JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 31, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call the 38th meeting of the Standing Committee on Justice and Human Rights to order.

Today we'll be considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime and Money Laundering Act and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

We have a number of distinguished witnesses and we'll go to them momentarily. I hate to drag our distinguished witnesses through a little bit of business we have to do as a committee, but as I gave notice yesterday, colleagues, when the information commissioner appeared before the committee, in the interest of time, he skipped over some of his prepared text. He has asked us to allow the entire text to be included as his testimony. There's no objection, I presume. Mr. Toews is delighted to do that, so I accept that everyone is. So we're in concurrence that's not a problem.

The second item has to do with the request that we extend consideration of Bill C-15B for two more weeks. A meeting of all parties' House leaders has agreed that we will extend Bill C-15B to be reported on Friday, December 6. So if I can have concurrence, we will proceed with that assumption.

• 1535

Mr. Owen.

Mr. Stephen Owen (Vancouver Quadra, Lib.): But December 6 is a Friday, Mr. Chair.

The Chair: Well, I'm sure it's December 6, whether it's Friday or not. It was a New Brunswick calendar. Stephen, I'm sorry, it's Thursday, December 6.

Now we'll go directly to our panel. I apologize for the slight delay. Such is the nature of the committee.

Our witnesses today include the Barreau du Québec, the Canadian Bar Association, the Criminal Lawyers' Association, the Canadian Council of Criminal Defence Lawyers, and, as an individual, Professor Joe Elliot Magnet, law professor at the University of Ottawa.

Because I've already taken five minutes of their time, we'll move immediately to the Barreau du Québec. You can perhaps introduce yourselves.

[Translation]

Mr. Francis Gervais (President, Barreau du Québec): Thank you, Mr. Chairman. Merci beaucoup.

My name is Francis Gervais and I am the president of the Barreau du Québec. Appearing with me this afternoon is Mr. Gilles Ouimet, from our criminal law committee. Also in the room is Ms. Carole Brosseau, from our research and legislation service, who will assist us if there are any technical questions with which we have difficulty.

We are aware that the bill that has been tabled was drafted very quickly, creating a lot of work for legislators. You must understand that for us as well the preparation of a response in the form of a brief took some time. We apologize for the fact that our final text is not yet ready, but it will be within a few hours. We have had the opportunity to rework it and it will be tabled very shortly, perhaps even in a matter of hours.

Allow me to say a few brief words about the Barreau du Québec. The Barreau du Québec is a professional association governed by specific legislative provisions, the principal mission of which, by virtue of the act, is to protect the public. To this end, its obligation is to see to discipline within the profession, the respect of the code of ethics as well as the verification of the qualifications of its members and potential members.

Furthermore, the Barreau du Québec, within the context of its general mission, which is to protect the public, has defined for itself secondary missions, namely that of intervening as an intermediary when new bills are tabled. To this effect, the Barreau du Québec, as an institution that is essential for the protection of the values of a democratic society such as ours, seeks to promote a balance between the individual rights and freedoms of citizens and, obviously, the powers of the State.

Given the importance of the provisions contained in the bill, we had to call upon several of our members, sitting on various committees, and we relied on much expertise.

There will be two parts to our brief, as well as to this morning's presentation: firstly, general comments on the bill, that I will share with you and, secondly, more specific comments relating to several provisions in particular.

[English]

The Chair: It has been requested by interpretation that you perhaps slow down just a bit. They're having a hard time keeping up.

Mr. Francis Gervais: Okay, I'll try to get it within my ten minutes. I was trying.

A voice: Make it a slow ten minutes.

Mr. Francis Gervais: Okay. No, a Quebec ten minutes. We're fast. Anyway, I was only in my preliminary.

[Translation]

In the main part of our presentation, we will be making a certain number of general comments about the bill. Mr. Ouimet will then take over to make more specific comments.

Obviously, when the bill was tabled, I saw the minister's press release stating that the measures envisaged would also involve verifications and examinations so as to guarantee conformity with Canada's legal framework, including the Canadian Charter of Rights and Freedoms. This is reflected in our brief, when we say that we are seeking a balance.

We have apprised ourselves of the four aims announced by the minister upon tabling the bill. Obviously, this is a bill that, although it is not called an omnibus bill, strangely resembles one because several acts are impacted upon by the changes put forward. Obviously, these acts must change because of the events of September 11, that we have all lived through.

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It is obvious to us that the events of September 11 demand a reaction. There has been a reaction on the part of the government. Furthermore, this reaction must not be such that the fundamental values of our society are completely set aside by an act that would apply in very specific circumstances. We talk of seeking a balance, and you will understand that it is in this context that we make our recommendations.

First of all, upon seeing the minister's press release, I took note of the fact that the government was for the first time ever in the criminal system introducing the intervention of federal court judges.

I will later invite my colleagues to make more in-depth comments on this, but there is a question we ask ourselves. Why, in the context of such a specific activity, does the government wish to introduce people who have no experience in the criminal arena, whereas we have a Canadian criminal justice system that works well?

With regard to amending the National Defense Act—my colleagues will come back to this and this will also be covered in our brief—, we are surprised to see that it is the minister of National Defense who will be called upon to authorize the interception of communications.

Here is the comment that quickly comes to mind for us. How can we control the executive that grants itself at one and the same time the authority to intercept communications and the authority to proceed with such interceptions, while our criminal justice system has mechanisms for the granting of such authorizations and there is, all the while, a revision or an intervention on the part of the judiciary, which has always been considered as a neutral referee in these matters?

We must also ask ourselves questions with regard to compelled testimony which, I believe, is a new element in our legislation or in our law.

We must also ask ourselves questions with regard to preventive arrest. You will see later on why I draw a link between that and our general comments.

I must say that we are also surprised by the power that will be granted to the attorney general to block access to certain information through the tabling of a certificate.

Very recently, just some 10 days ago, the Quebec Court of Appeal, in the Miranda case, pointed out that we must on occasion set aside solicitor-client privilege, because if the information is such that it may lead to the acquittal of the individual, then this principle must be put aside.

We however find ourselves in a situation where, for example, the attorney general may block information that might be essential to the defense of an individual, whereas the bill provides for no judicial intervention mechanism to allow an individual to benefit from a lifting of this blockage.

From all of this flows our main general comment. Yes, the government has reacted, but we believe that in this case, the reaction to a particular problem should have fit within the framework of a specific act. Allow me to explain.

You are introducing into the Criminal Code notions such as compelled testimony, subpoena to appear, preventive arrest and preventive detention. These are new notions. We are told that these notions are necessary or mandatory in the case of a very specific problem, that of terrorism.

I believe that this argument itself is reason enough for there to be specific legislation. Let me explain. Our fear, as you will see when you read our brief, is that once introduced, a temporary notion, for a very specific program, may contaminate—forgive me for using the term—the enforcement of criminal law.

I am not a criminal law specialist, but I was looking at the provisions of the act. There is mention of the possibility of preventive detention when there are suspicions, when a person is suspected of having committed certain acts.

Thirty years ago, the word “suspicion” dit not appear in the Canadian Criminal Code. Twenty years ago, when we realized that society was suffering from the scourge of impaired or drunken driving, we authorized the police to do roadside checks and to carry out on-the-spot breathalyzer tests when they had suspicions. But we were told that this was temporary and that the purpose was to resolve a social plague that was temporary. Twenty-five years later, we still have the same provisions and we are seeing the word “suspicion” appear in more and more bills.

If we want to frame the act in order for it to target a particular problem and if we want to avoid having these notions, through normal rules of interpretation and the normal evolution of a law, apply to criminal law in its entirety, then all of the provisions of the bill must be drawn up in a separate act. That is our first general comment.

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We were told of a possible review of the bill after three years. I believe that this is a minimum. But in the context of our arguments relating to an act that would be incorporated into the Criminal Code, this three-year period is in our view too long. The problem with interpretation by reference, if I may use the term, or with the inclusion of these notions in the Criminal Code, is that the damage, at that stage of the game, will already have been done.

We further submit, in our general comments, that on top of the matter of a distinct act, there is also the fact that there are numerous differences between the English and French versions. We understand that the timeframe was perhaps such that there were some difficulties. There are also serious anomalies or harmonization problems with bills that are presently being studied or that were recently passed. We are all familiar with the interpretation principle with regard to the courts. When we come up with different terms, the first element we put forward or that the court will retain is that if the legislator chose to use different terms, it is because he had something in mind and he wanted to make a change.

Therefore, in our general comments, we also ask the government to review the French text in particular, with regard both to the translation and to harmonization with other acts.

There then are the general comments I wished to put to you. I will now give the floor to Mr. Ouimet, who will deal with certain specific provisions of the bill.

Mr. Gilles Ouimet (Member of the Criminal Law Committee, Barreau du Québec): Thank you, Mr. President.

I obviously invite committee members to put questions to the Barreau du Québec later on with regard to the idea of there being a distinct act.

You must understand that what the Barreau has in mind with this proposal is simply an exceptional tool to resolve an exceptional problem. If these legislative changes are passed—and Lord knows how many acts will be amended by Bill C-36—, specific provisions will be included in various acts, namely the Criminal Code. The idea of a bill containing all of the provisions needed to attack the exceptional problem of terrorism is to have an act that is distinct from catch-all legislation.

With regard to the more specific comments relating to various provisions...

[English]

The Chair: I would just bring to your attention the fact that we're almost at ten minutes now. The idea was that the first—

Mr. Gilles Ouimet: Okay.

The Chair: So please be very brief. Then we'll have an opportunity during the question and answer period.

Mr. Gilles Ouimet: All right. One of our major concerns is with the definition of

[Translation]

“terrorist activity”,

[English]

terrorist activity. As far as we're concerned, that poses a great problem because it's far too vague or wide, especially because of the notion of economic security. There are two basic problems, and I'll point them out very quickly.

The definition of terrorist activity in proposed paragraph 83.01(1)(b) includes economic security. That's a big problem, as far as we're concerned.

The other big problem is

[Translation]

the provision aimed at limiting the scope of

[English]

the terrorist activity,

[Translation]

limiting protest to legal activities,

[English]

lawful. This is a problem because

[Translation]

pressure tactics and illegal strikes

[English]

would be covered by the definition as it stands now. So that's a big problem.

On the very specific points, in the three most problematic provisions, proposed sections 83.28, 83.29 and 83.30, preventive detention and the warrant of arrest, there are specific provisions lacking.

[Translation]

There is a lack of mechanisms allowing for the limitation of infringement upon freedoms.

[English]

I'm not talking about the fundamental aspect of incorporating this into the Criminal Code.

[Translation]

Mr. Gervais spoke briefly about what I wanted to discuss. The Barreau believes that provision should be made for concurrent jurisdiction of the Upper Court, specifically with regard to the freezing of the assets of terrorist entities or groups.

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[English]

Since time seems to be a problem, I will stop now. If there are questions, I think I'll come back at a later point.

The Chair: There'll be plenty of opportunity to work in your answers, whether you get the questions or not. It's been known to happen here.

Next I'll go to the Criminal Lawyers' Association, Michael Lomer.

Mr. Michael Lomer (Treasurer, Criminal Lawyers' Association): Thank you very much for inviting the Criminal Lawyers' Association to comment—critically, I hope—on this very important and difficult piece of legislation.

This past Saturday, the Criminal Lawyers' Association had its annual general meeting. At the annual general meeting every year there is an award called the Martin Medal. It's named after the Hon. Mr. Justice Arthur Martin, now deceased. He was the first recipient of it. Recipients have included former Chief Justice Antonio Lamer and the former Chief Justice of Ontario, Charles Dubin. The recipient of it this year was Edward Greenspan.

He gave an acceptance speech, and part of its subject matter was this very piece of legislation. I could do no better than to quote from it. If you will bear with me, I will read in part from that speech.

The Chair: As long as it's in five minutes.

Mr. Michael Lomer: I have the clock right in front of me.

He said that in the war of competing ideologies, we know democracy will win over Nazism, communism, all forms of fascism and now terrorism—Islamist or any other kind—because we are right. We know the spirit of liberty will prevail only if we practise what we preach, and only if we as a nation live as we talk. We know that Canada and the United States are the greatest experiments in liberty that the world has ever known, and we understand that history teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.

He said we do not need to be reminded that when our nation allows fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it. We understand that it would indeed be ironic if, in the name of national defence, our country would sanction the subversion of the liberties that make the defence of our nation worthwhile. We know that we defeat our own ends if we adopt the techniques of totalitarianism in security cases. We understand that if we really believe in democracy, we must have faith enough to fight for its preservation with the tools of freedom. We must remind ourselves to resist a panicky run to eliminate basic human rights.

He said that we know that in the global struggle against terrorism it would be a tragic paradox if we should surrender any part of our heritage in the name of the effort of removing the terrorist threat, for we should then have done to ourselves from within what we fear most from without.

The Minister of Justice, Anne McLellan, says the balance has shifted from protection of individual liberties toward the protection of collective rights. She says that civil libertarians are naive. What she means by this criticism is that our spectrum is narrow and our horizons are limited when we debate problems of individual liberty while our collective freedom is imperilled. She is, with respect, wrong.

As Edmund Burke said in 1777, “The true danger is when liberty is nibbled away, for expedients, and by parts.” Our very future depends on us being the guardians of these freedoms. It is incredible that in the defence of freedom and in the defence of liberty we could even contemplate, in Bill C-36, the detention of someone not charged with a crime, allowing police to make preventative arrests.

It's inconceivable in the defence of freedom and liberty to contemplate compelling witnesses to testify before investigative hearings. We recognize that the right to silence is more than a mere right to refuse to answer incriminating questions. We know that the right to silence cannot be cast side, when it's the last bastion against an ever more omnipotent government. That protection from this kind of assault is the sine qua non of the essential dignity of the individual.

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The freedom of the individual, as we have known it since the beginning of this nation, will be at an end if the time ever comes when the state can confront a suspected person with conviction if he confesses his guilt, with perjury if he denies it, and with contempt if he remains silent.

We know that freedom is our most precious treasure. Like the search for truth, the ultimate in freedom is always just over the horizon, just beyond our grasp. The trick is not to lose it or any part of it, but rather to get as much more of it as we can properly assimilate. We never sit silent if the law denies humanity or human dignity to others. We are the ones who raise our voices, our fists, and our consciousness, and it is we who rage against injustice.

I would like to point just briefly to some of the most galling—if I can put it that way—parts of this piece of legislation. I have to start with the definition of a terrorism offence. This is on a very basic and personal level. I spent two days trying to figure out what terrorist activity was by reading that definition, and I could not. It is opaque. It is not worthy of the House to have that type of legislation.

If you read it and try to understand what a terrorist activity is, the first half of the definition—not the second half, which at least has some semblance I can understand—makes reference to all the section 7 offences. Why you would ever want to bring in a part of the Criminal Code that deals with extra-jurisdictional application of the criminal law, in circumstances when you're trying to identify what the offences are, boggles the mind. It really makes it difficult to understand what offences you are saying are terrorist activities. Just say it.

I can understand if you're going to say hijacking, then say hijacking, but don't make reference to a section that talks about hijacking in the context of extraterritoriality of hijacking. Which do you mean? Is it hijacking per se? Is it hijacking extraterritorially? Your definitions are difficult, to say the least.

One of the other things is the definition of terrorism offence as “an indictable offence under this or any other Act of Parliament committed for the benefit of”. That suggests to me that if your low-end criminal commits an offence that can be considered an indictable offence—and keep in mind “theft under” can be an indictable offence—and it has a connection for the benefit of a terrorist group or activity unbeknownst to that low-end, low-rent criminal, is he now a terrorist? Is that what is meant by this?

Are you actually going to bring in the unwitting dupes, the low-end criminals, and call them terrorists because they happen to be tangentially related, without what we would normally have, which is that requisite degree of knowledge that would make it a terrorist criminal offence? I hope that means you're not intending to do that, but the way I read it—and I hope the French version is clearer than the English version—it doesn't appear to be so right now.

If you take a look at your definition of facilitation, it's the same thing. If you read that definition of facilitation, can you imagine circumstances where the person does not know there is a terrorist cell, yet he does something to facilitate it?

Section 37 used to be a very small section in the Canada Evidence Act. Now it looks like it's going to be larger than the Canada Evidence Act, with what you've put in there. I almost imagine there was some legislative initiative before September 11, and suddenly we just have it landed on us.

The only time I've seen section 37 actually used was when a federal crown stood up and said I could not question a police witness about the location of an officer when he said he saw a drug transaction. That seems sort of ludicrous at first step. Obviously, if he can't be in a position to see it, then his evidence is suspect. But it is used when they say there's a higher good, and they are protecting their lookout vantage point, or something of that nature.

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We have in Ontario, for section 37, a case that I think is called Richards—I can look it up for you—where we have a very simple and straightforward procedure that is user-friendly. We do not have ten-day limitations in applications to Superior Court. You're going to interfere with and derail all sorts of trials with that type of provision if you keep it the way it is. But speaking from a sort of unenlightened self-interest, that doesn't necessarily benefit the state; that can benefit an accused person, unfairly so, by suddenly derailing a preliminary inquiry and going to a Superior Court. As I said, look at Richards.

You can do a lot better in terms of making that section work and cover what it is you need to cover off with respect to secure information. The way Richards works, just so everybody knows, is that you first get a ruling from the judge you're in front of, who will know the context. The judge will know whether or not asking questions about the location of the police officer at the time he observed the drug deal is something that is in national security or not and doesn't derail the whole trial.

There are a lot of other things, but I think my ten minutes are up.

The Chair: Thank you very much on both counts.

Mr. Trudell from the Canadian Council of Criminal Defence Lawyers.

Mr. William M. Trudell (Chair, Canadian Council of Criminal Defence Lawyers): Mr. Chair and members of the committee, I am very grateful on behalf of the Canadian Council to be invited back to speak to you on this very important bill.

We prepared a brief; it is before the committee but not tabled yet because we weren't able to get it translated, but I hope it might be of some assistance to you in your deliberations.

Extraordinary times call for extraordinary measures, but also a need for extraordinary vigilance, and I would be so bold as to suggest that this is one of the most important pieces of legislation that this committee will ever look at in our lifetime. We rely on you to be as careful, as cautious, and as slow as possible.

There are many sections of this bill that others may speak to eloquently, on which if we had time to consult, as we do on many other bills, we would be able to help. But we don't have the time, and therefore the need for vigilance rises. So there are a couple of points I'd like to make on behalf of the Canadian council.

Number one, the real problem with this bill is that there is no real accountability. I remember when we were here on organized crime and we talked about the response to Shirose and Campbell. The committee was very interested and listened. In effect, changes were made in relation to accountability in terms of unusual practices.

This country has always operated with the light on. This bill is full of darkness, and so we would suggest the following on behalf of the Canadian Council. This is in our paper. Let me read it to you:

There is no meaningful accountability in this Bill and we propose that a Committee be created chaired by a former Justice of the Supreme Court of Canada or a former Provincial Appellate Justice, with a nominee from each of the Standing Senate Committee on Legal and Constitutional Affairs and the Standing Committee on Justice and Human Rights to monitor this legislation quarterly and report to the House on a yearly basis.

In this way the public

—and only in this way—

will know that accountability is established. This Committee would act similar to an Ombudsman reviewing the use of Ministerial Certificates, Wiretap Authorization, Preventive Arrests and the special provisions of this Bill to ensure that abuses are corrected and the purposes of this extraordinary legislation are kept in focus.

Without this committee, without someone who stands outside of the government, well-meaning as ministers may very well be, this bill is a shock to criminal justice as we know it, and we would ask you to consider empowering a committee to review it on a continual basis.

The second point is there has to be a sunset clause, and the sunset clause has to be meaningful. If indeed there are sections of this bill that you're convinced are emergency measures the government feels must be enacted, then enact them, separate the rest that aren't so emergency driven, and put a meaningful sunset clause in those emergency sections to reflect that they are necessary now and may not be later.

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Many bills, I would respectfully submit to you, have review provisions built in, but are they actually reviewed when the time is up? We say there has to be a meaningful, dramatic sunset clause. If the American government can do it...when they passed their Patriot Act last Friday, they put it in. And we must put it in.

Lastly, I would suggest that throughout this document there are extraordinary measures. I would ask you in your clause-by-clause analysis of these measures to make sure the right to counsel is not thrown in in a meaningless way.

Only one part, proposed subsection 83.28(11), under “Investigative Hearing”, says “A person has the right to retain and instruct counsel at any stage of the proceedings”. We say in our paper we would have thought this charter protection was self evident, and we would suggest the immediate right to retain counsel or the appointment of same by the court be enacted in these sections. It's meaningless to say you have the right to retain counsel in the middle of a hearing. If someone is detained, if they are arrested under one of these provisions, they have to be told, as they are under the charter in normal circumstances, that they have a right to retain and instruct counsel without delay.

I would also ask that the provision be placed in this bill where judges must address the issue of the unrepresented accused—

A voice: Non-accused.

Mr. William Trudell: Sorry, and maybe non-accused, you're right—and appoint someone to make sure they are represented. We all are operating in a climate of fear. None of us understands what is going on in our world, but it's up to you, it's up to us, to be vigilant in relation to going forward.

Thank you, sir.

The Chair: Thank you very much.

Professor Magnet, for ten minutes.

Professor Joe Elliot Magnet (Law Professor, University of Ottawa): Thank you, Mr. Chairman.

I'm here at the request of the committee and staff, and it's my privilege to attempt to be of assistance to you.

I'd like to address four points: the definition of terrorist activity, which someone referred to; investigative hearings; preventive detention; and the desirability of a sunset clause.

This bill is modelled to a certain extent on the United Kingdom Terrorism Act of 2000. The bill copies the British definition of terrorism, with some modifications. The bill is exceptionally important. I think we need to see the changes that, as some have said, it could fundamentally make to our society and our way of life.

First, Canada is not the United Kingdom. The United Kingdom Terrorism Act of 2000 is fastened on the Northern Ireland problem. Canada has no Northern Ireland problem, nor the terrorist challenges it brings. Canada is not a superpower. Its interests do not project abroad with American range, nor do they swirl in its wake the American strategic challenges.

Canada also has to be aware of the changing nature of modern terrorism. There are three long-term trends. First, there is a declining number of terrorist incidents, which is a long-term trend. Second, there is increasing lethality of each incident. And third, there is the adoption of a war paradigm by terrorist networks instead of what we saw formerly in the 1980s and 1990s, coercive diplomacy.

With respect to the definition of terrorism in proposed subsection 83.01(1), there are basically two problems as I see it. First, the definition attempts to fight the last war; and second, it's too vague and too wide.

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In terms of fighting the last war, the new terrorism is not coercive diplomacy. No demands are made by the terrorists. The means are not proportional to the demands, as we saw with the terrorist hostage-takings and hijackings of the 1980s. The new terrorism is something totally different. It is asymmetric warfare against states by non-state networks. The paradigm for this is the attack on the USS Cole or the September 11 attack on the World Trade Center. As with both of these attacks, there are no demands made. Nobody wants to negotiate with anyone about anything. The acts are warlike displays of power and aggression, and what makes them terrorist is the asymmetric nature of the challenge they pose and the targeting of non-combatants.

So in concept, proposed subsection 83.01(1) has really missed what it is we're trying to combat. The real concept, to put it in a nutshell, is that modern terrorism is an act that would be a war crime if war had been declared, and Bill C-36 seems to miss this point.

In detail, I see there are basically four problems with it. Proposed item 83.01(1)(b)(i)(A) is very vague and insubstantial. It seems to me to be open to abuse.

Proposed paragraph 83.01(1)(b) is the intimidation concept. It really runs at a tangent to acts of warfare, and this idea of intimidating society really sweeps in fundamental activities in our society that come out of our democratic impulse for change. We have been at pains, both in this committee and in the Senate committee, to explain how it is that activities of certain labour organizations—there were some good examples given by the Quebec bar association—would not be terrorist acts, and we really do have to split hairs here.

The problem is that many impulses for democratic change are not lawful. They are intimidating, cause some property or economic damage, and they do have that as their intent. This concept embraces all of them. The examples we've heard—and there are many more that we can imagine—will plague the courts, and I think the low-grade criminal example is a moving one. That's certainly not what we're trying to do, but the definition doesn't really help us to avoid it.

Thirdly, proposed paragraph 83.01(1)(c)—serious risk to public health or safety—includes too many unintended acts, particularly very youthful acts of mischief, setting fires and that sort of thing. Again, we don't want to confuse ourselves. We don't want to confuse law enforcement. And we don't want to fundamentally upset the civil liberties balance in our society.

Proposed paragraph 83.01(1)(d)—property damage—is, again, very wide and very insubstantial. There are many examples. We've heard some. My own example is a 19-year-old student protester who occupies the office of the university president, which falls within this definition. Certainly arguably, and perhaps convincingly, that's not what we want to be capturing here, and it's not what we want to be arguing about with law enforcement. We don't want law enforcement to be confused. We want a clear message. We're trying to do something here. We don't want to confuse law enforcement, security services, and the courts.

Let me move to compulsory judicial examinations, the investigative hearings. My point about this, which I would invite you to consider, is that these are too wide and there is an interference with the right to silence. I know the Minister of Justice said this is not an interference with the right to silence, but I disagree, and I'd like to go on and explain.

I would suggest an amendment to proposed paragraph 83.28(4)(a) to add a subparagraph 83.28(4)(a)(iii) saying “and reasonable attempts have been made to exhaust permissible investigative methods or there are exigent circumstances”, and I would add the same as proposed subparagraph 83.28(4)(b)(iv).

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I do not at all disassociate myself from the comments made by the Quebec bar, which are quite on point, but at the least I would invite the committee to say that if we are to have such hearings, let the police do their work first. Don't go conscript people on the street and force them to answer and violate the right to silence. Do the work first, and after you have done your work, or if there are emergency or exigent circumstances, committee members may want to consider whether these draconian means are necessary. I note the remarks of the Quebec bar, but this amendment may be a halfway point that may assist committee members.

The minister says there is no right to remain silent. With great respect to my former admired colleague—who is still admired but is no longer my colleague in the law schools—she says there is a right to be protected against self-incrimination but no right against testimonial compulsion. While this is generally true, I disagree that that's the situation here, because the powers under 83.28 can be—and I think are likely to be—used in conjunction with a detention, probably under 83.30.

In other words, for preventative detention you're required then to answer questions. It's the combination of the detention plus the requirement to answer questions that is in the teeth of all of the Supreme Court's work in the 1990s on the right to silence. I'd be happy to read the jurisprudence into the record for the reporters.

The preventative detention, plus the compelled testimony, I suspect, will be the norm. In other words, what is likely to happen is that there is a person suspected of having some knowledge or being involved in a terrorist incident. Now we don't really have evidentiary-style information but we have some suspicion. The police wouldn't normally be allowed to act. What I think will happen is that such a person will be picked up, held in preventative detention, forced to answer questions, resist—and then we'll have a debate about whether or not we're going to use physical means. Someone could say there's a nuclear bomb in the Congress Centre; we have this person who may know. Then we're going to have a debate. We have to know: the end justifies the means.

This debate has been held in Israel with respect to the general security services. It's very moving to read the judgment of the Israeli Supreme Court in the torture decision to see the limits this court would put on that use, even with the security challenges faced by that nation. We've already opened this debate here in our media. If we are to do this, it is something I disagree with.

We don't know what the strategic challenges are. We know there were four suicide bombers. We don't know that there are any more. We don't know that there are 400 more or 4,000 more. It would be terrible were we to take these means and then discover, as we discovered in 1970, that that's all there was, but we've done these things. That's profoundly wrong. It's not who we are and it's not who we want to become.

I believe this bill is an overreaction—and that's understandable. A catastrophic event has happened. Our population is frightened. We've received a credible threat of mass destruction. We've talked for a long time about weapons of mass destruction, terrorism, and it appears to be here. But I fear that our fear and our lack of knowledge is just spiralling into the conviction with which we hold our most cherished beliefs. What we need is some adequate intelligence to either calm us down or to put us in the range where we can target our responses to the actual strategic challenges we are facing. We don't yet know what those are.

I hope my remarks are helpful to the committee. Thank you for inviting me.

The Chair: Thank you very much, Professor Magnet.

And now to the Canadian Bar, Simon Potter and Greg DelBigio.

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[Translation]

Mr. Simon V. Potter (First Vice-President, Canadian Bar Association): Mr. Chairman, members of the committee,

[English]

my name is Simon Potter. I am the first vice-president of the Canadian Bar Association.

I have the honour of sitting in the place of our president, Eric Rice, who asks me to convey to you, Mr. Chair, his regrets over being unable to attend today. I'm joined by Mr. Greg DelBigio, who is an officer of the CBA's national criminal justice section practising in Vancouver. He's also a member of our legislative and law reform committee.

Immediately following the tabling of Bill C-36, the Canadian Bar Association assembled a team of experts from a wide range of disciplines—indeed, the senior members of the CBA's sections dealing with constitutional, international, immigration, human rights, criminal justice, charities, business, civil litigation, media and communications, environmental and aboriginal law. All of these areas of the law are touched by this omnibus bill.

The result of their work is the submission that was approved by our board of directors just this past Saturday. A fully translated summary is before you. I will deal in this statement with some of the issues it raises.

Our response to the terrorist attacks must strike delicate balances between collective security and individual liberties in the context of an existing legal and democratic framework, which has served Canada well. In our eagerness to fight terror and the fear it creates, we must caution ourselves in our conviction and our urgency to address the evils that became undeniable on September 11. We must ensure that we protect the very values that are in fact the target of the terror: freedom, justice, and the rule of law.

[Translation]

Bill C-36 is far-reaching legislation. In several respects, it calls into question many of the rights and freedoms we enjoy, some of them hard won, rights and freedoms that should not be abridged without good reason. Such legislation must be necessary and, even if it is necessary, must be properly tailored to meet the government's objectives without infringing on Charter rights.

[English]

As well, as we shall see, quite independently of the challenge Bill C-36 addresses to charter rights, it also brings to Canada's legal fabric institutions and mechanisms that only a few months ago would likely have been thought ill-advised by most of us. They are dramatic departures from the rules and conventions long taken as unassailable, going to matters as fundamental as the dividing lines among the legislative, executive, and judicial branches, and as far as the dividing line between private lives and state encroachment.

Mr. DelBigio and I would like to focus here on four very specific aspects of the bill before us: the need for a true sunset clause; the definition of terrorist activity; preventive arrest; and investigative hearings. Though in the prepared statement we will deal with all those fours points, Mr. Chair, Mr. DelBigio and I will stand ready to answer your questions on any aspect of Bill C-36.

The sunset clause: the Canadian Bar Association is of the opinion that the mechanism for simple review in clause 145 of Bill C-36 is insufficient. We see in Bill C-36 dramatic departures from accepted conventions, the equally dramatic expansion of police powers, and the correspondingly dramatic limitations of citizens' rights and liberties.

The measure is designed to make the operations of government more closed than Canadians now expect. All of these are quite extraordinary. They are acceptable in this period of immediate response to an extraordinary threat only if Canadians can be assured they are temporary.

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[Translation]

These extraordinary measures are presented to us in a bill which the government quite understandably seeks to have brought into law with all dispatch. The Canadian Bar Association if of the view that the necessary accompaniment to the speed with which such dramatic provisions are to be made law is a sunset clause. The onus must rest on the government to show that these provisions are still necessary after the sunset period.

[English]

In a public emergency the tests used to justify a law, whether under section 1 of the charter or otherwise, may tilt away from the rights of the individual and towards the interests of the collective, in this case public security. But the measures taken to respond to the emergency must be limited to the duration of the emergency.

We recommend that the bill be amended to provide for its expiry three years after it receives royal assent, except for those provisions that relate to protections against religious and racial intolerance. There are three such sections in the bill.

On the definition of “terrorist activity”, we find the one in the bill to be too broad.

[Translation]

Defining terrorism is no simple task. While the September 11 attacks were clearly terrorist, other examples may not be so clear.

Our courts have consistently refused to define the concept, perhaps recognizing that finding an act to constitute terrorism can depend on such a thing as context, historical perspective and racial, religious or other group identity.

[English]

It may be difficult, but it is necessary with this bill to define terrorist activity and terrorist offence. We must be sure the net we cast catches terrorists, as we understand the term, and not those engaging in forms of protest fully accepted in a free and democratic society. We must be sure that only those who must will be exposed to the severe consequences foreseen by this bill—arrest and detention without warrant, freezing and forfeiture of assets, and so on. We must be sure that the extraordinary investigative mechanisms will be brought into play only to combat what we understand as terrorism.

For this reason the definition must come from Parliament and it must be as clear as possible. Police powers such as those to be created here must not come into play on the police forces' understanding of the definition, which is too broad. It is Parliament's will that must apply, not the peace officers'.

The definition of terrorist activity proposed for subsection 83.01(1) of the Criminal Code is given in two alternative halves. The second half, 83.01(b), which Professor Magnet referred to, offers five alternative intentions labelled (A) through (E). The CBA considers that proposed item (E) is superfluous to proposed items (A), (B), (C), and (D), and that it should be eliminated for fear that its existence will allow the new measures to apply to situations other than those described in (A), (B), (C) and (D).

This would open the door to terrorism being found in the case of illegal work stoppages or protects having the effect of disrupting essential services. It would have the effect of finding terrorism in cases where essential services are disrupted even without any harm to persons or property.

This second alternative definition also requires that there be a political, religious, or ideological purpose to the activity. The Canadian Bar Association sees this not only as unnecessary but dangerous. It is unnecessary because a terrorist attack done without these motives, but for let us say simple blackmail, would be no less terrorist. It is dangerous, in the view of the CBA, because it opens the door to prejudices and intolerance. Terrorists are the target of the bill, not particular religious or ideological groups. This requirement should be deleted.

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I will turn now to the first alternative of the definition, proposed paragraph 83.01(1)(a), which Professor Magnet referred to quite correctly as “opaque”. It is a reference to several already existing provisions of the Criminal Code, which were adopted as long as 30 years ago in compliance with 10 international conventions.

Bearing in mind the bill's amendment of section 2 of the Criminal Code to provide that a “terrorism offence” includes any indictable offence “where the act or omission” constitutes “a terrorist activity”, this paragraph 83.01(1)(a), the first alternative, is almost certainly superfluous. Its drafting gives rise, though, to sufficient doubt as to its meaning that those faced with the effects of this bill would need, unless this first alternative is deleted, to consult all 10 conventions.

Now I'll move on to preventive arrest.

[Translation]

Warrantless arrest and detention should only be used in exceptional cases. This power should only be available when terrorist activity is imminent. Proposed section 83.3(4) of the Criminal Code should be amended to reflect this.

The investigative hearing provisions, as indeed many other parts of the Bill, do not adequately protect communications between clients and their legal counsels. This right is fundamental to the operation of our justice system and should be fully protected.

[English]

The Canadian Bar Association appreciates the opportunity to offer its thoughts on this very important bill, Mr. Chair. The debate is difficult, but it is part of our common quest to get the response right. We must ensure that the response targets terrorists and their organizations and affects the rest of us only to the extent necessary. We must make sure the response does not usurp the very rights and freedoms the terrorists attack.

Mr. DelBigio and I stand ready to answer your questions.

The Chair: Thank you very much, all of the witnesses.

Your testimony has been very helpful to these deliberations and very thought-provoking. I think you'll see evidence of that right now.

Mr. Toews, you have seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, Mr. Chair.

I want to echo your comments. I appreciate each of the presentations. I think they were thoughtful and certainly of assistance, even where we may disagree. The committee has heard evidence from experts, for example, Professor Wilkinson, who advised us that this is not a temporary emergency but is an ongoing threat we will see for many years.

I think the challenge that is facing us as committee members and parliamentarians is to ensure that we do not simply deal with a temporary emergency but that the legislation is drafted to meet ongoing concerns. That increases the difficulty we have to address. In that context, it's obvious that we need some type of effective review mechanism.

I was particularly attracted by Mr. Trudell's proposal, and I think it has a lot of merit. However we want to phrase it, perhaps in conjunction with a sunset clause or something else, you've given us a lot to think about in assisting us with that very difficult struggle.

There are two specific issues I do want to raise. The first you've covered very well, and that is the definition of terrorist activity. Clearly, there are drafting concerns that I, as a former lawyer, have with this provision. My concern is the adoption by reference, which creates some ambiguity in terms of what offences we are actually dealing with. That is clearly a concern.

Another concern in that context is of course the definition of terrorism as an act committed for “a political, religious or ideological purpose”. That bothers me a lot when we think of what our country is based on and how many different religious, ideological, and political groups we have in this country. I have the concern that this has—perhaps indirectly, but nevertheless ultimately—the effect of focusing the legal process on a discussion of these purposes. I don't think that's helpful.

• 1635

There doesn't appear, in my opinion, to be any legal reason we need that phrase in there. Certainly the Americans, who have taken a very strong stand against terrorism, have not thought it necessary to include that type of provision.

The second issue is that I share your concerns regarding the draconian provisions to deny access to information held by government departments simply by a minister's certificate. I don't think people realize how significant this provision is. In many respects it's even more significant than some of the incursions on civil liberties. This would have dramatic effect right across government because it would curtail the ability to hold government accountable, not just on specific cases, as egregious as some specific cases might be, but for an entire government policy, which could be blanketed by a minister's certificate. Information can be blanketed without there being any recourse to any independent agency.

The Privacy Commissioner has expressed his concern, and as a recommendation he has said that he would be prepared to review in confidence the decisions the minister makes. Clearly, that's better than nothing, because I respect the Privacy Commissioner. I am also concerned about the security interests the minister has to consider about information that comes from foreign or confidential sources.

On those two issues I would welcome your comments and your contribution.

Mr. Simon Potter: Well, Mr. Toews, I'm glad you've drawn attention to that part of this bill, which would make amendments to the Privacy Act and the Access to Information Act, that allows the Attorney General simply to file a certificate and block access. We are greatly troubled by that, and in our submission we do make recommendations in that regard.

First of all, we think it is much too broad—even if such a method is necessary—to allow an attorney general to file that certificate simply for the purpose of “protecting international relations”. We think that is much too broad an allowing terminology, and we are very concerned that this power would be exercised in secret since this provision also provides for the non-applicability of the Statutory Instruments Act. That is to say, you would ask for information, you wouldn't get it, but you wouldn't know why and you would not know of the existence of the certificate. The CBA is against that.

We also point out that in sections 37 and 38 of the Canada Evidence Act there already exist mechanisms allowing for blocking access to information for needs of national security. These are issues your committee is going to have to come to grips with. Though it may not be presented as a response to an emergency, Mr. Toews, the current mechanism proposed is definitely part of an immediate response to a very recent event. It's for that reason that we suggest provisions like that ought to sunset away.

The Chair: Thank you very much.

The chair recognizes Mr. Trudell and then Mr. Gervais, and then we're going to go to Madame Venne.

Mr. William Trudell: Thank you, Mr. Chair.

Sir, I was very interested in your comments about submissions made before yours, that there are ongoing concerns, and that is our concern. That's why we suggest on behalf of the Canadian Council of Criminal Defence Lawyers that the immediate necessary provisions of this bill—if you find there are any—be enacted and sunsetted and that the ones that may address ongoing concerns in the future be taken out of what is exigent at this particular point in time.

The proposed review by the Privacy Commissioner is better than nothing, but we believe that someone outside—a former justice—together with a representative of this committee and one from the Senate committee would offer a better balance.

The minister may receive information from the American government, but the information from the American government may not be reliable. By acting on that information in a climate of fear we may have a minister's certificate issued. It's those kinds of circumstances that need to be reviewed on a quarterly basis.

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

Monsieur Gervais.

[Translation]

Mr. Francis Gervais: We largely share the views expressed by our colleague, Mr. Potter.

In the brief that we will be tabling, we will perhaps go a little further in recognizing that, in certain circumstances, there should at least be judicial review. One need only look at the numerous acts in the area of access to realize that the process of in-camera examination, removed from the individual, exists in several of these circumstances, at least allowing for a neutral arbitrator, a judge of the Upper Court or of the Federal Court, according to our suggestion, to examine and order a review.

At that stage, there is a means to protect the aim of the government, which is to not divulge the identity of the person involved nor the nature of the information. Mechanisms do therefore exist.

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There is also the possibility, as we have seen with several other acts, for overview by the government or by the House. The bill as it now stands does not provide for this, but there is nothing to prevent the Justice minister or the Solicitor General from being called upon to report annually or biannually to the House on the circumstances at play and the number of times where certificates were used, which would allow the House to exercise political as well as judiciary control. Thank you.

The Chair: Thank you.

Madam Venne, for seven minutes.

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Before I begin, Mr. Chairman, I would like to raise a point of order.

This morning, we received the brief of the Canadian Bar Association, and I would like to know if it was distributed by your office or if it came directly from the association. If it came via your office, I would request a translation of it. I had understood that the association had not had sufficient time to get it translated...

A member: [Editor's Note: Inaudible]

Ms. Pierrette Venne: Yes, but I have here 15 pages in French and 62 pages in English. I must say there is a slight difference here.

Mr. Simon Potter: If I may, Mr. Chairman, I would say that the member is absolutely right.

Ms. Pierrette Venne: It is not you I am accusing. I simply wish to know why this is.

Mr. Simon Potter: It is because it was not possible to have the general submission...

Ms. Pierrette Venne: That is what I had understood.

Mr. Simon Potter: ... translated in time for today that we had the summary distributed via the committee. Our submission is available to our members and you have perhaps received...

Ms. Pierrette Venne: This is why I am asking that the committee have the document translated.

Mr. Simon Potter: We will be taking care of the translation over the coming days, Madam.

[English]

The Chair: Madame Venne, it was our understanding when the Canadian Bar Association offered to provide this that we would get summaries in English and French. We received it with that understanding, and it was distributed. Unfortunately, that isn't what we received, as I understand what happened. You have my apologies, and we'll be more vigilant in making sure we get exactly what we thought we would receive.

[Translation]

Ms. Pierrette Venne: I am forced to raise a point of order every time, but it seems to me that it is my duty to do so. I hope this will not happen again, Mr. Chairman.

I come now to my first question. The President of the Barreau mentioned earlier that he would like to see passed a specific act. I believe that would be interesting, but given that the minister of Justice wishes to move very quickly, I do not believe that his wishes nor ours will be fulfilled.

That being the case, my first question, that I address as a matter of fact to all of the witnesses, is the following: would a three-year sunset clause, with of course an annual review, satisfy you? This was briefly mentioned a while ago, but since all of you did not express your opinion on the matter, I invite you to do so now.

My other question is more specific, relating to section 83.3 of the Criminal Code, which would allow a peace officer, “if he has reasonable cause to suspect“ that the detention of the individual is necessary so as to prevent him or her from committing a criminal act, to arrest this person without a warrant. I see a contradiction between “reasonable cause” and “suspect”.

In you view, is there a distinction to be made between these two terms and how do you believe this will be interpreted by our peace officers? Must we chose one criterion or the other, or do you believe that it is possible to reconcile the two?

[English]

The Chair: Thank you very much.

I'll go first to Monsieur Ouimet.

[Translation]

Mr. Gilles Ouimet: Thank you, Mr. Chairman.

Madam Venne, with regard to the sunset clause proposal, the Barreau du Quebec is in agreement. The proposal with regard to a distinct act constitutes an additional mechanism, but it could very well be added on to the sunset clause. The Barreau agrees with the proposals made in this regard.

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As to the more technical matter of proposed paragraph(4) of section 83.3, it in fact borrows a criterion that is already found in certain federal acts, for example the Customs Act, that provides for intervention by peace officers when there are reasonable grounds to suspect. A few years ago, the Supreme Court of Canada interpreted this criterion.

What is exorbitant here, is that we are infringing on a freedom in a context that has nothing to do with customs, with what was validated in that context. Here, it is being introduced in a section of the Criminal Code that applies more generally.

Now, with regard to the interpretation, indeed, reasonable grounds and reasonable grounds to suspect are not one and the same thing. The adopted standard is much less strict, much less rigorous.

The Chair: Thank you very much.

Mr. Trudell.

[English]

Mr. William Trudell: The American provision calls for a sunset clause at December 31, 2005. If that were the type of sunset provision the committee was interested in we would support it, as long as it was combined with annual reviews by an independent body, as we have suggested—though for no more than three years, we would respectfully submit.

Secondly, in relation to suspicion, the Canadian Council is concerned about police officers acting also with a sense of fear. Suspicion is a very low standard. What I would like to refer you to, in relation to the seizure and restraint of property, is proposed subsection 83.13(1.1) of the Criminal Code, where the application can be filed and the affidavit is on “information and belief” only. Listen to what it says:

An affidavit in support of an application under (1) may be sworn on information and belief, and no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.

This kind of language in the bill opens the door, in my respectful submission, for police officers to act on the merest of suspicions. With persons who don't understand the languages—who are immigrants to this country—it creates a serious problem.

Thank you.

The Chair: Thank you very much.

Mr. Lomer.

Mr. Michael Lomer: Just on the point of the sunset clause, I'm a little concerned if this committee hears expert evidence that terrorism is an ongoing problem for humanity and that therefore we are not going to consider a sunset clause. Terrorism has been around for centuries. Guy Fawkes was a terrorist. He went into Parliament with the express purpose of blowing it up. That was four centuries ago. It will be with us, but what will not be necessarily with us three years hence is the same perception that we need these extraordinary powers. It's for that reason that we think the sunset clause is a necessity: because our perspective will inevitably change. And this is what we believe will be the most efficacious tool for bringing the legislation back before Parliament.

The last point I would make is with respect to Mr. Trudell's point about search and seizure. For some reason your legislation, in the Criminal Code, is now bringing in a Federal Court judge. We've never had Federal Court judges involved in criminal law before. I just have to ask you why? Why do you want us to go to the Federal Court? I don't think—

A voice: [Inaudible—Editor]

Mr. Michael Lomer: Well, there may be that, but I don't think your provincial crowns are going to know where to find the Federal Court, quite frankly.

The Chair: On that note, Mr. DelBigio.

Mr. Greg P. DelBigio (Member, Legislation and Law Reform Committee and National Criminal Justice Section, Canadian Bar Association): Thank you.

It's important to recognize that the context is the enforcement of criminal law and not the enforcement of a regulatory statute. The law is very clear that the test with respect to belief is a higher standard than the test with respect to suspicion, and the lower standard is easily misapplied.

It's important to recognize that though the test of suspicion is now in existence in the Criminal Code, it exists at a roadside stop—the administration of the breath demand at the roadside. It's a very temporary suspension of liberty.

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This is a much greater suspension of liberty on a very low standard. It can be misapplied. It can be misused, and it's for that reason that a true sunset clause is important.

The Chair: Thank you very much.

Mr. Magnet, I see, is anxious to answer also.

Prof. Joe Elliot Magnet: Yes, I think a sunset clause is necessary, but I still would not be able to support some of these measures, and for this reason. We have 1,000 Muslim students at the University of Ottawa, and I know some of them very well. Some of them are very brilliant people in our law program. They will be lawyers with us. Some have worked for government, and some have had to security clear.

In the process of security clearance they're asked questions of the type they're likely to be asked in these investigative hearings, and these questions are very unpleasant right at the moment: “Who are your friends?” and all that sort of thing, and “What do they do?” It's very clear it has nothing to do with their security clearances but that the authorities are looking for information, reaching through some 23-year-old brilliant student to go into some gap the investigative process doesn't provide for.

I know what's going to happen here is that of that 1,000 at the University of Ottawa, some are going to be picked up as “the usual suspects” and put through a very unpleasant process.

Now, who are these people? These people are us; these are our citizens. We have to be very careful that we do not turn a little anxiety in them into a serious cause of disaffection.

This is how this bill works. We have to be very careful about how we treat our family.

The Chair: Thank you, Professor Magnet.

Bill Blaikie for seven minutes.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman, and I want to thank the witnesses for raising the concerns they've raised with us today. Certainly they parallel the concerns the NDP has had from the beginning of the debate about this legislation.

Rather than pursue an opportunity to have you repeat over and over again the concerns I already share with you, there are two things that came up here that I think the committee hasn't considered before. They may not be the most important matters, but for instance Mr. Gervais raised the problem of the discrepancy between the English and the French versions of the bill.

It's not something we've considered a lot, but I wonder if he might want to expand on it, both in terms of any glaring examples of how different the versions are and what the consequences of those differences might be.

The Chair: Monsieur Ouimet.

Mr. Gilles Ouimet: Since I'm here for the small details, on that particular point it would be hard for me to.... Basically, when you read the French version and compare it with the English version, you realize if you want to find out what Parliament wants you have to read the English version. The French version is a very poor exercise of legal drafting, if I may say so.

One example is the definition of “facilitation” in proposed subsection 83.01(2), in clause 4. When you read the French version you don't get the same message as when you read the English version.

Mr. Michael Lomer: That might be a good thing.

Mr. Gilles Ouimet: Not necessarily, but that's another debate.

This is one example.

Mr. Bill Blaikie: Well, what's the message?

Mr. Gilles Ouimet: Basically my understanding of the English version is that you don't need to prove a particular offence was contemplated when the person did whatever that person did.

When you read the French version, it means the person didn't have to think there was any terrorist activity involved.

There is a big difference there. That's why I think the French version is not helpful. This is one glaring example, but there are many cases where you see a word missing here and there.

I had another example with respect to the arrest warrant. It's proposed subsection 83.28(5) in clause 4. There are a lot of “or” and “and” words missing here and there to understand and make sense of the act in the French version.

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So we recommend that a complete overhaul of the French version be done at least.

Mr. Bill Blaikie: Mr. Chairman, I have a second question for Mr. Lomer.

Another concern—I think raised for the first time—has been that much of the first part of the proposed section having to do with what constitutes a terrorist activity is, if I use your word, “referential”. It refers to definitions in some other act that aren't incorporated into this particular legislation, and therefore not into the Criminal Code itself, except by reference. I wonder if you could expand on why that's a problem, because that's a new concern, it seems to me, that's been raised.

Mr. Michael Lomer: It actually refers to sections of the Criminal Code. They're all in section 7. But the subsections of section 7 that it refers to are there to give extraterritorial jurisdiction to Canada for certain offences. For example, hijacking of Canadian planes abroad would be an offence in Canada, whereas ordinarily, the hijacking of a Canadian plane, say, en route between Munich and Israel, is not an offence we would normally take jurisdiction over.

My major complaint about it is if hijacking is one of the offences you want to say is a terrorist activity, then say it, because what you do by incorporating by reference is incorporate not offence sections but extraterritoriality sections. Separate them out. Have your offence sections in one part. There already is an extraterritoriality section in the bill.

I don't think anybody takes any particular umbrage that Canada asserts the right to take certain extraterritoriality steps to see that its citizenry either don't participate in terrorist activity or its planes don't get hijacked. There's no quarrel with that. The problem is the method of this referencing in. They're referencing the wrong section. Reference in the hijacking section, if that's what you mean, but don't reference in some other convention. That's really difficult. That's all I was getting at.

The Chair: Thank you, Mr. Lomer.

Peter MacKay, for seven minutes.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair, and thank you to all the panellists. I think what we're seeing through your testimony and testimony we've heard already is that this is an extremely comprehensive and complicated bill. One thing that comes to mind is that, much as with the application of the new Youth Criminal Justice Act and other bills that take an omnibus form and have such a profound impact, there needs to be a manual or some sort of guide accompanying this legislation for police, for judges, be they federal or provincial, and certainly for crowns and defence.

On this issue of the Federal Court and where these prosecutions might take place, I understand or read the bill as indicating that the Minister of Justice can decide which level of crown will pursue the case—whether it'll be the federal or provincial crown. That creates somewhat of an anomaly.

But I guess more to the point, I have the concern you expressed about the lack of accountability or oversight here. In some proposed sections it seems written in, and there's specific reference to judicial oversight when it comes, for example, to charitable certificates. But when it comes to certificates the Attorney General might rely on, she—or he, if there's ever a cabinet shuffle—is completely exempt from any sort of accountability or even reasons given for invoking the certificate, so that the person who might be the recipient of police action doesn't even know.

This element of disclosure runs rampant throughout the bill. When individuals are taken into custody—I guess this would be my first question—is it your understanding that they don't necessarily have to be informed of the reason why they're in custody or have to know whether they're the subject of the particular investigation? My reading is you could be there as a witness and be held for up to 72 hours.

Further to that, if the person decides not to cooperate—and this is very alarming—under the proposed sections on investigative hearings, if they refuse to cooperate when they're in preventive detention they can be held in custody for over 12 months, with no written provision that demands they be brought back before a justice to justify.... They may have had a change of heart, but they can be held for up to 12 months. These are extreme measures, to say the least.

• 1700

There was mention here with respect to seizure of property. Again, I see no explicit reference or provision in this act that allows for compensation if there was a wrongful seizure or freezing of property, again for lengthy periods of time. Nor is there any sort of recourse or penalty, if you will, for the crown if a person is held wrongly, or detained for an extended period of time, and it comes to light that a proper decision wasn't exercised on the part of the government. I wonder if you would comment on those points.

If you have any references to the surveillance mechanisms, there is certainly an expanded ability on the part of the police to use surveillance mechanisms, explicitly in the area of the Department of National Defence now having the expanded ability, for a longer period of time, to have these warrants, these wiretaps. There is a discretionary power on the part of the Minister of National Defence to set up a commission for oversight, but it is entirely discretionary, according to the wording of this particular act.

So I would invite commentary from any of you on those points.

The Chair: Thank you, Mr. MacKay.

First the chair recognizes Mr. Trudell.

Mr. William Trudell: Thank you.

The investigative hearing in proposed section 83.28 is brutal. It is an extraordinary piece of legislation that really is speculative and denies fundamental rights.

Proposed subsection 83.28(10) says:

No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate the person or subject the person to any proceeding or penalty,

Then it excuses limited provisions.

This proposed subsection is one of the most glaringly misunderstood and dangerous in the whole piece. Quite frankly, you could be a witness. This is an investigative tool. It has nothing to do with an accused. This says, “Let's go out on less than an apprehended insurrection and pull somebody in.” It pulls them in, demands they bring what they're supposed to bring, and demands that they respond. It may not even provide that they have counsel.

If a police officer says to a crown attorney, “You know what, we've got some questions we want to ask him, but we're just not ready, we need another day or so”, people are going to be lost in these provisions, and under any other circumstances we would find that absolutely abhorrent.

Your points are so important in relation to this. This is something we never would have dreamed about in Canada. I imagine the Minister of Justice has told you why this is important, but I don't know why it's important.

Mr. Peter MacKay: Mr. Trudell, if I could follow up on that point, I find it almost perverse that this investigative hearing or inquisition goes on to say that any of the evidence produced can't be used in a trial. It creates a bit of a question in my mind, if a person is questioned extensively as a witness or as an accused, if they're compelled to bring tangible evidence to these hearings, and then, unlike a preliminary inquiry, this evidence is inadmissible in a court room. What happens if, hypothetically, someone comes to this investigative hearing and spills their guts, confesses to everything, brings the smoking gun to the hearing? What happens then, according to this legislation?

The Chair: Thank you, Mr. MacKay.

We have Mr. Trudell, Mr. Lomer, Monsieur Ouimet. Thank you.

Mr. William Trudell: With great respect, this is a corner-cutting section to investigative techniques that opens the door to laziness. People are going to get scooped up who don't understand English, and they're going to be held in detention while the police continue to investigate. This is a very serious section.

The Chair: Mr. Lomer.

Mr. Michael Lomer: I would like to deal with a couple of the issues you've raised, Mr. MacKay. First of all, with respect to the seizure of property, leaving aside some of the other things, is there any reason or rationale for proposed subsection 83.14(11), which states:

The Court may not extend the period set out in subsection (10).

—which is the motion to set aside or vary.

Maybe you've already heard this. There's no guarantee that the owner of the property will get actual notice within the 60 days, yet you specifically say that even if you don't get actual notice of something seized, you lose it. You can't question it; you can't fight it.

I have to tell you that section 8 of the charter is going to tell you that section is wrong. Aside from that, it's just not fair.

• 1705

For example, I can imagine a situation where a terrorist group uses a cottage. They don't have the proper owner, they seize it, and you get notice 60 days later because it's tacked on the door. But you've lost it and can't get into it.

The other thing, with respect to the surveillance provisions, is that our Supreme Court, in Garofoli, said they were constitutional in using a wiretap, but under the old law. There are no guarantees. This makes it wide open.

I might also point out that if you had a sunset clause in the legislation, you might go a long way toward establishing your section 1, demonstrably justified incursion into a civil liberty. I point that out because you may want to consider that.

The Chair: Thank you, Mr. Lomer.

Mr. Ouimet.

Mr. Gilles Ouimet: With your permission, just briefly, as far as being informed of the reason for the detention, I would like to think that section 10 of the charter would still apply. It provides the right of the person to be informed of the detention. Even if that person is not an accused, just the fact of the detention brings in section 10. That takes care of that.

On proposed sections 83.28 and 83.29, we share your concerns. There is absolutely no limit on how long the person will be compelled to participate in the investigation. We find there are a lot of items that would need to be included in the legislation to make it more reasonable.

On proposed subsection 83.29(1), the grounds to justify the issuance of a warrant for arrest if the witness is absconding or does not remain in attendance, other provisions of the Criminal Code require that the judge consider public interest before issuing a warrant for arrest. We feel it would be an improvement if that were included.

The Chair: Merci, Monsieur Ouimet.

The Chair: John McKay, for seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you all for your presentations. I appreciate that you may all wish you had more time to reflect on the implications. Unfortunately, we are in extraordinary circumstances.

I want to refer back to Mr. Lomer's last comment about demonstrably justified. Ultimately this comes down to deference to Parliament—whether the courts, the Supreme Court in particular, are going to defer to Parliament in this extraordinary situation. Therefore, I'd be interested in all of your comments with respect to the Quebec bar's suggestion that this be put into almost a separate section of the Criminal Code—a stand-alone bill, a special-purpose legislation.

Would the creation of this bill, or the allocation of this bill to a special section of the Criminal Code devoted to terrorism, assist with deference to Parliament and assist with demonstrably justified? I think your point is well taken that there will be leakage between this legislation and the Criminal Code. I just can't imagine how a police officer arresting someone on the grounds of suspicion is going to really be able to tell the difference between a terrorist offence and an ordinary Criminal Code offence.

I'd also be interested in your comments on a combination of sunrise and sunset provisions. Again, there is enormous political pressure here to be responsive to the legitimate security concerns of Canadians, so this bill is going to pass in some form. That doesn't mean it all has to be proclaimed. I'd be interested if you could give us an example of how you would see a special standing committee of Parliament retaining a supervisory jurisdiction with respect to this matter.

I'm not as familiar as I should be with the American sunset provisions. Presumably their feelings about terrorism are far more extant than ours.

• 1710

The third question is a specific question to the Canadian Bar Association with respect to the facilitation offence. In your recommendations, you suggest that proposed paragraph 83.01(2)(c) be transferred over to proposed section 83.19. I understand moving proposed paragraph 83.01(2)(c), but why not move proposed paragraph 83.01(2)(a) and (b) as well?

I appreciate I haven't necessarily directed the questions to anyone. I'll go across the table to whomever wants to pick it up first.

The Chair: There was one question directed specifically to the bar. If you're ready, we'll do it now. If not, I have other people in line.

Mr. Potter.

Mr. Simon Potter: Mr. Chair, with your indulgence, there were several issues. I won't take too long.

However, your question about the facilitation part of the definition is of considerable concern to the Canadian bar. The part that deals with facilitating in the definition section makes it very clear nearly no knowledge is required on the part of the person being accused of facilitating. In fact, as Mr. Ouimet has pointed out, if you read the French, absolutely no knowledge is required on the part of the facilitator.

When you get to the definition of the actual offence of facilitating, knowledge comes back into it. It's very confusing, even for lawyers who are used to dealing with the issues. Our recommendation is that the knowledge requirements, as elements in the offence of facilitating terrorist activity, be put in one place so that it's internally consistent at least.

Turning to your question about the Barreau du Québec suggestion of having a stand-alone bill to deal with this, my response is it probably would make it easier to deal with the extraordinariness of this legislative response and to have the kind of mechanisms required to cope with the extraordinariness. It does not cure the problem.

I'm sure Monsieur Gervais will agree it doesn't cure the problem. It still requires a sunset provision. The provisions must not be a permanent feature of our legislative landscape.

At a minimum we have to have a meaningful discussion in Parliament, within three years' time or whatever the period is, to make sure the onus is on the government to have them come back or to stay, either in this form or some other more considered form, in three years' time. The onus must not be on those who want to make the change or who want to get it off the books by that time. These should be seen as temporary measures.

Turning to your question about sunrise and sunset, my own reaction is it may be nice to have a permanent committee of Parliament exercising some kind of an oversight, as has been requested. We need the sunset. We must know these things disappear. We'll have a more considered discussion and debate after two or three years, or whatever the period is, of experience so we know what is necessary: what kinds of provisions are working well; which ones are working badly; which ones have resulted in abuses, the kinds of abuses that have been feared by members of the criminal defence bar; and which ones are simply creating confusion. We recommend a true sunset.

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Mr. Lomer, you indicated you wanted to make a comment.

Mr. Michael Lomer: With respect to the deference to Parliament, you have to understand that what's in this bill is a complete abrogation of certain civil rights in certain cases. The closer we are to September 11, perhaps the more tolerant we will be for that sort of thing in reaction to a horrible event. The farther we get from September 11, 2001, the less likely a court is going to allow such a fundamental erosion of civil liberties.

The suggestion of a sunset clause makes some sense with respect to demonstrating it is not going to be forever. What happens if a particular provision doesn't get challenged and doesn't end up in the Supreme Court for five years? By that time, you may have a litany of abuses. It has been demonstrated that the provision doesn't do what it was hoped to have done.

I understand your deference to Parliament. The courts have certainly indicated they're prepared to be that way. I would ask, for how long, with such fundamental abrogation of civil liberties?

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With respect to the sunrise aspect, I haven't looked at the War Measures Act. In my recollection, when Prime Minister Trudeau enacted it, it had some extraordinary powers. It had a kind of sunrise nature. Perhaps in conjunction with a sunset clause, you could have a sunrise clause that allows the Prime Minister to enact, or bring in, legislation to deal with a particular issue. Then the Prime Minister of the day will have to justify to Parliament why he or she is enacting the particular provision at that time.

The Chair: Thank you very much.

Mr. Fitzpatrick for three minutes.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): I wanted to make a few quick comments.

Mr. Trudell's comments about having a watchdog agency is very timely. I certainly hope the government members were listening carefully to him. I think it would be reassuring to have that sort of mechanism in place.

In regard to Mr. Lomer's comments about terrorism having been around for a long time, I think the difference in this era is that terrorists are global. They have the ability to cause mass destruction that maybe they didn't have before. It's a big difference in our era. It's a new paradigm.

I also have concerns with the surveillance sections, particularly the Communications Service Establishment. I think there's interpretation in the section that would say the minister can issue authority to do this without conditions, without any review, and without any approval by a third party. I think there are privacy conditions in the area that would cause me a lot of difficulties personally.

I have a bit of secondhand information on the U.S. definition. They seem to zero in on acts of mass destruction, assassination, or kidnapping with intent, to intimidate the public or force government policy to change by intimidation. I'm more comfortable with that type of definition than the one we have.

I'm going to ask Mr. Lomer. I think he's a defence counsel.

Mr. John McKay: You haven't figured that out yet?

Mr. Brian Fitzpatrick: I want to throw a hypothetical question to him.

It's hard to contemplate, but if one of the hijackers had survived, it seems to me, the crown would have no trouble proving mass destruction and no problem proving the intent. If the guy doesn't confess or give any information, you have nothing whatsoever to go on.

How do you prove the act was motivated by political, religious, or ideological grounds? How would the crown try to do something if the person has never indicated why he did it? He totally shuts his mouth and says he's not telling anyone. There's nothing in his background to prove he indicated it to anyone else. Isn't this something a defence counsel would prefer, rather than the crown?

The Chair: Thank you, Mr. Fitzpatrick. I think the question is directed to Mr. Lomer.

Mr. Michael Lomer: If I can, I'll answer. Perhaps Mr. McKay could answer more easily than I. It's really a question of what you have to prove, as opposed to disprove.

If you add it as another essential element of the offence, you're going to have to prove the essential element. You can do it circumstantially or inferentially. If you tie him to bin Laden, and have bin Laden's videotape of a speech that amounted to a crime, you might inferentially be able to prove it. There are ways even with a reluctant individual.

I might add to your example with respect to the authorizations to intercept private communications by the minister. There's one other thing the minister doesn't need to have and that's evidence. Keep in mind, it's required to show a judge they have evidence. The reason they take it to the minister is because they don't have the evidence.

Mr. Brian Fitzpatrick: I have one comment.

The Chair: Thank you very much, Mr. Fitzpatrick. Perhaps you can take Mr. McKay out to dinner later.

Mr. Ouimet, could you answer?

Mr. Gilles Ouimet: I have a very quick comment on this specific issue. Again, this is one of the sections where it creates a problem between the French and the English versions.

In English it says:

(i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause,

It's pretty vague or wide.

In French it says:

[Translation]

notamment: «au nom d'un but, d'un objectif ou d'une cause de nature politique».

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[English]

It does not say “in part” or “in whole”, so there's a major difference in the versions.

The Chair: Thank you very much.

Mr. Paradis, for three minutes.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Mr. Chairman, I would like to come back to the last point.

First of all, I wish to thank all of the speakers for their presentations. This is a balancing act that we undetake in exceptional circumstances.

With regard to the last point, I brought up the same example as that mentioned by Mr. Ouimet during a previous meeting of the committee. At the time, the answer I was given was that the French version of the bill was not a translation. The bill is drafted in English on the one hand and in French on the other. I was also told that “notamment” can mean “de part et d'autre”, with which I am not necessarily in agreement. I was also told that the plan was to review these notions so as to bring the French version more in line with the English.

Thank you very much for your participation in our hearings. You have been of great assistance to us. As I was saying, the events of September 11 have led us to react in the context of the security that the entire Canadian population is asking for. This is the first time in history that we have encountered kamikazes. Before, when we took the plane, we were told that if there was a highjacker on board, we were to stay calm, that the plane would land somewhere and that talks would begin. I believe this is the first time that this scenario has not played out. And it will be different in the future.

Of course, we are looking at these encroachments upon rights we were accustomed to. There are encroachments on what we were used to in the past. What counts, and all of you mentioned it in one way or another, is the establishment of an equilibrium. How should we go about establishing this balance? Obviously, it is in looking at the various notions. Several groups talked about the definition of “terrorist activity”. This is an issue that has come up in virtually all of the presentations we have heard here.

Secondly, all of the witnesses have also spoken of the issue of the sunset clause. Whether we are talking civil liberties defense groups or experts such as yourselves, nearly everyone has brought up these issues.

We have all lost some of our freedom with these events. On Parliament Hill, the situation is different today. Our cars are checked, mirrors are used to inspect the undercarriage, and these are things which were not familiar to us before September 11.

However, the points you make certainly warrant our attention, and I am speaking here both of the definition issue and of the sunset clause. Yesterday, we met the president of the Human Rights Commission, Ms. Falardeau-Ramsay. I asked her a question I am asking you today. Most witnesses have brought it up in one way or another.

What type of mechanism might we have? There is an RCMP oversight committee. There is a security intelligence review committee. What worries us, when we move away from what we are used to seeing in law, is the question of whether or not there will be police abuse, etc.

Will it be possible for us to have recourse to these mechanisms or to others? You suggested there be parliamentary review, but what mechanism might there be, within these new rules, for persons who feel they have been victims of abuse? Would you have any comments in this regard? What types of mechanisms might be provided in this area, even if there is a three or four year sunset clause that may apply to certain provisions? If such a clause is not applied overall, to what provisions would you see it applying? Secondly, what mechanism would you see...

[English]

The Chair: Mr. Paradis, I keep thinking I'm hearing a question. I'd like to push it along so we can get to some other people, because we're well past your three minutes.

Mr. Denis Paradis: Okay.

The Chair: Mr. Gervais.

[Translation]

Mr. Francis Gervais: I will give a quick answer, without having had the time to reflect at length upon the question asked.

In our brief, we outline certain possible avenues. Obviously, there could be an ombudsman position, something that we regularly see. An organization could be set up. We talked earlier about a mechanism by virtue of which the minister of Justice or the Solicitor General might be called upon to report regularly to the House with regard to any extraordinary emergency measures that may be put in place.

As it is reported in our brief, and I heard some of my colleagues speak about this as well, it seems, in our view, that there is a lack of judicial presence or control with regard to various moves being made. It must be said that these are mechanisms we are familiar with. An ombudsman or judicial review could therefore be considered.

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Furthermore, I have not seen in the bill any mechanism providing for training that would be given to those persons who would be in charge of enforcing this act. There is no compulsory training. We are talking here of extraordinary measures that we will be asking policemen and attorneys to enforce. I seem to recall certain acts which were not to come into force until there was some assurance that the people in charge of enforcing them had received the appropriate basic training. I see nothing of the sort in this bill.

Those are the mechanisms that quickly come to mind for me.

The Chair: Mr. Potter.

Mr. Simon Potter: First of all, Mr. Paradis, allow me to tell you how pleased I am to be here not just in the company of one president of the Bar, but of two.

You have brought up the issue of a surveillance mechanism. It is one thing to have a surveillance mechanism, an ombudsman or an oversight committee looking at the activities of CSIS, which is an entity. This act will be calling into play provincial police forces, federal police forces, our courts, various tribunals, provincial courts, the federal court, superior courts and ministers who will be authorizing wiretapping without any judicial review. It seems to me that it would be rather utopian to believe that there could be at one and the same time adequate surveillance.

This bill is enormous and contains provisions that go very very far. Obviously, certain rights are being infringed upon, but perhaps this is necessary, as you yourself suggested, in present circumstances. The point of equilibrium has perhaps been displaced, but it has not disappeared. We must establish this balance, and we are here for that purpose. The solution is to not render these dramatic provisions permanent. We must ensure that Parliament has the right to reexamine this act in three years' time. The only way is to remove these provisions and to rethink the whole thing three years down the road.

The Chair: Thank you.

Madam Venne, for three minutes.

Ms. Pierrette Venne: I have one final question to ask.

Since the coming into force of the Proceeds of Crime Act, many lawyers have come to complain about the new provisions being imposed upon them. They are required to declare suspicious operations. They have told the media and everyone who would listen that this is an infringement on solicitor-client privilege and that it will turn lawyers into informants working for the State. We know that in the future, under Bill C-36, the Money Laundering Act will also cover the funding of terrorist activities. This is what will be in force.

Given that lawyers are not supposed to facilitate crime, why are these lawyers coming to tell us that they feel constrained by this Money Laundering Act which will heretofore also apply to the funding of terrorist activities? Do you have an explanation to give us in this regard?

The Chair: Mr. Potter.

Mr. Simon Potter: Madam, thank you for giving me the opportunity to speak to you about this matter, because it is often misunderstood.

Lawyer associations have never come to ask that lawyers be allowed to commit crimes. That is not it. What we want to do is to protect the confidentiality of what a client may tell his or her lawyer. This confidentiality is absolutely essential to the proper administration of justice and to the protection of individuals vis-à-vis the State, vis-à-vis their adversaries, vis-à-vis their competitors. Without this confidentiality, clients will not be open with their lawyers. This confidentiality must be protected.

With regard to the proceeds of crime and, now, terrorist activities, clients must be able to speak openly to their lawyer without the latter suddenly feeling the need to right away run to the police to report some suspicious thing that his or her client may have revealed. We must protect the confidentiality of the solicitor-client relationship. This does not mean that lawyers must be allowed to participate in these crimes, not at all, but the lawyer who is told something by his or her client must be allowed to keep this information confidential.

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[English]

The Chair: Mr. Lomer.

Mr. Michael Lomer: In the course of my function as a defence lawyer, I may have clients confess all sorts of things to me. If it were the law that I had to then tell the crown what that confession was—and then turn myself into a witness, I might add—our administration of justice would cease to function. It just would not work, because defence lawyers would then be perceived, quite accurately, as being Trojan horses for the prosecution. That's not the way we work it in an adversarial system.

On that point, I point to proposed subsection 83.1(1), where it says a person in Canada has to tell both the RCMP commissioner and the director of CSIS. Is there some sort of jurisdictional thing that you have to tell both of them? I don't get that. Is it to keep the left and the right hands knowing what's going on at the same time?

Leaving aside that curious “and”, the part I draw your attention to is information about a transaction—

[Translation]

Ms. Pierrette Venne: What provision are you speaking about?

Mr. Simon Potter: It is proposed section 83.1, Madam.

[English]

Mr. Michael Lomer: If you look at proposed paragraph 83.1(1)(b), where it talks about “information about a transaction”, that clearly would be a transaction in the past. If I were defending somebody, that would mean if my client came to me and told me about that transaction, under this law I would be required to turn around and tell the commissioner of the RCMP and the director of CSIS. That's a clear violation of solicitor-client privilege. The section has to be changed. It has to at least acknowledge that defence lawyers defending people charged with these offences can actually receive information without the obligation to turn it over to the police.

The Chair: Thank you.

I think Mr. Ouimet wants to speak to this, and then I'm going to go to Madam Carroll and Mr. MacKay. We're over time here.

[Translation]

Mr. Ouimet.

Mr. Gilles Ouimet: With regard to the solicitor-client relationship in particular, there is also a provision according to which a lawyer may not divulge the fact that he or she has made a report or has communicated the information required under the law.

This provision will undermine the very basis of the trust relationship between a lawyer and his or her client, to the extent that the client will have no way of knowing if his or her lawyer has made such a declaration or not. This is a provision that may cause problems in certain situations.

The Chair: Thank you very much.

[English]

Madam Carroll, for three minutes, and then Peter MacKay.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

Fortunately for me, since I have only three minutes, John McKay asked Mr. Potter a lot of what I wanted to ask, so it's on the record and I'm grateful for that.

Mr. Potter, I would just like to ask you, in reference to page 15 of your brief and the sunsetting, is the bar recommending that the entire bill be sunsetted when you say that? In the second paragraph you say there are some portions that are of general value and should be retained past the operation. Could you just elaborate on that?

Mr. Simon Potter: Thank you very much. By the way, as you come from the riding where my brother lives, it's a question I'm very happy to answer for his benefit.

Ms. Aileen Carroll: I'll tell him.

Mr. Simon Potter: There are three sections in the bill that deal with hate crimes, for example, that make them hate crimes even if they are carried over the Internet. We have no problem with those three sections, and in our submission we identify precisely which three sections they are. We want the rest of the bill sunsetted. We don't see a need to sunset those three.

Ms. Aileen Carroll: I have a supplementary question, Mr. Chair.

I've had some people mention to me that sunsetting would create a dilemma for a defence lawyer, that he's in a process, looking at a timeline, and evidence is going to be submitted. Would a sunset clause have a negative impact on his or her ability to defend?

Mr. Simon Potter: Well, my answer is there should be no problem with a sunset clause. What we are dealing with here is essentially massive increases in police powers, and I don't see any difficulty with those police powers—which didn't exist yesterday, which apparently will exist in a few weeks time—not existing in a few years. I don't see the difficulty there.

Some people have suggested you don't want to find yourself in the middle of a police investigation and suddenly have your power disappear. I can understand it might be problematic for the police, but we don't run our society for the police.

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Ms. Aileen Carroll: Thank you.

I have one last question, for Professor Magnet. I listened carefully to what you said about this bill being modelled on the United Kingdom's bill of 2000, that we aren't the U.K., we don't have Northern Ireland, and we're not a superpower, and generally, you hit a lot of chords with me. Do you think a sunset clause is sufficient, then, to take out a bill that is, in your view, so untypically Canadian?

Prof. Joe Elliot Magnet: I think a sunset clause is necessary for the reasons my colleagues have put forward, but I don't think it's sufficient; in other words, I have not seen the justification put forward for these powers. So I fear that even if we were to clean up our act in three or five years, we still would have eroded our juridical culture, we would have damaged our society, we would have created disaffection, and possibly we would have done some good, but we've seen no justification that we would. In other words, we lack the strategic dimension here as to what we're responding to. We all know about September 11, but we don't know anything else. So until that justification is made, until we have better strategic information, I would say these measures are not to be implemented.

Ms. Aileen Carroll: Do the Brits have a sunset clause?

Prof. Joe Elliot Magnet: No.

The Chair: Thank you, Madam Carroll.

Peter MacKay, you have three minutes.

Mr. Peter MacKay: Thank you.

I'd like to ask a question to Professor Magnet as well with respect to a very salient point he hit on, and that is the potential severe impact on new Canadians. I'm thinking particularly of the preventive arrests and investigative hearings where, to use his example, a student with a name similar to a suspect that CSIS or the RCMP may be looking for might be taken into custody, held for a significant period of time if he or she chooses not to cooperate or feels inclined to try to remain silent, and there is no recourse, no remedy, no ability to expunge a record if in fact it comes to light that there has been a mistake, heaven forbid. There is no legal recourse at all, as I read that legislation.

I guess the question that remains is, upon being entered into the system in this highly agitated state that we're in, is that person's name going to be permanently in the system? Can you expunge the name once it has been entered into the system?

I don't know how we get around that, and I'd be interested in hearing from Professor Magnet whether he sees any way we can tighten this up or put some safeguards in place, or at the very least ensure that a very high standard has to be met before we proceed down this road.

Prof. Joe Elliot Magnet: Thank you for that question.

I suppose we would have to see in the regulatory apparatus how a name that got entered into the system would be dealt with, whether it would be in CPIC or something like that and stay in the system.

Mr. MacKay, you know better than I that once you're charged, your name stays in the CPIC system, even if the disposition is not guilty.

Mr. Peter MacKay: That's correct.

Prof. Joe Elliot Magnet: It's something the police then use as a further investigative tool, and by that, you become one of the usual suspects and it can be very unpleasant.

I do think we can accomplish some of these purposes with less drastic means. In other words, if this is who we suspect, we should be watching; we should be using ordinary police methods. We should be watching, we should be listening, we should be finding out.

I thought it was very eloquent when my friend Mr. Trudell said this is a way of allowing the police to become sloppy. It's much easier to pick somebody up and conscript them and require them to answer questions. This is the genius of their right to silence. This is why we have the right to silence, so that the police don't get sloppy, so that the police do their work to a very high standard.

• 1740

On your direct question, do I see a means of softening this, of making it better, no, I don't think so. Resourcing intelligence, both security and police investigatory, is the right way to accomplish these purposes. When we see the strategic need, we will respond with the appropriate means. We haven't seen it.

The Chair: Thank you very much.

I want to thank all of the panellists: in their absence, Mr. Trudell and Mr. DelBigio, who had to catch a flight; Monsieur Ouimet et Monsieur Gervais, merci; Mr. Potter; Mr. Lomer; and Professor Magnet. It has been a very informative afternoon.

I want to put on the record, in terms of our problem with the submission that Madame Venne brought to our attention earlier, my apologies to both Madame Venne and the Canadian Bar Association. What actually happened is that we received, as we anticipated, a copy of a summary in both official languages, and that was given to us for distribution appropriately. The Canadian Bar Association also brought, with a similar cover, a larger document for their own purposes, which they have every right to bring and make available, but not for us to distribute. That was my fault, and I take responsibility for that. The Canadian Bar Association is, as we say, off the hook, and I'm on. So Madame Venne, I apologize.

Ms. Aileen Carroll: Mr. Chair, does the Canadian Bar Association intend to make more copies of their synopsis or précis available for other members of Parliament who didn't have the benefit of being here today?

The Chair: If that is a request—

Mr. Simon Potter: Yes, of course, Mr. Scott and Ms. Carroll. We will make available as many copies as are needed.

Ms. Aileen Carroll: Thank you.

The Chair: With that, colleagues, the meeting is adjourned, and we'll see everybody at 7:30 p.m.