeks, the United Nations Commission on Human Rights will hold its 59th session in Geneva. Our group, which is also known as Rights and Democracy, will submit nine statements devoted to various situations, global, regional, or national. In reviewing these statements recently, I was deeply moved by the common perspective that emerged from our analysis and proposal. Insecurity is a core reference to a great diversity of human situations all over the world: from the right to food to the status and treatment of girls and women in Afghanistan; from the violence experienced by aboriginal peoples in Colombia to the effect of global incivility in the Democratic Republic of Congo and to the violation of freedom of association, expression, and privacy in China. As Canadians, we advocate a common remedy for all those situations: the full recognition of all human rights, and their full implementation.

    For us and for our partners all over the world, security is an integral part of human rights. They grow from the same general conception of human dignity. They grow from the same general conception of the rule of law and the same general conception of the search for universal and common values.

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[Translation]

    Security and human rights are not opposites. On the contrary, over the past 50 years, we have slowly begun to understand that consolidating security throughout the world for individuals and groups is tantamount to consolidating respect for human rights.

[English]

    When dealing with human security, the challenge is not to promote security at the expense of human rights. Rather, it is to ensure full respect for human rights even in situations in which national security is at stake.

    I want to be clear. We strongly condemn all acts of terrorism as a clear violation of and threat to our democratic system and human rights values, but we're not prepared for any trade-off between effective action to counter terrorism and the protection of the full range of human rights.

[Translation]

    We must not lose sight of the fundamental choices our country and our partners throughout the world have made over the past 50 years, especially following the Second World War.

    In the late 1940s and the early 1950s, we were combating the barbarous acts which outraged the conscience of mankind: 20 million people dead. It was a question of freeing humanity, and I quote the Universal Declaration, from “fear and want”. We found a common answer: the Universal Declaration of Human Rights. We must reaffirm, consolidate and perfect this choice.

    As I said earlier, security is an integral part of human rights. It cannot be reduced to a simple petition of principles, to virtuous words that will have no effect. The right to security, and that is what you are working on here, requires decisive action against barbarous acts and the fear that results from them.

[English]

    International human rights law, through mechanisms such as derogation, restriction, and restrictive clauses, recognizes these needs and provides means by which the restriction or suspension of certain rights may be necessary and permitted in exceptional circumstances. Before any other action, those provisions have to be used, their effectiveness and limitations tested. In extreme cases, all the provisions can be envisaged.

[Translation]

    Mr. Chairman, I would like to sum up by repeating some of the comments made by Gerry Barr. We are members of this coalition, and we share its conclusions. In closing, Mr. Chairman, I would like to mention a number of criteria on which should be based all the efforts of our Parliament to control violence or terrorism. Anything done by Parliament in the area of security should be preceded by a preamble restating the primary and inalienable nature of our rights and freedoms. We live under the rule of law. We are one of the few such societies in the world, and we should state and reaffirm this fact. Consequently, any derogation from the rule of law must be preceded by a solemn affirmation to the effect that this is an exception to which we consent in extreme cases, but that we live under the rule of law and are attached to that system.

    Second, any derogation from our rule of law—that is section 1 of the Canadian Charter of Rights and Freedoms—must be justified. Canadians are entitled to know the nature of the threat that is causing Parliament to step up its security measures now, beyond the general stand on terrorism and antiterrorism throughout the world. Thus, any derogation from our rule of law must be justified by exceptional circumstances on which there is a genuine consensus among a qualified majority of the two Chambers of Parliament as shown in a free vote on these issues.

    Third, any so-called emergency power on the part of ministers must be severely limited in its objectives and in time, and any step taken as an emergency ministerial power must be referred to the governor in council and to the two chambers within 72 hours. If there is a crisis in this country, if there is an attack on all of our freedoms, this will be known, and we will expect a reaction from the minister in charge. This minister will take certain measures and refer them to the government within 72 hours—I think this is an adequate length of time. These decisions or these measures taken by the minister should be made public within the same period of time.

    Finally, if you think that the circumstances are so exceptional that it is necessary to collect information on the personal lives of Canadians—and this is no small thing, because collecting information on the personal lives of Canadians runs counter to this country's entire tradition—if you think that the circumstances are serious enough to warrant going this far, then you should give us the following guarantees: this information should be used exclusively for specific, clearly identified purposes in the pursuit of security objectives that are themselves specific and clearly identified.

    Second, respect must be shown for the full equality of Canadian citizens in accordance with the Canadian Charter of Rights and Freedoms. It is unacceptable that an act of the Parliament of Canada would allow, either directly or indirectly, any profiling of certain categories of citizens in this country.

    Third, in this context, it is out of the question that information on the private lives of Canadians be used as the basis of a file. Consequently, there is an obligation to destroy the personal information collected once the security objectives have been met.

    Mr. Chairman, I would like to close by saying that whichever way we look at this issue, it seems unthinkable, incomprehensible and unacceptable that this country would establish information files on the private lives of Canadian citizens, would establish networks to exchange this private information with various administrations, police forces and foreign countries, just as it is unthinkable, Mr. Chairman, that these exceptional measures would not be overseen by exceptional mechanisms. That is why we would recommend the establishment of a council to oversee the rights and freedoms of Canadians. It would have extensive powers, and its mandate would be to review the compliance of the enforcement measures with the provisions passed by Parliament.

º  (1600)  

    Mr. Chairman, the foregoing comments flow out of a concept we share. The paramount political task of States is to ensure the liberty, rights and freedoms of the citizens of that State. The paramount political task of the Parliament of Canada is to ensure the liberty and rights of Canadians. We must do everything possible to ensure that the proponents of incivility do not ultimately achieve their objective.

    What is the goal of these apparent enemies of ours? It is to control the choices and directions taken by States that operate under the rule of law. If they manage to control the choices and direction of States that function under the rule of law, and particularly those of this country, well then, they will have succeeded. Terror will have caused us to change our system and will have brought us closer to the type of system we condemn throughout the world.

    Those are the main points I wanted to make, Mr. Chairman.

    In closing, I would like to tell committee members that I have a great deal of sympathy with them for the responsibility they bear. They have the difficult responsibility of limiting the freedoms of Canadian citizens, in a case of this type. I am sure they will only do so if they are convinced that their actions are warranted.

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    The Chair: Thank you very much for your brief, Mr. Barr and Mr. Roy. We will now move to a five-minute round.

[English]

Our first spokesperson will be Mr. Lunn, from the Canadian Alliance.

    Mr. Gary Lunn: Thank you very much, Mr. Chair.

    I will ask for the indulgence of the rest of the committee members, this being my first time in this committee. I was just asked to become a permanent member of this committee today, so some of my questions may be items you've already covered.

    The germane question that I see today, especially in listening to the two witnesses when they talk about the individual rights of citizens and the protection of their privacy, is what the balance is. Where do you draw the line for the infringements on those rights, so that the infringement is minimal enough but the cost to that infringement provides a greater good to the protection of society as a whole? I'm not suggesting that I think we should infringe on those rights, but the question is how far you do infringe on them.

    I agree with you on this Big Brother database. I think that's going too far. But I also acknowledge that Canada is vulnerable. It's no different from some of our other allied countries, like the United States, Great Britain, France, or Germany. All of these countries are vulnerable in ways that would be very difficult to prevent unless we do the intelligence work to try to stop these potential terrorist attacks before they happen. We do live in a very different world.

    To again summarize my question, then, how far is it okay to go to infringe on those rights, to the point where the cost would be minimal enough that the benefit to society as a whole would be worth that cost of the individual infringements?

    The Chair: Mr. Barr.

    Mr. Gerry Barr: I think that is the balancing act. Your sad job is to find a spot in there somewhere. No one is saying it is not intolerably tough to look at that problem in a way that proposes to come out with a solution. However, if one puts one's mind to the question of what benefit comes out based on the extent of scrutiny put in, you want to say first that there is certainly going to be a policing response to terrorism, but one wants to create a policing response that doesn't generate the effect of a police state.

    I remember Donald Rumsfeld's commentary on the border measures when Canadians were being photographed and identified as they went across the border. It was not long ago. I think it was on November 7. The interesting thing in that commentary was that he cited the number of people who had been fingerprinted and photographed to date, putting it at 14,000. The number of Canadians among those 14,000 was about 10%. The number of persons detained and arrested as a result of that process was 172, all for warrants in various countries, for different criminal activities. Only 1 person of the 14,000 was arrested for a reason of their intelligence interest. So in a sense, if you want to quantify it, you have it out of the secretary's own mouth. It was 1 out of 14,000.

    It does create enormous challenges, but what we're concerned about is overbreadth, or the overbroad views of investigative powers launched ostensibly for purposes of national security ends. They appear to provide investigative tools, as you point out, for anti-terrorist checks and for public safety. However, they also provide for the sharing of information for regular policing in order to chase down those for whom there are warrants, and the sharing information with offshore agencies. This is under terms of an agreement—forget law—not subject even to cabinet approval. It also provides as well for the getting of even more extensive information by Canadian authorities—arguably as much again as is collected under the database arrangements—from governments offshore. Again they are not regulated equally by law, but by an agreement, and presumably much the same sort of an agreement.

    It is this that causes concern about overbreadth and the kind of untrammelled management of and easy access to information. I think my colleague has spoken quite eloquently about the need for a very narrow approach to these things when one knows the consequence is the clear violation of rights.

º  (1610)  

    Mr. Gary Lunn: Thank you very much.

[Translation]

    Mr. Jean-Louis Roy: We have something in common, sir: we are both here for the first time... I apologize.

    The Chair: The length of time for questions and answers is not to exceed five minutes. I am sorry, but I have been rather generous. In my opinion, everyone will gradually get used to this.

    Mr. O'Reilly.

[English]

    Mr. John O'Reilly: Thank you very much, Mr. Chairman. I'd like to thank the witnesses for coming. I'll try to make my question a little shorter so that they can both jump in.

    My concerns are administrative. Because Bill C-17 is an omnibus bill, it encompasses or covers a lot of areas, and rights and freedoms are a priority.

    There's an old saying...I think U2 has a song out called With or Without You. When we look at the Internet, e-mailed tax forms, examination records between doctors and hospitals, x-rays, our common identifier number, or our PIN numbers, when those things go out there on the Internet and out on the wire, they can go anywhere that they are requested, whether that person has authority or not. That's probably one of my greatest....

    I watched a hacker show me, on a simple computer, how he could go behind the bank machine to get your PIN number. The PIN number is waiting there for someone to get it if they know where to go, and that's just with a simple computer with e-mail. So how do we guard our critical infrastructure? Who has the authority, such as DND and so forth, to guard our critical infrastructure? Even the NDP convention was hacked into and held up for an hour, what with all the things hackers have to do that. That being the case, I'm not sure everything you have indicated is actually not already available because of the computerization of our systems.

    When we were doing a committee on the SIN number, we saw that with the three front numbers and three back numbers, the hacker could put in the middle numbers and bring up the person's tax form from last year and bring up their dental and hospital records and so forth. I don't know how this can be guarded against or whether you've given any thought to what's out there already and what we can do to safeguard what is almost impossible to safeguard, either/or.

[Translation]

    The Chair: Mr. Roy.

    Mr. Jean-Louis Roy: You have asked a very difficult question.

[English]

I think what we have in our minds as critics is close to what you have said, except that we don't want public money used to extend that system, to organize it in new territories, to create a new use for all that information that anyone can grab like that.

    We are here in front of you discussing a projet de loi that will put in public money to extend the system you just described as a very problematic system for all of us. At the least, we should not use public money to do that, and we should try to answer your question—maybe in another committee—about how can we control what has to be controlled on the Internet and in computer systems as they exist now.

º  (1615)  

    Mr. Gerry Barr: I couldn't agree more. Boy, would I love to be presenting to a committee whose main purpose was to enhance the privacy rights of Canadians with regulations that would somehow make information of this kind more secure. It would be terrific and I'd celebrate the fact. But you're right. There is a lot of openness in information. It's challenging, for sure.

    I agree with my colleague. I think we ought not to make laws that extend the challenge to the confidentiality of information and the privacy rights of citizens. When we do that—to return to my answer to the other member—we ought to be terribly careful and restrained and very specific about the kinds of interventions and be time-limited about those kinds of interventions.

[Translation]

    The Chair: Mr. Bachand.

    Mr. Claude Bachand: Thank you, Mr. Chairman. I would like to start by thanking our two witnesses for their presentations, but I would like to thank them particularly for their expression of sympathy for us. The fact is, it is quite rare to meet people who are sympathetic to politicians. I must also tell you that you are right to be sympathetic toward us, because we are from different backgrounds, and it is not easy to adjudicate between public security requirements, and limits on intrusions into people's privacy.

    Since we began studying this bill, we in the Bloc Québécois, have been of the view that it goes very very far in some of the situations it describes. I think the bill goes much farther than we went in the past. You say that there should be better control of anything that infringes on people's privacy. Therefore, if I understand you correctly, you think the bill before us is an infringement on people's privacy.

    I am starting to have many doubts about the constitutionality of this bill. The Canadian Constitution, even though it has not been accepted by Quebec, as you know, does include a Charter of Rights and Freedoms, which provides that a free and democratic society can do certain things. This is more or less the point of my first question. In light of the bill as a whole we have before us, with its various intrusions into the privacy of Canadians and Quebeckers, do you think it could be challenged under the Canadian Charter of Rights and Freedoms and ruled unconstitutional?

    Mr. Jean-Louis Roy: It sometimes happen that the judicial system is unpredictable, Mr. Bachand, and that we can't know how things will proceed ahead of time. Of course there are sections of the Canadian Charter of Rights and Freedoms, first of all section 1 on the guarantee of rights and freedoms, and then the sections which provide the exceptions... Does the work plan before us fit within the parameters of the rule of law, within reasonable limits, and can justification be demonstrated in a free and democratic society? You can imagine that if this is taken before the courts, our legal friends and our friends from the bar will look at it very closely. I'm not a lawyer. However I do have the impression that any system that would want to control the private life of citizens does not fall within the exceptions allowed under the Canadian Charter of Rights and Freedoms.

    The element that we are lacking to answer you and which you must be aware of better than we are, is that of the nature of the threat facing Canadian society. I would expect that members of Parliament have more information than we do on this issue. Based on the answer to this question, the courts will interpret the issue one way or another. However, I would be surprised if the courts would accept to include limits to what is set forward in the Canadian Charter of Rights and Freedoms, or the creation of a system that would collect, distribute and use private information in the long term.

º  (1620)  

    Mr. Claude Bachand: However, in the presentation that we heard before Christmas by the RCMP and CSIS, we were told that there was no infringement on the rights and freedoms of the individual. Can we truly trust the RCMP and CSIS? I have my doubts on this issue, with all due respect and with the respect I have for the work that they do accomplish. There is a problem here: once this legislation will take effect, we, members of Parliament, who are so very busy, will no longer have the time to check whether everything is being done as prescribed in the legislation. Your idea of an advisor or a council who could oversee this is interesting, but I wonder if this doesn't fall within the purview of the Privacy Commissioner.

    I would like to hear you on this matter, either now or during the next round of questions. How much longer do I have? Will there be a second round later? Very well then, I'll stop here. Do you think that what I have just mentioned is accurate? Actually, I don't remember what I said because I spoke too long, but I hope that you remember the essence of my question.

[English]

    The Chair: Just don't ask him the time though.

[Translation]

    Mr. Jean-Louis Roy: Mr. Chairman, there is a point that I would like to respond to.

    I think that the Privacy Commissioner has an awful lot on his plate. We cannot imagine, with such wide-ranging legislation, that within the current administrative framework the Privacy Commissioner can act as a sufficient counterweight. It is his role, but for the time being it is still not sufficient. This responsibility should not be added to all those he already has; for the length of this legislation, one would have to create a group that I should have mentioned earlier, which would oversee the balance to be created between the application of the legislation and the letter of the legislation and this group would have to report to Parliament twice a year. This oversight council would have to report to Parliament twice a year.

[English]

    The Chair: Mr. Mahoney.

    Mr. Steve Mahoney (Mississauga West, Lib.): Mr. Chairman, if I might, I'd like to address a couple of the issues that are in both of the briefs, and the witnesses can respond in whatever order they choose.

    The first concern that I have deals with the International Civil Liberties Monitoring Group and the paraphrased statement by Sophia Macher. In the brief, it says:

When public order is put above civil liberties of citizens, then that democracy has adopted the tactics and principles (or lack thereof) of its enemies....

My question that arises out of that statement is whether individual rights surpass collective rights in terms of public safety and security. Do you think we, as parliamentarians, have an obligation to ensure that the collective rights, vis-à-vis safety and security, are paramount? Or in your view, are individual rights supreme?

    Also, there are statements further on with regard to George Radwanski: “The right to privacy is fundamental”, etc., and “the ability to move about freely without constant supervision by the government”. I have some difficulty understanding how this is the “constant supervision” that Mr. Radwanski talks about. There are time limits on how long information can be kept and what people can do with it.

    On the other one—and perhaps I'll just put these out there and then leave them to the witnesses—it may not be relevant to this particular issue, but you do mention the UN Commission on Human Rights holding its 59th session in Geneva. I think that's the same commission that recently chose as its chair the individual from Libya. I'd just be curious about your feelings on that.

    Further, in the other document that has been submitted, it states, “to ensure full respect for human rights, even in situations where national security is at stake.” I don't want to be alarmist or extremist in this, but the thing that comes to mind is somebody who you strongly suspect is about to do harm in terms of national security. Maybe they're going to walk onto these premises, strapped with dynamite, etc. Do we say we don't want to interfere, that it's their personal right and their right to privacy, so we'll talk to them later? Maybe I'm overreacting to that statement, but that's what it says. The words “even in situations where national security is at stake” cause me some concern.

    Finally, I look at Kofi Annan's statement. He says, “By their very nature, terrorist acts are grave violations of human rights. Therefore, to pursue security at the expense of human rights is short-sighted”. Yet, he also says in that same statement “that the fight against terrorism is above all a fight to preserve fundamental rights and sustain the rule of law.”

    How do you deal with.... If you think of a chart, you have fundamental rights, you have rule of law—which means collective goods, safety, and security—and then you have the suggestion here. I almost find Kofi Annan's statement to be contradictory, because the statement here says we should just move human rights, individual rights, to the top of the ladder, above collective rights, the rule of law, and fundamental rights.

    Those are my concerns about your presentations, and I would appreciate your response to them.

º  (1625)  

    The Chair: Mr. Mahoney has put a lot of subject matter on the table, with very little time left for you to answer.

    Why don't we ask the witnesses, with your agreement, Mr. Mahoney, to reply to the first concern raised, and that is the issue of individual rights versus collective rights? I'm sure that, in the second round, you'll have an opportunity to come back with the other subject matters that you've already raised.

    Yes, Mr. Lunn.

    Mr. Gary Lunn: Mr. Chair, I don't mind if you give extra time.

    The Chair: That's very nice of you, Mr. Lunn, but I'll control that matter, if you don't mind.

[Translation]

    Mr. Roy.

    Mr. Jean-Louis Roy: Sir, I will answer you in a somewhat simplistic fashion because the question needs to be developed much further.

    I think that the problems arising from an imbalance between collective and individual rights have always been attributed to the fact that we have always leaned in favour of collective rights. There have never been any crises in history resulting from a surplus of individual rights; such crises have always occurred as a result of an excessive amount of importance given to collective rights.

    Nevertheless, there are gateways between the two, and security is one of them: the security of a human community, the security of a country, the security of individuals. There are cross-cutting aspects.

    I would like to say that, since we began our conversation, it seems to me that we forget—and this is undoubtedly our fault since we should have mentioned it—that in society we have already provided for all kinds of measures for police action, for security. You referred to the case of an individual who may enter Parliament. We don't need to pass legislation. We already have all kinds of provisions in our legislation that enable us to do surveillance. We have the Criminal Code. We already have an existing mechanism. I'm not talking about this legislation in a vacuum, rather, I am talking about this legislation in addition to the already existing measures.

    Your question pertain to collective security. It's a real problem. This is a responsibility of the Parliament where you sit. However, these are individual rights. We must never lose sight of the fact that, at least the way I see it, we can never stray too far from this notion in developing collective rights. It can happen, and we may be facing such a situation, that security requires a temporary strengthening of certain collective protections, in order to deal with specific threats, but the rights involved are always individual rights.

    The Chair: Mr. Barr.

[English]

    Mr. Gerry Barr: What I'd like to do is to pick up on this query that you made about Mr. Radwanski's comment about the regulation of Canadians, and I would invite you to think of circumstances. What it's about here is obligatory self-identification and the use of personal information without permission. What would it feel like and what would the reaction of Canadians be if, on public routes, in buses and in cars, they were faced with routine roadblocks at which they were required to identify themselves and their destination?

    A voice: All of them?

º  (1630)  

    Mr. Gerry Barr: All of them, and routinely so.

    That's the experience of citizens around the world in many states that we describe as police states, and the charter prohibits it. However, this is a law that allows us to do the same thing in virtual terms. If Canadians don't experience it—and that's the tricky part of this, because you don't experience it directly—it is nevertheless not less corrosive of their charter rights. It is really a stop-and-identify power that is being exercised by the state with respect to the movement of Canadian citizens in exactly the same way, and it is just as corrosive of their rights as it would be if it were to happen on a highway between Kingston and Montreal.

    The Chair: Mr. Barnes.

    Mr. Rex Barnes (Gander—Grand Falls, PC): Thank you very much.

    I want to ask a question on the balance between privacy and intelligence. It was raised by a colleague from the Alliance. I don't think we, as politicians, should be the end of it all in terms of making the decision about what we feel is the balance between the privacy of our citizens and the intelligence work of our police forces or undercover agents.

    You must have some idea of where the balance should be. You're representing groups to protect human rights and to make sure that we as politicians, we as government, and we as a society are treated fairly, that we do have privacy, and that there is a balance. You must have some idea on where you think it should go with regard to why we're here today.

    Mr. Gerry Barr: Just in principle, I think the answer is to be found in this problem of overbreadth. That's what that is all about. It's about balance. It seems to me that when we are faced with the need to introduce laws that we know and that we acknowledge will have a corrosive effect on the rights of citizens, then because of our responsibilities to uphold rights and strengthen them—as my colleague has so eloquently said—we're obliged at the same time to make those exceptions in ways that allow them in narrow terms and in time-limited ways. It's about the display of reluctance in law to regulate in ways that compromise the rights of Canadians. When we know that is happening, we should build in ways of review, oversight, time limits, and narrow opportunity for the exercise of powers that do compromise those rights. I think that's what I would say to you in the search for that balance.

    The Chair: Mr. Barnes, do you wish to continue?

    Mr. Rex Barnes: We all understand that there has been a big concern with regard to privacy, because there has been outspokenness on it with regard to the collection of data, where and how it's going to be used, and why it's going to be used. There is a big concern, of course, that it will be used going in the wrong direction, that it will be used not only for people who are doing harmful acts against the country, but that it could be used for other segments of society. How do you feel about that with regard to the human rights aspect of privacy?

[Translation]

    Mr. Jean-Louis Roy: I'd like to go back to what Gerry Barr said earlier. Let's say that the threat involved the development of a policy in another country,

[English]

we would condemn it as a totalitarian move. If the threat creates a need to collect, for valid, precise goals and in a very short period of time—in the shortest time possible—private information on Canadian citizens, it should not be transformed into or put into a mechanism that will create a huge system of control on citizens. We will not know where all of this will end.

    Talking on the grounds of human rights, I am prepared to say to you that if the threat is really, extremely grave, then for this limited period of time and under the control of whomever, it may be necessary to collect information—I don't like to say that—on the private lives of Canadian citizens, but it should not be transformed into any kind of system that will stay with us. It will be quite difficult to control it if we let the system be built and developed in two, five, six, eight, or ten years. We will then be in a state that I am not prepared to qualify, because I would not like our country to be qualified like that.

º  (1635)  

    The Chair: Ms. Desjarlais.

    Mrs. Bev Desjarlais (Churchill, NDP): Just so I'm clear on this, you're not saying there shouldn't be any kind of checking for security purposes. You acknowledge that there may be a need to check for security purposes, but if that check is done right then and there, and if there is no violation and you know it's not someone who is known as a criminal, so to speak, that information should then be disposed of, it shouldn't be kept—just to be somewhat simplistic.

    Let's look at the NDP election. When the votes came in, they were scanned. There was an ID number. I had a concern that you could tell who was voting and how they were voting. The answer was that as soon as it came in, it was scanned and the part of the system that would ID you was wiped out so that they wouldn't know who voted for whom.

    So it is possible to do those things within a system in which you keep the information on the people who might have a criminal record or whatever, but not on those who don't. So I take your point that you don't want to be checking everyone.

    You also mentioned something about not having control over what happens with the information. My understanding is, too, that this information will be relayed to other governments. As the Government of Canada, we then have no control over what those other governments do with the information. If, say, the U.S., because I'm such a horrible, vicious person, decides they're going to keep a file on Bev Desjarlais, they could keep it there for however long. If it just so happens that there's another Bev Desjarlais somewhere else and the files get tied together, and if I'm travelling somewhere and somebody thinks this other Bev Desjarlais is me, I no longer have my rights as a Canadian citizen in terms of my information being kept private. It's spread throughout the world.

    Of greatest concern right now are those people who are from Middle Eastern countries and who are being targeted very blatantly certainly in the U.S., but I would suggest in Canada as well. There is a risk that absolutely innocent people will be targeted unjustly. And because it's national security, nobody ever has to really tell you they did it unjustly. We are then in a situation of having a police state no different from countries where numerous people have disappeared over the years.

    Mr. Roch Tassé (Coordinator, International Civil Liberties Monitoring Group): Yes, that is correct. Furthermore, once information about you is divulged to another government, Canadian security forces can then access it through arrangements with these foreign governments and they're not covered through the restraints of this legislation. It's a loop effect.

[Translation]

    Mr. Jean-Louis Roy: I would like to make a very brief comment. You asked us whether or not we agreed with a need to collect private information on citizens under certain circumstances. The answer is yes, should the existing police, Criminal Code and other existing resources not allow us to collect what is needed because of exceptional circumstances. What we are fighting against, and what we will never agree to, is the fact that, in the course of their regular activities, all Canadian citizens may find their names because of some potential crime, on lists that will be forwarded to foreign administrations or governments.

    As far as the transmission of information to foreign governments is concerned, Canadian police forces do this on a daily basis. There is such a thing as an international fight against crime. We may need to broaden the types of information that are already exchanged, but to say that we need to monitor Canadians in the course of their regular activities, that we're going to track everybody who takes a plane or the train, or those who come to visit Parliament... It makes no sense to track the regular activities of Canadian citizens and to create lists which will be sent to foreign governments.

º  (1640)  

[English]

    Mrs. Bev Desjarlais: Just to see what Canadians and everybody would have to experience, maybe we should do some sort of pilot project, say, between Ottawa and Montreal. Everybody would be stopped on a routine basis and the information would be kept. Let's see how it works out and see how everybody feels, and whether or not they would think this was an okay thing to do.

    Certainly, if we think it's the right of the police or the U.S. to have this information, why don't we think it may be the right of the Province of Ontario or the Province of Quebec to decipher this information and keep records as well, if they so choose? I wonder if that would be something we might suggest. Do you think that might give some indication as to how this would work out?

    An hon. member: Canadians would be outraged.

    Mr. Gerry Barr: Wow. What a question. Canadians would be outraged, yes, they would. And the interesting thing is that we're going to the full system without the pilot.

    The reason why Canadians may not at first blush be outraged is that they won't see the peace officer standing in front of them with the question in his or her mouth. It will not appear as if that corrosion is occurring, but it is occurring as surely as if we were stopping every car between Kingston and Montreal, absolutely, yes.

    The Chair: Mr. O'Reilly.

    Mr. John O'Reilly: Thank you very much, Mr. Chairman.

    To me, terrorism is not something conventional, and it's not something our country is used to or that we know how to handle. As we work our way through this bill, we're looking at people who hijacked an airplane and crashed it into a building. That called for higher military spending, a massive increase in military spending in the United States, yet it had absolutely nothing to do with the military. There was nothing militarily done that would stop someone from stealing an airplane and crashing it into a building. I guess what we deal with, then, is the law of unintended consequences. What do you see Bill C-17 producing as unintended consequences?

    Mr. Gerry Barr: I think you've pointed to some very important pieces to this question. One knows intuitively that the response to terrorism is a policing response, among others, but certainly a policing response is key and far more efficacious than military responses. As you correctly point out, you can have wildly escalated military spending, but it's not worth a thing when it comes to the challenges of getting a handle on terrorism.

    On the way to that policing response, though, lawmakers are faced with the challenge of how far we go. These balance questions that emerge are critical, and the tendency to overreach is, I think, just demonstrably enormous and in play everywhere.

    There is no doubt that to have information of the kind contemplated in Bill C-17 and the database project is an investigative tool of enormous attractiveness. From the point of view of policing, it's an investigative windfall. The problem is that it falls on Canadians and it falls on their rights protection, so one needs to avoid that.

    That's just to say there is this danger that because we see it and because we're intuitively certain a policing response is necessary, we'll grab every policing response in sight and, in the result, we'll do carnage to the rights of citizens.

º  (1645)  

    Mr. John O'Reilly: Along this line is the problem with having so many policing agencies. I asked both the Minister of Fisheries and the Minister of Transport why two ministers are required to produce an order to search a particular vessel or to restrict a particular vessel. I found out that one is under Fisheries and Oceans for something under five tonnes, and anything over five tonnes falls under Transport. Five policing agencies would be in the area of, say, Pickering Nuclear Station. You have the OPP, the RCMP, the Canadian Coast Guard, the Trent Canal Authority, the local police people, border patrols, and all the other things that are there. I therefore wondered who would actually give the order, but I didn't get an answer to that from anyone.

    I suppose this administrative nightmare that seems to be coming forward is my biggest concern. I don't know how all the laws being put in Bill C-17 would actually be remotely enforceable. You're right, it is a policing matter, but how out of hand is that policing matter? How out of hand would it get?

    Mr. Gerry Barr: If you think about who gets access to database information, you certainly have CSIS, you have the RCMP, and you have Transport Canada. Revenue Canada itself holds the information and has a wide discretionary ability to use it and pass it to other peace officers. And then there are agencies offshore. There are certainly federal agencies in the United States and presumably in other countries around the world. The same information is available in all those pools. Once it is out there, I guess that's the issue. There's no or little accountability with respect to the use of the information.

    Certainly, when it's offshore, as Bev Desjarlais has pointed out, it's not governed by Canadian national law and it can be used in all sorts of different ways.

    Mr. John O'Reilly: I think the electronic information that Madam Desjarlais is talking about is already available. If you go onto the toll highway going out of the Toronto airport, on Highway 407, they automatically record your licence number and send you a bill at the end of the month. From that, if there is in fact a traffic violation, they know who you are, they know what your SIN number is, and they know everything about you. All of that is now available and is being collected by a private company that runs the toll highway. So I think what you're asking for already exists in a certain form.

    Most of that information can already be had. In fact, I have a friend who was sent two notices to pay a bill after his car had been stolen. In other words, they know where the guy was travelling. Those are the types of things we deal with and that I think are already out there.

    Mr. Gerry Barr: I guess the point or the argument there might be that you've entered into a contract with the owners and operators of the highway when you decide to operate on the highway while knowing that there is surveillance, that this is their billing system, and that it's widely circulated. I don't know if it's an effective argument or not, but I'm guessing that would be an argument they would make. I think that's a little bit different from the use of information without consent.

    In this case, though, this is information gathered by airlines, by private corporations, and that's the resonance with your example. The understanding there is that it's to be used by the airline for transport purposes and for airline security purposes. There's no question posed to Canadians as to whether or not they would like to have this information circulated to other agencies, including Revenue Canada. So I think there are differences.

[Translation]

    The Chair: Mr. Bachand.

    Mr. Claude Bachand: Thank you, Mr. Chairman.

    My colleague Mr. O'Reilly talked about the importance of coordination between the various departments. The bill before us gives a great deal of priority to the RCMP and to CSIS.

    I would like to hear your opinion. I also raised this issue before the National Defence Committee. The Americans created what they refer to as the Department of Homeland Security, which is under the responsibility of Mr. Tom Ridge.

    I am wondering whether or not we could not simply drop the bill before us if there was better coordination between all of the police departments and other services that deal with security, whether this be for ports, airports, highways or mass transit.

    What do you think about establishing a department of domestic security which would report to a minister and which would coordinate all anti-terrorism activities? If this were the case, do you think that this bill could be set aside? Personally, I think it is somewhat dangerous to create instruments giving more authority to CSIS or the RCMP. If we had better coordination and better enforcement of the Criminal Code and the Civil Code, perhaps we could have just as much success as we would by adopting this bill, the scope of which is not entirely known.

    So what do you think about the idea of creating a minister of domestic security?

º  (1650)  

    The Chair: Mr. Roy.

    Mr. Jean-Louis Roy: Mr. Bachand, I am no specialist in this area, but I have lived in countries where there has been a department of the interior, and I have often had the impression that such a department quickly transformed into a department that served as a tool for the political party governing the country, a department which had access to all kinds of information available about groups, individuals, etc.

    My first instinct would be to tell you that I would be exceptionally careful. I would prefer to see multilateral surveillance with respect to these issues rather than giving tremendous powers to one minister who all of a sudden controls all of the police resources with information on groups that exist within a given society.

    I think that the system you have described poses numerous problems. At any rate, this is the very strong impression that I had. I believe that our system has just the opposite problem, to some extent, and that perhaps information is scattered. The right balance lies somewhere in between the two systems. At any rate, if you do set up a department of the interior, you have to ensure that a parliamentary committee comprising all parties has real control over it so that it does not become a tool for only one political party.

    Mr. Claude Bachand: Mr. Roy, in your brief, you suggest that the law be preceded by a preamble, which is not the case right now. In Quebec, we have had many discussions about laws with preambles. Even if there were a preamble reaffirming the importance of international treaties on human rights and the Canadian Charter of Rights and Freedoms, do you not think that the legal scope of such a preamble would be less significant? A lot of people feel that what counts is what is contained in the body of the legislation, and that the preamble is merely complementary in the eyes of the judges. I do not know whether or not the legal scope of such a preamble would be as strong as a similar proposal contained within the body of the legislation.

    Mr. Jean-Louis Roy: Mr. Bachand, many statements have become conventions. So a statement of principle could eventually have an impact. But more importantly, we made the proposal to reflect the most unusual choice made by the Parliament of Canada to restrict the freedom of its citizens. There are exceptional circumstances that could lead us to do that. It's a matter of judgment. But if you do so, you have to remember that they are exceptional circumstances and that it is not standard legislation, but an exceptional measure, which explains the need to reconfirm—in the form of a statement that is more than a statement of principles and common values— that we live in a democratic society, that we respect rights and freedoms and that given this particular threat, we are suspending or restricting those freedoms, but that our objective is always what is in the preamble, namely to return to the rule of law as quickly as possible.

    The rule of law is nothing to belittle. In this country, we have had three remarkable achievements in the past century. What do people in this world want? They want to eat and have a reasonable standard of living. We have nearly achieved that in Canada. They want social equality. If you have problems in your life, if you are old, young, alone or orphaned, you want to people to notice you, you want a society that helps you. Above all, people want the rule of law and a set of freedoms. When a Parliament does anything to affect either of those, it is an extremely serious matter.

º  (1655)  

[English]

    The Chair: Mr. Mahoney.

    Mr. Steve Mahoney: Mr. Chairman, I appreciate the fact that there are people out there who are raising these issues of privacy concerns, and I wouldn't want to in any way undermine the significance that these issues bring, particularly in our democracy.

    Let me tell you of one of the biggest frustrations I had after September 11. After being a long-time member of the immigration committee, after having been to our borders, etc., over the years, and after having done a lot of work in that area, it was frustrating to hear the Americans actually blaming Canadian immigration and Canadian security and saying that our border is a sieve. With due respect, I hate to speak ill of people who aren't here, but certain people and certain parties in the House were standing up and were making those same accusations, which were totally unfounded. All nineteen of the terrorists were in the United States legally on visas, studying, visiting, and doing whatever, like learning how to fly airplanes and, interestingly enough, not land them or take them off, which itself is bizarre.

    There was a breakdown in security, but it was not in Canadian security. There was a breakdown in intelligence, but it was not in Canadian intelligence. There was a breakdown in immigration, but there was not a breakdown in Canadian immigration.

    Having ranted about that, the Americans are making changes. They're sending clear messages. We have to recognize the significance of those changes to our economy, to our communities, and to our interpersonal relations. We intermarry. We have a very close relationship that all of us, I presume, would not want to see interfere with our sovereignty as a nation, yet we have to play in the same baseball park as these guys.

    How do we not make changes to our security and our way of gathering data, of gathering information and sharing it with American law enforcement agencies? I think of the guy who crossed the border—I forget his name, but he's been all over the media—who had a trunk full of explosives, and who was going to blow something up on New Year's Eve. It was the Canadian police who informed the Americans that this guy was crossing the border, and it was through that kind of interrelationship between Canadian authorities and American authorities that they were able to nab him and prevent a serious terrorist attack.

    We have to be able to do this. How do we do this without violating people's rights and without somehow—to use perhaps an exaggerated description of your concerns—stopping everybody in the streets, may we see your papers, please, like something out of a World War II movie? That's not the intent here. We want to protect our families and our kids and the constituents and the people in this country. We have to make some changes in recognition of what the Americans are doing and in recognition of the fact that we are not an island safe from terrorism, even though so far, Godspeed, we have seemed to avoid it. I'll tell you, though, that it can come here in a heartbeat, so we have to do something.

    What can we do that would satisfy the concerns of extremely important organizations like yours and people like George Radwanski and others? What can we do to satisfy you and them that we're not somehow setting up a totalitarian police state?

    Mr. Gerry Barr: It would be terrific if the government looked at this legislation with a view to changing it in a way that would get at the question of overbreadth and would introduce ways of using required investigative tools for terrorist-related activity—the example that you and all use, of course—in narrow ways that are purpose-specific and time-limited, in ways that display a reluctance to interfere with the rights of Canadians, and in ways that display an appetite to reconcile the concern about the protection of the rights of Canadians, as well as their physical security. I think it would be terrific for the government to do that, and I would suggest that the doorway into that is through this issue of overbreadth.

»  (1700)  

[Translation]

    Mr. Jean-Louis Roy: I will use your own words, sir.

[English]

People like us are not completely out of touch with reality. If there is a new threat—and there are threats—we have to prepare some answers to those threats that will change.... You're right in saying that. But I think it's completely unreasonable to decide that we live in a world where there is a general threat that all citizens may be one of those terrorists we want to tackle. But you're right. We have to read the world like it is changing.

[Translation]

    You cannot just make one statement of principle after another. If more security measures are required, adjustments must be made.

The biggest challenge is determining how to make the adjustments and limiting them to respond to the type of threat in question rather than creating huge systems, as you say.

    I would just like to give you a one-sentence answer to the question you asked on the United Nations Human Rights Commission and electing a Libyan as chairman.

    I think it behooves us all to reform international institutions. The chair was elected according to current rules and many feel those rules should be completely overhauled. It is absurd that a country that does not respect the basic United Nations rules on human rights could then become chairman of the United Nations Commission on Human Rights.

    The Acting Chair (Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you very much, Mr. Roy. You can see that we too now have a totally different chair: different gender, race, age, and so forth. It is temporary. Fortunately, all of those changes will eventually be replaced with other changes.

[English]

    Mr. Steve Mahoney: Perhaps we'll have more rights than ever.

    The Acting Chair (Mrs. Marlene Jennings): Don't be too sure about that.

    Madam Desjarlais, you have five minutes for both questions and answers.

    Mrs. Bev Desjarlais: I just want to make sure I'm clear on how the privacy legislation would work in, say, the instance that Mr. O'Reilly mentioned about the car being driven down the road. They get the licence number and if you've been found speeding, you're sent a bill. My understanding on....

    Were you saying he had a bill sent from somewhere else?

    An hon. member: No, it's usage.

»  (1705)  

    Mr. John O'Reilly: It's a toll road.

    Mrs. Bev Desjarlais: Okay, but you get sent a bill because you're on that road and you know that's what is going to happen.

    If we put that into the concept of what's happening with this toll road, you could take that person and send their information to the RCMP. If that person's ever crossing the border to the U.S., they would get all the other information on that person, or they could just send the information on this person and just check on him anyway. What I'm saying is that you wouldn't take that information and use it for other things. That's the point I'm trying to get across. It's going to be used strictly for the purpose of sending him a bill because he was on the toll road, and that's it.

    I'm not even sure whether or not it would be acceptable to send it in somewhere else to check to see if you need to round this person up for a speeding ticket or whatever. My thought is that I don't think you're able to do that under this legislation. It's the same when you fill out the income tax form. You have to put a check mark there to say they can give your address to Elections Canada. You have to specifically give them the okay to send that information. It's a safeguard, and you have the privacy of knowing it's only used for that.

    Is that reasonable? Is that how it works?

    Mr. Gerry Barr: Yes.

    Mrs. Bev Desjarlais: Under this public safety act, we would be giving up those rights in the concept of the transportation industry.

    Mr. Gerry Barr: Here you have no say.

    Mrs. Bev Desjarlais: I got onto this because you mentioned that they would have your social insurance number. I was at a loss, Mr. O'Reilly, so I guess I'm going through you to figure out why a SIN number would be available in that sense. My understanding is that our social insurance numbers are only supposed to be used for specific things, and those are employment and the tracking of your income through the Canada Customs and Revenue Agency. That's my understanding of the social insurance number, to the point that I don't use it for anything else. I refuse to give it for credit card identification. I make a point of letting people in my riding know they shouldn't misuse it, so that such tracking can't be done. However, under this system, that information would now be available to all those agencies wherever—your SIN number and all other information about you.

    Mr. Gerry Barr: Under the Total Information Awareness project, that would be the case. A combination of commercially available and public information is pooled. It's a U.S. system.

    Mrs. Bev Desjarlais: It's American?

    Mr. Gerry Barr: That's right.

    The analogy—

    Mrs. Bev Desjarlais: But you have to get this information to the U.S. if you're going over, right? They can access....

    Mr. Gerry Barr: In the case of the provisions that Bill C-17 contemplates, there would be a sharing of information for airline arrivals. It would be shared with overseas and offshore intelligence agencies and federal agencies, under an arrangement that is made between the countries but is not subject to cabinet approval. It may contain provisions not contemplated by you here in the committee, for example.

    If you think about the analogy that you were drawing between the toll road and the provisions contemplated under this act, it is as if Canada were to go to the owner of the toll road and say, “We know you have an implicit contract with your customers for the provision of personal information like licence plates and so on, by virtue of their use of your toll road and their knowledge that you're going to bill them in that kind of fashion. We now want all that information routinely. We will send it to other authorities, and we'll be able to canvass it for the purposes of criminal investigation, national security, and so on.” That would be the analogy.

    Mrs. Bev Desjarlais: This is probably more a comment than a question. I was concerned about the privacy aspects of this legislation anyway, but during the break I met up with a woman in Thompson. I've known her for 25 or 26 years. She has been in Canada for over 30 years, working, and is now a great-grandmother. All of her children have been raised and her grandchildren and great-grandchildren are in Thompson. Because she is a landed immigrant, she has to get the card.

    Part of the requirement for her getting the card, which she was quite taken aback by, was that she has to inform them of all of her travel in the last five years. She was astounded. I was astounded, because somehow I'm thinking, “Why the hell do they need information on someone who has lived in Thompson, Manitoba, for 30-some years, who has raised her children and grandchildren and great-grandchildren here?” They want to know what she has done for the last five years? Why would anybody need that kind of information? It just stirred up my feelings about privacy even more, and it stirred up hers as well.

    Mrs. Marlene Jennings: It's probably to make sure she still has a legal right to her status. You have to—

»  (1710)  

    The Chair: Order. If we're going to have any semblance of order here, we have to...[Inaudible—Editor].

    Mrs. Bev Desjarlais: That's fair enough.

    The point is that she worked and paid taxes. She didn't just work, she paid taxes every year to the Government of Canada. It got me going again, to the point of being even more concerned about the privacy aspects.

    If I have a smidgen of time left, then through this whole issue of public security, we are often reminded that those planes had those terrorists on them and they blew up those buildings. I would suggest something about September 11. Something arose by the time the fourth plane went down. That situation will never happen again, because no one will ever be allowed to hijack a plane without the rest of the passengers reacting. We saw that on September 11. The first three went down because there was a mandate that, if you had a hijacker on a plane, you did what they wanted, because something like this had never happened before. We will never have a situation again in which people will not react to a hijacker on a plane. We might have situations in which we have to deal possibly with explosives being sent in cargo—even to this date, because there's no checking of the cargo going on the plane; it's not being scanned—but we will never have that situation again. I can't see it as being imaginable, and we saw it with the fourth plane.

    I would hope we do not lose sight of the fact that it was a unique situation on September 11. We shouldn't let the fear of that situation take away the civil liberties of Canadians.

    The Chair: Mr. Barr, go ahead if you have a comment.

    Mr. Gerry Barr: As you say in the House, “Hear, hear!” Absolutely. It's very important to be judicious in judging what the appropriate response is. Indeed, I'm sure a lot of the presenters who come before this committee will be talking about trying to find or about searching for a temperate and judicious response to what are admittedly very difficult circumstances. But on the point that you've raised, I think you are of course right about it.

[Translation]

    The Chair: Mr. Roy, do you have anything to add?

    Mr. Jean-Louis Roy: I just want to say that the member is right.

[English]

Those of us here—maybe all of us—who travel a lot by plane are surprised on a daily basis by the ease with which packages go on. That's security also, so maybe we should be as careful about the security of things as we want to be of persons.

    The Chair: Mr. O'Reilly.

    Mr. John O'Reilly: Mr. Chairman, I want to take a minute to clear up a little thing that Madam Desjarlais and I talked about.

    On the toll road, Highway 407, you can purchase a transponder that gives you a better price, and it reads the responder. If you don't have a transponder and you go onto the toll road, a picture is taken of your licence plate. That information then goes to a private company, and that private company obviously has your name, address, and everything else you need under the Highway Traffic Act. In order for them to get that licence plate, they have to know where you got it and who owns it. So when I said that probably everything you want to know about an individual is available just by going through the toll road....

    You were talking about stopping between Kingston and Montreal and so forth. I can save you the trouble. Just take Highway 407. Whether you have a transponder or not, you get billed. This is a private company, and if that private company decides to sell its address list.... What are the terms of their contract?

    An hon. member: [Inaudible—Editor]

    Mr. John O'Reilly: You say they can't, but I don't know. Maybe the witness would have an answer to that.

    Anyway, I just wanted to clear up that it is—

    Mr. Steve Mahoney: Actually, what's even worse is if you get a transponder. I happen to know this because I have a transponder. If you want to get a transponder, you have to provide your SIN number, you have to provide two or three different pieces of information, and you have to go personally to do it. You can't even send somebody to get it for you. It's unbelievable.

    The Chair: [Inaudible—Editor]... this exchange between—

    Mr. Steve Mahoney: There's usually not a conflict going between Mississauga and Oakville. It's a fairly simple transition.

    The Chair: Would the witnesses care to comment on the discussion? No?

    Are there any other immediate questions?

    Mr. Barnes.

    Mr. Rex Barnes: I just have one question that I wanted to bring back.

    Certain races in Canada right now are being discriminated against because of 9/11, unfortunately. It's not right, but unfortunately it has become reality, like the situation we have here, and it's probably only because of the country they come from.

    I've said this before at these hearings, but I would hope that CSIS and the RCMP do know the criminal element in our society and who it is that they feel may be a possible threat. But as a result of it, we have innocent Canadians who have come from other countries and who, because of their race and because of their origins, are actually being targeted because of where they come from, which is unfair.

    This is where the problem comes up with this bill. Everyone is being targeted as a criminal because they come from a certain country or because it is felt that what you call the “criminal element” against Canada could come from certain countries. That's what we're into. It's not fair, it's not right, and these people are being unduly done. How do we overcome that with regard to this bill?

»  (1715)  

[Translation]

    Mr. Jean-Louis Roy: That is a very important question. As it happens, I was living in Europe in 1984 and 1985, when major terrorist movements developed in France, Germany, Belgium and elsewhere. Profiling was one of the factors that angered youth—Arabs in this particular case, North Africans and Turks in Germany. “Terrorism” was created through a policy that targeted particular sectors of the population on the basis of ethnic origin or geographic origin.

    I don't know how the issue could be settled here in Canada, but I am convinced it is worth the effort, because it is very important indeed.

    If Canada targets communities on the basis of colour, race and other such factors, this will engender an atmosphere in which young people will respond very strongly indeed. In Canada, there are many, many people who come from other countries, and who chose Canada as their destination because they believed it was one country where they would never see that kind of thing happening.

    I would like to be able to give you a specific answer. But we are talking about attitudes and behaviour, not simply legislative provisions. We are trying to understand what common citizenship means, and there is a long way to go.

    If we are to keep our cities calm and prevent violence from exploding, we have to make sure that certain groups or communities are never made to appear as real or as apparent criminals to the public. This might require educating or re-educating police officers accordingly, and organizing information campaigns.

    If we want to engender violence here in Canada, all we have to do is let the status quo continue. This is a problem that must be settled. I would like to be able to give you a concrete answer, but I do not have one. I am simply asking myself the same questions you asked.

[English]

    The Chair: Mr. Barnes.

[Translation]

    Mr. Jean-Louis Roy: Schools also have a role to play.

[English]

The schools have to do something about all of that. It's also part of the education process.

    Mr. Rex Barnes: I just wanted to raise that, because I think it's very important. Not everyone in a country is our enemy. Elements from all parts of a society in a country, and in all different parts of a country, are extremist. But they're not all extremists. We are all good citizens, and people from other countries are good people. They come to Canada because they want to be free, but now they are finding they are no longer free in Canada because of the acts of madmen or “madpersons”. As a result of that, the freedom they have enjoyed for years is gone. We need to bring that back to them, because Canada is a free country.

    We're now under siege because of the criminal element and the threat it poses to our country and our sovereignty. As a result, we have to do like Mr. Mahoney said. We have to find a balance and we have to find a way that protects our country and protects our citizens, but one that does not discriminate against those citizens. That's the balance we have to find, and it's going to be a very difficult balance. As it stands right now, I think there may be too much power for governments to do what they want and not be accountable.

    I'll end off with that.

    The Chair: Do you have any comment, Mr. Barr or Monsieur Roy? No?

    Are there any other questions? No?

    Taking note that there are no other questions, I might ask the witnesses if they'd like a minute or two to make any concluding remarks.

[Translation]

    Mr. Roy.

    Mr. Jean-Louis Roy: I would like to wish the committee the very best of luck. We will follow your work with great interest and appreciation.

[English]

    The Chair: Mr. Barr.

    Mr. Gerry Barr: I'd certainly like to echo that, and I would make one last appeal for a really systematic look—you are the committee, after all—at the elements of this law, which actually do run against, frankly and obviously, sections 7 and 8 of the charter and compromise the rights of Canadians in many important ways. Not setting aside that there are important chores for the government with respect to ensuring an adequate level of security for Canadians, this matter of overbreadth is an enormously important challenge.

    I would just counsel you and encourage you to listen carefully to the commentary that has been provided for such a long time now by the Privacy Commissioner, and in such an effective and important way. We are full of admiration for the work that he has been doing.

    Of course, like my colleague, I wish you all the luck in the world in coming up with something that is satisfactory.

»  (1720)  

[Translation]

    The Chair: Mr. Tassé.

    M. Roch Tassé: I would like to remind everyone that Bill C-17 is just one bill among a series of bills. Other bills have preceded it, and other bills will follow it. We have to consider the impact of Bill C-17 in the light of all legislation already in force or in the pipeline, like the next bill now being prepared by Justice Canada on lawful access, on electronic communications. This will add to the problems that have already arisen with Bill C-17. We cannot look at C-17 in isolation, without taking into account all related legislation as well. This was by way of a concluding remark.

    The Chair: On behalf of all committee members, I would like to thank all three of you for coming here today, testifying so informatively, and giving us your cooperation.

[English]

    Colleagues, I would just like to remind everyone that our next meeting is Thursday, at 9 a.m., in room 253-D. Those of you who are members of the steering committee will get a notice tomorrow that there is a steering committee meeting prior to the meeting of the main committee. That steering committee meeting is from 8:30 until 9 a.m., also in room 253-D.

    This meeting is adjourned.