C-17 Committee Meeting

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37th PARLIAMENT, 2nd SESSION

Legislative Committee on Bill C-17

EVIDENCE

CONTENTS

Thursday, February 27, 2003

0915

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

Ms. Carole Brosseau (Committees Secretary, Research and Legislation Service, "Barreau du Québec")

0920

0925

0930

The Acting Chair (Mr. John O'Reilly)

Mr. Ziyaad Mia (Director, Muslim Lawyers Association, Coalition of Muslim Organizations)

0935

0940

The Acting Chair (Mr. John O'Reilly)

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

0945

Me Carole Brosseau

Mrs. Marlene Jennings

Me Carole Brosseau

Mrs. Marlene Jennings

Me Carole Brosseau

Mrs. Marlene Jennings

Mr. Ziyaad Mia

0950

The Acting Chair (Mr. John O'Reilly)

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ)

Ms. Carole Brosseau

0955

The Acting Chair (Mr. John O'Reilly)

Mr. Ziyaad Mia

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney (Mississauga West, Lib.)

1000

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Ms. Carole Brosseau

1005

Mr. Steve Mahoney

Ms. Carole Brosseau

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais (Churchill, NDP)

Mr. Khalid Baksh (Member, Muslim Lawyers Association, Coalition of Muslim Organizations)

The Acting Chair (Mr. John O'Reilly)

Mr. Ziyaad Mia

1010

The Acting Chair (The Acting Chair (Mr. John O'Reilly))

Mrs. Bev Desjarlais

Mr. Khalid Baksh

Mrs. Bev Desjarlais

The Acting Chair (Mr. John O'Reilly)

Mrs. Marlene Jennings

1015

Mr. Ziyaad Mia

1020

Mr. Khalid Baksh

The Acting Chair (Mr. John O'Reilly)

Mr. Mario Laframboise

1025

Ms. Carole Brosseau

Mr. Mario Laframboise

Ms. Carole Brosseau

Mr. Mario Laframboise

Mr. Ziyaad Mia

1030

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

Mr. Khalid Baksh

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Mr. Khalid Baksh

1035

The Acting Chair (Mr. John O'Reilly)

Mr. Ziyaad Mia

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais

1040

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais

Mr. Ziyaad Mia

The Acting Chair (Mr. John O'Reilly)

Mrs. Marlene Jennings

1045

Mr. Ziyaad Mia

The Acting Chair (Mr. John O'Reilly)

Ms. Carole Brosseau

The Acting Chair (Mr. John O'Reilly)

1050

Mr. Marcel Proulx (Hull—Aylmer, Lib.)

Mr. Ziyaad Mia

Mr. Marcel Proulx

Mr. Ziyaad Mia

Mr. Marcel Proulx

Ms. Carole Brosseau

Mr. Marcel Proulx

Ms. Carole Brosseau

1055

Mr. Marcel Proulx

The Acting Chair (Mr. John O'Reilly)

Mr. Ziyaad Mia

Mr. Khalid Baksh

1100

The Acting Chair (Mr. John O'Reilly)

Ms. Carole Brosseau

The Acting Chair (Mr. John O'Reilly)

CANADA

Legislative Committee on Bill C-17

NUMBER 013

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 27, 2003

[Recorded by Electronic Apparatus]

¿ (0915)

[English]

The Acting Chair (Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.)): Good morning, ladies and gentlemen, and thank you very much for your patience with the slight delay. We have double booking of rooms and other problems with not enough rooms sometimes for committees.

Our witnesses today are Madame Carole Brosseau, and I believe we're going to start with her, Mr. Mia, and Mr. Baksh. The normal routine is that the presentations should be somewhere in the area of 10 minutes each, and then we go to a round of questions of five minutes back and forth. Members will put their names on the list if they want to ask any questions.

So I would invite you to start, Madame Brosseau.

[Translation]

Ms. Carole Brosseau (Committees Secretary, Research and Legislation Service, "Barreau du Québec"): First, I would like to thank the committee for agreeing to hear the Barreau du Québec. This morning, I'm representing the president.

The Barreau du Québec is a professional association in the province of Quebec. It has approximately 18,000 members, half of whom are women; so there's a balance. As you know, it is a legal obligation for the Barreau du Québec to protect the public. All our interventions are carried out for that purpose and, necessarily, in the perspective of the rule of law.

Bill C-17 was developed in the wake of the events of September 11, 2001 for the purpose of ensuring public safety and security. It is the third piece of legislation introduced for that purpose, the first being Bill C-36, the Anti-Terrorism Act. On that occasion, the Barreau du Québec disputed certain specific aspects of the bill, which, I hope, will be reviewed in three years, as provided by the Act.

Although it amends a number of acts, Bill C-17 is essentially based on various points which we will address today, not in detail, but rather in a comprehensive manner. We will discuss privacy, which is a fundamental point, in this case as regards the transfer of information, and emergency measures, the interim orders provided for in a number of acts, and the proceeds of crime.

As you'll understand, as a professional association, we feel that the solicitor-client privilege to which a lawyer is held is jeopardized by the new provisions and by the Convention's implementation. We have one or two comments to make on that point.

As to privacy, I'll begin by reading you a passage from the recent annual report of the Privacy Commissioner--who, I believe, testified before this committee--which reads:

The fundamental right of privacy in Canada is under assault as never before. Unless the Government of Canada is quickly dissuaded from its present course by Parliamentary action and public insistence, we are on a path that may well lead to the permanent loss not only of privacy rights that we take for granted but also of important elements of freedom as we know it.

The major challenge of a statutory instrument such as Bill C-17 is to ensure there is a balance between public safety, that is that of a given group, and the maintenance of our democratic values, including the right to privacy.

In general, the bill's objects are public safety, the safety of individuals, air safety and security and environmental safety. Unfortunately--and this is a criticism that could be made of the two previous bills--there is still some confusion as to what is concerned, safety or security. Air safety is less affected by this lack of clarity because specific provisions are made in respect of it. Nevertheless, in terms of concepts, a slight lack of clarity remains, and it should be resolved as the new provisions are clarified.

Furthermore--as was the case with Bill C-36, a great deal of power devolves upon the minister. The minister may make orders and so on. He's granted considerable power and it may be delegated. The corpus that has been used has been expanded with many new pieces of legislation in recent years. Lastly, the regulatory powers are very broad. The regulatory route has been chosen to facilitate the act's implementation.

¿ (0920)

However, on occasion, those regulations are not even published. It should not be forgotten that the Statutory Instruments Act does not provide for pre-publication, and I believe that removes a certain degree of force from the bill, which is much more executive than legislative in nature.

As for confidential information, the Privacy Commissioner's statement should be kept in mind. I'm probably not the first person who has told you that the proposed section 4.82 of the Aeronautics Act poses problems. The Commissioner has said it is a dangerous precedent, and the Barreau du Québec shares his view. The self-identification made mandatory under that provision is currently being discussed.

That section also provides for the execution of a warrant, and, in that context, it will be possible to cross-check information gathered. This is an unreasonable measure, in our view, because it increases the powers of peace officers not for the purpose of ensuring public safety, but rather to exercise powers which, in any case, they already have under the Criminal Code. This measure could result in abuses--although I'm not saying that will necessarily be the case--and, especially, “fishing expeditions”.

In addition, when it comes to personal and confidential information, we should always apply the principle that that information must subsequently be destroyed. Since information concerning specific persons is involved, those persons should also be informed of the fact that that information has been gathered and is circulating.

As you are aware, we are in favour of deleting section 4.82 with respect to warrants. There should also be a cross-reference with the act, because the Aeronautics Act is not the only legislation concerned. The Citizenship and Immigration Act, among others, includes this notion of warrant which permits a cross-checking of information. This provision should be abolished in this respect as well.

As to the emergency directions, we should not forget the principle that, for a person to make full answer and defence, that person must always be able to comment on and have the information concerning him or her. A person who is being prosecuted should therefore have the opportunity to make comments; I am referring here to the new section 4.79 proposed in the act. This is a principle of fundamental justice provided for by the Charter.

As to the interim orders, it must be recognized that the legislation has evolved to a certain degree since the first bill was tabled. Eight acts are concerned by the interim orders, and, although we understand the principles in question, there should be a harmonization so that orders which the Governor in Council has not approved cease to take effect after 14 days. These principles must really be harmonized throughout the act.

Proceeds of crime is a point that particularly concerns us. From the outset, the Barreau du Québec disputed the provisions requiring lawyers to disclose information. In those circumstances, they find themselves in a very uncomfortable situation, torn between the ethical obligation to respect professional privilege and the legal obligation to disclose information to the agency responsible for gathering it, CANAFE. That's an acronym.

¿ (0925)

This poses a serious problem because clause 101 of the bill is expanded in scope. In our view, the circulation of information will, once again, risk undermining lawyers' professional privilege. As you may know, these provisions are currently being challenged in the courts and, as a result, this could weaken solicitor-client privilege even further.

The Supreme Court of Canada has discussed solicitor-client privilege on numerous occasions, particularly in Lavallee, Rackel & Heintz v. Canada. I'm going to cite a passage from the decision the Supreme Court rendered in September 2002 which really characterizes the lawyer's professional privilege. It reads:

Where the interest at stake is solicitor-client privilege, which is a principle of fundamental justice and a civil right of supreme importance in Canadian law, the usual exercise of balancing privacy interests and the exigencies of law enforcement is not particularly helpful because the privilege is a positive feature of law enforcement, not an impediment to it. Given that solicitor-client privilege must remain as close to absolute as possible to retain its relevance, the Court must adopt stringent norms to ensure its protection.

In this context, we consider that section 488.1 of the Criminal Code, which set out the terms and conditions for a lawyer subject to solicitor-client privilege to be able to maintain that privilege, is unconstitutional. It should not be forgotten that this privilege is not something that belongs to a lawyer. He is subject to it, but it belongs to the citizens who require the lawyer's services.

Consequently, we propose that clause 101 of the bill be deleted. We also suggest that there be a provision holding CANAFE officials more accountable for the obligations conferred on them.

Lastly, I would like to refer you to the proposed section 7 of the Convention. That provision criminalizes simple possession, without requiring the Crown to prove intent. In our opinion, it is a shortcoming that it would be important to correct.

Furthermore, I do not dispute the obligation, or rather the urgency shown by the government, particularly since the last conference on the Convention in 2001, or the importance of incorporating this section into our legislation. It should not be forgotten that, although it was developed in 1972, the Convention was implemented in 1975 and ratified by almost all signatories; 31 countries to date have not ratified it.

However, with regard to enforcement, we still see some problems for the survival of solicitor-client privilege, particularly under the proposed paragraph 11(1)(c), under which an inspector could, in any case, conduct an inspection in a firm's office. We are thinking in particular of patents. Once again, this raises the problem of determining whether the inspector in question can be accompanied by another person. What person would it be? No warrant is required under these provisions.

The other problem we see is that the criteria establishing guidelines for solicitor-client privilege developed in the Supreme Court decision I cited earlier would have to be met, even in the enforcement of the Convention and of this new legislation designed to implement the Convention.

¿ (0930)

That summarizes the essential arguments. I hope I have not gone beyond the time that was allocated to me--I absolutely had to time my remarks--and that I did not speak too quickly for the interpreters.

You will be receiving our brief by e-mail. We apologize for the delay, but we had two weeks that were relatively busy, as a result of the fact that I recently had an accident, which was why I could not come the first time. That delayed matters somewhat. However, we are going to send our brief by e-mail, possibly as soon as we have received the president's approval, as of tomorrow. It contains much more detail on certain applications. This morning, I summarized the essential points of our brief.

[English]

The Acting Chair (Mr. John O'Reilly): Merci beaucoup, Madame Brosseau.

We'll now go to Mr. Mia.

Mr. Ziyaad Mia (Director, Muslim Lawyers Association, Coalition of Muslim Organizations): In the name of God the magnificent, the merciful, we're happy to be here today to speak about Bill C-17, the Public Safety Act.

I'm a director of the Muslim Lawyers Association. Our association represents Muslim lawyers in Canada, articling students, and law students. My colleague Mr. Khalid Baksh is a member of the association and past chair. You'll notice that we're here on behalf of the Coalition of Muslim Organizations. That coalition represents not-for-profit and charitable Muslim organizations across this country, and we're quite concerned with Bill C-17, the proposed Public Safety Act, as we were concerned with the other legislative enterprises with respect to anti-terrorism Madame Brosseau just highlighted. We reiterate many of her concerns, and I won't go over a lot of that. I just want to give you a sense of why we're here today.

Islam is a faith, really, of compassion and peace. It teaches neighbourliness. One anecdote from the prophet Mohammed is that every Muslim person is really responsible for their neighbours 40 doors down, regardless of faith, colour, or what not. I take that to mean you really are responsible for your fellow person, you have a responsibility to be a part of your community and take charge of that. That is really the spirit in which we are here today to take part in the legislative process and share our concerns with you to try to build a healthy community. Given that, we are concerned that we, as Muslim Canadians, are supporting measures that will make all of us truly safer. We don't think the bill does that. We'll talk a bit about that, and hopefully, when we have an interchange, we can explore some of those issues more.

The kernel of our concern with the bill is that it is fundamentally flawed legislation as it sits today, because it threatens the rights of all Canadians. More specifically, we think it really is going to end up targeting Muslim Canadians, even though the bill is neutrally drafted. Nobody is dumb enough to do anything like that, and I'm not suggesting that is an intent, but I'm saying, once these things are out there, the powers are quite broad, they can be used to target particular groups. Unfortunately, we all know today Muslims are the poster boys of terror and bad attitude, and they're the ones being targeted. Whether people say racial profiling exists or not, the facts speak for themselves. I don't need to tell you about that. We appeared before Senate and House committees on the Anti-terrorism Act, and we expressed similar concerns, that we would be stigmatized, racially profiled. Our communities today speak to the fact that this has happened. There is a chill in our community. Charitable work is chilled. People are scared of the authorities that are there to protect them. Nobody has enforced the act, but certainly there's the threat of that act and its use, and the immigration powers in this country against vulnerable people in this country, refugees and immigrants, have been used.

We're not here in a self-serving capacity. Certainly, this serves our interest, because we believe we are at risk, but Muslims are the canary in the coal mine on this issue. Once these broad powers are let out of the bag, who will be next? We've seen it historically in this country when it happened to the Japanese Canadians. A lot of times we said it would not happen again, and here it is happening again. Tomorrow who will be the unpopular ones, once they are done with us? That's really what we're here to talk about.

You have, I believe, our written submissions, which outline in detail our concerns. Again, we don't cover the whole bill, because it's a long bill and we didn't have a lot of time or resources to do that, but we have covered some of the main issues we think are of concern. We urge you to review those in depth and engage with us on those issues today or in the future. Today I want to give you a sense of those submissions and our concerns, and then we would really like to answer any questions you have for us.

I am going to talk about two things in the few minutes I have to address you. I'm going to give you a quick synopsis of the submission, just to hit the highlights, so that you have a sense of what's in there and what our main concerns are. The second thing is to talk about the social and political implications of Bill C-17, the Public Safety Act. All of this comes in under a general theme of rights at risk, where fundamental instruments and pillars of our democracy are at risk. I don't mean to sound alarmist, but the CBA also called it steps toward a police state. We're not saying Canada is becoming a police state with this, but we certainly see broad powers in here that are quite troubling, and I think they put at risk open and accountable government.

¿ (0935)

The two issues we address are under the rubric “Rights at Risk”, that is, various rights we believe the Public Safety Act infringes, and “Concentration of Executive Power”. I believe Madame Brosseau ably outlined the risks there. This isn't to say these issues are mutually exclusive or laid out separately. There's an interplay between them, they're woven together, but we just laid them out for ease of reference, and you can see where they work together.

With respect to the rights that are at risk, you've heard over and again, so I won't beat you over the head with it, that privacy is at risk. The guy who is the point man on privacy is telling you this. Section 7 of the charter, a quite broad and extensive protection of our privacy rights, is at risk. And there are equality rights. I told you before we really believe racial and religious profiling are going to happen. They are happening, and that is going to involve section 15 of the charter. This is where the rubber hits the road, on section 15. Are we going to abandon these principles just because of perceived fears, or are we going to group people together? Finally--not a lot of people have raised this, but it's one of my favourite charter rights--there are mobility rights. Nobody really thinks about it a lot, but the freedom to move in and out of your country and within your country, without the government intruding into where you're going without any just cause, is really a fundamental right of a democracy. Having lived in a country that wasn't very democratic as a child, I know how valuable that is.

The second point in our submission is the concentration of executive power. Extraordinary powers are going to be put in the hands of a few individuals. Those powers can then be delegated to bureaucrats, who will exercise their discretion. All of this is exercised outside public and parliamentary scrutiny. I take you back to our key point: this is putting democratic, open, and accountable government at risk. This kind of thing is quite troubling.

To talk about the general theme, Bill C-17 I think takes us closer to a society that is motivated by fear and characterized by reaction. This puts democratic and open government at risk, because whenever we have fear and reaction, we don't have good government and we don't have good laws. Our best bet, then, is to have a healthy and effective parliamentary oversight and public scrutiny, where a healthy civil society keeps the government honest, so to speak. We've seen what fear and reaction can do. This is being played out in the United States today with the war on Iraq. The culture of fear and levels of alert with different colors on them clearly set the stage where rights can be threatened. We've seen some Americans in the United States suffer quite a bit.

I submit to you as a personal statement that this isn't the kind of country we want to have. We want to have a country that is open and free and secure, but that security must not come at the price of the rights of its citizens. When rights are to be violated, we have justification in the charter, there's a process set out in law, there's a logic of justification to intrude on rights. Those are really the oversight and scrutiny mechanisms, and we need to keep those in place.

I moved to Canada as a child. My family left South Africa, not a very friendly place in 1974. It was a very closed society. The power government had was extraordinary and extensive, and it really couldn't be reviewed. We left that country to come here because it was a great country where we could vote, something I couldn't do in my own country, and we could move around, and the government didn't go snooping around in my personal business unless they had a legitimate reason to do so. I have the right to speak, complain, vote, and use Parliament to oversee. So I think we're giving up fundamental values and rights in Bill C-17 to gain a false sense of security, because when you have a culture of fear, you're ready to give up the ghost. Indeed, I think Bill C-17 puts us all at risk, not really from the terrorists, but from unchecked power.

¿ (0940)

In some cases in history you've seen freedom lost in a quick move, but in many cases freedom and liberty die a death of a thousand cuts, and this, I think, is what's happening with this piecemeal approach--Bill C-36, Bill C-42, Bill C-35, Bill C-17. It all adds up to quite a troubling sum. Bill C-17 has the potential to destroy the lives and reputations of individual Canadians, to stigmatize vulnerable individuals and communities, and ultimately, as I have mentioned again and again, to put our democracy at risk. We can prevent this, though, by amending this bill. We do stand for adequate safety measures that are properly framed, and you can do that by ensuring that open, transparent, and accountable government is preserved in Bill C-17. This committee is really one very important form of democratic accountability, and we're very glad to be here. As a South African Canadian, I really take pleasure in coming to speak to you, because I couldn't have done that in my homeland if it had gone the way it was going. Today we're asking you to ensure that the fundamental rights of all Canadians are not traded to gain a false sense of security.

Mr. Chair and members of the committee, thank you very much for your time, and we look forward to your questions.

The Acting Chair (Mr. John O'Reilly): Thank you very much.

We'll now go to the five-minute round of questioning, and we're going to start with Madam Jennings. She was first up. I believe you're a member of the Quebec bar, so you should be able to ask some questions of them.

[Translation]

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Ms. Desjarlais, thank you, Mr. Chairman. I didn't expect to be the first one to speak because we normally start with the opposition members. But I accept the challenge.

Ms. Brosseau, thank you very much for the presentation. For the moment, I don't really have a lot of questions because I'm obviously waiting to have the brief in hand and to read it and review it with a clear mind. I may have questions afterward.

However, Mr. Mia raised a few points that I would like you to comment on. For example, he mentioned that some of the terms or notions describing what will trigger exercise of the new powers contained in Bill C-17 are not clarified, such as air safety. There is no clear definition of the criteria that will be used to decide whether air safety is in play, whether there is an imminent threat, a threat to Canada's security.

Is the Barreau du Québec also concerned about this deficiency? If possible, I would like you to give us some examples of other legislation outlining the criteria for determining whether there is a situation that may trigger the exercise of a new power.

¿ (0945)

Me Carole Brosseau: I entirely share Mr. Mia's position on this point. Furthermore, I hope that I represented you well, Mrs. Jennings.

Mrs. Marlene Jennings: Yes, you did an excellent job.

Me Carole Brosseau: Being a member of the Barreau du Québec, naturally, I[Inaudible - Editor].

Mrs. Marlene Jennings: I'm very proud of my representation, my representative and the Barreau, of which I am a member.

Me Carole Brosseau: You touch on a fundamental point. When I told you at the outset that there was some confusion as to what was meant by security, I meant that it was so poorly defined. That's how I understood Mr. Mia's testimony. He may correct me if necessary. The elements are poorly defined, poorly determined; there is confusion between the safety of individuals, between purely enforcement objectives. These definitions are fundamentally important, and there is unfortunately a deficiency.

But I believe the exercise could be very interesting. The brief contains no examples, but I'm thinking that I could try to obtain information for the benefit of all the members present because, in administrative law, you can't do everything in any case. There are always accounts to render.

The first and only example that comes to mind is the example of organized crime, and so something that is very clearly targeted. In this entire debate, we had considerable difficulty coming up with a final bill on the question, Bill C-24, precisely because of the accountability required of persons authorized to commit illegal acts.

In the same line of thinking, I believe that accountability is necessary for a system to have a legitimate basis of credibility. To have that, the criteria must be clarified at the outset; otherwise it's difficult.

Mrs. Marlene Jennings: If I still have some time, I have another question for both Mr. Mia and Ms. Brosseau.

[English]

Mr. Mia, you talk about the necessity for oversight to ensure that even if the legislation stays as it is, without one amendment, there's effective oversight to determine that the information that is retained is retained within the law and only for the time necessary etc. My understanding from several witnesses who have come before us is that there is oversight, in the sense that the Privacy Commissioner retains full authority to do as many audits as he or she wishes on the dispositions relating to personal information. You've raised one problem, the power to effect remedies if mistakes are made that cause damage to an individual, but the other problem is not a legislative one, it's basically a resource one. As the Personal Information Act and the Privacy Commission now stand, the Privacy Commissioner could actually have an individual sitting next to the designated person in front of the computer every single day, 24 hours a day, but doesn't have, so for doing a seamless audit of the information, he has that authority, but he doesn't have the financial and human resources.

I'd like you to address that issue. If you're unable to address it today, you can always forward your comments to the committee through the chair.

Mr. Ziyaad Mia: That's exactly our point, and I think the oversight mechanism really speaks to accountability. Surely, we'd like the definitions with this broad discretion. What is screening? This is delegated to someone, probably, at the airport: I'm going to screen this flight, all the flights coming from Qatar. It's a profiling issue.

With respect to the Privacy Commissioner, one way to destroy effectiveness is to dump a workload on someone without the money or the resources. So our suggestion is to have an effective operation, and in the word effective we mean with teeth, but also with the proper funding, resources, and access. I'm not an expert on the Privacy Act, but when you start treading in the realm of national security, I'm wondering even if Mr. Radwanski is going to be shut out of the room. We want someone who is going to have total security clearance, the resources to do it, the teeth to bite and to punish and to rectify problems. Sometimes you may not be able to ultimately fix these things.

I don't want to mention anyone's name, but there's a guy who looks like Tiger Woods in Ottawa who was running a money transfer business. His name was on the list--we have the list here, actually. Then, of course, his name was off the list, but it took seven months to do that, and his mug was all over television. So if I meet him on the street or something, I'm always going to think, what's up with this guy? Then you look at the corrected list, and let's say Ziyaad Mia shows up on the list, then there's Osama bin Laden, but there's an X-out of my name--nice enough to see, but I really don't want to be in the company of Osama bin Laden, scratched out or not, because that makes it to my bank, and the next time I want to buy a car or a house, that's going to be pretty devastating. I don't know if remedies can even fix that, but I still think part of remedies is punishment.

¿ (0950)

[Translation]

The Acting Chair (Mr. John O'Reilly): It's the Quebec member's turn. Mr. Laframboise, you have five minutes.

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you, Mr. Chairman.

First, I have a brief comment. My first question would be for Ms. Brosseau. As you know, others who have appeared before our committee include the representatives of the Department of Transport, which drafted this bill. They appeared at the same time as the representatives of the RCMP and CSIS, and, on certain very specific points, when we put questions to the representatives of the Department of Transport, it was the RCMP and CSIS that answered in their stead.

And I understand you, Ms. Brosseau, when you say that it looks like there's a kind of fishing expedition going on, when the authorities, in any case the police departments, want new powers to execute warrants. As you know, when the Privacy Commissioner and Information Commissioner appeared before us, they told us that there were very serious abuses. I won't quote anything to you because I'm corrected each time I cite documents, but there is a whole world between those who protect our privacy rights and, ultimately, our freedoms, and those who are responsible for enforcing the law.

Here one senses that there is a balance that is shifting, and that's what is so dramatic. The representatives of the police departments tell us that the balance is still there, whereas the people who have to defend our interests, our privacy and our rights and freedoms tell us that, no, the balance is being broken. My first question will concern that, Ms. Brosseau.

You emphasized that the proposed section 4.82 set a dangerous precedent, and vehement comments were made by the Privacy Commissioner concerning the use of the entire provision concerning warrants. The Canadian Bar Association states, and I quote:

Whereas the term “warrant” has been defined more precisely, it still applies to offences that are not extremely serious.

I would like you to clarify that a little because, when you read “warrant” in section 4.82, it's for terms of imprisonment of five years or more, warrants issued under the Immigration and Refugee Protection Act. But can those warrants be directly associated with terrorism, or is it not too great a measure for what's in this bill?

Ms. Carole Brosseau: If I may, you're ultimately answering your own question. That's precisely the scope of the warrants. I didn't come up with the terminology, but I have previously done the exercise. If you knew the number of offences resulting in a term of five years or more, you would be astounded. And those offences are supposed to be not all that serious. That's really the fishing expedition; that's really the scope.

If I may add something that takes greater account of the history of the data and intelligence bases we have, particularly in the field of penal and criminal law, the first data bases we had, the fingerprint bases or even the genetic information bases, mainly referred to persons who were considered criminals.

However, what distinguishes Bill C-17 from all that, and perhaps Mr. Mia could corroborate this, support it somewhat or even comment on this point, is that it concerns the entire population. It does not contain a very specific criminal law objective. For example, no importance was attached to certain classes of persons such as dangerous offenders, genetic data bases and so on. Very generally speaking, it doesn't just attack the question of terrorism.

With regard to the Immigration Act, there are specific provisions. A specific tribunal is constituted at the Federal Court of Canada precisely to consider the inventory of what constitutes a terrorist act. Provision was made for means to go and draft specific provisions, everything pertaining to organized crime and money laundering, to facilitate--we're talking about facilitating, I would remind you--Bill C-36. All those points relate to terrorism.

But now, it's no longer just terrorism, hence the confusion, the excess and, I would say, the legitimate fear of personal information monitoring organizations. Moreover, as you saw in some of the passages I cited, the Supreme Court is very sensitive to this entire issue because it concerns rights such as freedom of movement, the right to freedom and the right to privacy, which are fundamental rights. And personal information is closely related to the right to privacy.

So, at that point, it's a question of balance. If we really want to talk about security, these provisions must be limited further in order to achieve their objective, and here I would say that we can meet the constitutional test. But if it is much too broad, I'm not sure, somewhat as Mr. Mia was saying, that that will be consistent with all the provisions of the Canadian Charter of Rights and Freedoms, particularly section 7.

¿ (0955)

[English]

The Acting Chair (Mr. John O'Reilly): Mr. Mia.

Mr. Ziyaad Mia: On the warrant issue, when I saw the five years-plus, I thought, let me go to the Criminal Code. They're saying these are serious offences, and I'm not belittling these offences, because I'm sure they're hurtful to people, but cattle theft, theft over $5,000--do we want to go rooting about for people like this? But the real issue here is not to get caught by this red herring. Mr. Easter was here, Commissioner Zaccardelli was here, and he said to you, we need these powers, because we're going to catch these bad people. But you know what? There's a constitution in this country, and criminal law means you have reasonable suspicion before you start fishing around, and that's what we're saying: don't fish around if you don't have it.

Let me use an extreme example to show you how this fear can really motivate these kinds of powers, pedophilia. I am not defending any pedophiles, if you want to start setting up roadblocks or sifting through tax information, check their video store records, their book store records to catch these people out because they have certain profiles, but if you don't have suspicions, don't look. That's the point, even for pedophiles, and this is exactly what this warrant issue is all about.

The Acting Chair (Mr. John O'Reilly): I'm going to now go to Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thank you, Mr. Chairman, and thank you for the presentation.

I'll ask some questions that perhaps both witnesses could answer, but let me deal first of all with the last issue, the question of the types of crimes. I don't know if you're looking at clause 108 on page 94 of the bill. That's where you perhaps get the list of crimes. There was a misunderstanding, which I think we've cleared up, with regard to that. These are not the crimes that are referred to in respect of a warrant. The latter are crimes where wire-tapping might be used and there would be a requirement to get a warrant from a judge to do it. It's a little bit confusing why these are even outlined in the bill, but they're not the ones that would create a match, for example. The ones that will be used in regard to a warrant will be specified in the regulations and we will see them. I think we should have an opportunity to review that list of crimes. They will be crimes that could result in a term in prison of over five years. I think we know in Canada that those are pretty serious crimes. If it's a prison sentence of over five years, we're talking about murder, kidnapping, and so on.

Is this the list?

À (1000)

The Acting Chair (Mr. John O'Reilly): Ask and ye shall receive.

Mr. Steve Mahoney: Hijacking and things like that will be there. So there will be an opportunity for parliamentary oversight, if you will, of that list of crimes.

But it leads me to my question, regarding Mr. Mia's suggested recommendations. We heard from the Canadian Bar Association, and I'm assuming the Quebec bar feels the same way, that the ability to use information under the act to find individuals sought on outstanding warrants should be removed. Most Canadians would be shocked to think, if we discovered, in carrying out these security searches for terrorism and aviation safety, that someone who was a convicted murderer was on an aircraft and there was an outstanding warrant for their arrest, we wouldn't do anything about it. I just don't know how I would answer my constituents in saying we had to let him go in the name of privacy, because that wasn't what we were searching for. I asked the Canadian Bar Association if they were actually suggesting that we should turn a blind eye to those types of individuals when a match came up, and they said yes. I was astounded. So I wonder if you can tell me what I might say to my constituent whose family was victimized by this individual, when we had to let him go because we didn't have the right to exercise the warrant.

The Acting Chair (Mr. John O'Reilly): Madame Brosseau.

[Translation]

Ms. Carole Brosseau: That's a very interesting question, but we have yet to consider the fact that we are in a system in which there is a presumption of innocence. If, from the moment a warrant is issued, it has not yet been established that the person is guilty, then, yes, there is a presumption of innocence. I'm not saying that the whole system is always perfect, but you should know that it is recognized and taught around the world as one of the most reliable systems because the presumption of innocence and the adversarial system ensure that there are as few errors as possible when a person is found guilty, because there is evidence and a procedure that must be followed. So, yes, we are in a system of presumption of innocence.

The objective, let me be clear--and I believe this is generally the objective of the bill, and we're not disputing the principle's legitimacy--is indeed to protect people, to ensure public safety against acts that may be of all kinds, including the development of certain toxic weapons, such as weapons that could be made to destroy DNA data and so on. This can go very, very far, but it's a specific objective. What we're saying is that those objects have to be framed and circumscribed, and a warrant for any offence punishable by a prison term of five years or more is exorbitant, in our view, because it's still a question of balance. If it is assumed that everyone is guilty from the moment...

À (1005)

[English]

Mr. Steve Mahoney: How would you narrow it, if it's too broad? If five years is too broad, how would you be more specific?

[Translation]

Ms. Carole Brosseau: I believe it's the warrant question that is causing the problem. In any case, I can't speak on behalf of the Canadian Bar Association. It's really the question of the warrant for an offence. You're talking about five years, but it would be worse if it were two years or more, because that covers virtually all offences. But five years, that's the kind of warrant for any person in general. Don't forget that it's not a system of exceptions. We're not attacking individuals who have been convicted or where there is a specific record of information on those persons. It's a general system for any person whatever. It's the kind of information that is contained, any information, any cross-reference, any type of information. You know, there aren't hundreds of individuals with a warrant against them taking the plane. That may occur, but it's exceptional. It could be exceptional.

[English]

The Acting Chair (Mr. John O'Reilly): In fairness, I have to go to Madam Desjarlais now. We do have a five-minute round.

Mr. Steve Mahoney: I'd like Mr. Mia to respond, though. He didn't get a chance to respond.

The Acting Chair (Mr. John O'Reilly): He could perhaps respond after Madam Desjarlais asks her questions.

Mrs. Bev Desjarlais (Churchill, NDP): By all means, finish responding to Mr. Mahoney.

Mr. Khalid Baksh (Member, Muslim Lawyers Association, Coalition of Muslim Organizations): You asked a really good question here. What do I tell my constituents? You're going to tell them we support the charter, we support the rule of law, we support the law that has been tried, tested, and found true in this nation and in common-law nations around the world. You're innocent until proven guilty, and the state powers cannot go on a fishing expedition. What you're talking about here is proportionality. You're basically saying, we're going to put roadblocks up in the sky, and every time you pass through that roadblock, we're going to check to see what's going on here. Hang on. If you're going to do that, why aren't you putting roadblocks out on Bank Street, why aren't you putting roadblocks out on Granville in Vancouver, and just stopping people? I bet there's a murderer with a warrant on them somewhere out on Bank Street, somewhere out on Granville, somewhere in Regina or Prince Albert. But we don't do that in this country. The reason is that we follow the rule of law and we respect the charter. That's what you should be telling your constituents. We are not turning a blind eye to warrants, we are using the proper procedure.

The Acting Chair (Mr. John O'Reilly): Mr. Mia. We have a full five-minute round now. Ms. Desjarlais has given her time away.

Mr. Ziyaad Mia: Okay.

As Mr. Baksh mentioned, it's an excellent question, but I think, not to show any disrespect, it is a red herring. We just don't start doing things like that. We could catch a lot of bad people if we just started intruding, but that's really where the balance comes in. As I mentioned in my opening, this is the country I chose, and I chose it because we have the Charter of Rights and Freedoms that Mr. Trudeau entrenched. The charter really borrows from international law on human rights. And the fundamental point is that when you act through criminal law, you need reasonable cause and suspicion if you want to detain, arrest, search, and seize under the act. My colleague Madame Brosseau would probably be better at talking about Supreme Court jurisprudence, but they've already hammered this out over the last 15 or 20 years. The police should not be looking for people they're not allowed to.

But let's look at Bill C-17, the Public Safety Act. The Department of Transport officials can get this information for transportation security, CSIS can get it for threats to the security of Canada. How is someone that's uttering a forged document, aside from terrorism links, a threat to the security of Canada or threatening transportation safety--or a cattle rustler? This is just a listing of all the five year provisions. Or if someone steals my car, that's theft with a sentence of over five years .

À (1010)

The Acting Chair (The Acting Chair (Mr. John O'Reilly)): Go ahead.

Mrs. Bev Desjarlais: I want to state my question, so I get an answer to it. Is the risk of catching a lot of innocent people greater than the potential to get those who even fall into the bad list?

Mr. Khalid Baksh: The short answer is, absolutely, completely. We're seeing that from what the U.S. is doing right now. They're creating lists. We know they're fingerprinting and taking people's information at the border. I heard there were 14,000 prints up to November 2002. From that, I think, there have been 157 charges, so 0.1% perhaps. Where's the balance in that? Where's the proportionality? It's not there. If you want security, provide your security forces with proper information, provide them with proper funding. Don't go on fishing expeditions, and don't go and ruin people's lives.

What we've seen from Bill C-36 is something I can speak of directly from my community. I practice law in Toronto, and a lot of my practice since September 11 has come out of my community as a result of abuses by CSIS officials, Immigration officials, RCMP. What's been happening is that their name is similar or they come from a country that supposedly, in the eyes of whoever, supports terrorism. Millions of people come from these countries. There are a lot of people with the name Mohamed out there, a lot of people with the name Fatima. This is where the problems are going to occur, and this is why the overreaching of this act has to be stopped.

Mrs. Bev Desjarlais: Thank you.

The Acting Chair (Mr. John O'Reilly): Madam Jennings, second round.

Mrs. Marlene Jennings: Thank you.

You raised an important point, that in normal circumstances in Canada and in most common-law countries for the police authorities to stop or intercept and question an individual, they have to have reasonable grounds that some infraction, whether it be a penal infraction or a criminal infraction, has been committed and that the individual may be the one who committed that infraction. Were there a clear definition saying that when there are reasonable grounds to suspect a real threat to transportation security, and that particular term were also defined, would you then have a problem if CSIS or the RCMP had the authority to electronically get the list of a particular flight or all flights coming in with a particular airline because they have reasonable grounds to suspect that there is a threat to transportation security or a threat to the security of Canada? As long as clear definitions or criteria were provided in the legislation, would you then have an objection to the RCMP or CSIS having access to flights in order to see if there are any matches? The way it's been explained to us by both CSIS and the RCMP, they would not actually have access to all the passenger manifests from all the flights. Only if there were a match, even a false match, with an individual who's already on their particular database as a threat or a suspected terrorist would they have access to that name. At that point they would be able, on request, to get the full passenger manifest of the particular flight for which there was a match. So would you have a problem?

The second question I have is on the issue of effective oversight. My understanding of SIRC's authority and powers is that they're pretty effective in respect of CSIS's use of its particular powers. I do have some question about effective oversight over the RCMP, and one of the reasons is that the RCMP public complaints apparently has a mandamus against the RCMP to gain access to confidential files and reports on confidential informants, and the RCMP are saying they don't have the authority to gain access to that, basing this, apparently, on a federal judgment that dates to some time ago. To my knowledge, they still have not provided us with the specific case law they claim allows them to deny access to RCMP public complaints.With the knowledge you have about oversight of the RCMP, do you believe the oversight that exists right now for the RCMP and for CSIS, whether it be Privacy Commissioner, SIRC, the RCMP Public Complaints Commissioner, the Inspector General, is sufficient to ensure proper use of this legislation and the powers they would gain under this legislation?

À (1015)

Mr. Ziyaad Mia: As I mentioned at the beginning, we're not against public safety. I don't want anyone to get the impression that Muslims are out here trying to cut any safety mechanism down. We're as scared as everyone else about terrorist attacks and we want to be safer, but we also want that done in the framework of the charter. That's really my starting point. One of the first things I learned in law school is that when you draft legislation, it should be clearly defined and effective, without a lot of loopholes and vagueness, because that leads to problems. So I take your point. Tighten it up.

We would also call, as an aside, even if it's just a token thing, for a section saying this act and discretion under it are going to be consistent with fundamental rights in the charter, especially sections 7 and 15. Clear up the definitions, tighten up the discretion, have the effective oversight, and work within the charter framework, because there's justification for getting information you can follow to start your looking.

To go back to the warrants, what are they putting in the hopper? I'm really not that confident, unfortunately, that they're not going to look at names that are not matching. One of the footnotes in our submission, you'll notice, is that Department of Transport, of all places, had 5,000 secret documents accessible by all staff, and probably every hacker. That's the kind of thing that's accessible to everybody. If this information is sitting in the system, who can see it? That's a separate concern.

What are you matching against? Do you put all these Criminal Code offences in there? Of course, you may get those matches. So I want that out. If you have terrorist names, if Osama bin Laden is on your list--or any of his aliases, because he's not dumb enough to travel under his known name--you match those, and if you see that, deal with transportation security. When that flight lands, if you don't need that information, destroy it. Keep what you need. The next step is, why does CSIS need to keep this information? I'm really troubled by this personally. Why do they have the discretion themselves to decide, we didn't have a match on this, but we may need it later. The CBA raised that as well. That's where the oversight comes in.

But I think you're dead on with clear definitions. Write proper law, for God's sake, that's all we're asking, and have effective oversight.

À (1020)

Mr. Khalid Baksh: Perhaps I could just speak to the issue of SIRC and that type of oversight. Certainly, there's an effective element in what SIRC has done, but any organization like that can only be effective if the complaints are brought to them. This is where the problem is. We need to get those complaints to them, or some organization has to figure out how to get them there. Because of the climate of fear caused by legislation such as Bill C-36, the proposed trilogy of bills, C-42, C-55, C-17, people are afraid to come forward and complain. Why would you complain to SIRC? In their eyes, and I'm not saying this is so, they're going to the same organization that has been harassing them. We're dealing with two things. One is the chill and the other is the resources. If you're going to have effective oversight, we need to have effective resources. The resources have to be there and the remedies have to be available, because if there is no remedy, why would you be making the complaint?

I'm going to speak specifically of our community now. There are people in Canada who have come from countries where there are repressive regimes, where, when the state police, the secret police, whatever you want to call them, come and knock on your door, you open up and you talk to them, you don't close the door on them and say, I'm going to talk to my lawyer. If you start having security forces in Canada coming and knocking on your door, that fear starts developing and becomes greater, and instead of exercising democratic rights, including the openness, including the right to review, those fears and everything else become internalized.

Get rid of the chill, deal with the resource issues, and provide proper remedies, and then perhaps we will have effective oversight. The way it is right now, you're not going to get it, because those complaints will not be coming forward.

The Acting Chair (Mr. John O'Reilly): Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman.

I'm going to come back to the word “warrant”, Ms. Brosseau and Mr. Mia, just to get a clear understanding of the dichotomy of this bill. With regard to Part 23, which concerns the Biological and Toxin Weapons Convention, Canada has signed the agreement, as you said earlier. A number of countries have not yet ratified it, but Canada ultimately intends to take part and to ratify it by passing this bill.

Among other things, to the same extent that the legislator insists on the word “warrant” in section 4.82, so it does not want to include warrant in Part 23. It wants to enable inspectors to go check, except in residences, and there is even an emergency exception respecting residences. It wants to enable inspectors appointed by the minister--as you said earlier--to be able to visit the premises, including law firms. That's what led you and the Law Society of Upper Canada, when it appeared this week, to say that solicitor-client privilege had just been threatened. I'm convinced of it because, ultimately, it's the entire right to a full and complete defence that has been set aside.

As I told you, that's the major difference. Even the police representatives who came found that we were going too far. I asked the question on Tuesday and I'm putting it again to the Barreau du Québec today. Are there standards that must be met in order to conduct searches without a warrant in Quebec? It should not be forgotten that we live in a free, democratic country and that, if we want a warrant, we can get it. We are not without equipment and ways of obtaining warrants. Is there such an emergency, such a situation in which we must permit searches without a warrant? You are partly right on this, and that's what one may understand from the remarks of those who have come to testify. For all purposes, if there is a doubt, authorities can search. Can we justify this permission to conduct searches without a warrant in our free and democratic society?

À (1025)

Ms. Carole Brosseau: To answer Ms. Jennings as well on this question, there are only the emergency criteria on the basis of which the principles are that a warrant is requested in order to conduct a search, whatever it may be, particularly for a law firm. But the principle is to have the warrant, except where there are reasonable grounds to believe... That's the test that is often applied and accepted by the Supreme Court, both for warrants and for general powers, in order to say yes, but when there is a genuine emergency, an urgent situation. Yes, there could always be a search at that point. I could delve more deeply into this question, because we haven't addressed it from this angle, but sometimes there's that.

I have some examples at the provincial level regarding security. My colleagues may not be aware of this because it's very specific. Recently, with regard to safety, this inspection criterion was applied for explosives and fires, but, with warrants, and not without warrants, precisely because of an emergency, because a warrant, ultimately, if you have good grounds to believe... The importance of obtaining the warrant in advance is that there is a third party that checks to see whether this is not a disproportionate measure. Often when not supported by a very detailed affidavit, unless it is very unreasonable... Warrants are sometimes not granted because there is not enough evidence to do so and the situation looks too much like a fishing expedition. But there is a justice of the peace who, to all intents and purposes, is the third person concerned.

Mr. Mario Laframboise: However, for the benefit of Quebeckers watching us, as a result of this bill, searches can be conducted without a warrant. That's permitted under this bill.

Ms. Carole Brosseau: Searching without a warrant, having regard to the way in which the text of the Convention is drafted, in a so-called public place: a firm, an office, any place of business, if you will, and during reasonable hours. Others, such as a private residence, must be searched with a warrant and, as you say, there are particular requirements.%

Mr. Mario Laframboise: Mr. Mia.

[English]

Mr. Ziyaad Mia: I can't speak in detail, as Ms. Brosseau did, about the Biological and Toxic Weapons Convention, but my understanding of the criminal law is that you require a warrant. That is again part of our legal system where you need justification, unless there are exigent or urgent circumstances. If I know you're loading your gun, I'm a police officer, and you're going to kill someone immediately, I don't need a warrant to arrest you, I don't need a warrant to search your home, because that's an urgent circumstance, but when that circumstance doesn't exist.... This really echos our concern with the Anti-terrorism Act, which, unfortunately, didn't get changed, and preventive arrest. They were allowing preventive arrest without exigent circumstances, and I think that's just nonsense and quite ridiculous. If there's an urgent circumstance, that is the framework we work in now, and it works. When you go to a court, you have to show your justification, and that really hammers at what we're talking about in respect of oversight.

As to search without a warrant, I think, if they're taking a passenger manifest and trying to do a match, it is, as Mr. Radwanski said, a non-consensual search; you're identifying yourself to the authorities, and you're not obliged to in Canada unless they have some reason to arrest you or something. So there's involuntary identification, and the fact that they're looking at your personal and private information constitutes search and seizure under the charter. I believe you're well aware of Mr. Justice La Forest's opinion, Marc Lalonde's opinion, and Roger Tassé's opinion that the APIPNR database really violates that, and I think similar arguments can be made here

À (1030)

The Acting Chair (Mr. John O'Reilly): I want to tighten up the questions and the answers, because we're going to run out of time, and I have Mr. Mahoney, Madam Desjarlais, Madam Jennings, and Mr. Proulx on the list. So I'm going to tighten it up to five minutes including the answer.

Mr. Mahoney.

Mr. Steve Mahoney: I just want to make a comment about what is clearly, in my view, a red herring. There is no requirement to get a warrant to do an inspection. There is a requirement to get a warrant if it's search and seizure, and there's a big difference. Even under current law, if you think of inspectors going into restaurants or things of that nature, they don't need a warrant to do that. So this bill does not provide unlimited opportunity for people to do searches without warrants beyond what already exists in the law.

I want to go to Mr. Mia's recommendation. You want to require Department of Transport staff to destroy within 24 hours of a flight's landing all information relating to transportation security that does not produce a match. First, Transport would only get information if it produced a match. There are different regulations for Transport, CSIS, and RCMP. Also, proposed paragraph 4.81(1)(a) says “the Minister or officer if the Minister or officer is of the opinion that there is an immediate threat to that flight”. Transport has to have strong suspicion that there's a threat to the flight to get the information. It's different for CSIS and it's different for the RCMP. Transport, which you referred to very clearly here, doesn't get the information unless there's a match, and they must have a strong suspicion that it exists. I'd like to know if that satisfies your concerns on the Transport side.

On the warrants, frankly and with all due respect, I think the real red herring is the statement that we would set up road blocks on Bank Street or Yonge Street or anywhere else. We've heard it all at this committee, that this is somehow the police state mentality Mr. Radwanski seems to indicate. There is nothing in here that does that, nothing at all. We're talking about transportation security, we're not talking about pulling people over. And there's nothing in our charter, by the way, that precludes police from arresting somebody when they know they have an outstanding warrant against them. As a matter of fact, it's their obligation to arrest them if they determine there's an outstanding warrant.

Maybe you could just respond to those items.

Mr. Khalid Baksh: Perhaps I could quickly deal with the warrant issue. When I came in this building this morning, I had to go through the little check-out. My nephew here with me did the same thing. That's what we do here, we go through security. Why didn't they take my name? Why didn't they check on a database to see if I had a warrant outstanding? Security is important. I came through the building, and they checked me for security. If that's going to be the situation, check it here too.

Mr. Steve Mahoney: But that's not inadvertent. What we're talking about is when the information is obtained that there's an outstanding warrant as a result of the search.

The Acting Chair (Mr. John O'Reilly): Mr. Mahoney, allow the witness to answer. Thank you.

Mr. Khalid Baksh: You're taking the information. You're abrogating privacy rights. I have not given consent to get my information out. If you're getting the information for transportation security, fine, but if you're getting information for transportation security, go back to that list: “keeping a common bawdy house”--how is it going to deal with airline or transportation security if there's an outstanding warrant on that? I'd like to know. If that's going to be the case, tell me. This act is, again, setting up roadblocks in the sky. If what you want to do is come down and check civilians, if you want to check Canadians on warrants, don't mask it by saying, we're setting up a roadblock in the sky. Set up the roadblock on Bank Street, go ahead and do it, but that's not going to meet the charter test. If that's not going to meet the charter test on Bank Street, how is it going to meet it in the sky?

À (1035)

The Acting Chair (Mr. John O'Reilly): Mr. Mia.

Mr. Ziyaad Mia: You're absolutely correct on this section. We weren't misrepresenting that. We mentioned in discussing discretion that the Minister of Transport can request this information where there is an immediate threat. Who determines immediacy? This is one man. This is again administrative law basics. He's making these decisions. A lot of the stuff is then a one-man shop, or one man and his delegates. That's where the oversight comes in.

Let's say he determines immediacy and it's legitimate. Let's say all of us agree that there really is an immediate threat to the flight. I'm not a computer expert or anything like that, but they get all the information. I've read some of the transcripts of Zaccardelli and some of these other people who say they don't have access to all this stuff. It never works out the way they say. That information's in the hard drive, or whatever it is, and whatever matches they can see. It doesn't mean the information's not in there--people can tell me there are a lot of documents I've deleted that are not gone from my system. The information's in the system, and it doesn't say “matches”, it says that information can be kept for seven days, but before the seven days are gone, I can pass it on to someone else and someone else--it's a little telephone game. And once it gets into the hands of CSIS and the RCMP, it doesn't have to be destroyed. So they can destroy it where it was received seven days later, but....

Whatever the case may be, let's not split hairs. You may dispute with me who it is, but that is what's happening. This information goes down the line, CSIS gets its hands on the whole thing, including the matches. This is exactly what Mr. Baksh is hitting at. Why in God's name are you going to hold information about innocent Canadians when there's no match, not even a false match? Get rid of that stuff, just get rid of it. As Mr. Trudeau said, the government has no business in the bedrooms of the nation, and that spirit is what we're talking about here. If you have no justification, no just cause, no basis to intrude, don't do it.

The Acting Chair (Mr. John O'Reilly): Madam Desjarlais.

Mrs. Bev Desjarlais: I'm not sure I'll get a question in here, but I certainly want to take the opportunity to get in a comment. We hear witnesses and I hear comments coming from my colleagues, and in the next two weeks I'm going to pull out every darned piece of the witness testimony and the misleading information. I'm saying misleading because we've been told different stories by the RCMP and CSIS representatives. One thing does not match what we hear from someone else. Mr. Mahoney's representation of what's going to happen, or even Ms. Jennings' in some cases, is not what was said by those witnesses, because at different points we've heard different stories. They made it perfectly clear. They're going to take the whole damn list of every damn flight if they so desire and check it with whatever darned system they want. That's in the witness testimony. I'll make a point of finding that, because quite frankly, I have become sicker and sicker that we would be reduced, as a country, to going back to doing--

À (1040)

The Acting Chair (Mr. John O'Reilly): This is a legislative committee examining witnesses on specifics.

Mrs. Bev Desjarlais: I said I might not have a question. It might come out at the end, but you have to give me my five minutes to see if I can throw it in there.

The Acting Chair (Mr. John O'Reilly): This is a legislative committee examining witnesses on specifics.

Mrs. Bev Desjarlais: I'll get it in at the last minute, Mr. Chair. I'll make sure I throw in a question. It might be the colour of his tie and whether there's another terrorist that has a tie that colour, but I'll get the question in.

We went through a history of our country, and Japanese were interned, Ukrainians were interned. We know of histories throughout the world where they have do have police states, where people are checked at the borders and checked for everything. If what we're doing is looking for people with warrants, then put a road block up at the border between Quebec and Ottawa and let's stop everybody going back and forth and check them. Why not, if that's the intent?

At one time it was mentioned that my colleague Ms. Jennings was Métis or aboriginal. She made a point after of saying she wasn't. I actually read that and thought, gee, that's kind of interesting; I never thought she was, but yes, it shows how quickly someone can be misrepresented as someone else and be targeted, an innocent person. I fear wholeheartedly that this bill will do more damage and create more victims of innocent Canadians, whether they're Muslim or anybody else, for that matter. It absolutely sickens me that we would even be considering trying to justify some of it. Deal with the technical aspect of it, deal with what we need for real public safety, and let's start to be serious about getting rid of the crap that's in the bill and really thinking about it, instead of somehow thinking it's okay to check out every little bit about Canadians.

My question to you is, what are your thoughts on the bill?

Mr. Ziyaad Mia: You're right. When we looked at the transcripts of Mr. Easter, Commissioner Zaccardelli, and Ward Elcock, it really wasn't clear. It's a bit of a slippery fish when you try to tie them down to say what you are going to get. In response to a question from the chair, Mr. Easter, the Solicitor General of Canada, said on the way this data sharing regime is going to work, “Airlines currently collect personal information about passengers. With this bill, airlines would be required to share passenger information”--it doesn't say matched information or anything--“when requested, with a small group of RCMP and CSIS, for the purposes of transportation security and national security.” There are the purposes. He continues, “They could disclose this further”. We know that, but then he closes with this: “Let me assure you that designated officers should not have unrestricted access to passenger information.” “Should” does not mean “don't”. It means there is someone deciding whether they should or not, and who knows who that is? Is it the person himself? Is it Zaccardelli? Is it Easter? Is it Collenette? “Should” is different from “don't”, “can't”, “won't”, and that is really what I'm talking about--he said it in his own words.

The Acting Chair (Mr. John O'Reilly): I'm going to go to Madam Jennings for her five minutes in the sun.

Mrs. Marlene Jennings: The question of police road blocks for drivers under the influence, if I'm not mistaken, went all the way up to the Supreme Court of Canada or the Court of Appeals. There were clear definitions and criteria established that said even under the charter it's legal etc. I would like you to explain to the chair and this committee on what basis the court decided that police could, in the interest, I'm assuming, of public safety, establish road blocks and stop every single car.

À (1045)

Mr. Ziyaad Mia: That's a great point, because what we're saying is, let the mechanisms we have work their magic. I can't speak on the fine points of it--maybe you can, Madame Brosseau--because that is constitutional law and it was a long time ago. We have the RIDE programs in Canada, road-side checks, for a limited purpose, so basically you have an infringement.

I'll take a minute to walk you through the charter test. You have an infringement, you have a detention, a search, questioning of a person, so various charter rights are violated. Your rights have been violated, nobody is arguing about that. Then we move to what is called the section 1 analysis under the charter. Mr. Dickson of the Supreme Court, one of our great jurists, wrote in the case of Regina v. Oakes, outlining what's known as the Oakes test. Lawyers can drag these things out in a huge test, but basically, it's a proportionality test by international law standards. That's exactly what we're talking about. You balance. You say, what is the state's interest here? The state's interest is to reduce impaired driving, because it has a huge social cost to us and it's in all our interests to do that, personally and financially. So that's a legitimate, valid purpose. Then you move to the next analysis, which is whether the means you're using are rationally connected to that purpose. Yes. You're going to catch drunk drivers: they smell alcohol on your breath and they move you off to the breathalyzer if they suspect you.

So first there's the suspicion: you have to smell the alcohol. Then you need to minimally impair rights: the test in this case was a quick stop--I've been stopped many times; I don't drink, so they always give me free coupons, so I don't mind the RIDE stop. It's a minimal impairment for a specific purpose. They can't then start checking to see if you have done this or that or what else you have in your car. I would even venture a guess that if they found something from the RIDE stop that was not related to it, like drugs, that evidence would not be admissible, because you're there for the RIDE stop purpose, not for the narcotics. The third thing is the proportionality, and this is--it's a loosey-goosey thing--whether you have balanced your purpose, which is public safety and security in that sense, with the impairment of rights. The Supreme Court said in that case it is a tiny impairment for a huge gain in reducing impaired driving. So in that case the rights violations were justified.

All our rights may be violated at some point for a larger purpose. We want to use that as the framework to apply to this bill. This isn't a simple RIDE stop. They're looking at all your passenger information, a lot of information. My concern is that when that information, in its many algorithms, gets married with your tax return, with other security databases, with Interpol's list. Many Canadians who come from abroad may have been dissenters on human rights and may be on somebody else's list overseas, like Saddam Hussein's list--you don't want to be on his list--and then they hit a match here.

The Acting Chair (Mr. John O'Reilly): Madame Brosseau.

[Translation]

Ms. Carole Brosseau: I would add a few words to what my colleague has just said. The Supreme Court has not interpreted driving a motor vehicle as a fundamental right, but as a privilege. That's completely different. The right to freedom, including the right to privacy, that's a fundamental right. That makes all the difference.

With your permission, I could probably give you additional information on this subject. I didn't do so in the brief. You're making me work, but I'm going to add information on this point. I know that people referred to it earlier, and I'm going to speak for other persons, but I wanted to tell you that the Supreme Court recently rendered a very important decision in R. v. Feeney, which concerned the matter of entering a place without a warrant.

[English]

The Acting Chair (Mr. John O'Reilly): The last questions go to Mr. Proulx, and then I'm going to give you five minutes each to wrap up, so think about what you want to close with.

À (1050)

Mr. Marcel Proulx (Hull—Aylmer, Lib.): Thank you, Mr. Chair.

Mr. Mia, I apologize, I wasn't in the room when you answered my colleague Mr. Mahoney's question in regard to the warrant for the alleged murderer. Some adults from opposition parties were playing kids' games by not giving us quorum in the House. So what was your answer? First, did you agree? Otherwise, how would he explain it to his constituents? I've got another question that comes with that.

Mr. Ziyaad Mia: It was Mr. Baksh, I think, in response. You guys are responsible to your constituents and to all of us generally. His answer I think hit the nail on the head. He said you go to your constituents and say, we have a Charter of Rights in this country and we play by the rule of law and by the rule of the Constitution. So my point with respect to the warrants would be, the bill is here for transportation security, the purposes are transportation security and, more generally, threats to the security of Canada. When we put all these offences, keeping a common bawdy house, cattle thieving, theft over $5,000, causing mischief, where it's indictable, into this databank, and then they match, how does that make us safer in the air? How does that make Canada safer? How is that a threat to Canada? I'm no fan of people stealing my vehicle either, but if you're going to look for things, the police must be kept within bounds. They have strong powers to keep us safe, so you want to follow exactly the charter test. Use reasonable suspicion to look, and that's basically what the match system is all about. The match system is saying, I have a database of names, Ziyaad Mia is a known terrorist alias, and there's a flight coming from Geneva. Boom, there's a match, because you acted on reasonable suspicion.

Mr. Marcel Proulx: I apologize for cutting you off, but I'm limited in time and I want to ask you another question.

Once the authorities decide that there's a particular threat to a particular airplane, they decide to open up the list and look at it in detail, and they find in there that there are warrants outstanding for someone or a number of people, what do you tell a police officer who has the duty to act on these outstanding warrants? Maybe it's not going to be on a threat-related problem, but maybe it will be on a murder or something else. What do you tell him? What does he do with it? Does he close his eyes?

Mr. Ziyaad Mia: I'm not an expert in criminal law, but I suspect what he will do--and I'm not saying he should do it, as this is the question--is arrest this person, and it will go through the courts. The courts will have to set the law. I don't know all the criminal law jurisprudence, but in evidence law it's the fruit of the poisoned tree, where you garner evidence about something else from an unrelated source. Let's take our drunk driving thing. Say I am a drunk driver, and I have an unlicensed dog in my car as well, something criminal. Really, you're finding evidence that's not related to the reason you were there, and I suspect that the Supreme Court is going to say that's fruit of the poisoned tree, the evidence is inadmissible. But the thing is that these people shouldn't be arrested and go through the system to get there, because these are the standards we've set up.

[Translation]

Mr. Marcel Proulx: Ms. Brosseau.

Ms. Carole Brosseau: It's indeed like my colleague said. When there is a warrant, the person is arrested and must automatically appear in court.

It should also be understood that the purpose of the warrant is to be a facilitator for doing the work, and the example you gave is exact in this regard: it's a facilitator. Ultimately, the police already have the power to arrest the person. They already have an obligation to do so; they have a warrant against that person. So obtaining additional or perhaps false information, as Madam said a moment ago...

Mr. Marcel Proulx: But obtaining information will enable them to determine that that individual is on that flight.

Ms. Carole Brosseau: But is that related to security? As you said earlier, not necessarily. It's any type of warrant, broadly speaking. It is not necessarily related to security as such in aeronautics; it has no relationship. This is really a principle of democracy.

The dilemma you're facing, if I may digress a little--and the Chairman will call me to order--is that you find solutions to achieve a legitimate objective, that is to ensure the public safety of Canadians. On the other hand, you also have an objective of preserving the fundamental values of our democracy. Judge La Forest said:

To date, free and democratic societies have not generally tolerated the creation of data bases containing personal information on a large number of innocent citizens for general enforcement purposes.

This is the dilemma you find yourselves in. It's been said that this provision is not consistent with the balance of the Charter of Rights and Freedoms and is not consistent with the principles of fundamental values. That's why my colleagues and I are opposed to this provision.

À (1055)

Mr. Marcel Proulx: Thank you, Ms. Brosseau.

[English]

The Acting Chair (Mr. John O'Reilly): Thank you very much.

I want to allow the witnesses a closing statement. Otherwise, we'll continue with questions. We have to be out of the room at 11.

Mr. Mia.

Mr. Ziyaad Mia: I rarely cede my soap box, but Mr. Baksh is going to say something.

Mr. Khalid Baksh: We're dealing with extraordinary times. I remember in 1982 standing on Parliament Hill in the rain among thousands of other Canadians. I watched Mr. Chrétien, Mr. Trudeau, and the Queen repatriate the Constitution and sign what was the charter. I remember following with great interest the lengthy discussions that went into what the charter means. When we look back on it, it's about Canada, it's about why we're here. Many of us are immigrants to this great country. We chose this place. We didn't choose to live in the States or England or Australia or somewhere else. This is where it's home.

I remember the excitement when I went to law school in the mid-1980s, the excitement of learning the charter and studying theory, because at that time much of charter study was theoretical, we didn't have a whole lot of cases to go on. I took my law at Windsor, so I took advantage of the American schools across the border and studied American constitutional law, not only for division of power, but for their Bill of Rights. I recognized after study of that the differences between Canada and the U.S. Again, what it boils down to is our charter, the wonderful document that's been tried, tested, and proved true, that's been debated, that is respected not only in Canada, but the world around. Since then I have taken pride in seeing the way the charter has been applied, all the way from the provincial courts up to the Supreme Court of Canada. That is the legacy we're talking about. We're talking about what Canada is.

You'll notice that there are two young lads behind us there, my nephew Zane and his friend John. They're in grade five and they're studying Parliament. This is a great opportunity for them to come and see what this is about. What are we talking about here? We're talking about rights, we're talking about the protection of rights and reasonable and effective oversight. If John and Zane decide to become lawyers, perhaps in another 12 or 15 years, what's the legacy they're going to be learning about at that point? What are they going to be learning about Bill C-36, about Bill C-17? What's next down the line? We know there are other things coming down the line. What are they going to be studying on what Ziyaad talked about, the death by 1,000 cuts? What we're doing is eroding the very values that make us Canadian. That's why we're here today. Once again, please listen to the concerns, not only of our group, but of the Barreau du Québec and all the other civil society groups that have been in front of you. This is real, and the impact on Canadians, on your constituents, is profound.

Á (1100)

The Acting Chair (Mr. John O'Reilly): Thank you very much.

Madame Brosseau.

[Translation]

Ms. Carole Brosseau: I don't know whether there are many things to add to my colleague's testimony and conclusion. However, allow me to say that Canada is often cited as a legal example around the world. It is genuinely perceived as a model of balance between collective and individual rights and between police departments. It is really a model of democracy. Globally speaking, I believe we now have an obligation, and I would even say a duty to establish ground rules that are clear and balanced based on fundamental rights. In that respect, we are placing the burden on democratically elected individuals.

I would like to tell you a brief story, which we have not really discussed, of a new offence, air rage, which is somewhat the equivalent of road rage. This story began with the deregulation of the airline industry as such. To be more profitable, the airlines reduced the space between their seats, limited services and the quality of services. The situation gradually degenerated and, ultimately, there are situations in which there is a lack of safety and, consequently, acts equivalent to rage, as defined in the bill, may be committed.

But now those acts are considered a criminal offence and that's not justified, when you look at all the offences that are already in the Criminal Code. A citizen is now told that he has committed a criminal offence, whereas it was simply the markets that provoked it. We have to reconsider the acts and criminal consequences that follow for these people, when the reasons for these changes are economic in nature.

I believe I told you this little story to invite you to be careful not to lose the balance between genuine penal and criminal responsibility for a citizen and the reality. So I believe that's your role, and, as the Commissioner said, we trust you in that regard.

[English]

The Acting Chair (Mr. John O'Reilly): Merci beaucoup.

I want to thank all the witnesses. They were very informative and challenged all of us. And I want to comment that the children are the best behaved I've seen in a long time. We could use that in the official opposition--not the Bloc Québécois, the official opposition.

This meeting is adjourned.