FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 6, 2001

• 0910

[English]

The Chair (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): Colleagues, we have a quorum for witnesses. I think the parliamentary secretary has hijacked our witnesses.

I'd like to welcome Mr. Wesley Pue, who's a professor of law from the University of British Columbia, and Scott Fairley, a former professor and currently practising lawyer.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde (Mercier, BQ): I have a brief question before we begin.

We submitted the name of the Ligue des droits et libertés du Québec. This organization could talk to us about the events that took place at the Quebec Summit and this could prove useful to us for the purposes of our discussions. The clerk informed me that he left a message last Friday, but that it was too late for them to appear this morning. Would it be possible to hear from this group on Thursday morning?

The Chair: I won't be here Thursday morning. Therefore, we'd hear from a single witness before we undertake our clause-by- clause study?

Ms. Francine Lalonde: That's right,

The Chair: It will all depend on Ms. Augustine, who will be chairing the meeting. How much time do we have overall?

[English]

The Clerk of the Committee: We'll give three hours to it, Mr. Chair.

[Translation]

The Chair: We have a total of three hours for the clause-by- clause study. Perhaps you could give us some idea of the amendments you have in mind. Obviously, the clause-by-clause study must be completed on Thursday. If there aren't many amendments, I would imagine that we could take 45 minutes to hear from a witness before proceeding to the clause-by-clause study stage.

Ms. Francine Lalonde: I think that would be alright.

The Chair: Then that's what you're proposing?

Ms. Francine Lalonde: Yes.

The Chair: If we take 45 minutes to hear some testimony, that still leaves us two hours and 15 minutes for the clause-by-clause study.

I will now turn the floor over to Mr. Pallister because he has the biggest problem with the bill, from a political and psychological standpoint.

[English]

Mr. Brian Pallister (Portage—Lisgar, Canadian Alliance): Excuse me, Mr. Chairman, but I'm not getting translation. I got a chunk of what was said, but I'm not confident enough—

The Chair: Well, very quickly, Madame Lalonde had an important witness from Quebec who was going to speak to what happened at the Quebec Summit. Since that witness was not able to come today, she's asked if we could hear the witness briefly Thursday morning.

Mr. Brian Pallister: Of course.

The Chair: We have three hours for clause-by-clause; it has to be completed Thursday. So if we set aside 45 minutes for that witness, we will have 45 minutes less for clause-by-clause.

But I'm going on the assumption, Mr. Pallister, that while you might have some amendments on this bill, there would be amendments to perhaps only two clauses. The other clauses don't pose problems. It's only the clause that deals with the increased police—

Voices: Oh, oh!

The Chair: Excuse me, that was a Freudian slip—the specified police powers and the matter of diplomatic immunity. Is that a fair assumption, that if there are amendments, they'll be in only two areas? So we'll have time.

Colleagues, can we agree to that? Ms. Augustine is looking nervous because she's going to have to chair, and I know she has something that afternoon. So we do have to finish clause-by-clause by...we're going from nine until noon, are we?

The Clerk: Yes, Mr. Chair.

The Chair: We'll have to finish clause-by-clause by noon. So we agree to set aside 45 minutes at the beginning to hear the witness from Quebec.

Can we deal with the issue of amendments? I know we haven't dealt with this yet in the steering committee and we had a firm recommendation, but can we get amendments by noon tomorrow, so the clerk has them in his hands?

• 0915

Mr. Brian Pallister: You must have my amendments.

The Chair: You have to give them to the clerk.

Mr. Brian Pallister: Okay.

The Chair: So you can get yours in by noon tomorrow?

Mr. Brian Pallister: Yes.

[Translation]

The Chair: Ms. Lalonde, would it be possible for you to submit your amendments by noon tomorrow?

Ms. Francine Lalonde: I'll do my best.

The Chair: Or as soon as you possibly can, to avoid a repeat of last time.

[English]

Okay, colleagues, once again, we welcome Professor Pue and Mr. Fairley.

We'll go as in the order on the list. Professor Pue, if you could go first and then Mr. Fairley, then we'll turn it over to questions. If you keep to about ten minutes in your opening comments, we'll have more time for questions.

Thank you very much.

Professor Wesley Pue (Professor of Law, University of British Columbia): Thanks very much. I've given the clerk a fairly lengthy document that I will be speaking from but not reading, and it will be available to members of the committee.

I'm here to comment on one part of Bill C-35, the part that is in relation to security at intergovernmental conferences. Time is short, so I will be direct.

This is a terribly unfortunate piece of legislation. It's obviously directed toward entirely proper ends, but it shows every sign of having been drafted in great haste. The potential of this clause to significantly reshape Canadian law is great, and the direction of that reshaping, I think, would be very unfortunate.

The Chair: What clause is that?

Prof. Wesley Pue: We're talking about the clause in relation to security of intergovernmental conferences, Bill C-35, clause 5, which amends section 10 of the act.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. Chair, I'm sorry, I have Mr. Fairley's presentation, but I don't have Professor Pue's.

The Chair: It hasn't been distributed—

Ms. Aileen Carroll: It really would be much easier.

The Chair: It wasn't given to us in both official languages, so we can't distribute it.

Prof. Wesley Pue: I'd like to speak to three points about that clause. The first is the novelty of this legislation. It is, in my view, a bad mistake to imagine that Bill C-35 merely restates existing common law principles governing the police. Indeed, if that were the case, it would be unnecessary to put them into legislation.

First, the clause asserts the primacy of the RCMP over other police forces and over other public agencies in particular circumstances. This may properly be seen as an innovation in Canadian law to the extent that it represents a freezing of contemporary practice, and it's something members of Parliament will want to consider very carefully indeed.

Second, the statute explicitly gives the RCMP, for the first time, the power to establish security perimeters. That is a significant innovation, and in the absence of careful delineation, which is not present in the clause as drafted, it is a dangerous one.

The saving clause, which reads that the powers referred to are for greater certainty and shall not affect the powers of the police at common law, reflects a desirable goal but is of little effect. In this statutory context, in fact, it looks more like a non-derogation clause than a limitation of the new powers conferred.

I'd like to ask members of the committee to imagine for a moment the real world in which real police officers work. In that world, the clause will be the primary or only point of reference available to guide them. Police officers simply do not have the time or resources to research the common law. If they did, they would find the law hard to find and harder to interpret.

In the real world, I put it to you that RCMP officers at all ranks will understand this statute in its most natural meaning—that they can do anything they consider reasonable and appropriate. But what is reasonable and appropriate lies in the eyes of the beholder, and the touchstone there to be guided by is security alone.

At first glance, the clause seems to empower the police, but it does so in one sense only. It fails to provide police officers with guidance as to what is appropriate and what criteria they should rely upon. Because it fails to provide that guidance, it leaves RCMP officers at all levels in a terribly vulnerable position. They are vulnerable if faced with improper demands couched as security concerns coming from foreign governments. They are vulnerable and unsure how to handle themselves in dealing with Canadian governments. It leaves them with a myriad of difficult decisions to make, but it gives them no guidance as to how to do that.

• 0920

It is they, however, the RCMP officers, who ultimately face disciplinary action, civil suit, extended review processes, and possibly criminal prosecution if they get the balance wrong. The police charged with these important duties deserve clear statutory guidance for their own protection.

The second issue I would like to speak to is about the protection of citizens, but also, always, about the police as well; it's the issue of security perimeters.

Surprisingly perhaps, there is at present no statutory authority that clearly authorizes the RCMP, or other police forces, to erect perimeter fences and protect secure zones. They do so presently by an argument that extrapolates a very long way indeed from their duties with respect to the preservation of the peace.

The law here clearly needs to be brought in line with modern needs, but the proposed clause fails by a wide margin. The RCMP have a right to expect the sort of clear and direct statutory guidance that provides them with legal protections, and citizens have a right to expect the extraordinary powers of police to be clearly defined and limited by statute.

Consider for a moment the rights that are potentially infringed by erection of a security perimeter. These are the right of free movement within Canada, the right of assembly, the right of free expression, the right to enjoyment of your property, the right to work, and the right to go lawfully about one's daily life. A security perimeter can affect the freedoms of thousands of individuals, and the police need clear, defined powers and guidance as to when one should be created.

Issues left unaddressed by the clause in its present form are these. First of all, duration. How long can a secure zone be created for? Just during the period of a meeting, a day in advance, a week in advance, a month in advance? There's no guidance here.

Secondly, with regard to the violation of rights, we need to ask whose property rights can be derogated from in that way? Private Canadian businesses, private businesses that enjoy protection under NAFTA, homeowners, municipalities, churches, religious organizations, media outlets, provincial governments, Indian bands? What is a legal recourse if a landowner objects? What happens if another level of government or an Indian band objects?

If there is to be a taking, a short-term expropriation of part of the use of the property, what compensation, if any, is to be paid? Does “appropriate”, in the context of creating a perimeter in the first place depend on the issue of whether compensation is to be paid, and how are the RCMP to evaluate that? The clause is silent about all those things.

Third, notice. How much advance notice are the RCMP required to give people whose rights will be affected? Where will the security perimeter be? Will it affect your property? Can they tell you the day they do that, a month ahead? Must they tell you a year ahead? We don't know those things.

Fourth, what is the extent of the security perimeter? Are the limits on the apparently ever-increasing size of security perimeters to be set by statute? How are police to balance the size of a secure zone against constitutional rights?

With regard to the rights trade-off, the Canadian Constitution is clear that law-abiding Canadians have the right to assemble, speak, and protest. This draft clause, however, fails to remind police officers of their duty to protect those rights. It fails miserably in failing to provide them with guidance as to how to balance security against freedom.

The fifth point is security passes. When you erect a security perimeter, some people are allowed inside and some are not. How are the police to give security accreditation, or passes, or internal passports, to allow people to travel within those zones? What criteria should be applied? Who can they listen to? What information can they draw upon? What is their responsibility to state reasons to citizens denied access? Can they deny access to a homeowner? Can they deny access to a tenant? If a homeowner is allowed to stay somewhere, but one of their caregivers is somebody deemed to be a security threat, what is to happen? Can racial and religious profiling be used in issuing security passes and accreditation? Should the RCMP rely on the information of foreign security agencies? Who should they defer to within Canada?

• 0925

Is political profiling to be acceptable? If so, who? Greenpeace, supporters of environmental causes, Quebec sovereignists, people who support causes in the Middle East, or Spain, or Ireland? By what criteria are some journalists, but not others, to be allowed in? The police need guidance on those matters.

Finally, RCMP primacy and their relation to governments in Canada. Proposed subsection 10.1(1) may be attempting to clarify something quite important when it accords primary responsibility for security to the RCMP. Those words might plausibly be construed as an attempt to clarify the fundamental democratic principle that police are to be independent of political control.

Unfortunately, however, the meaning of that clause is opaque. If that is the intent, the clause is poorly drafted. It is open, in effect, to exactly the opposite construction. The proper functioning of an event surely requires liaison with the government, but how that liaison is to work, who is to be engaged with, is unclear. This leaves the RCMP in a situation of confusion; it leaves citizens' rights in a situation of uncertainty.

The clause effectively displaces both provincial and municipal police forces on matters that may trench on property and civil rights within the province. In contracting policing to provinces, it muddies the federal policing and provincial policing roles of the RCMP, and that is undesirable. Finally, it clearly trenches on the property and civil rights within a province, and there is no requirement in the clause as drafted for any consultation with any provincial authorities about these matters. And that, I submit, is also a problem.

That concludes my remarks. I thank you very much.

The Chair: Thank you very much, Professor Pue.

Mr. Fairley.

Mr. Scott Fairley (Individual Presentation): Thank you very much, Mr. Chair, honourable members.

I am here at the invitation of Aileen Carroll, MP, Parliamentary Secretary to the Minister of Foreign Affairs, and the clerk of this committee.

I should add, prior to my specific remarks, that while the law firm with which I'm affiliated acts for a number of consular missions in Toronto, and personally I'm former national section chair for both the international and constitutional law sections of the Canadian Bar Association, I'm here solely in my personal capacity.

I've had the opportunity to read the background materials in support of the government's intended purpose in introducing this bill. Unlike Professor Pue, my comments are a little bit more general, trying to take in the principal amendments as a whole.

In general terms, I think the housekeeping amendments of the bill are generally uncontroversial. They give the act more comprehensive coverage of the intergovernmental organizations in which Canada participates. I think the proposed amendments are good for Canada to the extent that they facilitate a more hospitable environment for international organizations to be both based in this country and to have more of their principal meetings here.

My specific comments go to the focus of Professor Pue's remarks, the codification of police powers, clause 5 of the bill, enacting proposed section 10.1 of the act.

The next category of amendments I will refer to as the retaliation/reciprocity provisions, giving the Governor in Council and the Minister of Foreign Affairs more generous powers in respect of the accreditation of diplomatic and consular agents. Lastly, I have a short comment on the coordinating amendment with the immigration bill, Bill C-11, and on where cabinet responsibility would rest with the issue of undesirable aliens. In one category you might also end up being diplomatic or consular agents on another list.

• 0930

First with respect to police powers, in general terms I am in accord with just about everything Professor Pue has already told you. In my view, this amendment is either unnecessary to the extent that it purports simply to codify a status quo or, in the event that it's not unnecessary, it's woefully incomplete.

Proposed subsection 10.1(1) gives primary responsibility to the RCMP for the security of intergovernmental conferences but does not address liaison or cooperative relationships with other police forces in whose jurisdiction such events may take place. In most Canadian venues that might host such events there would be a minimum of one other police organization involved. In Toronto and Montreal, for example, there would be at least two, municipal and provincial.

To date, in the black box of the common law, chains of responsibility have presumably been worked out satisfactorily on an ad hoc basis for events as they occur. However, to entrench only one piece of the puzzle, the primary responsibility of the RCMP, and leave the rest to practice is in my view problematic and troublesome in the event that the provision must be scrutinized and applied in judicial and other legal proceedings arising from a particular event. In that regard, the history of Vancouver and Quebec suggest that the challenge will come sooner rather than later if this provision goes into law.

The other principal issue is the scope of police powers conferred under proposed subsection 10.1(2). Proposed subsection 10.1(3) states the police powers at common law are not enhanced thereby, but the statutory language “for greater certainty” suggests previous uncertainty. The courts will be obliged when asked—and they will be—to interpret and apply the section purposively and not as mere surplusage.

In that light, the primary responsibility and mandate of the RCMP to, in proposed subsection 10.1(2), take appropriate measures at intergovernmental conferences, “including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances” must be viewed as enhanced in terms of the power conferred as well as clarified.

It will be for the courts to say what is “reasonable in the circumstances” if particular police conduct is challenged. Such an open-ended mandate may also be vulnerable to a judicial or royal commission finding of unconstitutional vagueness to the extent it implicates fundamental freedoms protected in section 2 of the Canadian Charter of Rights and Freedoms as well as to a finding that there has been a direct infringement of the charter in a particular instance.

Accordingly, there appears to be very good reason to set out the mandate more clearly for the benefit of police officers charged with the responsibility as well as for potential subjects of police action. Otherwise, in my view it would be much more prudent to leave this potentially controversial area squarely in the common law domain in which it currently resides.

On the retaliation and reciprocity provisions, my own view is that these provisions taken as a whole are overdue in that they give the executive necessary tools to respond quickly and for as long as necessary to inappropriate acts by foreign nations directed at Canadian missions abroad and at the same time remain consistent with our international obligations under the Vienna conventions.

Now, I know diplomatic immunity has become a subject of intense controversy, particularly in this town, given the horrible accident involving Ms. Catherine MacLean, who was killed by a drunken driver who also happened to be a foreign diplomat.

The Chair: What section are you referring to when you talk about retaliation?

• 0935

Mr. Scott Fairley: Retaliation and reciprocity, Mr. Chair, would be under clause 2 of the bill, amending section 4, clause 3 amending section 5, and clause 4 amending section 6.

The Chair: Okay. As to reciprocity, I understand. I'm just wondering about retaliation. You seemed to be ratcheting up things—

Mr. Scott Fairley: I use the word “retaliation”, Mr. Chair, because essentially what this does is give the Governor in Council and the Minister of Foreign Affairs executive authority to pick targets based on the specific conduct of a foreign government or foreign mission for purposes of de-accreditation.

The Chair: In the event that a Canadian diplomat has been improperly treated in that country, is that—

Mr. Scott Fairley: That's correct, or presumably it could relate to other issues. Clause 2 talks about customs officials stopping goods at the border. So I think the tools being given to the minister here are a little more far-ranging than tit for tat with respect to particular missions. But that's clearly the primary focus.

The Chair: Sorry to interrupt. It's just that we haven't focused on that aspect of the bill yet, but I don't think anyone....

Mr. Scott Fairley: The core principle to keep in mind in looking at these amendments is the basic rule of immunity, which is essentially absolute, particularly in the criminal context in respect of diplomatic agents. In that regard, I would refer the honourable members to the text of article 31 of the Vienna Convention on Diplomatic Relations and to article 41 of the Vienna Convention on Consular Relations, which deals with qualified immunity in the case of consular agents.

Now, once that immunity is granted through the accreditation process, given Canada's international commitments in those conventions, that is essentially the grundnorm you observe. That is a necessary grundnorm for basically every nation in the diplomatic community because if you don't do it for them, they will not do it for you. And parenthetically, the only other remark I would make is that for Canada's diplomatic and consular services abroad, the immunity may mean far more to them, given where they're doing their job and the dangers they might be otherwise exposed to. This is in contrast to the treatment foreign missions usually get here. Given that Canada justifiably regards itself as being among the most civilized nations, we have diplomatic and consular relations with a lot of other countries that have, shall we say, much different and less rigorous views of due process and fairness and so forth than we do. So the Vienna conventions are particularly important to us.

That said, Canada can certainly tighten up the process of accreditation and be more rigorous in withdrawing accreditations in the face of improper conduct by foreign countries and by their agents in Canada. Bill C-35 does that job admirably.

My last point simply concerns the dovetail with Bill C-11, and this is proposed subsection 5(4). The provision essentially removes the problem of conflict with strictures on entry to Canada imposed under section 19 of the Immigration Act, obviating the necessity and potential problem of obtaining an exemption from the Minister of Citizenship and Immigration prior to the accreditation of a foreign diplomatic agent.

Clause 10, the proposed coordinating amendment, accomplishes the same purpose in the event Bill C-11 passes into law. It is a good amendment, in my view, providing greater certainty than the prospect of a judicial determination to like effect and is consistent with our treaty obligations on point. It's my understanding from the materials supplied to me by Ms. Carroll that there's a legal opinion to the effect that if there was ever a conflict between the Minister of Foreign Affairs' accreditation process and the Minister of Citizenship and Immigration's black list, the Minister of Foreign Affairs would have trump. I think that here it's good housekeeping to just put the locus of authority in one department rather than have it straddle two.

• 0940

The only thing one might query is why Canada should accredit individuals with diplomatic status who are otherwise classified as undesirable aliens. I think that is something government can only resolve on a case-by-case basis in the revised legislation as proposed in the bill. It does not interfere with the exercise of such discretion; it centralizes it in one government department, and I think that's the right thing to do.

That concludes my specific remarks, Mr. Chairman, and I welcome any questions the members have.

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

Perhaps before we go to questions, I'll just point out to the members that following Professor Pue's comments about the lack of clarity of guidelines, this question was asked of the Solicitor General's office when they were here. It's just now that the clerk has received from the Solicitor General's department a rather large book. I see in the back of that there is something on risk management, etc., which justifies the police intervention.

Members will be getting from the Solicitor General's department a document setting out the police guidelines they use for intervening in these circumstances. As to whether they're adequate or not, I'm not expressing an opinion; I'm just saying we are getting that document.

[Translation]

Ms. Francine Lalonde: When?

The Chair: In the morning.

Ms. Francine Lalonde: I see.

Ms. Aileen Carroll: Will we be getting that today?

[English]

The Chair: It's in the hands of the clerk's office; it's just being photostatted and will be circulated as soon as they get it.

[Translation]

Ms. Aileen Carroll: Fine, thank you.

[English]

The Chair: Mr. Pallister, sir.

Mr. Brian Pallister: Thank you, Mr. Chairman, and thank you, gentlemen, for your presentations this morning. I appreciate your time.

Mr. Fairley, you mentioned earlier on in your remarks the benefits to accrue to Canada from this act. You refer to our increased hospitality here, where we could be better able to induce foreign delegations to come here to Canada to participate in meetings and so on.

I would make a couple of observations. One, we don't seem to be having much trouble attracting people to foreign meetings right now. We have the G-20, we have the G-8 coming up, and I understand we might have the World Economic Forum here. There doesn't seem to be a crying need for us to address that.

My concerns are more along the security side. A lot of Canadians would probably be concerned about that aspect, so I'll focus on that, if I may.

You refer to the Vienna Convention on Consular Relations, where article 43 says “CONSULAR officers and consular employees shall not be amenable to the jurisdiction of the judicial”, etc., and “in respect of acts performed in the exercise of consular functions”. That's what it says in article 43.

My concern is that our interpretation of the Vienna Convention is in this country more generous than the Vienna Convention calls for. In other words, we give consular staff total immunity, when in fact the convention calls for us to give them immunity only in respect of acts performed in the exercise of consular functions. This act does nothing in any respect to cause us as a country to adhere to the Vienna Convention. Rather, it simply allows us more latitude, as we've exercised in the past.

I give you as an example, sir, the Catherine MacLean incident you referred to. That same morning, another employee of the Russian embassy, whose name was Evgeni Blokhin, had a drunk driving incident just 30 minutes later. Fortunately, he didn't kill anyone. He's a chauffeur, sir, and he was given the right to leave this country as well because we extended complete immunity to him for his conduct. Now, he's not in the category of the man who killed Catherine MacLean. The man who killed Catherine MacLean was of course given complete immunity under the Vienna Convention. This other gentleman could have killed someone in his drunkenness, but didn't. We still didn't prosecute him, so we're not following the Vienna Convention here.

My concern continues to be that this act does not spell out....

• 0945

You say here we can tighten up the process of accreditation and be more rigorous in withdrawing accreditations, and this bill does that very well, you say. But, sir, how does it do it very well when it doesn't address the principal concern I think most Canadians would have—that when the conduct of someone who is using diplomatic immunity as a shield against prosecution results in hardship or damage or death to Canadians, it is not and can't be addressed by us, despite the Vienna Convention? How can you say this bill does that very well, implying that it somehow is tightening things up?

Mr. Scott Fairley: The first comment would be that we can't mix apples and oranges. The incidents involving the Russian embassy staff would fall under the Vienna Convention on Diplomatic Relations, not the Vienna Convention on Consular Relations, and the immunities granted under each are different. So to take this example, if the incident had involved a member of the Russian consulate in Toronto, he could be charged, but—

Mr. Brian Pallister: —a chauffeur in Ottawa cannot.

Mr. Scott Fairley: Well, if he was accredited as a diplomatic agent, then the answer, unfortunately, notwithstanding the circumstances of the case, is no. That's article 31 of the Vienna Convention, which says: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.”

Mr. Brian Pallister: And are you aware that other countries are much more rigorous than we are in terms of categorizing who qualifies in their jurisdiction for complete diplomatic immunity?

Mr. Scott Fairley: I don't have chapter and verse of how—

Mr. Brian Pallister: The United Kingdom...?

Mr. Scott Fairley: —Canada's agents are treated versus how we treat theirs. What this bill does is give the tools to the minister to apply that rigour. If the critique is that the practice is too loose, that's a matter for ministerial conduct, and he could be subject to questions in Parliament, or what have you, about why he was or was not accrediting particular diplomatic agents.

All I'm saying is that the legislation, as a general matter, gives the minister and the Governor in Council more tools and more flexibility to tighten up or loosen up, as the case may be. And I think the legislation has to be left at that level of elasticity; otherwise it simply isn't going to work in practical situations.

So I don't think your principal concern is one the legislation addresses one way or another. It gives the minister the tools. Whether the minister chooses to apply them or not is up to him or her, as the case may be, when the situation arises.

Mr. Brian Pallister: Well, you seem to imply in your comments, at least, that you think this bill is a good thing, and then you reference security issues a couple of times. So the nature of my question to you, I guess, is, if this bill improves, in some respects—you say “gives greater latitude”, but that's not a qualitative statement—

Mr. Scott Fairley: In my view, the retaliation/reciprocity provisions give the minister and the Governor in Council more tools than they had before under the existing statute: to withdraw accreditations more expeditiously than they could before; and to essentially ratchet up scrutiny of individual diplomatic and consular missions in this country.

If the criticism is that things were too loose before and once they were accredited there wasn't much you could do about it except ship them home when there was a terrible incident like the Catherine MacLean killing, here, I think—to the extent the government chooses to—they can shake down diplomatic and consular missions coming into the country and after they've arrived much more easily than they could before. From that point of view, there is progress in respect of your concern.

• 0950

Mr. Brian Pallister: That's great, except it wasn't done before. So under the narrower tools you say are available under the status quo circumstance it wasn't done either—the screening to the degree that perhaps many would like to see it. The screening of people coming into diplomatic missions hasn't been done. The fact of the matter is the interpretation has been more broadly applied than the Vienna Convention requires, and now you're saying there are more tools.

Well, that's great. Having more tools is a wonderful thing, I suppose. If we had any evidence the tools that were there up until now had been used, that might be of benefit and might make a coherent argument. But the fact of the matter is the status quo doesn't provide us with graphic evidence of a willingness to use the tools that are there.

So I don't understand your implication, sir, that by getting more tools, somehow the minister can suddenly toughen up after the fact on the behaviour we saw with the Catherine MacLean incident and in so many other cases. I don't see how this bill actually achieves that goal. If the goal is to have more security around the accreditation, or the application of diplomatic immunity in its categories as recommended under the Vienna conventions, then I don't see how this bill addresses it. I'd like you to explain that.

Mr. Scott Fairley: Sir, I would reiterate my initial point that the tool box has expanded—if the minister chooses to use it. If I understand your comment, your concern is that the Minister of Foreign Affairs hasn't used his existing tool box, so what is the prospect of his using the enhanced tool box? But the alternative, to address your concern, would be some kind of mandatory prescription in defined circumstances, and I think that is unworkable.

Mr. Brian Pallister: Well, what's the Vienna Convention if not mandatory prescription? It spells out a variety of mechanisms and protocols. We're not following it. So for you to suggest I am suggesting a rigid recommendation.... That's not at all what I'm suggesting. I'm suggesting we look at the Vienna Convention and perhaps follow it more literally. That's as far as I'm suggesting at this point.

Mr. Scott Fairley: I think, with all respect, that's what the legislation for the most part does, and it doesn't cross the line in terms of the core principle. There's nothing to preclude the minister from invoking these tools—

Mr. Brian Pallister: Or not.

Mr. Scott Fairley: —or not.

Mr. Brian Pallister: Correct.

Mr. Scott Fairley: But it—

The Chair: That's it. Okay. I'm going to go to Madame Lalonde now. We'll perhaps get another crack at that later, Mr. Pallister.

Mr. Brian Pallister: Thank you, sir.

The Chair: Madame Lalonde.

[Translation]

Ms. Francine Lalonde: Thank you very much, Mr. Pue and Mr. Fairley. Your testimony is extremely important, to my mind, and I'm certain Ms. Carroll, who asked that you appear, was also impressed by your presentations.

Obviously, Mr. Chairman, I would like to focus on clause 5.

[English]

Ms. Aileen Carroll: On a point of order, Mr. Chair, I wish to clarify that while I enjoyed Professor Pue's testimony, Professor Pue was not a witness I asked to attend the committee, whereas indeed Mr. Fairley was—just in case the record needed clarification. I'm not sure which member asked Mr. Pue.

The Chair: I didn't understand Madame Lalonde to say that.

Ms. Aileen Carroll: Thank you.

The Chair: Madame Lalonde.

[Translation]

Ms. Francine Lalonde: Mr. Pue, I would gladly have invited you had I known you. Your testimony is just as important. In any case, Mr. Fairley agreed with you and in his conclusion, which by the way is very well written, he noted the following:

...there appears to be good reason to set out the mandate more clearly for the benefit of peace officers charged with the responsibility, as well as for potential subjects of police action. Otherwise, it may be much more prudent to leave this potentially controversial area squarely in the common law domain in which it currently resides.

• 0955

If I understand correctly, these three subclauses should be deleted as they serve no purpose. What transpired at the Quebec Summit amply illustrates this fact.

The Chair: Am I to understand that the Bloc Québécois is in favour of the common law system?

Ms. Francine Lalonde: No.

The Chair: I would welcome it if you rallied behind the common law system, as other provinces have done.

Ms. France Lalonde: We are not in favour of the common law. Laugh if you will, but I trust this will not be counted against my time, Mr. Chairman. We're stuck with the common law, but as I understand it, at least it provides some measure of flexibility. It would be extremely difficult to discern the meaning of these provisions.

As Mr. Pue pointed out, peace officers have neither the time nor the resources to interpret these provisions so as to ascertain their rights vis-à-vis the RCMP.

The troubling thing, Mr. Chairman, is that Mr. Pue was able to state so clearly what I was feeling based on the information I had. This provision poses a problem for the RCMP, for the Canadian government and for the citizens of this country in so far as their rights are concerned. By granting the federal police the authority to establish a perimeter, the rights of citizens are being violated.

Thirdly, although subclause 3 recognizes the powers of peace officers and the authority of all provincial laws, the fact remains that given the way in which the two first subclauses are drafted, no peace officer will be able to challenge these provisions. Supreme authority is being granted to the federal force and this will create problems for the police officers themselves. Judging from these two presentations, the feeling is unanimous.

We're hearing these views before we hear those of the Ligue des droits et libertés. Mr. Pue was careful to mention that when events transpire in Quebec, citizens have certain rights under the Quebec Charter of Rights and Freedoms. There is no reference whatsoever here to this Charter.

My question is directed to Mr. Pue. In order to clarify the new powers that are being granted to the police, because that is what is indeed taking place, while emphasizing at the same time individual rights and responsibilities, we would need a much more detailed bill than the one currently on the table. Wouldn't you agree?

[English]

Prof. Wesley Pue: I think one of the main failings of this clause is not its intent and purpose, which may be fine—although it's hard to discern the intent actually when you read it. The real problem is it's not at all detailed and specific enough as to what the obligations, rights, responsibilities, and duties of RCMP officers are.

It's absolutely the case, I think, that every independent expert looking at the question of the RCMP and its relation to these conferences over a number of years has come to the conclusion that legislation is needed to guide the RCMP.

So something is needed. It may be better placed in the RCMP Act. Among other things you may need security perimeters at a conference that doesn't have international delegates; it's kind of under-inclusive in some ways in this present form.

• 1000

It needs to be a very carefully thought out and very carefully worded statutory intervention or there's room for great danger, because in a constitutional democracy there is no more important and no more fundamental relationship than the three-way web connecting the citizen, the police, and the government. This is where constitutional democracy, constitutional rights, and what it means to be a citizen of a free and democratic society get experienced and felt.

So it's very important. It does need clarification, but this clause unfortunately does not achieve it.

[Translation]

Ms. Francine Lalonde: I can understand that even with a handful of amendments, some important issues could be overlooked. You stated that the bill should

[English]

“well thought out”,

[Translation]

probably within the framework of the RCMP Act. That's your position. I'm not a legal expert and I'm not well versed in security matters. Drafting amendments would be a complex process.

I would feel much better we agreed to entrench these provisions in law, but not in the Foreign Missions and International Organizations Act, a 120-page document. These three separate subclauses will radically alter relations between citizens, the police and the government.

I'm delighted to hear this presentation, Mr. Chairman. If the government were to pursue this matter, which I sincerely hope it will not...

The Chair: You've been speaking for almost 10 minutes. If you have a brief question, I would suggest you ask it now. However, if it's rather long, perhaps you would be better off waiting for the next round.

Ms. Francine Lalonde: My question will be brief. If these provisions are adopted, what affect will this have on citizens?

[English]

Prof. Wesley Pue: Let me say first of all I agree entirely with Mr. Fairley on the approach that it would be better to take this clause out and leave things to the common law rather than put it in under any modestly amended form.

Having said that, the common law is not all that easy to understand on policing issues. One of the problems with the common law is the police don't have access to it in a practical way that guides them on a day-to-day basis. It is a terrible conundrum to be a police officer called upon to weigh all the most difficult circumstances of Canadian constitutionalism when you're standing somewhere with a baton trying to prevent somebody from being attacked, or intimidated, or harassed, or whatever. It's very difficult for them. They need clarity. This doesn't provide the clarity.

What are the rights of Canadians now, and what is the right that's preserved if this clause goes in? Canadians feeling they have suffered as a result of the police creation of a secure zone have a right to take the question to court or to various kinds of challenges.

The trouble with that is these processes are very long and drawn out. They can be very expensive. You basically need a lot of time and a lot of money to effectively raise a court challenge. When a court challenge is raised, there is an inequality of access to evidence. The police know a lot about what they did. Sometimes the police organization itself is so big and so—I don't mean this disrespectfully—apparently chaotic when they're trying to manage these events, there's actually no clear record sometimes at all as to what happened. The evidence is crucially important if an individual is seeking remedy.

What's more, should a police intervention be illegal or improper, there's virtually no remedy that can be sought ahead of time to stop it. The nearest we've had in Canadian law was the Tremblay case out of Quebec. Mr. Tremblay was put in a very difficult situation because of not knowing the details of what was happening with his application for a pass ahead of time, not knowing exactly where the security perimeters would be. By the time this came to be heard in a court, an interlocutory injunction was being sought. It's a very, very strange process, one where there's no full hearing of facts. There's no time in those circumstances, when a major conference is about to occur, for individuals to lay the evidentiary foundation, should they be able to afford to do that, to meaningfully ask the courts to enforce their rights.

• 1005

This is something that doesn't affect just one citizen in Quebec once, but as these conferences happen and as security perimeters are erected, it's going to affect many Canadians for many years to come.

The Chair: Thank you.

Madam Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you.

Thank you very much for your presentations, Professor Pue and Mr. Fairley.

I want to make one comment. My colleague who talked about the Minister of Foreign Affairs not properly using the tools he has available to him in his tool box at this time may have, I think, simplified it a little. If that was based on some of the cases he raised before members of that department when they appeared before us, they clearly stated that in one case, yes, the individual had immunity as per his or her specific functions, not overall, but because of a family relationship with someone who had diplomatic immunity, the person also benefited from the larger immunity. So I think it may be a bit of a simplification.

I'll turn to clause 5, amending section 10 of the legislation, which is what I want to deal with because that's what both your presentations have primarily dealt with. When we had representatives of the RCMP here, I had a really difficult time, in fact it was virtually impossible, getting a straight answer from them about how things operate now. And that's the experience I've had in the past.

Professor Pue, you state that it seems to date the chains of responsibility have presumably worked out satisfactorily ad hoc. And then you say “Oh, sorry, Mr. Fairley”. I think that may be a big presumption.

But right now, the point you both make is that this piece of the amendment should not go through, that if it goes through it needs major reworking, and it may be best, possibly because of the lack of time, simply to remove it, allow the current state of law as it exists to continue to exist in order to cover all of these issues.

My question, then, is which is the better scenario? There will be a court challenge. Following APEC, then the Quebec Summit, you know we're now on line. We're basically becoming the location of refuge for international events following September 11. The so-called civil society groups do have big coffers, some of them, to mount serious court challenges. We will, I'm positive, face a court challenge at some point about whether or not the police, whether it's the RCMP or the RCMP in conjunction with a provincial police force and one or several municipal police forces, abuse their authority or violate the Charter of Rights and Freedoms, either in the establishment of a perimeter or in the limitation of access inside the perimeter, etc. There will be a court challenge. I'm convinced of it.

The question, then, is will the government and the RCMP be in a better position to justify the decisions that were taken in order to assure the better functioning of the international event under common law as it now exists, or under this piece of legislation, without any amendment to section 10?

• 1010

Mr. Scott Fairley: That's a very good point, Ms. Jennings.

My short-form view would be that the government and the RCMP would be in a better position in the face of a court challenge under the status quo than they would be under this piece of legislation, because in my view it's too open-ended. It provides a target for the courts. Without that target, you have the reasonableness of police conduct and governmental decision-making to be tested, the evidence of what was done, and the authority for that. I don't think that's a long-term fix, because civil society, or the umbrella of civil society, has engaged the diplomatic world and it shows no signs of backing off from that. So this is going to be a recurring issue.

I think the motivation behind this proposed section 10.1 in clause 5 of the bill is well placed. We need something, but the point is we need something far more. I think Professor Pue raises an interesting point in suggesting that perhaps this is not the proper home for that kind of legislation. And I think we're looking at more than legislation. We're probably looking at a regulatory framework to inform the police in dealing with events like this that fall within the intergovernmental rubric, or fall within the rubric of other events. It could be a first ministers meeting that gets civil society out in force. So perhaps the best home for the kind of legislative and regulatory framework that is required would be the RCMP's own act, rather than this one.

Mrs. Marlene Jennings: Thank you very much.

Professor Pue, do you have anything you wish to add on this particular issue?

Prof. Wesley Pue: The question you ask is a difficult one, because—

Mrs. Marlene Jennings: I'm a lawyer.

Prof. Wesley Pue: —I wouldn't want to be defending the creation of a large security perimeter under either this clause or the common law.

I think Mr. Fairley is quite right. This clause looks overly broad, ill defined. It looks to me like it's ripe for constitutional challenge should it go through. I suspect the drafters had in mind the practical problem of putting a security perimeter up, rather than the constitutional niceties that surround that seemingly simple act.

Under the common law, I would be very surprised if there were not a successful challenge at some point to the ever-increasing use of security perimeters covering larger and larger areas. So I wouldn't want to be defending either, frankly.

Mrs. Marlene Jennings: That brings me to my next question. I'm assuming I still have some time left. Given that this is not—

The Chair: If it's fairly short—

Mrs. Marlene Jennings: It is. It's as short as Ms. Lalonde's and Mr. Pallister's second questions.

Given that you're both in agreement that this does not meet the bill, that it might be better, at least in the short term, to leave this whole area within common law and begin to work assiduously to develop a regulatory or statutory framework that would deal with all of these issues, not just on international events, as you pointed out so rightly, Professor Pue, but for any event that could be a lightening rod for major protests or demonstrations, etc., and how the police can balance assuring the successful, reasonable functioning of the event with the charter rights and freedoms of the protesters, the civilians, whoever, that poses a problem, because as you know, while there will be events where it will be primarily or solely RCMP, so a change to the RCMP Act would cover them, there will be other events where the provincial police of Ontario or Quebec or a municipal police force would be involved. Then you're talking about provincial legislation, and we all know how difficult it is to get a meeting of the minds of the two levels of government in any area.

• 1015

I come back again: Given that, and throwing that into the pot, which is better—this as it now stands, with virtually no time to tighten it up, clarify, provide the necessary detail, etc., to make it less wide-reaching, more targeted, etc., or common law as it now stands?

Prof. Wesley Pue: My view on that would be that a revision to the police powers has to take place in statutory form at some point before too long.

Ms. Aileen Carroll: A division?

Mrs. Marlene Jennings: A revision.

Prof. Wesley Pue: A revision—

Ms. Aileen Carroll: A revision. Thank you.

Prof. Wesley Pue: —of police powers needs to take place at some point.

Putting this through looks like entrenching provincial authority without having addressed the issues that lie behind that. I don't know, but it may be that the federal government has constitutional authority to do some things around international conferences wherever they happen in Canada. But to defend that, you need the exercise of those powers, I would think, to be clearly and precisely defined.

Mrs. Marlene Jennings: In the RCMP.

Prof. Wesley Pue: This again is overly broad, doing too much, not giving enough protection and enough definition, in my view.

Mr. Scott Fairley: Again we agree.

I think we should remember that but for recent events, the police forces in this country have done a creditable job of cooperating with one another. I don't have a record for that, but they do talk to one another.

This legislation as currently drafted could potentially militate against that cooperation, to the extent that it's viewed by provincial governments and their police forces as excluding them or running roughshod over their authority, whereas before there was a series of phone calls: we've got a meeting in Toronto and we have to get together to arrange for the appropriate security arrangements, and you go ahead and do that. Without a lot more detail, I think this legislation would harm that process more than help it.

The Chair: Thank you very much.

Mr. Pallister.

Mr. Brian Pallister: Thank you.

Just to clarify the in-fighting that Mrs. Jennings was doing, I want to clarify to you why she was picking on me a minute ago. I asked a question the other day of the officials about an employee of the Ukrainian embassy who had tried to lure 14-year-old and 12-year-old girls into a car with an anaesthetic-soaked rag. Apparently he had stolen a car, the whole nine yards. I asked why diplomatic immunity would apply there, and I was informed by more knowledgeable and experienced senior members of the committee that it was okay for that person to be diplomatically immune because they were in the same household as someone who had full diplomatic immunity, so it was extended to them as well.

I don't think asking a question about an example like that shows too much of a willingness to generalize; rather, it shows a willingness to look at the details. In the details, when you look at the background of this, there was a lot of argument and debate that went into preparation of this 1961 document. There was a lot of debate at that time about how we should define household, for example. There was a lot of concern by certain people who were at the convention that we shouldn't be too broad in our application of complete diplomatic immunity.

Ironically, what happened in the disputes around whether we should extend.... Some said we should give full diplomatic immunity to everybody, basically everyone. In fact that appears to be the position this government takes now. According to people who spoke to the media after the Catherine MacLean incident, they said that was a position they had advocated.

• 1020

Pamela MacDougall, then deputy minister, wrote:

Diplomatic status should be requested for all foreign service members where there is any question that its absence would jeopardize their personal security....

That seems to be the interpretation that's given.

Ironically, in the Vienna document, the clause that relates to the categories that the convention arrived at, which limit complete diplomatic immunity to some on the basis of just their duties, their being immune on the basis of their duties, was a Canadian proposal, from the Canadian delegation, I have learned—“the Canadian compromise” they call it. So Canada was instrumental in arriving at that section of this act.

Yet we see from the department over the last five years—they have provided us all with evidence—some 70 examples of crimes committed, or criminal misconduct, at least, because as you know, if diplomatic immunity is claimed, you can't really call it a crime because you haven't investigated and proven it's a crime. So we'll say “criminal misconduct”, ranging from impaired driving—and there's lots of that—to sexual assault, sexual touching, prostitution, attempted murder, all of that. I see in this list that waiver of diplomatic immunity is sought most of the time, which I think is great; I think Canadian people would want it to be sought. But I also see that in the vast majority of cases it's not granted.

So my question is of course on the basis not so much of the reaction to this, but rather the prevention of it. I know there are things that other countries have done to adhere more rigidly to the original intention of the Vienna convention.

That's what I'm trying to get at, Mr. Fairley, when I question you. I'm trying to get at why we don't try to prevent these types of things, because there are victims in each of these cases, and they're Canadians. Ironically, in the bill next to this one, they're being asked to give away a lot of their own civil liberties to fight for better security in this country, and here we seem to be wanting to extend it to a broader group, including visitors and delegations for meetings. So you see the juxtaposition I'm concerned about.

You say here—I'm referencing proposed subsection 5(6) of the bill, which reads that “Section 5 of the Act is amended by adding the following”, that in the event of an inconsistency, this will prevail over the Immigration Act. You say in your presentation, sir:

...Bill C-35, does not interfere with the exercise of such discretion; however, it does centralize it in one government department, in my point of view, the right one for this purpose.

So you're saying better to have the discretionary decisions in the hands of the foreign affairs department than in the immigration department. I'd like you to elaborate on why you say that's a better way to do things.

Mr. Scott Fairley: Mr. Pallister, the point here is that the Government of Canada is in the position of receiving, or not, a diplomatic or consular mission from abroad. In that circumstance, you come up with individuals in that proposed mission who fall into a category that is delineated in the Minister of Citizenship and Immigration blacklist.

So rather than having the responsibility for that decision straddle the two departments, where you have, on the one hand, the foreign affairs department being in the position of saying yes or no, you can or can't come, and a potential conflict between that and a generalized category that the Minister of Citizenship and Immigration has identified....

The Minister of Citizenship and Immigration has not looked to Mr. or Ms. X, Y, and Z, who might be part of this mission. They've just created a category where's it's the obligation of the Minister of Foreign Affairs to address the acceptability of the mission in terms of who's actually on it.

It makes more sense for the Minister of Foreign Affairs to make that decision without having to skip back across to the Minister of Citizenship and Immigration to get a specific exemption. So basically the responsibility is on one set of shoulders.

You have an individual who falls into an otherwise prohibited category, and the Minister of Foreign Affairs makes the decision to let this person into the country or not. So you have essentially one-stop shopping in terms of ministerial responsibility and no conflict between departments within the same level of government.

• 1025

Mr. Brian Pallister: I have one short question, then—thank you, Mr. Chairman.

Can you explain the security aspects of checking and who does that now? To what degree does the government check on people who come into this country to comprise part of mission staff? Who does that now? Would there be any change in that? Can you comment on that?

Mr. Scott Fairley: The act doesn't address that. I'm reasonably certain that the Minister of Citizenship and Immigration doesn't do it. I would assume there are processes—

Mr. Brian Pallister: Mr. Fairley, to be fair, you don't know.

Mr. Scott Fairley: I do not know.

Mr. Brian Pallister: And so to recommend that another—

Mr. Scott Fairley: Just to be clear, the act doesn't address that one way or another.

Mr. Brian Pallister: That's right.

The Chair: That's the answer.

Mr. Brian Pallister: But your evaluation of where it's best located, where permission is best given, doesn't take into account any of the security aspects at all as far as the screening of people and any of that is concerned. It's based on the efficiency of delivery of the approval. Is that a fair statement?

Mr. Scott Fairley: Yes, that's correct.

Mr. Brian Pallister: Thank you.

The Chair: Madam Carroll.

Ms. Aileen Carroll: Thank you, Mr. Chair.

First of all, thank you both for coming and for your testimony—“testimony” always seems so judicial—your sharing of your points of view and the information with us.

With regard to section 10 and the discussion that has ensued regarding the clarification of police power or the alternative of leaving it where it is within the ambit of common law, there does exist now, as I'm sure both of you know, a Security Offences Act, which deals with internationally protected persons, whereas with this bill, we're talking about non-treaty international organizations or international conferences. But the Security Offences Act does include making the RCMP have primary responsibility, and it includes their working with other levels.

To date, to my knowledge—and I look forward to your response—it has worked. It doesn't delineate which levels you will work with, when and in what situation, and where you see it appropriate or not. Perhaps I can ask the witnesses to respond in the hope that I will have more time to go on to other issues.

The Chair: I have no problem with that.

Ms. Aileen Carroll: Thank you.

Mr. Scott Fairley: I have no comment on the Security Offences Act. I just don't know how it's operated.

Ms. Aileen Carroll: But Mr. Fairley, it does say what this says, that the RCMP will have primary responsibility, and it doesn't delineate further.

It doesn't include, for instance, your suggestion, Professor Pue, from Mr. Borovoy, that this part of the statute fails to remind police officers of their duty to protect these rights. It fails miserably to provide them with guidance.

I'm not clear how every piece of legislation that is passed by the federal government pertaining to police is going to be able to, or ought to, or that there's an onus there to include constantly in the verbiage of the statute what the civil liberties of Canadians are, what they're entitled to. I'm not sure I understand why that nexus is necessary every time. I've chosen that piece of legislation just as an example of one that does not appear to have created the dilemma that you foresee.

Prof. Wesley Pue: Perhaps I can respond to that.

Ms. Aileen Carroll: Yes.

Prof. Wesley Pue: Thank you very much for that.

The language of “internationally protected persons” is interesting and important. It is reflected in the Criminal Code as well as the Security Offences Act. On its face, all this says is that when you have a visitor to Canada, you're supposed to protect them. That's not a huge innovation in international or in Canadian law, and in essence it's not really a new duty for a police force to protect somebody from assault. That's the job of the police.

• 1030

Internationally in that realm we have a special obligation to visitors who come to government conferences and such to make sure they're not hurt. That would have been a police duty without any enactment of internationally protected persons legislation. A very fine analysis of that has been done by Professor Okafor at Osgoode Hall Law School, making essentially those points.

The problem that has flowed in practice with that language is when you go to RCMP officers having to deal with an event and you look at their exchanges among themselves—and many of these have become public through various processes—they have latched onto the phrase “internationally protected person” and understood it to mean who knows what. They've taken it out of the context of their ordinary policing duties. They have failed to understand themselves as what in our system of law we call “citizen police”, when they're engaged in those policing duties. They haven't always been reminded to reflect on their duties to respect and uphold the Canadian Constitution. This is not a judgment on individuals. It's just that the language has sometimes misled some police officers—

Ms. Aileen Carroll: The language from the Security Offences Act?

Prof. Wesley Pue: Yes. But that's very much at the applied level of cops working together. That's not something that has to flow from that statute.

What we have here with the proposed clause is a much broader extension of police powers—something that does deviate from the conventions of common law, as we understand it, seems to deviate from the notion of citizen police. My concern with this, among other things, would be when you put that into the realm of real police officers making decisions about real events. It would be useful if they had guidance and if they had reminders that first and foremost they are police officers sworn to uphold the law.

The other thing surrounding this that seems to me to be quite interesting is the guidelines developed by police themselves. I haven't seen the guidelines. In fact, I tried a couple of times to get them from the police commissioner. It's not that I was denied access to them. It's just that after several e-mails back and forth I gave up and went on to other things. So they're there. I suppose they're available to the public, but they're not that readily available.

When it comes to this very important nexus of relations between citizen, government, and police, I don't think it's a substitute to define citizens' rights in police guidelines and subordinate legislation of one sort or another.

Ms. Aileen Carroll: Thank you, Professor Pue.

The Chair: Mr. Fairley, did you have a comment?

Mr. Scott Fairley: Now that I understand the point, I think the difference between the internationally protected persons context under the Security Offences Act and what we're talking about here is a difference in scale.

Ms. Aileen Carroll: Scale?

Mr. Scott Fairley: Scale. It's such a difference in scale that it's a difference in degree that becomes a difference in kind or context, in which the police are being asked to act.

In terms of internationally protected persons, you think of diplomats or foreign political leaders coming for a visit, and the RCMP is responsible for their safety while they're here. You make those arrangements. That's something police are familiar with—security measures. The foreign minister is arriving at such-and-such an airport, he has a meeting here, a speech there. He goes back to the airport and goes home. This is the hotel he's staying in, and so on, and so forth. That is a specific mission that the police are comfortable with, and it has been relatively uncontroversial with a general mandate that's reflected in this legislation.

With civil society confronting intergovernmental conferences, you're not talking about the security of a particular individual so much as a confrontation with the event, which is what happened at Quebec. The enemy was at the gates and they had the perimeter around where the meeting was taking place.

So it's a completely different context, although the actual police functions in terms of who they're supposed to protect are the same. They're protecting people who are foreign dignitaries there doing a job. But it's the scale and the spectacle of the event and the confrontation that's created by civil society and the media that makes it a different beast altogether and raises a whole myriad of new issues and concerns that the police are confronting.

• 1035

I think it's no secret that this amendment is coming forward now in the wake of two particular events in Canada, plus a series of events around the world where the confrontations have been replicating themselves. It's a phenomenon that began writ large in Seattle and has been repeated in Genoa, Quebec, Vancouver. That's what we're talking about here.

Ms. Aileen Carroll: I'm listening very carefully because I think it is a very difficult balance that all of us around this table are trying to achieve.

But while I appreciate Madam Lalonde's comments about the common law, for which we teased her because of the contrast perhaps with the Code civil. At the same time I think part of the conundrum is what we leave general and what we make specific. That's not new to us. This is something I don't need to tell two lawyers. However, as much as you want detail and prescription, and some mention has even been made perhaps to the need to put it within a regulatory framework, I'm not sure legislation—any kind of legislation dealing with policy powers—can ever anticipate every circumstance and every eventuality and therefore what will be reasonable in each and every one of those circumstances and eventualities. So you mustn't ask us to go off on a fool's task. And I think indeed this legislation has been an attempt to address just exactly what Mr. Fairley said and to prepare for the future.

So while I appreciate, Professor Pue, your comments, I'm not just exactly sure how legislation could ever do the task you want it to do.

If I may draw on a personal experience, while Genoa was happening, I was in Bonn as a member of the Canadian delegation for the negotiations on the Kyoto Protocol. The situation there was the opposite of what had occurred in Genoa, and I might suggest it was partly because of the preparations that had been made and the clarity of communication between the police—what they set up around where we were negotiating—and the protesters as to what was acceptable and what was not. There was a comfort level both for those of us who passed through that every day as well as for the large number of environmental groups who were there to convey to us their concerns. And it worked. But there was a perimeter and there was an area in which they could not go.

Now, I don't know German law, but I'm just saying that was a de facto situation. We were in a hotel by a river. That's a set of particular circumstances. Down the river came a boat from Greenpeace all set up in advance and agreed with. But that river came very close to that building.

How are you going to have every single circumstance like that prescribed in legislation?

The Chair: Mr. Pue, could we have a fairly brief answer to that one as well?

Prof. Wesley Pue: I wouldn't personally have any problem with a statute saying there should be security perimeters. That seems a sensible thing. But in the scale between micromanagement detail and a statute, which would be not a good thing, and such broad and all-encompassing wording that it's very dangerous, I think we're absolutely at the wrong side of the scale on this one.

Ms. Aileen Carroll: Mr. Fairley.

The Chair: You have nothing to add to that comment? Okay, fine. We'll go to Madam Lalonde, and then we can come back. I have some questions myself, and maybe that will wrap it up.

[Translation]

Ms. Francine Lalonde: That's very interesting. In your opinion, why weren't these provisions designed to be more detailed added to the RCMP Act? Why were they included in this bill? What difference does it make?

[English]

Prof. Wesley Pue: I can't speak for why they've been added to this bill. The RCMP Act does need revision, particularly around these kinds of issues. It would be a good place for thoughtful consideration to go. And I think in terms of drafting the language, more detail is needed. Precise detail to anticipate every possible event is not realistically expectable. But the Parliament of Canada and the parliamentary draftspersons are pretty good at drafting good statutes when they turn their mind to it and when they turn their mind to the balance between security and constitutional requirements.

• 1040

I'll just mention one example. The Emergencies Act, actually, if invoked, would allow the police to do things with some constitutional mandate around international conferences.

Now, if you're the Government of Canada, you may not want to declare every international conference to be an emergency, but there is a form of statute there that tries in a pretty reasonable way to grapple with a lot of the difficulties around those kinds of events and the trade-off of rights and liberties against security.

So I don't think it's inconceivable a proper statute could be drafted.

[Translation]

Ms. Francine Lalonde: Mr. Fairley.

[English]

Ms. Scott Fairley: I think the RCMP Act might be a better home for the concern that's being addressed here, simply because there it could be generalizable to all the circumstances you'd want to deal with and not simply the context of intergovernmental conferences involving foreign dignitaries. I think the problem is broader than that, although the police procedures to address it would be essentially the same.

The example I would use is the one I mentioned earlier—a first ministers meeting that was particularly controversial versus a meeting of the ICAO or a meeting of the WTO, for example.

[Translation]

Ms. Francine Lalonde: I've already put this question to Ms. Carroll and I'm curious as to whether you agree with her. I asked her if, in the government's opinion, amending clause 5 was critically important to ensuring security during the G-8 Summit slated to take place in Canada. She replied that it was not. Do you agree that without this bill, adequate provisions are in place to ensure security during the G-8 Summit meeting?

[English]

Mr. Scott Fairley: I'm not....

[Translation]

Ms. Francine Lalonde: Don't you understand my question?

[English]

Mr. Scott Fairley: No, I'm not sure.

[Translation]

Ms. Francine Lalonde: In the absence of this bill, would the RCMP and other police forces in Canada have the powers required to provide security during next year's G-8 Summit in Canada?

[English]

Mr. Scott Fairley: Without this provision, the police would, from a variety of sources in my view, have the authority to deal with the issue. That leaves the prospect of whether or not that authority is sufficiently justified in law or would withstand constitutional scrutiny. But I believe they do have it.

Notwithstanding the new context we're dealing with, they would act under their own procedures and with appropriate government direction at the time. The cooperative frameworks exist, and I think really the issue that this legislation is trying to come to grips with but at a very generalizable level, which we have some concerns about, is just to make that more clear and more defensible. But our point is that it doesn't do that. It probably makes it less defensible because of its breadth, because of its vagueness, and so forth.

Ms. Francine Lalonde: Mr. Pue.

Prof. Wesley Pue: I agree entirely with that.

[Translation]

Ms. Francine Lalonde: Thank you, Mr. Chairman.

[English]

The Chair: I have a couple of questions. I'll divide them into two areas: diplomatic immunity and the police powers issue.

On the diplomatic immunity issue, the discussion between Mr. Pallister and Mr. Fairley, as I understand it, is that, using your expanded tool box analogy, which is perhaps a useful one, in your view there are additional tools in this legislation that weren't there before. So perhaps some of the incidents Mr. Pallister was referring to might have been able to have been dealt with in better ways than they were before, because the government's hands were constrained to some extent on what they could do to the people involved. Is that correct? Is that your analysis?

Mr. Scott Fairley: That is correct.

The Chair: I guess Mr. Pallister—without putting words in his mouth—is concerned that this legislation isn't specific enough about dealing with those, and then he refers to what other countries do. But can you help us as to whether or not in those other circumstances all those tools that are referred to are specified in the legislation, or are they practices that the governments should adopt in order to deal with this? My own reaction, from when I used to teach the Vienna convention and the law of treaties, was it seemed to be more government practice.

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The legislation sets out a broad framework within which it operates, but then the government practises one way or another, and then it becomes a political judgment as to whether or not the practice is tough enough or not tough enough in the circumstances. That is an opportunity for political discussion around that, rather than too specific legislation.

Again, I'm just trying to understand where the debate is taking us here, in terms of this bill. But that's my understanding. Would you comment on that?

Mr. Scott Fairley: My view is impressionistic, drawn from teaching international law over a number of years. It does seem to be pragmatic and ad hoc. I have not done a detailed survey of state practice, but where you have confrontations between host governments and diplomatic missions or consular missions, they are invariably political in character, and for the most part unanticipated.

I think Mr. Pallister's concern can only be met with a regulatory framework that essentially tells the minister what he has to do in a certain circumstance. I don't think that belongs in legislation like Bill C-35. But the only way to meet Mr. Pallister's concern would be with a regulatory framework—another level of law, if you will, underneath Bill C-35. It would have to be the kind of regulatory framework that would tie the minister's hands.

The Chair: I take it then, since reciprocity is the key to all this, the more tools we put in our tool box to deal with foreign diplomats, the more tools other countries will have to deal with our diplomats, in the event they have a problem in a given country, say a country where, as you pointed out, the rule of law might be less clear.

This committee recently travelled in Takjikistan, Uzbekistan, and Kazakhstan—the other members of the committee are nodding their heads—and we might not be too comfortable if a diplomat of ours were found in a country like that where there was a full tool box of facilities available to those authorities, who perhaps had an excessive tool box already at their command. Is that perhaps a reflection that is relevant in this debate?

Mr. Scott Fairley: The countries we would worry about in that context, in my view, wouldn't even engage in the niceties of having a legislatively mandated tool box. They would simply go ahead and do it.

We're jumping through a hurdle that a significant number of the members of the United Nations wouldn't even bother with. You know, the law is what the particular official says it is under the circumstances, and the police are at the door. End of story.

We are going through a process that, in most parts of the world, would probably be viewed as unnecessarily extravagant, but we happen to be in a liberal democracy that requires that with an entrenched bill of rights makes it that much more necessary.

The Chair: Okay. Then going back to the police powers, there's been a lot of discussion this morning about the need for primacy of the RCMP in certain circumstances. As I understood the evidence of the Solicitor General's department, clause 5 of the bill, which amends section 10, deals with two issues that are of concern to us. One is the primacy of the RCMP in certain circumstances, and the second is the extent to which the powers of the police are either extended or restricted, by virtue of the reference to “appropriate in the circumstances” or whatever other phraseology there is in the clause.

Just very quickly dealing with both of those issues, I gather that both of you are rather of the opinion there is no need to define the RCMP's primacy. When we heard the evidence—although, as Ms. Jennings pointed out, it took some time to get it—I was left with the impression that the purpose of the bill would be served if, within the perimeter, the RCMP had the last word, and outside the perimeter, that would not be true. That was the impression I got from that evidence.

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You seem to feel, however, Mr. Fairley, that that is going to create a lot of conflict with provincial authorities and other police authorities. Do you base that on anything, or is that just a hunch of yours?

Mr. Scott Fairley: It's not a hunch. It's simply looking at what the legislation says. Previously, all of this was a matter of arrangements that had been voluntarily agreed to by whatever police agencies were concerned. This legislation says the RCMP is it.

The Chair: RCMP trump perimeter.

Mr. Scott Fairley: The RCMP trumps. That may be fine in areas of overlapping jurisdiction where everyone agrees, but this legislation raises the prospect that no agreement is necessary. The RCMP has been put in the driver's seat. Then there's all the unexplored issues.

The Chair: It was brought up this morning that the protection of international persons act would give them that authority as well.

Let's use the example of the Quebec Summit. You had 34 leaders, all of whom were covered by the international protection. Surely, the RCMP would have said, for this group of 34 folks we have a very broad mandate to do what we have to do within Quebec City. Wouldn't that have been a reasonable interpretation of that statute?

Mr. Scott Fairley: Mr. Chair, I don't disagree with your example.

On the other hand I don't believe that the Security Offences Act would deal with issues such as putting up the wall, telling the Sûreté du Québec what to do with regard to the approaches of Quebec City, or the municipal police of Quebec what they could do in particular circumstances.

All I'm saying is that what this legislation does is say without any elaboration that the RCMP has this authority. The legislation simply doesn't address the relationships that might be affected by that assumption of authority and so forth. It's just a crude instrument. As a practical matter, things might mesh beautifully, but the whole issue when you enact a new law is trying to anticipate what's likely to happen when they don't.

The Chair: Mr. Pue.

Prof. Wesley Pue: I'm quite surprised by the testimony you were given by an RCMP witness, because on my reading of this clause, it's not clear that RCMP primacy is only to be within a security perimeter. In fact, that leaves the question dangling as to what happens if the local police don't like the extent of the security perimeter.

The Chair: I don't disagree with what you're saying. I don't know if other members of the committee agree with me, but that was my impression of what we were told. That was their interpretation of it. But I agree with you that it's certainly not in the legislation.

Just going on to the issue of being appropriate in the circumstances, I'm a little confused between the two of you. I've been trying to understand in my own head whether this expands or restricts police powers.

Mr. Fairley, in your answer to Ms. Jennings you said it's restrictive. So those in favour of civil liberties should be wanting to see the clause adopted, if I understand your interpretation.

Mr. Pue, you said the police would be better off under the common law. So I take it that if the police are better off under the situation, then this is more restrictive than the present common law, or I don't know where your evidence is taking us.

Mr. Scott Fairley: No, Mr. Chair. I think what I meant to say was the opposite, that the legislation appears to add something. That is that the RCMP has appropriate authority, whatever the word “appropriate” means, where that might have been unclear before. So it confers an enhanced mandate upon them. I believe I said that enhanced mandate was a target for a legal challenge and judicial scrutiny, where that target did not exist before.

We're not talking about restricted powers. We're talking precisely the opposite, potentially enhanced powers. The legislation doesn't say what they are. It just says “appropriate”. But the legislation is going to be measured in the context of a particular event.

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The Chair: A court will always be using adjectives of that nature, “reasonable in the circumstances”, “appropriate”, even under the common law test or anything. That's basically where we're at, isn't it?

Mr. Scott Fairley: What a court would be obliged to do, Mr. Chair, is to give content to this legislation where the content hasn't been spelled out. They're going to put in whatever content they see as necessary to interpret it in relation to the facts they're given. So the police will or will not have done certain things in a particular instance, claiming the authority to do it under....

The Chair: But the content will be circumscribed by the charter and by previous experience of common law, etc. It's going to be part of filling that content.

Mr. Scott Fairley: In the common law you could say that under the common law the police have exceeded their authorities and their constitutional bounds and this is the answer. In the wake of proposed subsection 10.1(1), you would say not only that but proposed subsection 10.1(1) is either unconstitutional on its face or needs to be specifically read down. Essentially, what you would be doing with a provision like this is putting the courts into a position they really don't want to be in, and that's doing Parliament's job for it by filling in all the gaps.

The Chair: That's your point about more specifics. Thank you.

Madam Jennings.

Mrs. Marlene Jennings: Thank you.

The Chair: You're welcome, for the second time.

Mrs. Marlene Jennings: Professor Pue, you mentioned that you tried to obtain copies of the RCMP manual using a telephone tag and an e-mail tag, and you finally gave up. You raised that point in the context of the fact that police don't necessarily have adequate judicial resources and counsel to enable them to interpret when they are actually down on the ground. In fact, my experience in law enforcement has led me to believe that over the last, I'd say, ten years, there has been a significant improvement in the actual training of regular constables, just simple constables, through programs in the CEGEPs, colleges, and the police institute in terms of the issue of primacy of charter rights and how to actually carry out police conduct not only with respect, but that the role of the police is also to protect individuals' charter rights and freedoms.

I think a really good example of that was the issue of the squatters in Montreal. I don't know if you were aware of the intense media coverage of that over the summer. A group of squatters negotiated with the then mayor of Montreal to get access. They had been squatting in a privately owned building. The mayor of Montreal, Mayor Bourque, came to an agreement and on a little piece of paper allowed them to move into a municipally owned vacant property.

When it turned out to be a hot potato for him politically, he went to the police and said, I want you to evict them. Literally, the police chief went on record publicly saying he would not allow his police to move in and evict the squatters, because he had a role and the police force had a duty to protect charter rights. He said there were no reasonable grounds to believe that these individuals had actually violated some legislation that would have given the police authority to move them out, because they had a contract with the mayor of Montreal allowing them to be there.

So I'm not that concerned about how the police would interpret charter rights in relation to their authority to do something. My concern, as I mentioned in the questions I raised, was whether clause 5, which amends section 10 of the original legislation, did in fact bring about a lot of ambiguity and would become a target for court challenges and, if we wanted to go that route, provide a regulatory framework for the police in these kinds of events, whether or not the proper home for that is in fact the RCMP Act itself and provincial police acts where they're involved. They may be more than adequate now.

I'm pleased with the information and the expertise both of you have given us.

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I don't have a question. I just wanted to bring that little precision.

Police manuals, which I, in my previous life, actually had access to, are quite detailed in terms of providing guidance to police officers as to how they should behave and interpret their authority, what the limits of their authority are in different scenarios, and so on. They're actually quite good. For most police officers who are found guilty of misconduct, it's precisely because there was the proper guidance that existed and they wilfully didn't follow it.

Thank you.

Prof. Wesley Pue: Thank you for that.

The only comment I have is, in talking to police officers, when you move the scale from arresting an impaired driver to an international event that feels to them like an emergency situation, the training for that would actually have to be very deep, profound.

Mrs. Marlene Jennings: Yes. Obviously it would require further training of the officers who would be directly involved, even in terms of who would be defining, what they need to define “perimeter”, what they need to define the kinds of tools, like whether they need water cannon, that kind of thing—definitely.

Regardless of how we move, whether it remains in common law in the short and medium term or goes into regulatory framework, I have confidence that the police will be able to deal with it and provide adequate training and possibly bring in experts such as yourself in terms of getting assistance in interpreting what their authority is and what their powers are.

Thank you.

The Chair: Thank you very much.

We'd like to thank the witnesses.

Before Madame Lalonde leaves the room, colleagues, I want to draw your attention to two things. We're going to start our study on the North American integration, in light of the new security challenges, on November 20 with successive briefings in the morning and the afternoon. We'll get moving on that, because that is the security study we have to do.

I'm informed that we might be getting a small piece of legislation as well, but I think we may be able to refer that to the trade subcommittee.

I want to remind you all that this afternoon the minister will here from 3:30 p.m. to 4:15 p.m. to talk about this bill, and then from 4:15 p.m. to 5:30 p.m. to talk about the general situation of security, his trip to the Middle East, and so on.

Bearing in mind that we'll only have 45 minutes to deal with the bill—I'm assuming he'll make a five- or ten-minute introduction about the bill, because we've talked a lot about that—I'd like to keep the questioning to five minutes each, because if I give ten minutes, it will all be gone in three people. We'll keep the questioning on that issue to five minutes, and then we'll go back and everybody will have another run at the minister for the general situation.

[Translation]

Ms. Francine Lalonde: I have a question. Why don't we do the reverse, that is review the overall situation first, and then move on to Bill C-36?

[English]

The Chair: I don't have any problem with that, colleagues. If someone would prefer, or Mr. Pallister, if you have any comment on that suggestion, that we do the general security situation first and then the bill after....

That way, it would give the focus on that. If we get into a wrangle about the bill, it could eat up the time on the more important issues. Is that your thought? I don't have a problem with that.

The department itself asked, probably so we could get the bill out of the way so that he could—

Mr. Brian Pallister: I'd prefer that, actually.

The Chair: Okay, if you prefer that, we'll leave it as it is and we'll go that way.

Thank you very much. We're adjourned until 3:30 this afternoon.