| REPORT OF THE COMMITTEE | THURSDAY, November 1, 2001 |
The Special Senate Committee on the Subject Matter of Bill C-36
has the honour to table its
FIRST REPORT
Your Committee, which was authorized by the Senate on Wednesday, October 17, 2001, to examine the subject matter of Bill C-36, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism and explore the protection of human rights and civil liberties in the application of this Act, in advance of the said Bill coming before the Senate, has, in obedience to its order of reference ,completed its pre-study and now reports as follows:
- Introduction
The terrible events of September 11, 2001 have made it clear to all Canadians that securing the freedoms that define us as a nation must now also depend upon actively resisting terrorism. The challenge is to find the right balance: ensuring that our law enforcement and security agencies have the tools necessary to protect us and to prevent terrorism before it strikes while not undermining the freedoms that our government ultimately is mandated to protect. Acts of terrorism must not force us to relinquish our fundamental principles and basic democratic safeguards.
No state of emergency or war has been declared. Rather, Canadians are facing what witnesses appearing before the committee suggested would be a long-term battle against the scourge of terrorism. Bill C-36 contains extraordinary powers in response to extraordinary circumstances. The Special Senate Committee on the Subject Matter of Bill C-36 heard many witnesses over an intense period of study (See Appendix B). While it was natural that a large and complex bill would engender differences of opinion, there was agreement by all that as a response to terrorism, this bill must reflect a careful equilibrium between the rights, privileges and duties that are the foundation of a democratic state and the needs of such a state to protect its citizenry.
Bill C-36 is currently before the House of Commons Standing Committee on Justice and Human Rights. The unusual importance of this bill caused the government to ask the Senate to proceed by a special, rarely used process called pre-study. This enables the Senate to hear witnesses and present its advice and recommendations in advance of the House of Commons Committee report.
This special Senate committee was established, which brought together senators with a wide range of backgrounds and expertise in the diverse matters at issue. As a pre-study, we examined the subject matter of the Bill, hearing from 3 ministers and 30 witnesses. Should the Bill pass all stages in the House of Commons, it will be sent to the Senate where it will undergo the regular process of debate and committee examination.
This Report sets out our comments and recommendations.
- Review, Sunset And Oversight
Introduction
The nature of terrorist activities demands a response different from that required for previous threats Canadians have faced. In recognition of this, Bill C-36 would introduce new offences and new procedures into Canadian law. We appreciate that different threats demand different tools. However, we believe that close oversight and review is essential to ensure that the tools in fact are the right ones for the task at hand, that they are used only in appropriate ways, and that our fundamental values as Canadians will always continue to be safeguarded.
In our deliberations, we considered three avenues of oversight and review:
-
a comprehensive parliamentary review of the entire Act after it has been in operation for a period of time;
-
"sunsetting" of the Act in whole or in part; and
-
specific independent oversight or review of particular exercises of executive authority contained in the Bill.
I) Comprehensive Parliamentary Review
The Bill provides for parliamentary review of the operation of the Act within three years. The Senate would want to satisfy itself that any review is rigorous and sufficient. It will also be important for Parliament and Canadians at large to be kept informed about the way in which the powers in Bill C-36 are used.
The Committee recommends that the language of the Clause 145 be changed, to clarify that both a committee of the Senate and a separate committee of the House of Commons shall undertake this review.
The Committee further recommends that the Minister of Justice cause to be tabled, on an annual basis, a report to Parliament, delineating actions taken under Bill C-36.
Without compromising national security, such a report should include a comprehensive description of these actions. For example, under s. 83.3 (preventive detention): how many people were detained, where and for how long; how many were arrested without a warrant; how many were released without conditions being set by the court; and how many were detained on grounds that they refused to enter into the recognizance, and for how long. Comparable information should be provided for all relevant parts of the bill.
II) Sunset Clauses
Bill C-36 gives powers that if abused by the executive or security establishments of this country could have severe implications for democracy in Canada. Even if no abuse were to occur, the public’s perception might well be that these powers are not being exercised in a proper manner. Such a perception could be just as damaging to our democracy as the actual abuse of government powers. On this the Committee agrees.
The Committee realizes that now is a time of heightened anxiety, fear and confusion and that it is important that departures from our legal norms be reconsidered at a time that will allow for sober reflection and a full evaluation of the effect of these new measures. The most appropriate manner to address this issue was the subject of intense discussion during Committee hearings.
The Committee recommends applying a five-year expiration expiration clause – a "sunset clause" – to Bill C-36. In this way, the government would be required to return to Parliament to justify the continuance of the powers granted, assuring Canadians that the tools are sufficient, yet not exorbitant, and that they continue to be justifiable and necessary in the battle against terrorism. It is recognized that the provisions that implement our obligations under international conventions must of course not be subject to forced expiration.
III) Oversight and Review
The Bill contains a number of provisions that call for the Executive to exercise powers with limited - and sometimes no - judicial or other independent review. We recognize that these issues concern national security and other related matters that call for strict secrecy and often speedy action. Nevertheless, we believe that the best way to ensure that these powers are exercised in a manner consistent with our fundamental principles and values -- and the best way for Canadians to see that the powers are exercised in this way -- is to provide for on-going, independent oversight and review, as appropriate.
The Committee recommends that within 90 days of Royal Assent to Bill C-36, Parliament appoint an Officer of Parliament to monitor, as appropriate, the exercise of powers provided in the bill. This officer shall table a report annually, or more frequently, as appropriate, in both Houses.
The Committee also wishes to highlight the following subjects as requiring particular oversight or review.
a) List of TerroristsThe Bill authorizes the Governor in Council, on the recommendation of the Solicitor General of Canada, to establish a list of terrorist entities, defined to include individuals as well as groups and organizations. This list is used in particular as the basis for freezing assets held in banks and other financial institutions. It will also be one of the bases for the new property forfeiture procedures set out in the Bill.
The Committee recognizes the need for this list and that judicial review would be available after the list has been published. However, the Committee is concerned that the erroneous placement of a person or group on this published list could cause irreparable harm.
The Committee recommends that there be a process of review by the proposed Officer of Parliament to avoid to the greatest extent possible the listing of innocent groups or individuals. Except in cases of demonstrable urgency, this review must be conducted before the list is made public.
With respect to the Government’s biannual review of the list, the Committee recommends that it be based upon examination of all pertinent information by an independent body such as SIRC or the proposed Officer of Parliament.
As the harm caused to wrongfully listed entities derives in part from the name of the list ("List of Terrorists"), the Committee further recommends changing the name of the list, perhaps following an examination of similar lists in other jurisdictions.
b) Recognizance with Conditions (Preventive Detention)The preventive detention provisions authorize a provincial court judge to order a person to enter into a recognizance with conditions, where it is suspected that this is necessary to prevent the carrying out of a terrorist activity. In the event that the person refuses to enter into the recognizance, the court is authorized to commit the person to prison for up to one year.
The Committee is concerned that innocent people may refuse to enter into the recognizance, and find themselves in prison. We recognize that a right of appeal exists, but are equally aware of the unusual nature of preventive detention. The Committee recommends that the Bill provide for an automatic and rapid referral to a higher court, where a person is committed to prison for failure to enter into the requested recognizance.
c) Attorney-General Certificates to Prohibit the Disclosure of Information
The Bill would amend several Acts to authorize the Attorney General of Canada to personally issue a certificate prohibiting the disclosure of information for the purpose of international relations, or national defence or security. These prohibition certificates engendered some of the most intensive discussion of the hearings. Senators and witnesses considered this power to be an extremely serious matter especially with respect to the Access to Information Act and the Privacy Act. Transparent government is a foundation of free and democratic society. The lack of oversight or review in Bill C-36 with respect to the withholding of information – what is essentially the unfettered discretion of the Minister – is very troubling.
The Committee recommends that any such certificate be reviewed by the Federal Court which should be specifically directed to balance the competing interests in disclosure and international relations, national defence and national security. The Committee was also concerned that the certificates, once issued, are valid in perpetuity. The need to keep certain information secret changes with time and circumstances; there is a strong public interest in disclosure when appropriate. The Committee recommends that a time limit be imposed, for example five years, with provision made for renewal of the certificate. Furthermore, the Committee recommends that the renewal be subject to the same review procedure.
d) Security of Information Act: Persons Permanently Bound to SecrecyThe new proposed Security of Information Act (which would replace the current Official Secrets Act) would provide for the designation of certain people as "persons permanently bound to secrecy". There is, however, no provision made for an individual to contest or appeal this designation, or have it in any way reviewed, at any time.
The Committee recommends that provision be included for this designation to be appealed or reviewed, by a court or another independent body. The Committee also recommends that consideration be given to providing for applications for reconsideration of the designation, after the passage of time or changes of circumstances.
e) Communications Security Establishment (CSE) Intercepts
The Bill would establish, for the first time, a legislated mandate for the Communications Security Establishment ("CSE"), authorizing it, among other things, to intercept certain communications involving Canadians in situations where the "target" of the interception is not in Canada. The Bill provides some safeguards, in particular requiring that these interceptions be authorized by the Minister of National Defence and only under certain defined conditions. The Committee is concerned that the Bill is substituting executive authority (a Ministerial authorization) in a context that traditionally has been entrusted to the courts, through the requirements for judicial warrants. Therefore, the Committee recommends that judicial authorization be obtained where appropriate and feasible.
There is also concern regarding the lack of clarity of the term "security" in this section. From testimony received, it is evident that security here could be used in the broadest sense; for example, cases involving significant large-scale criminal activities, such as major trafficking in illegal drugs. The Committee recommends that a definition of national security and related terms be provided to clarify the intent of these provisions.
f) Charities Registration (Security Information) Act (Part 6 of Bill C-36)
Certified charities reasonably believed to be supporting terrorist activities will lose their charitable status. The difficulties surrounding definition and application in this part of the bill, in combination with the need to protect the reputations of legitimate charities, make due process doubly important. Reputation is the coin of charitable organizations. The Committee is deeply disturbed by the potential for wrongful identification. The Committee noted that de-certification could trigger the placing of the organization on the published List of Terrorists, compounding wrongful harm in the case of the innocent with forfeiture, freezing of assets and public shaming.
The Committee notes with concern that there is no right of appeal of the decision of the Federal Court judge that a certificate is reasonable. Therefore, the Committee recommends a right of appeal. Furthermore, as review of the information involves restrictions of information available to the appellant on grounds of international affairs, national defence and national security, the appeal procedures could reflect the model developed within SIRC to ensure natural justice while ensuring national security.
g) Regulations
The Committee notes that while there is limited provision for making regulations contained in Bill C-36, nevertheless regulations may be passed under the statutes amended by Bill C-36 which may affect the implementation of the Bill. Given the importance of Bill C-36 and its potential effect on the rights of Canadians, the Committee recommends that the regulations also be subject to a parliamentary review process.
C. Other Concerns
I) Definition of terrorist activity
The Committee is aware of concerns that the definition of terrorist activity could be used to target ethnic or cultural communities in Canada. The Committee therefore recommends that a non-discrimination clause be added to Bill C-36.
There were also concerns expressed that the definition of terrorist activity as it appears in Bill C-36 might encompass illegal strikes and other actions of civil disobedience that bear no relation to terrorism.
The Minister of Justice made it clear to the Committee that this is not the intent of the bill. To clarify that these types of unlawful acts are not terrorist activities, the Committee recommends deleting the word "lawful" from proposed subsection 83.01(1)(b)(ii)(E).
II) Definition of Security
As noted earlier, there are several provisions in Bill C-36 that authorize the Attorney General of Canada to issue a certificate prohibiting disclosure of information for the purpose of protecting "international relations or national defence or security". It is evident from the French text that "security" is intended to be "national security", but this is ambiguous in the English text. The Committee recommends that the English term be changed to "national security" throughout the Bill to ensure greater consistency and clarity.
III) Public Interest Defence Under the Security of Information Act
The proposed Security of Information Act would provide a "public interest defence" for people accused of disclosing information contrary to the Act. However, the defence is very narrow, available only where the person reasonably believes that an offence under an Act of Parliament has been, is being, or is about to be committed. The Committee recommends that the availability of this defence be broadened to include any disclosure that is, when weighed against the needs of national security, judged by the Courts to be in the public interest.
IV) "Facilitation" and the List of Terrorists
The Committee notes that through provisions in Bill C-36 a person or group may be placed on a list of terrorists if the Governor in Council is satisfied that there are reasonable grounds to believe that the person or group has facilitated a terrorist activity. There is no requirement that the facilitator have knowledge that he or she has committed such an act in order to be placed on the list. Individuals who innocently and unknowingly assist or make donations to people or groups that are involved in terrorist activity could potentially end up on the list. Therefore the Committee recommends that for facilitation by individuals to occur, the requirement of knowledge - though not necessarily of a specifically planned act - should be clear in this section and throughout the Bill.
V) The Offence of Mischief Relating to Religious Property - Clause 12
The committee applauds the proposed inclusion of the offence of mischief relating to religious property in the Criminal Code as part of the effort to address hate crimes. However the Committee recommends that the word "sex" be added to the list of motivating factors on which mischief is based. This list already includes religion, race, colour or nationality or ethnic origin.
Reservations were also expressed about the public perception of the term "mischief" and the Committee fears that the seriousness of this hate-based offence may not be understood. However, mischief is a clear legal concept with established jurisprudence.
VI) Use of the Term "Terrorism"
The Committee recommends that, in order to ensure consistency, the word "terrorism" be changed to "terrorist activities" throughout the bill.
Respectfully submitted,
[ Original signed by]
JOYCE FAIRBAIRN
Chair
APPENDIX "A"
IMMIGRATION MATTERS
The Minister of Justice asked for this Committee’s assistance identifying gaps, if any, in Bill C-36. The Minister will see from this Report that the Committee has taken her request seriously and offered its advice and assistance on a number of important matters. There is at least one area however, in which the Committee was unable to determine if any gaps exist – immigration and refugee law.
Although invited by the Committee, the Minister of Citizenship and Immigration declined to appear and provide evidence of any Government plans developed since September 11th to combat terrorists entering the country while posing as either new immigrants or refugees.
In the press release announcing the introduction of Bill C-36 the Government noted that it had a four part Anti-Terrorism plan. The first part of this plan is to "stop terrorists from getting into Canada". Other than one technical amendment, there is nothing in Bill C-36 which addresses immigration and refugee law directly. This is of great concern to some members of the Committee.
APPENDIX "B"
(WITNESS LIST)
| MINISTER |
PUBLISHED ISSUE # |
DATE |
|
|
||
| The Hon. Anne McLellan, M.P., P.C., | 1&4 | Oct. 22 & 29 |
|
Minister of Justice and Attorney General of Canada |
||
| The Hon. Lawrence MacAulay, M.P., P.C., Solicitor General of Canada |
1 | Oct 22 |
| The Hon. Arthur C. Eggleton, M.P. P.C., | 3 | Oct 23 |
| WITNESSES |
PUBLISHED ISSUE # |
DATE |
|
|
||
|
From the Department of Justice:
|
1 | Oct. 22 |
|
1 | Oct. 22 |
|
1 | Oct 22 |
|
From the Canadian Security Intelligence Service:
|
1 | Oct 22 |
|
From the Canada Customs and Revenue Agency:
|
1 | Oct 22 |
|
1 | Oct 22 |
|
1 | Oct 22 |
|
From the Department of Finance:
|
1 | Oct 22 |
|
1 | Oct 22 |
|
1 | Oct 22 |
|
From the Solicitor General’s Office
|
1 | Oct 22 |
|
1 | Oct 22 |
|
1 | Oct 22 |
|
From the Communications Security Establishment:
|
1 | Oct 22 |
|
1 | Oct 22 |
|
From the Information Commission of Canada:
|
2 | Oct 23 |
|
From the Security Intelligence Review Committee:
|
2 | Oct 23 |
|
From the Office of the Privacy Commissioner of Canada:
|
2 | Oct 23 |
|
From the Royal Canadian Mounted Police
|
2 | Oct 23 |
|
From the Canadian Centre for Philanthropy:
|
2 | Oct 23 |
|
As individuals
|
3 | Oct 24 |
|
From the Canadian Civil Liberties Association:
|
3 | Oct 24 |
|
As individuals
|
3 | Oct 24 |
|
From the Canadian Bar Association:
|
3 | Oct 24 |
|
From the Communications Security Establishment:
|
3 | Oct 24 |
APPENDIX "C"
LIST OF RECOMMENDATIONS
- The Committee recommends that the language of the Clause 145 be changed, to clarify that both a committee of the Senate and a separate committee of the House of Commons shall undertake this review.
- The Committee further recommends that the Minister of Justice cause to be tabled, on an annual basis, a report to Parliament, delineating actions taken under Bill C-36.
- The Committee recommends applying a five-year expiration expiration clause – a "sunset clause" – to Bill C-36. It is recognized that the provisions that implement our obligations under international conventions must of course not be subject to forced expiration.
- The Committee recommends that within 90 days of Royal Assent to Bill C-36, Parliament appoint an Officer of Parliament to monitor, as appropriate, the exercise of powers provided in the bill. This officer shall table a report annually, or more frequently, as appropriate, in both Houses.
- The Committee recommends that there be a process of review by the proposed Officer of Parliament to avoid to the greatest extent possible the listing of innocent groups or individuals. Except in cases of demonstrable urgency, this review must be conducted before the list is made public.
- With respect to the Government’s biannual review of the list, the Committee recommends that it be based upon examination of all pertinent information by an independent body such as SIRC or the proposed Officer of Parliament.
- As the harm caused to wrongfully listed entities derives in part from the name of the list ("List of Terrorists"), the Committee further recommends changing the name of the list, perhaps following an examination of similar lists in other jurisdictions.
- The Committee recommends that the Bill provide for an automatic and rapid referral to a higher court, where a person is committed to prison for failure to enter into the requested recognizance.
- The Committee recommends that any such certificate be reviewed by the Federal Court which should be specifically directed to balance the competing interests in disclosure and international relations, national defence and national security.
- The Committee recommends that a time limit be imposed, for example five years, with provision made for renewal of the certificate. Furthermore, the Committee recommends that the renewal be subject to the same review procedure.
- The Committee recommends that provision be included for this designation to be appealed or reviewed, by a court or another independent body. The Committee also recommends that consideration be given to providing for applications for reconsideration of the designation, after the passage of time or changes of circumstances.
- Therefore, the Committee recommends that judicial authorization be obtained where appropriate and feasible.
- The Committee recommends that a definition of national security and related terms be provided to clarify the intent of these provisions.
- The Committee recommends a right of appeal. Furthermore, as review of the information involves restrictions of information available to the appellant on grounds of international affairs, national defence and national security, the appeal procedures could reflect the model developed within SIRC to ensure natural justice while ensuring national security.
- The Committee recommends that the regulations also be subject to a parliamentary review process.
- The Committee therefore recommends that a non-discrimination clause be added to Bill C-36.
- The Committee recommends deleting the word "lawful" from proposed subsection 83.01(1)(b)(ii)(E).
- The Committee recommends that the English term be changed to "national security" throughout the Bill to ensure greater consistency and clarity.
- The Committee recommends that the availability of this defence be broadened to include any disclosure that is, when weighed against the needs of national security, judged by the Courts to be in the public interest.
- The Committee recommends that for facilitation by individuals to occur, the requirement of knowledge - though not necessarily of a specifically planned act - should be clear in this section and throughout the Bill.
- The Committee recommends that the word "sex" be added to the list of motivating factors on which mischief is based.
- The Committee recommends that, in order to ensure consistency, the word "terrorism" be changed to "terrorist activities" throughout the bill.
APPENDIX "D"
LIST OF MEMBERS
The Honourable Senator Joyce Fairbairn, P.C., Chair
The Honourable Senator James F. Kelleher, P.C., Deputy Chair
and
The Honourable Senators:
Andreychuk
Bacon
Beaudoin
*Carstairs, P.C.
(or Robichaud, P.C.)
Finestone. P.C.
Fraser
Jaffer
Kenny
*Lynch-Staunton
(or Kinsella)
Murray, P.C.
Stollery
Tkachuk
*Ex Officio Members
(Quorum 4)
The Honourable Senators Bryden, Christensen, Forrestall, Furey, Grafstein, Gustafson, Mahovlich, Morin, Joyal, Prud’homme, Roche, Rompkey, Stratton, Tkachuk and Wilson also served on the Special Committee or participated at various stages in its work.