Proceedings of the Special Senate Committee on the
Subject Matter of Bill C-36

Issue 2 - Evidence (afternoon sitting)

The Special Senate Committee on the Subject Matter of Bill C-36 met this day at 2:00 p.m. to examine the subject matter of Bill C-36, 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.

Senator Joyce Fairbairn (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I call together our second session today on the special Senate Committee on the Subject-Matter of Bill C-36, which is the government bill on anti-terrorist actions in response to the tragedy that took place in the United States on September 11.

We have been hearing a variety of witnesses. Yesterday we heard from Mr. Ward Elcock from CSIS. Today we have with us the Security Intelligence Review Committee members.

For those who are watching this on television, our committee is undergoing a rarely used procedure called pre-study, in which we will study this very important piece of legislation so that we can give our recommendations to the House of Commons before it passes the bill. Hopefully, the bill will include some of our recommendations by the time it returns to the Senate for our formal debate and committee study. We are trying to get an advance push of some of our ideas and concerns into the House of Commons early.

We have with us today person whose face will be familiar to all, the Honourable Gary Filmon, a Member of the Security Intelligence Review Committee. We have with us Susan Pollak, Executive Director, Maurice Klein, Deputy Director, Thomas Dastous, Senior Counsel and the chair of the Security Intelligence Review Committee, known as SIRC. The Chair is the Honourable Paule Gauthier.

We would be delighted to hear your opening remarks and then our committee will be full of questions. For the members of the committee, we will start the first round with a question and a supplementary question then proceed to the second round so that everyone will have an opportunity to question and respond on both sides. We would encourage you to be as brief as possible so that the dialogue can develop to the greatest extent. Members of the Senate who are not on the committee, we will certainly include you as well in our questioning.

Please proceed. Welcome.

[Translation]

Ms Paule Gauthier, Chair of the Security Intelligence Review Committee: Madam Chair, I would like to thank you for inviting us to appear before you today. We will do our best to be of help to you in your deliberations. I have provided members of the committee with two appendices to which we have added our comments and, as you yourself have suggested, I will set aside some time in order to answer any of your questions.

[English]

The shocking and tragic events of September 11 pose an unprecedented challenge for all Canadians, in particular for those of us who work in Canada's security and intelligence community.

Bill C-36 is obviously a key element in the government's response to this challenge. It is clearly designed to strengthen our defences and to aid our enforcement agencies as a means to ensure the protection of our cherished rights and freedoms.

This protection is a large part of the committee's raison d'être. For those of you who are unfamiliar with the committee, I would like to begin by addressing the obvious question: What is SIRC?

The Security Intelligence Review Committee, SIRC, was established under the Canadian Security Intelligence Services Act in 1984 to provide full and independent scrutiny of CSIS' activities and to report annually to Parliament and the Canadian public on our findings.

The committee comprises five Privy Councillors appointed by Governor in Council after consultations between the Prime Minister and the leaders of all parties having at least 10 members in the House of Commons. The committee's day-to-day operations are the responsibility of the Executive Director, Ms Susan Pollak, who is assisted by a staff of 15.

SIRC may review any CSIS activity. It also investigates complaints from the public about any CSIS action. In addition, people denied a security clearance for federal employment or denied federal contracts on security grounds can complain to SIRC.

SIRC can also investigate when a person seeking admission to Canada or applying for Canadian citizenship is affected by detrimental security findings.

SIRC periodically provides reports to the Solicitor General on matters of special importance that are distinct from, but related to, its normal audit or investigative functions. This is further detailed in the appendices.

As the agency charged with providing independent reviews of CSIS, the committee was naturally very interested in Bill C-36, the proposed anti-terrorism legislation that is being considered here today. I would like to take this opportunity to make a few observations about this draft legislation, and then we would be happy to answer any questions you may have.

Some elements in Bill C-36 have implications for the committee. Bill C-36 contains a specific addition to the committee's mandate as well as other provisions that will probably also result in an increase in complaints brought to SIRC.

To begin with the specifics, the committee is named as having new responsibilities under the proposed revisions to the Official Secrets Act. The proposed amendment states that the public interest defence, for the disclosure of special operational information, is available only where the individual has brought the information to the deputy head, or the Deputy Attorney General of Canada and, in the absence of a response from the deputy head, to our committee. The legislation does not indicate, however, just what the role of the committee is supposed to be with respect to this special operational information.

If an investigation is anticipated, what would be the committee's powers and to whom would we report? Would we be asked to make findings or recommendations? It would be useful to the committee to have some clarification of its responsibilities under this new provision.

Other changes proposed in Bill C-36 that will almost certainly affect the committee are the proposed Criminal Code amendments to create a list of terrorists and the proposed charities registration act. These are likely to generate a substantial increase in complaints to the committee, because the CSIS Act, under section 41, provides the public with the opportunity to complain about any act or anything done by CSIS. Many of the individuals and organizations listed, as well as those who have been denied charitable status, will likely complain to SIRC.

In conclusion, as the chair of SIRC, I believe its work is more vital than ever and is a vital part of the framework established by Parliament to balance the need to protect both the state and the rights of the individual. Given the new world we suddenly find ourselves in, the need to maintain that essential balance is more important today than it has ever been. The committee as a whole will follow your work with great interest.

The Chairman: To those who may be watching, you will hear the acronyms CSIS and SIRC which stand for Canadian Security Intelligence Service and Security Intelligence Review Committee respectively. SIRC examines the work performed by CSIS. Sometimes, in the security area, it can become confusing.

Senator Murray: As you have indicated, Ms Gauthier, the bill has a provision that the cabinet may, on the recommendation of the Solicitor General, draw up and issue a list of terrorists. Some members of the committee are extremely concerned about that and about the process that is envisaged. It is a matter, as you say, of the security and intelligence authorities advising the minister and the minister then recommending to cabinet and the cabinet then publishing the list. Senator Lynch-Staunton said yesterday that it is almost inevitable that someone will be on a list, of any length, who should not be there. Once he or she is on the list, that is the end of his or her reputation.

I understand the provisions that are in the bill for appeal to the court and so on. However, all of that is after the fact. I am quite interested in your view that the Security Intelligence Review Committee would have a role in all this. You have based that, as you say, on the fact that the statute provides the public with the opportunity to complain about "any act or anything done by the Canadian Security Intelligence Service." Does the government agree with your interpretation of your role in this matter? Does it agree with your legal opinion?

Ms Gauthier: We do not know at this time if it agrees. However, clause 41 has been experienced before and there were many complaints brought to us. We certainly believe that an individual or an organization named on the list could appeal that decision to us if they are dissatisfied.

The results, as you know, are not from our committee, but rather we provide recommendations. There is clout to what we recommend, however the ultimate decision always rests with the government as to whether a person or organization remains on the list or not.

Senator Murray: The government has already written into the bill a process for review and for appeal to the court. As I mentioned before, that is after the fact. Now, is there a possibility, since we are talking about anything done by CSIS, that you would have an opportunity to view that list before it is published? After it leaves the hands of the Director of CSIS and is forwarded to the minister and before publication, would your review committee have an opportunity to view it? Could you insist under the terms of your own statute that you have an opportunity to examine that list before it is published?

Ms Gauthier: Under the CSIS Act, we have access to all files and all documents involving CSIS. I suppose that we would have access to the list. If we decide, on our initiative, or if the Solicitor General asks us, we could make a special report, under section 54 of the CSIS Act, to the Solicitor General concerning the names of organizations or persons on that list.

Senator Murray: We, in this committee, are very concerned about safeguards with respect to that list and what safeguards could be instituted before the list becomes public.

We have been talking about the possibility of parliamentary oversight. A special committee of Parliament might have an opportunity to provide that review.

Your testimony is extremely important here. Let me confirm that you are saying that after this list has been compiled by CSIS for the benefit of the minister, but before the list is published, you could, under the statute, make it your business to review that list and determine the reason that various names of individuals or organizations are on it. I invite you to tell us that you will do that.

Ms Gauthier: I am saying, "Yes" because the life of our committee will continue after the bill is passed. The CSIS Act is there, and we have access to all its files and will continue to do so. We would like to review the list and make a special report under Section 54. On the other hand, in all the amendments and the bill you are now examining, there are no special provisions for us to do that work.

Senator Murray: No, but you have interpreted the statute by which you are now governed to mean that you are engaged on this issue. I am very happy with what I take to be the undertaking you have given us.

Ms Gauthier: In that sense, our engagement would be there.

Senator Murray: If you find that someone is inappropriately on the list, will you so state, in private, to the government?

Ms Gauthier: Exactly, yes.

[Translation]

Senator Bacon: Ms Gauthier, we are very pleased to have you here today and I am personally very happy to see your mandate has been renewed.

If there is something that Canadians value very highly, it is their privacy and the right to have that privacy respected and protected. We can expect that the government, too, will respect and protect that privacy. It is Parliament's duty to see to it that this protection of privacy is also ensured in whatever legislation is enacted.

In Bill C-36, the right to privacy is restricted for reasons that the minister of Justice articulated yesterday before the committee. I do not think it necessary to go over that again today.

The minister assured us that the provisions of this bill will prove to be compatible with the Canadian Charter of Rights and Freedoms. A review by the courts is a last resort once the bill has been considered and we have included in the legislation the necessary safeguards. You must not forget that if even one innocent person has his or her rights infringed upon, it is one too many people suffering from abuse or error.

The Security Intelligence Service is of course one of the key players in the enforcement of Bill C-36 and also one of the agencies whose activities might potentially be the most threatening and the most intrusive with respect to the lives of Canadians.

The Review Committee, which you chair, stated in its annual report for 1999-2000 that Canadians are worried about CSIS activities and are particularly concerned about the infringement of civil liberties and human rights. According to the report:

One is the way in which security intelligence work in any democracy takes place, wherein the government gives a small group of people powerful and intrusive investigative powers ans instructs them to tell almost nobody about what they are doing. The natural instinct of an aware citizenry is to wonder what on earth those people might be up to.

These concerns appear on page 1 of the statement of the Security Intelligence Review Committee.

Upon reading your review of the complaints filed against CSIS, one sees that you yourself are rather hard on the Service for the way it sometimes determines the existence of links between certain people and terrorist activities in the course of security screenings for immigration purposes. There are some who are concerned that the drawing up of a list of terrorist entities might result in a witch hunt and worry that such a list might include the names of people who have nothing whatsoever to do with terrorism.

Do you think that the definition of what constitutes a terrorist act, for purposes of the bill, will adequately allow CSIS to supply the Solicitor General with intelligence based on fact and, so doing, avoid any abuse or errors - that you yourself have noted - when the Solicitor General does, as he will be called upon to do, draw up that list?

Ms Gauthier: I would remind members that the Security Service works under a mandate granted by the act establishing CSIS. The present bill modifies only slightly the definition of what constitutes a security threat to our country. This amendment is intended to broaden the concept of threats due to terrorism. It introduces the idea of religious and ideological motives.

This means that you are to a degree extending the Security Service's ability to act since, in the previous version, only political motives were mentioned. Today, religious motivations are included. Very often, these various terms are in any case very closely connected. The legislative provisions concerning the Security Service in particular bring no great change to the mandate as it presently stands.

The definition of terrorism included in Bill C-36 is much broader, but it is much more directed towards agencies such as the RCMP rather than the Security Intelligence Service. I am in broad agreement with what you say but these concerns are long-standing and our committee will be there to review what goes on.

Senator Bacon: Should we not be providing a certain number of yardsticks that CSIS could use to avoid having the names of innocent people end up on that list? Are there any standards that might be useful for this?

Ms Gauthier: If we provided yardsticks, I think we would end up curtailing their intelligence-gathering powers and impeding their work. It is a matter of experience, of ability and of judgment. It is sometimes very difficult to make that judgment because it is not always a very clear line and the situation is not always black and white. That is why there is an agency like ours whose task it is to review what is being done. The act has been around now for at least 15 years and the powers that are entrusted to the Service seem to have been properly exercised. This leads us to think that the existing safeguards are working and that they can continue to work in an acceptable and reasonable manner.

Senator Bacon: Is it necessary, in order to gather the intelligence needed to arrest terrorists before they commit a crime in our country that CSIS no longer have to prove that electronic surveillance or wiretaps are being requested as a last resort, as is presently the case?

Ms Gauthier: This part of the act, this rule applies more to the Mounted Police than to the Security Intelligence Service.

Senator Beaudoin: In your brief, you state the following:

[...] I believe its [the Committee's] work is a vital part of the framework established by Parliament, to balance the need to protect both the state and the rights of individuals.

I fully agree. I wonder, however, if that balance has not been somewhat altered in the case of private communications, in the sense that private conversations should not be subject to electronic surveillance without a warrant. In its judgments, the Supreme Court has been pretty much unvarying on the matter. I know of at least four cases where the court has ruled that you cannot listen in on private communications unless authorized to do so by a judge. This bill is somewhat more intrusive and enables the minister of National Defence, in international matters, to grant that authorization instead of having it granted by the courts. This appears to me, on the face of it, to go against the balance of powers, that is to say the power of Parliament, the power of the executive branch, and the power of the judiciary. What is your thinking on the amendment thus put forward in the bill?

Ms Gauthier: The Review Committee is principally concerned with CSIS and security matters and in that regard the bill does not really change things very much. The Security Service still has to obtain a warrant from the Federal Court before launching an investigation. You are probably referring to the Communications Security Establishment, which does listen in on conversations without having to obtain a warrant. In that regard, the new legislation does not really bring about any changes with respect to the Canadian Security Intelligence Service.

Senator Beaudoin: Do you mean that your agency still must apply for a warrant?

Ms Gauthier: Yes.

Senator Beaudoin: In all cases?

Ms Gauthier: Well, it depends on the level of the investigation and the type of investigation it is. In order to do a communications intercept, the service is required to apply to the Federal Court for a warrant. We do not come into it at this point, but we do review all the documents filed with the court when applying for a warrant, to make sure that all the facts put before the judge are congruent with what the Canadian Security Intelligence Service has in its files.

Senator Beaudoin: I recognize the importance of all this in the present circumstances, but in international matters, Bill C-36 provides no procedure before the courts. Everything will be taken care of by the Minister of National Defence. I will be the first to say that one of the main tasks of the minister of National Defence is to ensure the security of the country. I am not so much concerned here with the legislative situation, but I wonder if, bearing in mind the necessary balance of powers, we could not have kept the system we had before, and have people apply to a Federal Court judge?

Ms Gauthier: In trying to balance the security of the country as against the security of individuals, you tend to favour the former. And yet, at the Communications Security Establishment, the commissioner has a role very similar to ours and has to make sure that a certain balance is maintained and that the intercepts are both reasonable and justified. But that is not our work.

[English]

Senator Fraser: Ms Gauthier, while you were delivering your opening remarks, I was whipping through your brief. Allow me to congratulate you on it. It does a wonderful job of conveying a great deal of relevant information in short, succinct, understandable language. Terrific.

I understand from my rapid perusal and from listening to you that you are expecting appeals from people listed only if those people are on the list because of something CSIS has done.

Ms Gauthier: Yes.

Senator Fraser: If they were on the list because of information sent to the Solicitor General by the RCMP or by our embassies or other sources, would they not come under your purview?

Ms Gauthier: We would not have jurisdiction to review their position on the list. CSIS must be involved for us to be able to get the information.

Senator Fraser: I was taken by the description in your brief of the way you have evolved institutional policies, practices and institutional culture to protect the rights of the citizen - the complainant, if you will - while also protecting national security.

Given the desirability of such a culture, and that you already have it, would it be wrong to assume that you would be prepared to assume the mandate if it were given to you for everyone on the list?

Ms Gauthier: Yes, we would be ready to do that, under the conditions that we receive the proper resources to do it. We feel that we have the expertise. The process for hearings that we have put in place was recognized by the Supreme Court of Canada as a good means to get to the point. It also provides a reasonable process for the people appearing before us.

Senator Fraser: Further to Senator Murray's inquiry, I was not sure, from what I heard you say and from what I was reading, whether you thought that ought to extend to examination of the list prior to publication. I can see many practical problems with that type of delay that would have to be built in. Perhaps it should be subsequent to listing, as is now the case, so that you examine complaints after the fact.

Ms Gauthier: Yes.

Senator Fraser: You do not get into prior restraint.

Ms Gauthier: It depends - by coincident we could go into a file and realize there is something wrong, or we could receive a complaint.

We must pay attention to not being in a conflict of interest situation. If we examine the list first and make the full investigation, we would then make a recommendation. If we received a complaint on the same person, we would not make a recommendation unless there were new facts or new aspects that we had not considered. We would be caught by our recommendation. Otherwise, it would be like a conflict of interest because we would have set things before that.

Senator Fraser: It strikes me that timing may be very difficult here. These lists are to enable the freezing of assets. That is the kind of thing you may want to do very quickly.

Ms Gauthier: Sure.

Senator Fraser: If you must go through the entire investigative procedure before a name is added to the list, the assets may be long gone. They may have been transformed into a bomb and used to blow-up some important place.

Ms Gauthier: You are right. How could we review the entire list? For some files, it would be quite easy to do. However, there may be some that would require more time and a more thorough review of all the files.

Senator Fraser: The bill, as it stands, requires that the Solicitor General review the list every two years. I would assume that SIRC would find it an appropriate extension of its current mandate to take on that function rather than the Solicitor General performing the review.

Ms Gauthier: Yes.

Senator Fraser: Would you also find it appropriate to take on the review of other acts affected by the bill, for example, the review of ministerial certificates prohibiting disclosure of information? There has been some concern expressed about that, in particular.

Ms Gauthier: We do not know exactly what our role would be in that area.

Senator Fraser: What I am talking about does not give you any role at all. I understand you want clarification of the areas where you are mentioned. There is a separate clause that states that the Attorney General may issue a certificate prohibiting the disclosure of information on grounds of national security.

Ms Gauthier: Yes.

Senator Fraser: That is what it states, period. It does not mention SIRC at all. Clearly, as the minister herself told us, you can always go to the courts. It has been suggested to this committee that the courts might or might not be able to do an adequate job of examining specific cases. Would you, as matters now stand, be in a position, if you have the resources, to undertake that kind of review?

Ms Gauthier: Yes, we would because we have far more access to all the files than the courts do. We are in a better position to perform the work.

Senator Fraser: How many more commissioners and staff persons would you need to do all of that?

Ms Gauthier: It is difficult to say. It is a little premature at this time because we would require more information to determine that. Perhaps we would need more staff but not more members.

Senator Andreychuk: I would like to know more about how CSIS and SIRC operate. If I understand correctly, SIRC was set up after the MacDonald inquiry to make sure that the laws and the policies that govern CSIS would be adhered to and that there would not be excesses or interpretations that a reasonable person would not make, given the Canadian circumstance. SIRC's role is to review CSIS activities to ensure, to the best of your ability, that it follows the rules, the practices and the act. Is that correct?

Ms Gauthier: Yes, that is right.

Senator Andreychuk: In that, you have no role to make any determinations. You cannot say who is the security risk. In reviewing the files, you determine whether the proper tools have been used. It is not a matter of trying to substitute your own opinion for that of CSIS, but rather it is a matter of ensuring that it adheres to the rules. Is that correct?

Ms Gauthier: Yes, we ensure that it is adhering to the rules, and at the end of an investigation, we make recommendations. We also report annually to Parliament and so our report is public. Sometimes, if we are not satisfied that our recommendations have been followed, we report, publicly, in our annual report.

Senator Andreychuk: Is there also a continuance of an internal review mechanism within CSIS, the Inspector General?

Ms Gauthier: Yes, there is the Office of the Inspector General within the Department of the Solicitor General. The Inspector General is supposed to be the eyes and the ears of the Solicitor General. He reviews the day-to-day operations of the service and ensures that the minister is apprised of the activities.

Senator Andreychuk: I am having difficulty understanding how you interpret section 54 - that you could, in fact, vet the lists. As I understand it now, CSIS will have concern about someone in issues of security, whether it falls under the Immigration Act, whether it is a terrorist activity, whether it is for refugee status or what have you. You will review it. However, at the moment, those names do not become public the way they will if this bill is passed.

Ms Gauthier: We have access to all CSIS files and access to all its documents. If it compiles a list, we will have access to that list. Then, we can prepare a special report for the Solicitor General under section 54 of the act.

Senator Andreychuk: Are you suggesting that this may be an appropriate way to function?

Ms Gauthier: Yes.

Senator Andreychuk: I understand that, at the moment, these lists do not occur. There are internal documents that identify people as risks, but there is no publication of that information.

Ms Gauthier: There are many files that contain information about people who are a risk to the security of Canada. However, they are not on a special list. There are many names of individuals and organizations at the moment.

Senator Andreychuk: I certainly know of people who have complained about known activity against them by CSIS. That complaint has always been, "I do not know what the case is against me, yet I cannot get a job because it seems that someone has talked to me." That has occurred after the fact.

Ms Gauthier: They could complain to SIRC if they are not satisfied.

Senator Andreychuk: That is right. That has been an extremely valuable role and that is the point I am trying to make.

Ms Gauthier: We must also be careful. If a person complains to us, it can sometimes prove to just be a fishing expedition. Sometimes people want to know what the service knows about them and so they come to us for more information. They want to compare their notes to the notes of others. Therefore, we must be very careful.

Senator Andreychuk: Basically, you analyse the matter and it appears that all the rules were followed.

Ms Gauthier: Yes.

Senator Andreychuk: How would you contemplate being able, on a daily basis, which it may take, to be in a position to vet the list that CSIS will provide? At some points, in extreme emergencies, people are added to the list daily. In other times, it might not be for quite some time. However, there are regulations yet to be announced. We do not yet know how the list will be compiled. Do you believe you have the capacity and the mandate to vet the CSIS portion of the list prior to the list being turned over to the Solicitor General?

Ms Gauthier: We will have access to all the lists that it has. I understand this will be an ongoing process and new names will be added and old names will be deleted. We will always have access to these files. We will be able to assess whether it is reasonable for the names of these persons or organizations to be on this official list. We would not change the decision of CSIS, but we would make recommendations to the Solicitor General.

Senator Andreychuk: I realize you will be able to review and I want to underscore how valuable that review is. Our concern is that a name becomes published and a person's reputation, career and life may be at stake if his or her name is published.

Will you be able to look at CSIS' list expeditiously in the time before those names are published?

Ms Gauthier: We could not do that, as the bill is drafted at the moment. The public would like that it to be stated very obviously in the bill that no list will be published before it has been reviewed, or something to that effect.

Senator Murray: However, you do already have that authority. You said so.

Ms Gauthier: We have authority to review, but we do not have control of publication of the list. If it is made public, it is public and then we review. We will always be able to review. It could be public, as Senator Andreychuk said, before it could be completely reviewed.

Senator Kenny: Like Senator Fraser, I found the report well organized. It will assist the committee in noting the anomalies that you have.

I would like to follow on Senator Andreychuk's line of questioning briefly. I would like to have a better understanding of your relationship with CSIS.

The report mentions there is a total of about 15 people on your staff.

Ms Gauthier: Yes.

Senator Kenny: You have a budget of roughly how much?

Ms Gauthier: It is $2 million a year.

Senator Kenny: You talk in the report of supervising somewhere around 35 complaints or 40 complaints a year that you receive.

Ms Gauthier: Yes, but not all of the complaints require hearings.

Senator Kenny: What about the section where you monitor the law with operational policies and with ministerial direction. Could you describe for the committee how that works? In other words, how do you monitor whether these folks are behaving as they should? We are nervous because Mr. Elcock was here the other day and he said that he thought that he had a really good relationship with you. When the person being watched thinks well of the watcher, I get nervous.

Ms Gauthier: It is a healthy tension.

The Solicitor General issues ministerial directives and the service must abide by those directives. We have a research program for the year. During the course of our review of CSIS files, we ensure that it abides by ministerial directives.

Senator Kenny: Could you give us an example?

Ms Gauthier: As soon as the minister issues directives we receive them and we ensure that CSIS abides by these directives.

Senator Kenny: Could you pick an example of one that you have done in the past that would provide understanding of how you function?

Ms Gauthier: CSIS cannot start to do operations with a foreign agency before the minister gives his or her approval for such an activity. It goes on and on. It is a big book of directives.

Senator Kenny: It cannot start an arrangement with a foreign entity before the minister gives approval. You have said that. How do you check to see that it is doing what it is supposed to be doing?

Ms Gauthier: Our analysts go to the location of CSIS, and they have access to all of the files. They review documents, letters, telexes and everything.

Senator Kenny: How do you know you have seen all the files?

Ms Gauthier: I understand your concern in that respect. Sometimes there is a file or letter that we miss, or that was not shown to us. However, if something like that happens, there will be something else in another file that makes us realize that we did not get all of the information. We tell CSIS and it explains the reason. It is a way to keep CSIS on its toes. It knows that if not tomorrow, then next week, we will get all the information. That is certain.

Senator Kenny: When you get to the information, do you always report it or is it sometimes not made public?

Ms Gauthier: We always report or make recommendations, but sometimes it is reported publicly. If you have read our annual report, it is written in such a way -

Senator Kenny: - that we will not understand it.

Ms Gauthier: You will understand it, but you may not be able to know the facts exactly. However, they are there.

Senator Kenny: In your report to us, you made a point of underlining, on page 2, that SIRC does not review security and intelligence activities. You list the Solicitor General, National Counter-Terrorism Plan, the RCMP, Criminal Intelligence Directorate, the Department of National Defence, Director General Intelligence Division, the Communications Security Establishment, Office of Critical Infrastructure Protection and Emergency Preparedness. The list goes on and on.

We had before us last night a gentleman who reviewed the CSE. He described his function for us. Do all of these other groups that you do not review have review agencies, with the exception of the CSE?

Ms Gauthier: I do not think that they have.

Senator Kenny: Should they?

Ms Gauthier: It is mostly the Office of the Auditor General that reviews its activities, but that may not be with the same eyes.

Senator Kenny: The Auditor General would review for value for money or spending?

Ms Gauthier: It is more that approach, yes. We have said in the past that the entire process of reviewing various organizations that collect information on Canadians should be done by Parliament, and the public should review that. We said in the last two annual reports that there was a need for that. Today we are busy with other matters, but that is still there.

Senator Kenny: Is your position that one agency should review them all or each agency should have its own reviewer?

Ms Gauthier: We could not say that one agency should review all of them. Perhaps that puts too much power in one agency.

Senator Kenny: Is this a matter you discuss? Is this an official view or does Mr. Filmon have views on this?

Ms Gauthier: We are happy to discuss that because it is always of concern to us that the public and the rights of Canadians be protected. Yes, it is of concern. It was and it still is.

Senator Kenny: What do you think, Mr. Filmon?

The Honourable Gary Filmon, P.C., Member of the Security Intelligence Review Committee: To put this into perspective, I have only attended my first meeting at SIRC, so I could not, in any way, be an expert on all of the things that it has reviewed in the past. I will say that, from my brief discussions, there were areas of concern expressed about the disconnect in our ability to review other elements that come under security and intelligence in the country.

Senator Kenny: Finally, to be clear on Senator Murray's point, the review you suggested of on the list under section 54 is a wish list for you. That is not something in the bill, but is something that you would like to have. Am I not correct?

Ms Gauthier: It is not in the draft bill, I agree. However, under section 54 of the act that guides us, access is given to all files and also we can make reports to the Solicitor General under our own initiative or upon request from the minister. We could review the list.

Senator Kenny: How long does it normally take from the start of the review to the finish of a review?

Ms Gauthier: Normally we go as fast as possible. However, that varies.

Senator Kenny: I notice that several slopped over from one year to the next.

Ms Gauthier: There are lawyers involved, and sometimes it takes more time. Normally, it does not take a long time for a review.

Senator Kenny: On average?

Ms Gauthier: If it is a special report like section 54, we put all our capacity on the file and we do our best to go as fast as possible.

Senator Kenny: Which would be roughly how long a time?

Ms Gauthier: It is difficult to say for this particular list because I do not know how many names there will be on it. It is difficult to say at the moment, but we would be prepared to inform you in due time on the amount of time it would take.

Senator Tkachuk: I would like to examine the review process further. You say in Appendix A, page 3, that:

SIRC anticipates that almost all of the groups listed will file complaints with SIRC under section 41 of the CSIS Act in order to (a) obtain more information; and (b) compare the summary of information provided by the judge in the summary -

What happens? Would Al-Qaeda write to complain that it is on the list, or would the IRA complain that it should not be on the list? What is the process?

Ms Gauthier: You are giving me examples that do not require much explanation. However, for a normal file, we would open the file and analysts and people from our department, our committee and lawyers will ask CSIS about everything it has on Al-Qaeda, for example. We would then go to CSIS' office and review everything that it has and take notes. Depending on whether we need a hearing, we will prepare terms of reference because then we must open a fair process for the other party to be involved.

Senator Tkachuk: Could Al-Qaeda have access to that information?

Ms Gauthier: Yes.

Senator Tkachuk: It will get all of the information that CSIS has on them?

Ms Gauthier: No, that is not the way it is done.

Senator Tkachuk: I am trying to find out how it is done.

Ms Gauthier: We prepare terms of reference to make sure that we provide enough to understand the requirement. However, we do not go into the detail of operational activities or facts that would reveal sources or things of that nature.

CSIS would prepare its case. We would then hear the service side of the issue. If the two parties can be there together, then the other party will be there and we will be able to cross-examine the witnesses, similar to a real trial.

If it is not possible to have the two parties present in the room at the same time, then the service would present its facts and our counsel will act as the representative for the party that is not present. We would hear the party, and then we would prepare a resume of what we have heard without divulging sensitive information, but providing enough information so that it will be possible for CSIS to defend itself or to bring forward more facts and explanations. That is the way in which we proceed.

Senator Tkachuk: As an example, CSIS investigated the Tamil Tigers, which was fundraising in Canada. The process you outlined would apply. The Tamil Tigers could come to you and say that it should not be on that list.

Ms Gauthier: Yes.

Senator Tkachuk: It could say that it deserves to continue to have charity status.

Ms Gauthier: Exactly. That will go through the courts, but the organization can always complain to us.

Senator Tkachuk: I would like to return to Senator Murray's point about you seeing the information before it was published. If you saw the information on the Tamil Tigers and it was published, does that hurt the integrity of the system if Tamil Tigers comes back to you afterwards and claims to be unfairly treated by you?

What would happen if you had seen it beforehand? Do you give recommendations that critique whether information is bad or good? Would it hurt the integrity of the process if you had seen the information before the decision has been made?

Ms Gauthier: I mentioned conflict of interest. That would be a concern. Each case must be looked at on a case-by-case basis. However, there is possibility for conflict of interest on our part if we accept, then review and change our position.

Senator Tkachuk: We are all seeking ways to prevent injury, of course. We would like to find it in a less onerous process than what was suggested by Senator Murray. However, we are all seeking ways to prevent injury because we believe that at one time or another there will be groups put on the list that should not be on the list. I wish to ensure that by suggesting this, we do not have our hopes too high so that organizations will be placed on the list in error. It could be a labour union or another organization. If you had examined the process, that could stop it from being addressed.

Senator Jaffer: I wish to understand the process. You talked about guidelines. Do you have any guidelines at all? You said that you did not have guidelines because it would be difficult for CSIS to carry out its work. Do I understand by that that you have no guidelines as to how CSIS operates, in general?

Ms Gauthier: No, we do not have guidelines. We review everything that we can. We review all the documents and all the telexes. What do you mean by guidelines exactly? Perhaps I do not understand.

CSIS does have guidelines. It has an act, first of all, and it has all the directives from the minister and also from its own internal policies. Cabinet has priorities in security intelligence. CSIS abides by that.

We are completely independent. We report only to Parliament. Our guideline is fairness for Canadians, and that is it.

Senator Jaffer: I would like to understand whether you monitor the specific cases that CSIS looks at, or do you monitor CSIS generally?

Ms Gauthier: We monitor generally, but that is too vague so each year we have a program with specific items that we want to review. In the course of the year, if something special happens, we will monitor that more closely.

Also, we hear complaints as they come. That is how we proceed.

Senator Finestone: I would like to review this. As I understand it, we are trying to ensure that we apply rigorous checks and balances to the bill to ensure that the rights of Canadians are protected. The job of SIRC, in a sense, is to ensure that those instruments we are using, such as CSIS and the Solicitor General, are applying the rights of Canadians in a fair and equitable way.

You will be examining the lists of names that are compiled. Is that correct? That is causing some confusion for me. There are two sets of ways in which names of people will be entered on these terrorist lists. Names will be entered by CSIS, with the recommendation to the Solicitor General, and you will have the ability to verify those names. If that is before the fact, we have one set of concerns. If it is after the fact, it is too late.

Ms Gauthier: You mean after the fact -

Senator Finestone: The Statutory Instruments Act states that you will not have the cases gazetted and, you will not know what you do not know. You will not know if a name is on a list or if it is not on a list. How do you know what you are supposed to know? I do not know if that makes sense to you. You do not know what you do not know. If the media or someone else wishes to know why there is a complaint about a specific name, you may not have access to that information because there is no obligation under the Statutory Instruments Act to gazette the information. That may sound like gobbledygook - notwithstanding, that is how I understand it. I require clarification from you, please.

Would one be able to review the name of an individual who has lodged a complaint because his or her name is on a list? In a sense, you cannot look at the information that he or she claims is not accurate because it has not been gazetted and you would have no way of getting access to that information.

Ms Gauthier: You are describing the reason why we think we will receive many complaints. People will want to know if they are on the list. People will complain to us that their names are on the list and should not be. Then the whole process will begin.

Senator Finestone: How will you then access information to verify whether someone should be on the list or has been unfairly targeted?

Ms Gauthier: We have full access to all CSIS files.

Senator Finestone: Perhaps it is a CSIS file, and I did not know that.

Ms Gauthier: It could be RCMP files to which we have no access.

Senator Finestone: Am I right or am I wrong?

Senator Kenny: It is not necessarily a CSIS file.

Senator Finestone: That is right. It is not necessarily a CSIS file. The Attorney General has issued a prohibition certificate, which puts cases, in a sense, beyond any kind of attack or review.

In the United States and in the United Kingdom, we have heard, these names and these certificates are reviewable; in Canada, they are not reviewable. My question is whether you have access, whether they are reviewable by you and not by the courts?

Ms Gauthier: They will be reviewable by the court in the proposed legislation. Why do you say that they would not?

Mr. Filmon: Are you saying that they would be reviewed before they are made public?

Senator Finestone: Yes, there were two points, Ms Gauthier; before the names are listed and CSIS provides the information to the Solicitor General, and after the names are on the list where that prohibition -

Senator Fraser: If I may, my understanding is that we were told that the famous lists will be published in the Canada Gazette.

Senator Finestone: But the information that is on the list or the reason why a name is on the list is not published.

The Chairman: If I may, we are getting into debate. Perhaps we can do that during a break. We have three other senators who would like to ask questions.

Senator Finestone: Essentially, Madam Chair, I wanted to know what strength section 54 of the CSIS Act gives SIRC the right to review when the names have been published.

Ms Gauthier: Under section 54 we have access to all CSIS files, and we can work on our own initiative or at the request of the Solicitor General. The list does not have to be published for us to begin our work.

Senator Joyal: I have a very specific question about the nature and the scope of your capacity to review decisions that could be made by the Minister of Justice, by the Minister of National Defence or by the Minister of National Revenue. I refer specifically to clause 87 under "Access to Information Act" and to clause 103 and the confidential agencies and to clause 105 under "Privacy Act." The bill states that the minister can issue a certificate declaring that information related to either international activities or foreign activities or national defence or security are involved. As such, those agencies, such as the commissioner to the Access to Information or the Privacy Commissioner and the other commissioners, are barred from knowing why the decision was made and what was behind the decision. I understand from your mandate that, if the reason for which the certificate was made does not pertain to CSIS, you have no capacity at all, for any of those commissioners or authorities, to be informed or to scrutinize the decision in a satisfactory way.

Ms Gauthier: You are right, Senator Joyal.

Senator Joyal: You said that you have far more access to the information than the court has. To which documents in particular were you referring where there is a case before the court to which you have greater access than the court?

Ms Gauthier: Those would be the operational files. We can review, for our own satisfaction, all the files in the service's offices. The judge will receive evidence such that he or she will only see what is provided for the court by the CSIS counsel. CSIS counsel will present what any good lawyer would provide. We have far more access to all of the files. We do not care if the file has been presented to us; we see all there is on the particular issue.

Senator Joyal: In other words, in the case of the proposed immigration legislation, Bill C-11, there is a provision for 72 hours in which to decide if a person represents a security risk to Canada and to decide what is to be done. What is the capacity of your service, if a person is denied access to Canada, to review that decision?

Ms Gauthier: Are you referring to the amendment in the new bill?

Senator Joyal: Yes.

Ms Gauthier: We would not be involved there. We are not involved in that new process because it will go directly to the court. Only if the person, within the 72 hours, realized that we exist, he or she could complain to us. Then, we would start our own process. That does not mean it would be ready by the 72-hour deadline. The person would have to know of our existence to complain to us.

Senator Joyal: In other words, your capacity to intervene within 72 hour is limited. You cannot stand a file by saying that you are reviewing it because of some of the information provided. The direction to stand the file comes from CSIS, and as such, the file is under our investigation.

Ms Gauthier: We would not know about all of the cases that are going to court. In our general review of CSIS activities, of course, we would know that special cases were going directly to the Federal Court. We would be inclined to examine these files it to see how CSIS acted in these files. That would be after the fact, but it would give us an opinion on how CSIS acted.

To answer your question on such a person, within 72 hours, there would be no way for us to intervene without that person coming to us.

Senator Wilson: The bill worries me, particularly in respect of the definition of terrorism in the preamble. I will ask a more general question here in the context in which you operate. I would like your comment on this. I am obviously a terrorist, by that definition, and I could be on that list.

Senator Prud'homme: As could I.

Senator Wilson: It is very broad. Clause 83.01 addresses any act in or outside of Canada that is committed for a political, religious or ideological purpose, objective or cause. I have devoted my life to supporting causes, for example, the African National Congress in South Africa to overturn apartheid, which was certainly to disrupt the essential services and overthrow that. I think of my support for the Kurds. I think, domestically, of the interference with essential services that have been undertaken in Canada by teachers and nurses.

Certainly they are illegal acts, but are they terrorism? I am not at all happy with the definition of terrorism that is in the bill, which is so wide that it could capture almost anyone. I would like to have your comments on that.

Ms Gauthier: You are right, it is a very broad definition of terrorism. It would be more cumbersome in terms of the burden of proof to establish compliance with the definition. It will be open to the courts and the lawyers to debate the application of the definition. They must determine if an activity is within the definition of terrorism. There will be debate on that.

We are more at ease and more knowledgeable about the definition of terrorism under section 2 of the CSIS Act, which has been in place since 1984. The definition is not as broad, but it has been applied in a very good manner so far.

I am not defending one definition in comparison to this new definition of terrorism. However, this one is for other agencies, it is not only for CSIS, it has a broader application. Perhaps at this point in time in the history of Canada, the public is prepared to proceed with this definition.

Senator Wilson: Perhaps it is not.

Ms Gauthier: Perhaps it is not.

[Translation]

Senator Prud'homme: I noticed that the five members of the committee are also members of the Privy Council.

[English]

I have asked that question before. I voted against CSIS in 1984. I have never apologized. I thought that we should have modernized the RCMP. That is a long story, and we will get back to that at the end of the day.

I read your brief, and it is very interesting to see the numbers. I wish that this were part of the testimony. However, the number of people who are examining security is high.

[Translation]

You enumerated a list of matters that you do not review. Everyone seems to be working on his own. In security matters, it seems to me that the more agencies you have, the more confusion you have, and the harder it is to coordinate the various activities. This is true in the United States where they have more than 30 agencies and where they ended up with this unforeseeable catastrophe.

My next question is one I have already asked of the security committee. For obvious reasons, you have been sworn-in as members of the Privy Council. To what degree of secrecy is your staff held, I mean the people who are not part of the Privy Council and who provide you with analyses and reports?

[English]

Finally, I join Madam Wilson in being very troubled by page 13, which reads:

(b) an act or omission, in or outside Canada,

(i) that is committed

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

[Translation]

It is so broad that it could include just about anything. All the security services know that and I have never, in the last forty years, made a secret of my support for the Palestinian people.

[English]

For 40 years I have been trying to convince people that the Palestinian question is a very important question. I have lost my energy, but I am still here. Under this definition, you could catch half of those who show up for meetings dealing with the Palestinian cause - a group of people who claim, rightly or wrongly, that they should have their land.

That is only one example. Senator Wilson has named others. That is troublesome for some of the members on the committee. You know them. Senator Finestone is a devoted human rights person. All of my colleagues are strong defenders of freedom. Our job is to try to get the best bill.

I know someone who was told that if he did not co-operate, he and his organization would be put on the list. Is that the kind of Canada we want to develop? I am not too sure. I would hope not. However, this is being done: "If you do not co-operate," and I am quoting exactly, "we will have your and/or your organization on the list."

[Translation]

Ms Gauthier: To answer your first question, all the members of our staff are subject to the Official Secrets Act and have a level-three security clearance. That is standard.

With respect to your second question, now, I fully understand your concerns. People such as yourself should of course debate this type of issue. We live in a free country and it is important that Canadians be aware of this. There must be no change in that regard, but considering the exceptional circumstances we currently find ourselves in, I do believe that measures must be taken and the government has indeed made recommendations to that effect.

People who believe they have been treated badly, or whose names appear on those lists will still be able, I believe, to have those decisions reviewed. I'm not saying that it will be easy, or pleasant, but it will remain possible. Agencies such as our will do all they can to help those who wish to make that sort of application.

[English]

Senator Murray: Madam Chair, I have a request of our witnesses before they leave. It would be helpful, indeed important, if they would provide for us, in writing, a precise indication of what changes they believe to be necessary in the bill to accommodate some of the preoccupations that they have expressed in appendix A. For example, in respect of the Official Secrets Act, they say that the role and the responsibility of their committee is left undefined in the bill. In respect of the Canada Evidence Act, they mention the potential requirement that they would have to disclose summaries of ex parte proceedings could prove problematic. They say that would also apply in respect of the Charities Act and the absence of counsel during an ex parte proceeding. They point out that their designation, for purposes of a grievance under the Public Service Staff Relations Act, in the current wording of the statute that governs them, does not give them jurisdiction to entertain this kind of complaint.

In a nutshell, we should invite them to let us have in writing an idea of what changes, if any, they think are necessary. Also, we might put them on notice that, if the bill passes the House of Commons and if it receives second reading in the Senate and is referred to this committee, we may wish to have them back then.

The Chairman: Thank you, Senator Murray. I agree that would be very helpful to the committee. We would be pleased to receive that information.

Ms Gauthier: We will do that with great pleasure. Thank you for listening to us and for inviting us.

The Chairman: Honourable senators, we are pleased to have with us this afternoon Mr. George Radwanski, Privacy Commissioner of Canada. Please proceed.

Mr. George Radwanski, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Honourable senators, I appreciate the opportunity to speak with you today. There are important issues before us. As you will hear, I wish to enlist your help and your active interest in one aspect of this matter that concerns me a great deal.

I will begin by saying that since I took my position a little over one year ago, I have been saying that privacy will be the defining issue of this new decade. There were many reasons for that, even before September 11. Now, I believe that will be the case more than ever. Privacy, as you know, is a fundamental right, recognized as such not only by Canadian law, but by the United Nations. It is not only a fundamental right, it is a right from which a great many of our other freedoms flow - freedom of speech, freedom of assembly, freedom of expression and just about any freedom you can name.

The challenge we face, after September 11 and the response that obviously will go on for some time, is to ensure that Canadian values and freedoms, of which privacy is a very important one, continue to endure.

I have had occasion to say that this particular terrorist offensive is even different from some other ones. Usually, terrorism is aimed at a particular limited goal, whether it be the replacement of a particular government or independence for a particular area. This particular type of terrorism is really an attack on values - the values of the United States but, by extension, of all western values and freedoms. The quality of our response in respect of self-protection, without sacrificing what is fundamental to our approach to society, is the great challenge we face in all of this.

That being said, I wish to make it clear that, as Privacy Commissioner and as an officer of Parliament, I certainly would not stand in the way of changes or initiatives that must occur to make us safer, even if they have to involve some limitation on the existing right to privacy. By the same token, I would not and cannot, by virtue of my position, acquiesce to any unnecessary or greater than justified limitations or restrictions on the right to privacy.

I believe that any initiative that would seek to limit privacy rights must be considered individually, case-by-case, and calmly and on its own merits. A certain number of specific tests should be applied. Any such limitation on the fundamental right to privacy must be demonstrably necessary to meet an appropriate goal in terms of making us safer or combating terrorism. It must be demonstrably likely to be effective in achieving that goal. The restriction or limitation of privacy must be proportional to the benefit to be derived in terms of security, and it should be demonstrable that no less privacy invasive measure would suffice to achieve the same end.

Measured against those criteria, I must say that, from the perspective of privacy, I find Bill C-36 on the whole - with one glaring exception to which I will come - to be a well thought out and balanced piece of legislation that strikes a reasonable balance between the obvious need for enhanced security and not violating or limiting privacy rights more than necessary.

The exception, however, is an enormous one. It deals with clause 103 and clause 104 of the proposed bill.

I will go back a step and explain that last week I met with the Minister of Justice and requested a briefing, not having seen the bill, as to the directions it would go, particularly with regard to any provisions that would affect privacy rights in the hope that we would have a chance to consult and discuss provisions. If there were anything of concern there would be an opportunity to make those concerns known and try to build privacy considerations into the bill before, not after the fact.

In the context of that briefing I was told that there would be a provision that would enable the minister to issue a certificate prohibiting the disclosure of personal information under the Privacy Act to individuals for reasons of security, international relations or defence.

I pointed out at the time that I do not have, as it stands, the power to order the disclosure of anything. I am an ombudsman. I can only make recommendations under the act. There are, in the Privacy Act and in the new private sector law, very specific exemptions from disclosure for such matters as national security for the materials gathered by an investigative body and so forth.

The response I got from senior justice officials was, yes, that is so, but because my findings, if something is exempt under the act, are subject to appeal and review by the Federal Court, there was at least the hypothetical possibility that the Federal Court could order the disclosure of some highly sensitive anti-terrorist information, and as long as this hypothetical possibility existed, some countries might be unwilling to share sensitive anti-terrorist information with the Government of Canada for fear that a Federal Court judge, somewhere, some time, might order its release.

Quite frankly, I did not think that was a particularly real concern. In fact, in the almost 20 years that the Privacy Act has been in effect, there have only been four instances where a Federal Court judge ordered the release of personal information for which exemptions had been sought.

However, if that was all that was being done, my feeling was that I could live with it in the circumstances. The bill, however, goes far beyond that.

I would particularly focus, in this regard, on clause 104 because that touches on the Privacy Act. The first part, as you know, would amend the Privacy Act through clause 70.1.

70.1 (1) The Attorney General of Canada may at any time personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations, national defence or security.

It is a very general statement.

The next part, which I was not told about, is really interesting.

(2) This Act does not apply to information the disclosure of which is prohibited by certificate under subsection (1).

The first effect of this provision is that not only could there not be disclosure to an individual under such a certificate, but this also removes the possibility of oversight. The Privacy Commissioner would no longer be able to review the material, as we can now. As you know, I am security cleared to the highest level. I regularly have occasion to review CSIS files. My predecessor conducted an audit of the Communication Security Establishment. We are able to examine this stuff without releasing it, of course.

The first effect would be that there could be no oversight, no possibility for the Privacy Commissioner, in a particular instance, to suggest to the minister that perhaps the certificate is too broadly drawn and that perhaps some information could appropriately be released. Nor is there the possibility to review the use of certificates and suggest, without ever disclosing the content in any instance, that perhaps they are being used too broadly or excessively or for reasons that have nothing to do with the stated goals. That is problem one.

Problem two, which is far worse, is that because of the way these provisions are drafted, they could have effects far beyond preventing the release to an individual of any given file about himself or herself.

The bill is drafted to allow the minister to issue a certificate, basically prohibiting disclosure of information, wholesale, by a given agency such as CSIS, the Communications Security Establishment, the RCMP or a Department of government such as the Department of Citizenship and Immigration. It is drafted with nothing to stop the minister, in a worst-case scenario, from issuing certificates for every single agency and department of government prohibiting release of information. I am not suggesting that the incumbent minister has any such plan. However, legislation should not be drafted in a way that permits things far beyond its intended scope.

Were the minister to issue a certificate in respect of all information in the possession of a given agency, this would not only mean that it could not be disclosed to individuals who apply for it and could not be reviewed by the Privacy Commissioner, the bill says that "This Act does not apply-." That means not only the access to personal information provisions do not apply at that moment, but all the provisions of the Privacy Act do not apply, which includes collection, use, sharing with anyone else, and cross-matching.

In the absolute worst case scenario under this legislation, as drafted - and granted, this is the extreme, and laws should not be written that way - it will be possible to repeal the entire Privacy Act by a series of such certificates. The government would be free to compile giant dossiers on every individual, to collect, match and use information in any way it wanted. The government would not even be precluded from disclosing information to anyone who wanted it, including employers and insurance companies, or you name it.

The bottom line, with all respect, is that this is discretion and provision far beyond what is necessary and certainly that bears no relationship to the stated goal of ensuring that the Federal Court could not release information. The bottom line, in that regard, is that we live in a country based on the rule of law and this provision would have the effect of substituting ministerial discretion, ministerial fiat, for law that governs a fundamental right of Canadians. Frankly, it is not justified and it is not necessary, certainly not in terms of what has been suggested now.

My officials and I have developed an amendment that I believe would address this. As soon as the provisions in the proposed law became clear to me and as soon as we had analyzed them, I requested a meeting with the Minister of Justice to discuss my concerns. She could not find the time. I requested a meeting with top officials. Mr. Rosenberg, the Deputy Minister of Justice, was prepared to meet with me on November 1, 2001. I had requested an opportunity to meet with either the minister or the officials in advance of my appearance this morning before the House committee and this afternoon before you in the hope that I would be able to say definitively that this is a problematic provision.

We have had good, constructive discussions. I am confident that the problem was understood and will be fixed. Regrettably, I am not in a position to tell you that.

The amendment that I would recommend - and I believe copies have been prepared and have been passed around - would meet exactly what the stated intention of this was, to amend the Privacy Act, and similarly the Privacy Amendment (Private Sector) 2000 Act, to create new subsections 51 (4), (5) and (6) as follows:

(4) The Attorney General of Canada may at any time following an application to the Federal Court under section 41 or 43 personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.

(5) The Attorney General shall cause a copy of the certificate to be served on:

(a) the person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside;

(b) every party to the proceeding;

(c) any other person who in the opinion of the Attorney General of Canada should be served.

(6) The Statutory Instruments Act does not apply to a certificate made under subsection (4).

This would address the wish to ensure, and give other countries comfort, that there are no circumstances under which this information could be made public by order of the court without enacting a law that, by its very nature, could strike at the very heart of the Privacy Act and of privacy rights.

The Minister of Justice was asked a question in the House in question period today. She responded that the amendment in question gives her very limited powers in very limited circumstances. Regrettably, though I do not doubt that was the intent - or, I hope that was the intent - that is not what the proposed law says. It gives the minister unlimited power in unlimited circumstances. I am here to ask, honourable senators, for your help in ensuring that this provision does not become law in this form.

Senator Beaudoin: I have one question on the proposed amendment. I agree entirely with you, Mr. Radwanski, that privacy is the main concern for us here. I also agree that the Federal Court should be involved. My only concern is with the wording of the amendment. Does "The Attorney General of Canada may, at any time following an application to the Federal Court-" mean that the Attorney General may act before the ruling of the court? If not, there is no protection at all and therefore, the amendment will be useless. Why do you say "at any time?"

Mr. Radwanski: The Attorney General may act at any time following an application. In other words, the moment an application is filed, the minister can intervene with a certificate that precludes review by the court. However, at any time thereafter, meaning that if, for instance, somehow the proceeding starts and it comes to the attention of the minister that this particular case is problematic, the minister could still issue the certificate during the proceedings. It does not have to be only before the proceedings. Perhaps senators would have ideas to refine it further, because I do not purport that this is, or must be, the final word. The point is that if the concern is to prevent review by the Federal Court of sensitive cases, then the legislation must be drafted to prevent review by the Federal Court where a minister issues a certificate, not to prevent oversight by the Privacy Commissioner and not to permit, in effect, the dismantling of the operation of the Privacy Act, quite apart from any action of the Federal Court. That is the intent. That is why, anytime following an application, it can certainly be the moment an application is filed or it could be three weeks into the hearings.

Senator Beaudoin: I am in favour of equilibrium. It is a difficult matter, but it is not bad to have the judicial branch of the state involved because it is a neutral party. Issues of policy should go to the minister, but if there is an issue of law, the court is in a much better position to rule.

Either the court has the power or it has not. If the court has no power, then we do not need an amendment. However, if the court has the power, I am not aware of any precedent where the executive acted before the court ruled. We have access to the court and we ask the court to tell us what the law is and what the Charter of Rights and Freedoms says. We should give it the right to make its ruling. I do not think the executive should intervene at that stage.

Mr. Radwanski: Senators, the difficulty is this: As I said at the beginning, I am not persuaded that this provision is absolutely necessary at all - this entire set of proposed amendments in these clauses.

In nearly 20 years, the Federal Court has actually intervened on review to order disclosure of information on only four occasions. This hardly strikes me as a problem that would require such a drastic measure. However, the Department of Justice may say that it must curb the power of the Federal Court to order disclosure of personal information under the act because otherwise, other countries will not share information with us. I have no basis for knowing how valid that concern is or how serious a problem that is.

If you can persuade the Department of Justice to drop the amendments - clauses 103 and 104 - that is wonderful. My concern is that it is determined that review of the Federal Court, of requests for access to personal information where there is some security, international relations or defence consideration, must be precluded. My attempt was to limit the effect of these amendments to precluding review by the Federal Court. Let us not, above all, end up precluding not only review by the Federal Court, but also oversight by the Privacy Commissioner, and not only oversight by the Privacy Commissioner, but also the operation of the Privacy Act. My worry would be that one not get bogged down in an argument about the power of the Federal Court in such a way as to let this amendment slip through to create far greater harm - to basically gut the Privacy Act.

I am quite sympathetic to the broader point you are making. I am simply being pragmatic when I say that I am not persuaded the government can be brought to wanting to curb the possibility of such information being released. At the very least, I would like to circumscribe these provisions to its stated intent.

Senator Beaudoin: The idea is good, and I will think about it. If I find a solution in alternative wording, I will let you know - but the idea is certainly good.

Mr. Radwanski: The intent is, if the purpose of these provisions is to limit the Federal Court, to limit the Federal Court and nothing else. That is really all I am saying.

Senator Beaudoin: When we address ourselves to a court, I am a bit reticent to say that I will stop it.

Mr. Radwanski: You must be careful that reticence does not lead to the acceptance of this broader provision, which is not as openly aimed at the court, but has that affect and more. That is the problem we face, if you follow me.

Senator Beaudoin: I will think about it.

[Translation]

Senator Bacon: Commissioner, I was saying a little earlier on that one of the things that Canadians most value is their privacy and the right to have that privacy respected and protected.

Certain provision of Bill C-36, combined with those of Bill C-24, make it easier to resort to electronic surveillance. Is the fact of no longer having to prove that electronic intercepts are being used as a last resort, essential to enable CSIS to gather practical intelligence in order to apprehend terrorists operating in our country, or is it too broad a measure, too great a constraint on privacy that does not really improve the safety and security of the population?

I refer here to a briefing note on the anti-terrorist act noting the links with Bill C-24. Do you feel that the time limit provided for electronic surveillance, which is being increased from 60 days to a year, is necessary to the success of CSIS' activities. Is it proportional to the goals that are sought?

Mr. Radwanski: I do not believe these amendments are that disturbing. Whether it is the last resort or the second-last resort, there are times when you want to act in the most effective and the quickest way possible. The fact that it might be or not be the last resort is not that serious an issue.

[English]

There is no question that it is not a limitation. Frankly, it is the most effective way, but not necessarily the only recourse. I can understand the argument in the circumstances we face. It is the same for the situation involving the length of the warrant or "before notification."

I am prepared, again, in the context of finding the right balance, to accept that, in the circumstances we face, if the authorities believe this is necessary and helpful, it does not dramatically change the circumstances. As a practical matter, I am informed that it is not all that difficult in many instances to obtain a warrant if one wants to do so, but it can have built-in delays involving not having the right judge in some instances, to be totally candid. These are provisions that limit privacy, but we have been in an extraordinary situation since September 11 and that does not seem to be improving at this point. I am prepared to accept that a reasonable balance still remains between security and privacy rights while accepting these amendments.

[Translation]

Senator Bacon: Could the Attorney General withhold from the Security Intelligence Review Committee certain information and prevent the SIRC from fulfilling its mandate?

Mr. Radwanski: I beg your pardon, I do not quite understand what you mean.

Senator Bacon: There is information that is currently available to the review committee. Does this mean that the Attorney General could withhold some of the information that is currently available and prevent the SIRC from fulfilling its mandate?

[English]

Mr. Radwanski: I do not think that is what this provision says. However, with this provision in place, the minister could prevent disclosure to an individual under the Privacy Act. Under the Privacy Act, every Canadian has a right to request and obtain access to information that the government has about him or her, and to review it to ensure that it is accurate, except for a list of exemptions which includes national security, and so on. This would enable the minister to prevent that disclosure in the first instance. It is not aimed at other security bodies. On the contrary, it is aimed at the individual right. However, it would also prevent not only that individual from obtaining that information but also the Privacy Commissioner from reviewing whether the certificate is appropriately used, or worse.

The way the second part is worded, where it says that the Act would not apply, could have the effect of giving the government free reign to collect information in ways that would otherwise be prohibited by the act, to use it in ways that would otherwise be prohibited by the act, and to share it and disclose it, who knows where, in ways that would otherwise be prohibited by the act. Such a circumstance would have the effect of making the act inoperative.

Nothing in the bill limits the actions of security acts. As I explained, I now have oversight over the Communications Security Establishment and CSIS with regard to whether they are obeying the law and respecting privacy rights even while carrying out the work which is mandated under law - or the RCMP, for that matter. This bill could remove all oversights and all restrictions that the Privacy Act imposes and give them free reign - for no reason since the Privacy Act is not a threat to security. The Office of the Privacy Commissioner is not a threat to security, so there is no justification for provisions that are drafted as if the opposite were the case.

Senator Andreychuk: You have answered most of the questions I had. Basically, you are saying that there would be no check or balance on the executive exercising this power and there would be no assurance of any privacy being protected for individuals in Canada.

Mr. Radwanski: That is right. I am saying that, for the stated purpose of achieving a very small thing, precluding a repeat of the four times in 20 year phenomenon of the Federal Court overturning an exemption for information - that is, to achieve that limited goal, these provisions give the minister the power by fiat, at the stroke of a pen, to nullify all the privacy protections that Canadians have in their dealings with a government department or agency, or with the whole Government of Canada. Without suggesting that any minister would do that, the fact is we do not normally draft our laws in the hopes that the worst will not necessarily happen or will not transpire. We draft our laws to achieve their stated purposes and to ensure that fundamental human rights that the Parliament of Canada has recognized and seen fit to protect with this legislation cannot be arbitrarily withdrawn by a single individual.

Senator Andreychuk: You have alluded to four cases in the courts. That does not help me unless I know how many applications there have been to the court.

Mr. Radwanski: In all fairness, senator, I do not have that information, but I can try to get it for you. We did a quick review. There is not a large number of these applications. Normally, people apply to the Privacy Commissioner when they have been refused access to their personal information. If the request has been refused on the basis of an exemption because it is in one of the exempt banks, I have to inform them that, because of a certain provision being invoked, I cannot even confirm whether, in fact, there is information about them or not. I can only tell them that if there were such information, it would be exempt from disclosure under such-and-such a provision. I have to tell them that, having reached this finding, if they wish, they may turn to the Federal Court for review of this finding.

Senator Andreychuk: If we go back to your annual reports of the Privacy Commissioner -

Mr. Radwanski: I suppose it would be possible to calculate. There is not a large number of these cases because it costs money and the chances for success are very slim. The four cases that I cited are quite limited disclosures. Usually there is only a partial disclosure or a portion of the information that was really not sensitive.

Senator Andreychuk: I found your opening statement rather compelling as to how a government should go about intruding on privacy by taking the least intrusive method in curtailing rights and freedoms.

We have known about terrorism for a considerable time, although perhaps we have not reacted to it by way of legislation or otherwise.

The minister came before us and said this was not an emergency. She was not asking for this legislation because of an emergency situation, thus characterizing these changes to the Criminal Code and the consequential amendments to all these acts as an ongoing need. Would you have a different opinion if it were characterized as an emergency?

Mr. Radwanski: I would not, senator. It is an interesting issue. I know there is debate about sunset provisions versus review.

Senator Andreychuk: I am thinking more along the lines of the Emergency Measures Act and the War Measures Act versus the ongoing need to deal with terrorism.

Mr. Radwanski: The government could have invoked the War Measures Act and curtailed everyone's freedoms.

Senator Murray:The act does not exist any longer.

Mr. Radwanski: The government could have passed similar legislation that would have curtailed everyone's freedoms, but it chose not to do that.

Do we face an emergency situation? It is, only to the extent that people are crashing airliners into tall buildings and other persons unknown are doing regrettable things with anthrax. Who knows what will happen next? Sure, it is an emergency situation. However, when we have cause to be frightened and to feel uncertain about what happens next, it is all the more important to reaffirm our commitment to our core values. We will say "Yes" to doing what it takes to make ourselves safer as that is reasonable, not simply to make ourselves feel safer with extravagant though ineffective measures, and certainly, we will not devour ourselves wholesale. We will not move away from the very core values of freedom, of which privacy is one, that make our society what it is. That would be a terrible victory for terrorism.

To answer your question, I would not feel differently. Someone would have to demonstrate to me why it is necessary to suspend other aspects of the Privacy Act and why we are safer from terrorism if the Privacy Commissioner who, after all has no powers to disclose anyway, has not the power of oversight and to be able to tell a minister such things as: "I really think you might not need to have the certificate quite this broad," or "Look, certificates are being issued for reasons that clearly have nothing to do with security or international relations or defence."

I do not think this is a great victory for terrorism and I do not think it makes us one iota less safe. It reaffirms our core values. From that point of view, the argument of emergency should never be applied to forget everything and do whatever seems good at the moment, without proving necessity, effectiveness or justification. That is not the way this country operates, and it has not been the way this government has approached this whole matter.

I had really wished, quite honestly, that having brought this concern - which I had hoped was a drafting error - to the attention of the Department of Justice, or to the minister's office, this would have been understood and the department would have offered to fix it. Making changes to the wording would have taken time, but it could have been addressed.

I became very concerned when I did not receive that response, but rather a very vague suggestion to meet sometime to discuss my concerns. The department was open to amendments, but nobody actually said that I was right and that it intended to do this. That concerns me very much.

I hope the assembled intellectual power in this room can persuade the department of the error of this particular approach.

Senator Finestone: The outline that we received from the justice committee states that the legislation, which is an antiterrorism act, is an important part of our commitment to defy and defeat the renewed threat that terrorism poses to all civilized nations, that this legislation essentially parallels the actions of our international partners and that rigorous checks and balances have been included to ensure that the rights of Canadians are respected.

It also states that it meets the requirements of the Charter. Mr. Commissioner, do you feel that it reaffirms core values, as it is drafted?

Mr. Radwanski: It does not in those clauses, senator.

Senator Finestone: Those clauses are found to affect the Access to Information Act, Bill C-6 in respect of the Personal Information Protection and Electronic Documents Act and the Privacy Act. The language is identical in all three cases.

You said something that I think should cause concern. You believe that a certificate of prohibition by the Attorney General could essentially wipe you off the map. That means it could also wipe the Access to Information Commissioner and his responsibilities off the map as well as wiping Bill C-6 off the map. I do not think so. I do not think you meant it to that extent.

Mr. Radwanski: I do not believe that there is any likelihood that the minister would choose to do so. However, the law should not be drafted in such a way as to permit that. The way it is currently worded, there is nothing to prohibit or to prevent the issuing of a flurry of certificates.

The bill does not even say "information about an individual." It simply says "information." Therefore, there is nothing that would, in the proposed legislation, prohibit the issuance of a certificate pertaining to every department.

I am not saying that will be done, but laws should not be drafted in such a way as to permit such a thing. It does not even take the minimal step of saying: "The minister may issue a certificate prohibiting disclosure of information about an individual," which would prevent at least wholesale disclosure. It does not even go that far.

Senator Finestone: Let us suppose that you are dealing with me, an individual, not with a charitable organization. Let us suppose that I discover that my name is on this famous list, along with the name of my colleague, Marcel Prud'homme. That would be quite a pretty scene. We do not agree that we should be targeted on that list. We are good public citizens of Canada, we support all aspects of Canadian life and we appreciate our diversity, our collegiality and everything else. I then go to the court because I want my name removed from the list.The court is not able to clear my name.

As the Privacy Commissioner, should I have gone to you first to say, "Look here, something has happened to me, as an individual, and my rights have been abridged?"

Mr. Radwanski: As I understand the law, as Privacy Commissioner, I do not have any control over who is on a list or who is investigated and in what way by the authorities. However, you could come to me and say, "I would like to see the personal information about me that is held by the Department of Justice, or by CSIS, or by whomever it may be, that leads to the believe that I am on this list."

At that point, there is the option of providing that list, or of invoking national security or the work of an investigative body or one of those other provisions and of saying, "This is completely exempt from release to you." There is no injury test in that. I would know whether or not information is held, but I cannot tell you. In that scenario, I could not tell you that because this provision has been invoked. It ends there.

You could go to the Federal Court - not to clear your name, though - and say, "I am told this is being exempted under security. I want you, the court, to review this to see if I cannot have that information." Very rarely, as I have indicated, has the court chosen to overturn something that is in an exempt bank or something where national security is being invoked. The stated purpose of this legislation was to ensure that even 1 per cent chance would not exist. I can live with that if necessary, but I cannot live with the way this is being extended.

I would like to come back to one thing you said at the beginning, because it is very important. You said that this applies equally to the Privacy Act, the private sector law - I hate using the correct name for it because it is such a mouthful - and to the Access to Information Act.

Senator Finestone: It is short.

Mr. Radwanski: Yes, I know. It is important to draw a distinction between these pieces of legislation in terms of the particular import of this kind of provision as it is drafted.

First, as I have often said - and the Supreme Court has said the same thing; I am not alone in this - privacy is a fundamental human right and access to information is an important administrative right. They are not on the same hierarchy of rights.

Second, in a circumstance of war or of emergency such as we face, it is not abnormal to say that information about what government is doing might not be as readily available as in other circumstances. In other wars we had censorship, and so on. That is very different. Government-disclosed information is a very different matter from information about individuals disclosed to the individual. They are not the same in that regard.

Third, if these provisions were to stay as they are and were to be applied to the Access to Information Act and to the Privacy Act, in the case of the Access to Information Act, if the Access to Information Act does not apply because the minister has issued a certificate, all that happens is there is no access to information. That information cannot be released, period.

If the Privacy Act does not apply because the minister has issued a certificate, a whole lot of other things follow from that, namely, there are no longer inhibitions on actual activity, on the collection, use, sharing, compilation and disclosure of information. The former is passive, the other is transitive. There is a huge set of differences. I would recommend examining these provisions on their merits as they apply to the two acts. It may be that the Department of Justice and the government have different rationales with regard to the Access to Information Act, I do not know. That is not my territory. However, I would urge you to consider the impact this would have on the fundamental human right of privacy.

Senator Finestone: It may not be your territory but you certainly chose to comment on it in the Ottawa Citizen one day. However, I will not go into that.

Mr. Radwanski: Go right ahead, senator. I am not averse, if you have a comment to make.

Senator Finestone: Based on what you just said regarding fundamental human rights and privacy rights, is privacy right a quasi-constitutional right, a constitutional right or strictly a statutory right? That is what I would like to get at.

Mr. Radwanski: We are going a little afield, senator. Certainly aspects of it are covered under the Charter. You have been seeking to make it a constitutional right - and, I would have been supportive of that if you had not put certain other clauses in your bill - but I do not think this is the forum to re-debate your bill.

Senator Finestone: That is not the point. The point is I think I heard you say that you could live with rights being restrained if it were under certain aspects, both in terms of surveillance and in terms of wireless and things of that nature, which I appreciate. In essence, however, you are asking us to examine the privacy right in a different light than Bill C-6, which is also personal information, and access to information, which could be either very personal or not as personal in its impact. Perhaps we could consider whether we could approach it from the fact that decisions from the Supreme Court consider it as being quasi-constitutional. Could that have an impact on how we would approach the issue of the need for a review or revision of that particular aspect in section 70, clause 104?

Mr. Radwanski: Senator Finestone, any approach that leads to the removal of these clauses, with the effect that I believe they would have, I would wholeheartedly welcome.

With regard to Bill C-6, frankly, it relates to dealings with the private sector. There is no way that the same problem exists where the minister could issue a blanket certificate exempting the whole private sector. That would be hard to achieve. I must admit that I was surprised when I saw this being made applicable to Bill C-6 after the briefing that I was given. If the intent, apart from anything else, is simply to reassure other countries that anti-terrorist information will not be divulged by order of a court should those countries provide information to the Government of Canada, then there are not a huge number of instances where foreign jurisdictions, for example, would be sharing this kind of sensitive anti-terrorist information with Radio Shack or Wal-Mart. I have difficulty understanding what this provision has to do with anything when it is applied to the private sector in Bill C-6. By the same token, I find it a bit pointless, but I do not find it as alarming as I do when it is applied to the fundamental privacy rights with regard to government collecting information and using it, compiling it and disclosing it.

Senator Finestone: Before this was written, were you consulted or were you just asked to see it after it was done?

Mr. Radwanski: I met with the minister last week.

Senator Finestone: Was it already drafted?

Mr. Radwanski: I presume so, but not finalized. I asked for an opportunity to be briefed on the main provisions and to have a chance to express any concerns before it was finalized, approved and disclosed. I was given what I had hoped was a candid briefing. However, there was certainly no reference to the provision that the act will not apply, so it came out at the other end of the process. Once I digested it and understood what was being done, it came as something of a surprise, to put it mildly.

Senator Murray: I admit that my instinct in these matters generally is to cut the authorities some slack. We might as well face it, we will have to trust them to a certain extent - that is, trust in their judgment and in their integrity. However, one draws the line where there are provisions that are repugnant to natural justice. One such is the process, or lack of process, which is envisioned for the compilation and publication of the famous terrorist lists.

In the case before us, Mr. Radwanski, there is due process in your act. To summarize, if a person is denied information from the government, that person can invoke due process in two stages, as I understand it. The first stage is to go to the Commissioner, and the Commissioner can examine it, hold a hearing and make a recommendation. You cannot overturn, on your own authority, the decision that the minister has made, but you can make a recommendation. If the person involved has not obtained satisfaction in phase one, then he or she can go to the Federal Court. I take it that the Federal Court does have the authority to strike down the decision of the minister.

Your proposed amendment would restore phase one, but it would let the Attorney General cut out phase two. In other words, the minister could issue a certificate at the time of an appeal to the court and say, "No, this is it."

I am not necessarily opposed to your amendment. I think I would support it as far as it goes. I would like a better explanation than I have received as to why it is necessary, in the interests of security, national defence and international relations, to cut out the appeal to the court. My first thought was, "Oh, well, the proceedings are not public." However, I see that, under your act, where there is an appeal to the court, ex parte evidence can be received, in camera hearings held and the rest of it.

I suppose it is natural that you would consider your own prerogatives first and restore them. That is fine. I support that.

Mr. Radwanski: That is a cynical view, senator, and rather unkind.

Senator Murray: I do not mean to be unkind. I do not like the idea, as I said yesterday, of the Privacy Commissioner and the Access to Information Commissioner and others simply being cut out this way because it is not necessary to do that.

Why would your amendment enable the Attorney General to cut out the court process?

Mr. Radwanski: Let me return to first premises, senator. This is not my idea. It is not for me to defend - and I do not wish to defend - the government's reasoning in this. I can only tell you how it was explained to me last week. The reasoning was this: CSIS or the RCMP receive from the Government of France, for example, very confidential information, maybe from highly sensitive intelligence sources, that Mr. Bin Laden, who lives in Toronto, is a dangerous terrorist. The agency has that information and governs itself accordingly. Mr. Bin Laden, who lives in Toronto, requests to see the file that CSIS has on him. His request is denied. He comes to me. The exemption for national security is invoked. I tell him I cannot tell him whether CSIS has a file or not, but if it did, he would not be able to get it because such-and-such a provision has been invoked.

Mr. Bin Laden goes to the Federal Court. The fear that the government cites is that some Federal Court judge might very unwisely say, "I do not care, I do not understand this, give him the file," and in the process may give him the information the government has on him. Theoretically, this could compromise informants, confidential sources and so on. Therefore, there is a concern that if the hypothetical possibility of a judge being able to do this exists, France, in this hypothetical example, may never give us such information for fear it is could fall into the hands of terrorists.

It is not for me to evaluate how real that concern is. I think the chances of a court doing that are small. I cannot evaluate to what extent those concerns have been expressed by other jurisdictions. I have no way of knowing. It is not that it is my idea to say, "Let us limit the powers of the Federal Court." I say that if the government is bound and determined, in the interest of Canadian security, that it must close this "loophole," so be it. However, at the very least, do not, in the process - forgive the cliché - throw out the baby with the bath water. Do not throw out oversight as well, and do not go beyond dealing with individual cases to perhaps enabling blanket exemptions from the Privacy Act to entire departments and do not permit exempting great chunks of the government from the operation of the Privacy Act.

Senator Murray: When you have considered an appeal from a person on one of these cases, are you free to go public with your recommendation? If you make a recommendation that the information be disclosed and the minister, the government or the official still says "no," are you in a position to go public? I would be reassured if I thought you were able to finger the minister or the official who, notwithstanding your recommendation, was maintaining his position against disclosing the information?

Mr. Radwanski: The first aspect is that if the exemption for national security is invoked, the one that is already in the legislation, there is no injury test. Once that is invoked, there is not much I can do. I can try to argue that some parts of the information clearly do not fall within the ambit of that, but that is about it. Could I go public and say the file had been unreasonably withheld? I could - my counsel can correct me if I am wrong. That has not arisen. I certainly could not divulge the contents of the file. I could not confirm that there is a file. That is what the catch might be in that instance. If the provision under which one cannot even confirm the existence of a file is being invoked, then what do I say publicly? Should I say, "If there is a file, which there may not be, then the government should be releasing it?" In that instance, that would not be likely to happen.

More likely, I would, first of all, try to persuade the government - and I am not unpersuasive - to consider carefully what it is doing in a particular instance. Quite often, my office succeeds in whittling down what is exempted. That happens regularly. I certainly can say, systemically, that I am concerned that the use of these exemptions seems to be growing or that they are being applied to things to which they should not be applied. I could do that in a special report to Parliament. I could do that in my annual report. I could issue a statement saying that I am concerned that this is being done. I probably would not do it on the basis of an individual because, apart from anything else, I would probably be violating the individual's privacy right by making his or her circumstance public.

Senator Fraser: Mr. Radwanski, it seems to me that you are troubled on several different grounds. One is the removal of your jurisdiction, another is the hypothetical ability of the Attorney General to issue certificates that would cover whole departments, and another is the absence of proper judicial review. Are those the grounds that disturb you?

Mr. Radwanski: I am truly less concerned about the judicial review aspect. As I said, had it been simply that the minister could issue a certificate that in a given case precludes the court from overruling, I would find that a reasonable balance in the circumstances. If the concern is not about specific cases but the possibility, as perceived by other jurisdictions, that a court would overturn an exemption, then the only way to fix that is to remove the option of oversight by the court, if you follow me.

I cannot disclose. The court could. Therefore, if assurance is needed that it cannot happen, the only way to do that is to have a method of absolutely precluding it, and that is part of where I find a good balance.

My first concern is about the possibility of a blanket certificate.

Senator Fraser: That is what I would like to discuss now, if you do not mind. I have a question. It may be an observation rather than a question, but I would like your response to it.

I am not sure that your amendment as drafted would address the issue of breadth. Would it not be simpler just to say that information, where disclosure is prohibited, must be specific information rather than just any old information? It must be specific information, the disclosure of which would be likely to be injurious to international relations, national defence or security?

Mr. Radwanski: I would go further. Rather than "specific," I would happily make that provision read, "information about an individual." That would prohibit a blanket issue because the information would have to be about Joe bin Laden.

Senator Fraser: One could envision circumstances in which we would be reaching beyond a given individual and where naming the individual might be difficult.

Mr. Radwanski: In this instance, under the Privacy Act, we are talking about access by individuals. This is quite different from a circumstance under the Access to Information Act. Under the Privacy Act only an individual can apply, or demand, in a sense, to see his or her file, subject to certain exemptions. Therefore, it certainly would not be difficult to say that so-and-so's request cannot be met because there is a prohibition. That could be done, I believe. That is not problematic. That would narrow the scope and would certainly prevent blanket certificates. That is certainly a fall-back position on my part.

Even then, though, I do not like and I do not see the need for the second part that reads that in these circumstances the act does not apply.

Senator Fraser: I understand you do not like it, but I have another question. Would you be happier if there were sunset provisions built into this?

Mr. Radwanski: That does not do it for me, senator. I come back to the fact that this does not meet any of the tests that I believe are appropriate for any measure that reduces privacy rights. Necessity has not been demonstrated. It is not demonstrably effective in achieving whatever goal it is meant to achieve beyond preventing review by a judge. The incursion on privacy rights is not proportional to the stated goal, which is preventing judges from overturning something.

Senator Tkachuk: I just have one question. When you arrived you spoke about the minister in question period and a response she gave. Could you repeat what you said, just to make sure I understand what happened there?

Mr. Radwanski: I certainly do not want to go too far afield in trying to report directly what she said.

Senator Tkachuk: I will follow it up myself. I just want to know what you thought.

Mr. Radwanski: She was asked a question about my presentation this morning to the justice committee. She said, to the best of my recollection, that the provision in question gives her limited power in limited circumstances, or in limited situations, and went on to say that she knew that I had testified this morning and proposed an amendment that her officials had not had time to study - I guess they will not have time until at least November 1 when they meet with me, which is a different matter.

She went on to remark to the effect that my presentation reflected the kind of responsible approach that people are taking before the committee and she wanted to thank me, at which point the Speaker cut her off and went to an unrelated follow-up question.

Her point was that this gives her limited powers in limited circumstances. I am afraid, in this regard, my comment to you is: It gives unlimited power in unlimited circumstances with regard to privacy rights.

I would like to take one second to bootleg a conclusion to what Senator Fraser asked me on sunset provisions. If something is unjustifiable and unnecessary and would gut privacy rights and the privacy law for no good reason, then saying maybe in three years we will stop doing something unjustified and unnecessary does not satisfy me in this instance, without reference to the merit of sunset provisions and other matters.

Senator Tkachuk: If we have further testimony that proves you are right on this issue, as I believe you are, then the Minister of Justice does not understand this particular provision of the bill - if she said it is just limited powers.

Mr. Radwanski: I would have no comment on that. It is not for me to characterize the minister.

Senator Tkachuk: I am just asking you - considering that she is putting it forward and she was here testifying. I always suspect that if someone does not understand part, it is possible he or she does not understand the whole.

Mr. Radwanski: She may be referring to the intent rather than the effect.

Senator Tkachuk: I am sure her intent is honourable, but we should not develop tools of totalitarianism in common law anyway. We should, as you say, try to fix the problem with the law and not simply use the courts as an instrument. We should probably keep people away from court, actually, rather than force them to go to court.

Senator Joyal: Taking into account the four tests you outlined in your opening presentation and joined to the fact that there is no declaration of a state of emergency, according to Canadian legislation in that domain - I am thinking of the Emergency Measures Act - and taking into account that it seems, according to what you have alluded, that neither Great Britain nor United States has adopted similar provisions to clause 104, are you of the opinion that this provision is unconstitutional and would not meet the test in the court?

Mr. Radwanski: I will not go there, senator. I appreciate the question but it is beyond my scope to offer that kind of constitutional opinion. I have not researched the constitutionality of it. My concern would be, in any event, that by the time it was fully contested in court and a finding reached, if it had the effect that I fear, an awful lot of privacy would have gone down the drain and many rights would have been lost for no good reason. I would, personally, much prefer that Parliament, in dealing with the bill, fix this problem rather than hope that it will tested by the courts in a process that might take two years. I do not want to venture an opinion on the constitutionality of it.

Senator Joyal: Sooner or later, if the bill stands as it is written, in relation to that provision, the constitutionality issue will remain open. Taking into account that privacy rights have been found by the Supreme Court to be protected by the Constitution of Canada, at the point in time of testing, the court would be seized of such a demand.

Mr. Radwanski: That is certainly possible. Were that to happen I would not be shy in participating in such a court action. My office has gone to court on a number of issues, but I would prefer to have this fixed in the first instance.

I have another set of thoughts and they are probably not constitutional, as such, about the extent of this provision in a worst case scenario situation. If there were to be issuance of blanket certificates that would, in effect, make it possible to nullify the whole Privacy Act and to practically repeal it - I do not know about the constitutionality, but there are senators here who are experts in these matters - it certainly would not strike me as good parliamentary practice to have a law that would give a minister, by ministerial fiat, the effective power to repeal a piece of legislation duly passed by Parliament and to basically remove a fundamental right of Canadians by the stroke of one individual's pen. That does not strike me as the way our laws are supposed to operate.

One would have to seek an opinion as to whether it is constitutionally prohibited in a parliamentary system. It may not be prohibited, but as a long time student of government, I will certainly not counsel it as a way to make laws.

Senator Joyal: Did you review the U.K. legislation in respect of the exemption that is given regarding the exceptions for the protection of international relations or national defence or security?

Mr. Radwanski: I have not had the opportunity to do so yet, senator.

Senator Joyal: Could you do that for us and return to us in the next few days so that we could have an idea of how Britain has been coping with the balance that has to be struck between what an individual has as protection and what the state has as the right to protect its security and its democracy?

Mr. Radwanski: I would be glad to do that, senator. I will provide my findings to the committee. I would add the caveat, in any event, that British privacy law is not exactly the same as ours. Britain, has more than 2 million surveillance cameras observing people as they go about their lives. We do not have that, thus far, and I certainly have views on that. Certainly, we have not gone down that path.

If I find in this review that Britain is showing a low degree of privacy rights in this respect, that would not entice me to consider this provision any more necessary, but I will be happy to report back.

The Chairman: Senator Beaudoin, do you have a final word?

Senator Beaudoin: The right to privacy is constitutional. We have many such cases before the Supreme Court. As Minister McLellan said at the outset, no right is absolute. The whole debate for this week is probably, to a certain extent, about section 1 of the Charter. To what extent can we restrict a constitutional right while maintaining regard for circumstances?

The Supreme Court was very generous towards the constitutional right of privacy. There is no doubt about that. If you wish to defend clause 104 and claim in court that it is constitutional because the restriction is reasonable in a free and democratic society, you will win the case. However, it is quite an onus to establish that such a restriction is demonstrable in a free and democratic society. Obviously, it will be the argument of the Government of Canada. Only the court will decide in the last round.

Mr. Radwanski: My hope, senator, is that the legislative process will engage this issue and that on this particular point we will never have to find out what the courts would will do. In one way or another it is relatively easy to fix without having to get into that situation.

The Chairman: Honourable senators, I wish to thank the witness before us, Commissioner Giuliano Zaccardelli of the Royal Canadian Mounted Police, who has made a special effort to be here today. He is on his way out of the country the minute he steps out of this committee hearing tonight. I understand you have a brief statement. Senators will then respond with concise questions and, hopefully, everyone in the room will have a chance to ask their questions and get your equally concise answers before you have to leave. Please proceed.

Mr. Giuliano (Zack) Zaccardelli, Commissioner, Royal Canadian Mounted Police: Thank you for the opportunity to be here tonight to discuss Bill C-36, the proposed anti-terrorism act tabled in the House of Commons on October 15 of this year.

My remarks will be brief but will highlight three important messages: First, the RCMP is taking a measured and sustained response to terrorist activity; second, the proposed legislative change will enable law enforcement agencies such as the RCMP to continue to fight terrorist activity in a balanced way; third, all that we do at the RCMP is consistent with Canada's legal framework and the values that Canadians cherish.

The RCMP is taking a measured and sustained response to terrorist activity. Before I speak to you about the RCMP response to terrorist activity, let me begin by setting the stage. What is terrorist activity? Terrorist activity is indiscriminate, global in scope and destabilizing in effect. Those who carry out terrorist activity have no respect for human life. They will stop at nothing in their effort to achieve their goals. Terrorist activity is carried out by groups and individuals willing to commit suicidal acts of mass destruction against innocent civilians. They think nothing of strapping a bomb around their waists, detonating it and themselves in a location strategically selected to result in the greatest possible loss of life and destruction of property.

Terrorist groups are intricate, complex, sophisticated and clandestine criminal organizations. Terrorist groups have long term goals: To infiltrate and assimilate into society and establish individuals with sleeper roles.

Terrorist activities pose an extraordinary threat to society, as evidenced by the tragic events of September 11. The fight against terrorist activity calls for extraordinary action. Since the tragic events of September 11, the prime objective of the RCMP has been, and will continue to be, to ensure public safety. There has been a heightened awareness of the need to remain vigilant. That heightened awareness remains solidly in place at the RCMP since the attacks on Afghanistan and Afghan positions by American and British forces that began on October 7.

Our actions do not stop at awareness and vigilance. What has the RCMP done? Post-September 11, the RCMP initiated a full-scale domestic investigation to determine if there is any Canadian involvement in the events of that tragic day. This includes an effort to determine if there are threats to Canada, either from within the country or from outside Canada.

In addition, task forces dealing with the events of September 11 have been established in key locations around the country. Investigative efforts are also underway in an attempt to ensure that terrorist funding is cut off. These investigations are transnational in nature and require a co-ordinated international effort by law enforcement. As a result, the RCMP is working closely with national and international partners in all of its activities. Since terrorist groups are intricate, complex, sophisticated and clandestine criminal organizations, our investigations will require long term, intensive efforts.

Our measured and sustained response was further bolstered on October 12, when the Government of Canada announced new funding to assist the RCMP in its work on anti-terrorism. The RCMP received $59 million for new measures that will strengthen Canada's ability to prevent, detect and respond to existing and emerging national security threats. The RCMP is pleased that the Government of Canada has provided this additional funding.

As I told the Standing Committee on Citizen and Immigration last week, this money is helpful and the RCMP could use even more resources.

In terms of working with our partners on the domestic front, we have put into place concrete activities to ensure that our partners are in the loop on law enforcement initiatives with regard to terrorism. For example, in every province and territory where the RCMP is the police force that provides provincial policing, we have briefed all of our respective counterparts at the provincial and municipal levels, policing and political authorities. These regional initiatives include regular briefings of provincial departments of justice, police services at various levels and briefings to municipal mayors, provincial emergency measures organizations and airport authorities. We are constantly sharing information with our partners as well as evaluating the national security situation and modifying needs according to the circumstances at hand.

We are also working very closely with the Solicitor General to contribute to the national security committee headed by the Minister of Foreign Affairs. We are providing advice and intelligence on how to best ensure public safety, and we are sharing information and intelligence whenever we can with our international partners. In all circumstances, we feel we have done what we can to heighten vigilance, readiness and response capacity.

Some people say that Canada already has a strong legislative framework and enforcement capacity to deal with terrorist threats. It has been our experience, based on our investigation into the tragic events of September 11, that is not true. Notwithstanding our efforts, it has become evident that there are significant obstacles preventing law enforcement organizations such as the RCMP from detecting, deterring, and destabilizing terrorist groups. Traditional investigative tools are inadequate in some cases. It is our view that Bill C-36, the proposed anti-terrorism act, will make a significant contribution to the ability of law enforcement to fight terrorism in this country and abroad.

More specifically, Bill C-36 will criminalize terrorist financing, establish a procedure to freeze, seize and forfeit proceeds for and proceeds of terrorist activities or terrorist groups. It will enhance our ability to protect sensitive information. It will create new investigative tools and allow for preventive arrests when needed to address the serious threat posed by terrorist groups and those who would carry out terrorist activities. It will establish a means to identify and list terrorist groups.

The draft legislation proposes limits to be placed on the activities of police, and as exists now, police actions are subject at all times to the limits placed on them by the Charter of Rights and Freedoms.

To sum up, I want to underscore that the RCMP is supportive of Bill C-36. Not only does Bill C-36 provide the necessary tools for law enforcement to combat terrorist activity, it also provides important safeguards to ensure that the exercise of these powers is not solely at the discretion of law enforcement officers. You have heard me say many times that the RCMP role is to uphold the law and to strike a balance between the protection of society and respect for individual rights. We constantly strive to ensure that how things are done is as important as what is done.

Our behaviour, as an organization and as individuals, must at all times be based upon integrity, honesty, professionalism, compassion, respect and accountability. Our values must respect those of Canadian society, and I believe that they do. We will not abandon this important goal.

Thank you for the opportunity to share the RCMP's views on this proposed legislation with you today.

I will now answer your questions.

Senator Kinsella: Commissioner, it is good to see you. We go back a long way in the province of New Brunswick. We miss you very much down there.

Is there anything that is not in the bill that the RCMP would like to have in the bill?

Mr. Zaccardelli: As a law enforcement officer, this is a good package for us. In my time as a police officer, I am not sure that I have ever seen a better package of initiatives or changes to the law, so I am very pleased. That is not to say we could not have got more, but I am extremely pleased with this package.

Senator Kinsella: That is very helpful, Commissioner. In your opening remarks you described the bill, and the approach of the RCMP, as "a balanced way." Would you explicate a little bit what you meant by "a balanced way?"

Mr. Zaccardelli: In the RCMP we have a philosophy that we call the measured response. The measured response means we start by speaking to people, and move up the ladder, the continuum, until we use force as an absolute and last resort. We talk about that continuum.

In my view, prior to September 11, we would never have been discussing this type of legislative amendment in this country because that was not required prior to September 11. However, the world changed on September 11. The circumstances have changed, and I think what we are doing, through the bill, in this country is trying to find that balance of ensuring that we protect and respect people's rights in our liberal democratic society as much as we can, while also trying to provide law enforcement agencies with the necessary tools to do their work in a very balanced way. Nothing that police authorities get should be given automatically. It should be earned. It should be a last resort when we make these types of changes. I have said this publicly many times. I believe this is a balanced response to the situation we face.

Senator Kinsella: I think it is clear to everyone that these new circumstances require new ways of thinking. Therefore, it is important that we think "outside the box."

From the human rights and civil libertarian point of view, of which you have indicated you are extremely respectful, would it be helpful if we were able to come up with a creative way of having some kind of oversight of the powers exercised under this bill, perhaps similar to the way in which the Canadian Intelligence Review Committee provides oversight of the extra powers of CSIS officials? That would not involve micro management but oversight, from the standpoint of providing a creative margin of comfort, from the civil liberties point of view.

Mr. Zaccardelli: I understand the concerns that have been expressed about potential abuses of the proposed legislation. They are legitimate concerns. In my discussions with other police officers and the Department of Justice, we have discussed those concerns. However, this is an extraordinary power for a limited time for heinous activity. It is very important that we remember that. This does not apply across the spectrum of criminal activity or criminal investigative power. This is dedicated and is limited to the most heinous type of activity like that which produced what we saw on September 11.

I understand why the question would be asked or some people might suggest that there is a need for oversight. I do not support that. I believe that would be wrong in our system of law. I believe safeguards are in the system. We have the Attorney General and the courts that will have to approve this every time the police officer acts. The one exigent circumstance is where, in an emergency a police officer may have to act, based on the grounds that are established in the bill, but still must bring a person who may be arrested before the courts within 24 hours. I believe the proper way for police forces or police officers to be directed and held accountable is through the courts. That system has worked extremely well and I believe the safeguards in this legislation bring that balance there.

Senator Fraser: Mr. Zaccardelli, thank you for being here this evening.

I would like to talk about the preventive detention provisions. You act with the consent of the Attorney General, unless it is an emergency. The criteria are that the peace officer must believe on reasonable grounds that a terrorist activity will be carried out and must suspect on reasonable grounds that detention is necessary.

Could you tell us how you interpret these key words, "believe on reasonable grounds" and "suspect on reasonable grounds?"

Mr. Zaccardelli: You have hit an important issue. Obviously, what you have just described is a lower threshold than what we are normally used to in this country. That is why these provisions are considered to be extraordinary. We are in active discussions about what this means because the devil is in the detail, as we know. It is easy to read, but it is how we apply and how we interpret this that will determine how this really works.

We are in active discussions with our lawyers and with lawyers from the Department of Justice to determine what this means. We are talking to our investigators and we will be training and having discussions with them. Obviously, we must have solid information and intelligence. Some of it will be questionable; some of it will not be questionable. We take our best information and our best intelligence and make that determination. That is how our system works. It puts into the hands of the police officer the authority to exercise that, but it has to be exercised on a solid basis.

The threshold is a little bit lower. In these cases, clearly these are not traffic officers who will be applying these provisions.

We will have highly sophisticated officers involved in these types of investigations. Thus, we will have sophisticated officers and a close liaison with the Crowns to obtain direction from the courts. All that will come to bear on what this will mean. Obviously, it will be based on the best information we can possibly have from all sources.

It will be difficult in some cases for an investigator to make that fine distinction, and I would tend to guess officers will tend more to the side of caution in moving on this. That is how I believe that our officers would interpret this.

Senator Fraser: Have you had any cases, without divulging secret information, where a power like this could have been used and where you knew this and you could have brought the guy in?

Mr. Zaccardelli: I cannot give you a case to talk about, but we have never had a September 11, either.

A Senator: There was the Air India disaster.

Mr. Zaccardelli: We had the Air India case, but we did not consider that as anything but a one-off incident. September 11 changed the world, and everything we have done since September 11 has been related to that date. We did not consider days and times in that way after the Air India disaster. I understand the issue, and it is very important. However, September 11 is different from Air India. Maybe we should have acted differently after Air India, but we can only reflect on that now.

Senator Beaudoin: We have a Charter of Rights that applies in peacetime, wartime and in emergency cases. This is why we have a charter. A constitutional charter is of that nature.

We had the advantage of hearing the Minister of Justice speak to us yesterday and we asked her the question: "Is this an emergency measure?" She said, "It is not an emergency measure." That implies that the act will continue for many years. To use the word "permanently" is, perhaps an exaggeration. Very few laws are permanent.

The events of September 11 will be on our minds for a long time. Perhaps the courts of justice would react differently according to whether the measure is considered emergency or permanent. This being said, the Charter exists whether there is an emergency measure, and there is no doubt in my mind.

How would you feel about this if it were to be enacted for many years? Would you react the same way if it were an emergency situation or if it were not an emergency? As a policeman, what is your reaction to that?

Mr. Zaccardelli: When I speak about this, I believe strongly that the Charter must, at all times, be respected without question and without exception. These provisions, although they are extra powers, do fall within the Charter.

My answer is based on the fact that my evaluation of the environment that we face - the threat that we face from this issue of terrorism - is something that, tragically, will be with us for many years to come. Therefore, our laws and tools must have sustainability while we have this threat and this balance. Obviously, we need emergency powers in certain cases, but these powers, I believe, we will need for some time to come.

The types of investigations that we are doing, and foresee doing, will take many years. Many of these investigations are ongoing. We must understand what is going on and follow people who are involved - people who literally can go underground for years and years - and we need that ability to respond. This is a law that I believe we require for a long time to come. I do not distinguish between an emergency situation and a long-term event because every one of these situations can become a huge emergency, whether it be an Air India or a September 11 event. As long as the threat is there, we need the legislation.

Senator Beaudoin: In 1988, we adopted the new Emergency Preparedness Act, which was well received by the Parliament of Canada. Of course, the system is much more refined than the previous system of the first two World Wars and other events, in that sense. Of course, since that time we have enshrined the Charter in the Constitution.

Your answer is that this act will be with us for a long time, perhaps.

Mr. Zaccardelli: Obviously, it will be subject to the political decisions that are taken by elected officials.

Senator Beaudoin: If the government wished to declare an emergency power in Canada, it would be easy to do. It could be done and Parliament would confirm or be against the declaration. Our laws are very well drafted since 1988 in this respect.

In Quebec and in Ontario, we have the RCMP and the two provincial police forces. In respect of this case, what is the intent between the two - federal and provincial - police forces? I hail from Quebec and I always ask that question. It is the same situation in Ontario, but it is not the same in other provinces.

Mr. Zaccardelli: That is a good question, senator. Whenever I travel across Canada, I am often asked about relations within Quebec. What people really mean to say is, "How bad are relations in Quebec." I always tell them that, in terms of law enforcement, the best examples of co-operation and multi-disciplinary approaches and task forces in this country are in Quebec. That is something some people do not realize. The best task forces and the best co-operation among law enforcement agencies are in Quebec. I know that from personal experience.

From a law enforcement perspective, this is not an issue. I refer to my comments that we have task forces on the ground as we speak. We have them in Quebec, Ontario and throughout the country. Law enforcement has responded in a unified way, as we have never responded to any emergency before. That is not an issue. We are actively working on these together, along with CSIS under the direction of Mr. Ward Elcock.

There has been a collaborative effort in Canada that has never existed before. I have never seen it before, senator. I am extremely proud of these efforts and I believe we lead the world in integrated policing. We are a fair example of this. It is working well in Canada, and we can assure Canadians that their law enforcement agencies and security agencies are working collaboratively in the best interests of Canadians.

Senator Kenny: What is wrong with the rest of the country, Commissioner?

Mr. Zaccardelli: There is nothing wrong with the rest of the country, but I wanted to make the point because there is a perception that in Quebec the system does not work. I grew up there, I worked there, and I can tell you that the best examples are in Quebec. Law enforcement is working well, and other issues are dealt with by other people.

Senator Kenny: What is your total budget, Commissioner?

Mr. Zaccardelli: I believe that it is approximately about $2.2 billion.

Senator Kenny: Then $59 million would be considered a drop in the bucket.

Mr. Zaccardelli: We were very grateful for the $59 million, but there is a clear commitment to, and, as we speak, we are discussing, more resources. The government and the minister have publicly stated we will be given more money.

Senator Kenny: In terms of money, can you tell us where it is going? Is it being used for more people or for equipment? Are you focusing on the criminal intelligence directorate?

Mr. Zaccardelli: It is a balanced approach. It is not being used for any one area. A considerable amount, about $30-35 million, will be spent on technology at the airports, improving our infrastructure, improving our intelligence capacity with technology and so on. I believe $5 million will be used to protect VIPs and diplomats in this country. About $10 million will go directly into hiring more people. It really is a balanced approach.

Senator Kenny: Have you had overtime problems?

Mr. Zaccardelli: Yes. That is the other thing. Although we have $59 million, we have an understanding with and an assurance from Treasury Board that everything that we have devoted to this issue - give or take, between 2,000 and 3,000 of my personnel have been redeployed to this issue - all the expenses, overtime and whatever equipment we have had to buy for this will be funded. We have the $59 million but we are also getting extra millions. Obviously, every day the figure goes up. It is not fair to say $59 million. There are other millions we are spending on a daily basis.

Senator Kenny: Even so, people are distracted and you cannot train them. You are missing other things because it takes X years before you have people who can handle them.

Mr. Zaccardelli: We have had to redeploy personnel. It is true that there are certain low-level priority files that are not being done today.

Senator Kenny: How many members do you have, civilian and uniform?

Mr. Zaccardelli: We have in total between 22,000 and 23,000 employees, of whom between 16,000 and 17,000 are police officers. Fifty-four per cent of those are on contract - provincial and municipal. I do not have specific figures, but those are some of the breakdowns.

Senator Kenny: I was leading up to asking you about language capabilities within the force and recruiting visible minorities. How many languages, for example, does the force have the capacity to deal with?

Mr. Zaccardelli: In a city like Toronto, which, if I am not mistaken, is the most diversified in the world, we have to deal with 110 or so languages.

Senator Kenny: Can you?

Mr. Zaccardelli: We cannot. The issue is not whether we can, but whether we have access to people we can trust and use. Obviously, we have to be able to leverage our resources with other resources available to us. That is what we try to do. I do not have men and women who can speak 110 languages.

Senator Kenny: Historically, there has been a problem in communities where people have come from countries in which the police are distrusted.These communities bring that distrust here with them. How do you conduct intelligence if you do not have people who can actually read the papers, speak the language and think the way new Canadians think?

Mr. Zaccardelli: You have identified a very important issue. That is a very important challenge. Obviously, after September 11, we have had to reconsider some of our approaches about understanding certain parts of the world and certain languages in a way we did not before September 11. We are making moves to deal with that. It is a serious challenge, but as part of our process of ensuring that we provide the best possible service to Canadians, we ensure that we have the right resources and linguistic capacities. If we do not have them, we try to get access to them, whether we share those with our partners at CSIS or other departments.

Even our American allies have told us very clearly that they determined after September 11 that they were deficient in some of these areas. It is not a Canadian problem. This is a problem that is faced in all democratic countries.

Senator Kenny: Had you pushed the button on the 12th of September, would it be a decade before you have that capacity?

Mr. Zaccardelli: There is no short-term solution.

Senator Kenny: What do you do in the meantime?

Mr. Zaccardelli: In the meantime, we start today. If I wait until tomorrow, I will be one day further behind.

We have already started. We must have the resources. We have to identify the problem and what we need to respond to it. There is no magic solution. Let us be very clear. Canada is not as safe as it was before September 11, although it is still the safest country in the world. People must realize that.

Senator Kenny: You mentioned there were new tools in the bill. Can you elaborate on what you consider to be new tools for you?

Mr. Zaccardelli: I think preventive arrest and our ability to better protect some sensitive information are key elements.

Senator Kenny: I was wondering if there was something other than the specifics you mentioned.

Mr. Zaccardelli: I believe, as a package, it is a very good bill. It helps us. As a package, all of the tools are good.

Senator Kenny: If I can come back to Senator Fraser's comment, you have talked about a lower threshold, which is presumably in the proposed law at your request. You are having difficulty defining the lower threshold or indicating how it will be implemented. If you are facing that problem, as the agent of the state, how are we supposed to address it in terms of legislation if we do not have any sense of how you will use this lower threshold? If we do not get a definition or a description from you that is more detailed than what we have had so far, how do you expect us to say that this is a good piece of legislation with which to proceed?

Mr. Zaccardelli: Obviously, legislation has to be applied against a certain set of facts. That is what we do. We understand very well what the proposed law says, but it is the interpretation and the application of the law that will determine what the law actually is. That is what the courts do for us. We will do the best we can to interpret the law, in the spirit of and with respect for the Charter at all times, and then the courts will help us to interpret it.

That is the way we always do it when there is a new law. We struggled with the wiretap law when it was brought in. What did it really mean? We do that all the time with new laws. A new law on the books does not mean anything until it comes alive through a case and a specific set of circumstances. We will apply a reasonable test to that law. We will try to understand it in a reasonable way, in terms of what the legislature meant. We will factor that all in and try to interpret the law from the point view of police officers, who are not sophisticated lawyers and have not sat on the courts.

We happen to do that pretty well in this country, compared to most countries in the world. We will do our best to interpret that.

[Translation]

Senator Bacon: Madam Chair, Senator Kenny has already asked one of the questions I intended to ask the witness. I wished to know what the witness felt with respect to the measures put forward in Bill C-36. Some of your colleagues were very pleased when this bill was announced at an international conference on money laundering. One of your colleagues was quite elated at the idea of having drafted 171 pages in just three weeks. Surely this will improve police effectiveness.

We have just heard from the Privacy Commissioner. According to him, it is not essential to our national security that the Attorney General be allowed to deny anyone access to information the government might have on that person. What is your thinking on this?

Mr. Zaccardelli: I am not the one who tabled this bill. I did not draft the bill. I really have no opinion on the matter.

Senator Bacon: You do not wish to answer?

Mr. Zaccardelli: It is not for me to answer.

Senator Bacon: According to this bill, it is no longer necessary to prove that electronic intercepts are being used as a last resort. According to Bill C-36, it is absolutely essential that we be able to gather practical intelligence before the terrorists carry out criminal acts in our country. What is your thinking on this matter?

Mr. Zaccardelli: I agree that you should not have to prove it is only as a last resort before being authorized to use electronic intercepts.

It can be done without the need of any extra steps, that seems important to me. I am in favour of this change and happy to see it included in the bill.

Senator Bacon: Is this a useful tool for you?

Mr. Zaccardelli: Yes. Do not forget that we are only dealing here with terrorism. There is a tendency to think that this provision applies to all aspects of criminal law. In fact, it applies purely to terrorists activities.

[English]

Senator Jaffer: Commissioner, I appreciated your comments on Canadian values. I want to commend you on the leadership that you have shown since September 11. I have seen first-hand, across the country, how your forces have helped to calm nerves. The protection that you have provided around mosques, synagogues and churches has been useful. Concerning last weekend's bombing, we had a police officer on television calming people, saying that people's rights will be looked after and those who breach the law will certainly be punished.

I also want to commend you on sensitivity training during the last 20 years in your force. I wish other groups or organizations would have the kind of sensitivity training that you provide.

Things have changed, as you have said, since September 11. I have been travelling a lot across the country, and many mothers have told me that their children ask, "Am I a terrorist?" because of what they see in the media. One of the greatest problems that people like me worry about is racial profiling. Perhaps the kind of sensitivity that your force has shown may change because of September 11. I would like you to comment on that.

Mr. Zaccardelli: Senator, on the point of racial profiling, we do not do racial profiling. We investigate criminal acts or acts that we believe are criminal in nature. We investigate those acts and try to prosecute those acts as best as we can. We do not consider the person's gender, colour or religion. We simply investigate criminal acts.

We do some profiling. It is not racial profiling. Obviously, in the domain of drugs, for example, we consider certain countries that produce drugs and so on. We consider certain people who might be involved in the drug trade or other contraband, so we try to do that type of profiling. We profile modes of transportation. We never do racial profiling. That is unacceptable in this country. I will never accept that as part of a policy of the RCMP.

Senator Jaffer: That is reassuring. Knowing the kind of work your force does, I accept that. However, I want to bring a concern to you, with respect to profiling. I was with a group of youths in Toronto last weekend that was very concerned about profiling. It may not be racial, but young people say, "We are frightened to walk on the streets because we are worried we will be perceived to resemble terrorists." It is sad to hear that kind of fear in Canadian youth. I bring that concern to you. Would you give us assurance that, with profiling, you will continue the good sensitivity training that you have been practising so that innocent people are not brought under this bill?

Mr. Zaccardelli: One of our activities I did not mention is that we have had a series of meetings with ethnic communities throughout the country to talk about these very issues. I believe there is more that we can do, and we will be doing more. On Thursday, for example, I will meet with the Deputy Minister of Justice and we are meeting with leaders in various ethnic communities to discuss these issues. The proposed legislation is not aimed at any group or class of people in our society.

I understand these concerns and fears. It is part of my job, and part of all of our jobs, to alleviate those fears in our society as much as we can.

Senator Jaffer: Commissioner, you spoke about our allies on the issue of speaking languages. If I may be so bold, I will say that the RCMP is far ahead of its counterpart in the U.S. in the work you have done. That is not giving you too many compliments. You are far ahead of the U.S. where they do not know the difference between an Afghan person and a Sikh. You have done great work in the Sikh community. We are ahead, but I would like to hear from you what other work will we do to make sure that, if not 110 languages, the force can deal with least 50 languages.

Mr. Zaccardelli: You are absolutely right, and that goes back to what Senator Kenny said about need. The world has changed. It is important that we change, adapt and align ourselves to these needs. Obviously, the question of expertise is not just in the linguistic area. We have gaps in a whole series of areas, not just on the terrorist side, but also on the criminal side. In organized crime, for example, there are gaps. As good as we are and as hard as we work, there are always gaps. I strive to close those gaps as best as I can, knowing full well we never close all of them. We strive to make this country as safe as we possibly can.

Senator Jaffer: Have you started any programs since September 11 to help achieve this? Will you be using any of the $59 million to achieve some of these objectives?

Mr. Zaccardelli: We have had meetings throughout the country. I just came from a meeting with my chief human resources officer about recruiting different types of people and making better use of the resources, so we are doing that. However, we are in the midst of a serious crisis. There are limitations on our doing a number the things, but we clearly have to start now. We try to do those things as we manage our way through this crisis. We are doing some of those things.

Senator Finestone: In a comparison of the distribution and responsibility roles of the police force here in Canada, how do you place that in perspective with what is being done in the United States and in France? There was a little exchange during a coffee break here with two of my colleagues, Senators Beaudoin and Bacon. We were discussing France and the success France has had in its approach to terrorism and the fact it has had to be more vigilant than we had ever anticipated we would have to be. Have we lessons to learn from France, and are those lessons reflected in the proposed legislation before us, or as Senator Kinsella asked you earlier, is there something in its legislative mandate and rights and responsibilities that you could add to yours to make that more effective? Could we be France number two?

Mr. Zaccardelli: I just want to be Canadian number one. That is what I want to be.

That is a very good question. I am not a lawyer or a legal expert, but I do know there was serious consideration being given to this legislation especially as contrasted with the American and British legislation, and there are some commonalities and harmonization. Your point is well taken. I believe this issue is bigger than Canada or France or the United States. This is a threat to all democratic societies. What I believe has to take place, and what we are leading to in Canada, is the fact that we must create a truly global alliance for law enforcement. That is what is required because we all face a common problem.

People always ask me this: "Does Canada have enough resources to the deal with the problem?" That is the wrong question. The question should be: "Do the democratic countries of the world have the resources to deal with this common threat?" That is what must be done. There are best practices in every single country. We must harmonize those best practices and create synergies from those practices so that we can defend ourselves against these threats that all democratic countries face. Then we will truly be effective. That is what I am supportive of, that is what I am pushing and that is what I continue to push for. Yes, there are things we can learn from France, but France can learn a lot from us. I will not go further on that.

Senator Finestone: Is there anything that we can do in that regard, as a comment on this legislation, to say that our strength will be in collaborative effort to be effective internationally?

Mr. Zaccardelli: I would certainly not oppose that. One of the things we must understand - and, again, there are people more knowledgeable on this than I am - often the laws and systems that are in place in a country are based on the culture and history of that country. I am leery when someone says to me, "Just take the American system or process and bring it into Canada, or take the French one." That does not work. About two years ago I was talking to French officials about the fact that the world was changing and we had to consider harmonization and working in a collaborative way. The French official said to me:

[Translation]

We are not Anglo-Saxons, we cannot be different from what we are. In France, that sort of thing is difficult to change.

[English]

I said to him, "I am not Anglo-Saxon either. I am Italian by birth, but the world is changing and we have to change in response to the new reality." That is how we come together in this collaborative way. Canada is at the forefront in discussing and leading toward truly creating an integrated global alliance of law enforcement. It can be done. The only thing preventing us from doing it is our own behaviour. September 11 has been a huge impetus for moving in that direction. Out of tragedy has come great challenges and Canada, I am proud to say, is leading the way in responding.

Senator Finestone: I am glad to hear you respond like that because this happens to be the thirtieth anniversary of the Canadian Multiculturalism Act. Senator Haidasz, who brought that into being, can be very proud to see the social experiment that is still evolving in the attitude in Canada, which is far different than anywhere else.

My last question relates to a change that I noted. I am not quite sure if I understand the import. You must get a warrant in order to do a surveillance set-up, wiretapping and/or camera surveillance. I believe the RCMP has certain latitude in terms of time and the kind of approach for which you would go to the bench for a warrant. I do not think you have the same reporting responsibilities that the ordinary police force now has. It has a one year term. I think you have three years and CSIS has three years. The regular police force must advise the party being investigated after the one year period is up. You do not have to do that.

I heard a radio report yesterday, which is what causes me to ask you the question. In the view of a retired CSIS officer, this was one of the worst things that we could do. If you alert parties that you have had under surveillance, albeit by telephone or wire or wireless or whatever, they just go underground and disappear. All the links that they had will run away. What you have as a right and what CSIS has as a right protects the Canadian citizen in a better way and allows surveillance and the building of your documentation or your needed information.

Do you have a comment on that? Should we be addressing the fact that there should not be this kind of difference between the police force and yourselves?

Mr. Zaccardelli: I want to clarify several things. CSIS get its authority under a different act. We deal with the Criminal Code. First, in normal wiretaps for a normal criminal offence under the Criminal Code we have to show that we considered other avenues to try to obtain particular information. As a last resort, we then have to make our case. When we deal with this very specific issue of terrorism, we do not have to go to this last resort and we can apply right away. Normally, for any offence covered under the Criminal Code dealing with wiretaps, we must notify the subject of our wiretap 60 days after the termination of the operation. There are provisions to extend that in normal circumstances to one year.

In this case, when we deal with the specific provisions of terrorism, we will have the luxury of not having to advise for a year and possibly to extend that to three years. The reason is that these investigations tend to be lengthy in nature and the legislation is trying to accommodate the concern that you just raised. Obviously, if we notify too soon, that can have a negative impact. Again, I accept what the legislatures give us as laws and we apply them within the Charter of Rights. If someone were to change that, however, to give us more time, I would not be opposed to that.

Senator Stollery: There is nothing new about terrorism despite the spectacular nature of the events in September. It was pretty spectacular when the U.S. embassy was captured in Iran in 1980 or 1981, and it was taken by surprise. People are always taken by surprise. That is the nature of the game, I guess. However, 16 years have gone by since 310 people, most of whom were Canadian citizens, dove into the Atlantic on a plane that was bombed. So far, no one has been convicted. The families are no wiser now than they were 16 years ago. If this bill had been passed 15 years ago, would we have seen convictions?

Mr. Zaccardelli: Senator Stollery, I obviously cannot speculate on that. I do not know. The Air India case has taken a long time, but it is before the courts right now. The prosecution has taken place. Some people might say it should not have taken that long. I think it speaks to the tenacity and the dedication of a lot of men and women to bring it to trial. I cannot speculate on whether that might have assisted. I honestly do not know that.

What we have done is the right thing in this country. In considering a tragic situation that happened, we are trying to respond in the best way we can. Maybe 10 years down the road someone will examine this and take issue, but we have done the best we can at this particular time, based on the facts that we have.

Senator Stollery: We do have Bill C-36. I would have thought that the RCMP would have been interested in taking its unpleasant experience with the Air India bombing and applying some of the tests to the bill. It is in that sense that I ask this question. I think it is a fairly reasonable question because the whole point of Bill C-36 is to provide anti-terrorist legislation, and the biggest terrorist attack that I can think of in Canadian history was the one against those 310 people.

Mr. Zaccardelli: The Air India situation was part of the discussions and was factored in. However, to speculate on what might have happened had we had certain things does not accomplish a lot. I do not deal in speculation on the past. I have too much to worry about ahead of me. Your point is well taken but I cannot give you an answer to that.

[Translation]

Senator Prud'homme: I support what was said a little earlier on and I am very pleased to see our commissioner here. As everyone knows, I have a deep and abiding respect for the RCMP. I make no secret of the fact that in 1984, I firmly opposed Bill C-10. I was doubtful at the time and my thinking has not changed in that regard.

There are too many police agencies dealing with these important matters and the leadership is too divided. You can try to convince me that the various police agencies are working hand in hand but I know that is not so. There are variances.

You said that the world has changed since September 11th and I believe that is true. You no doubt know that I am currently working on a project whereby I would like the Royal Canadian Mounted Police to be the great force that it is meant to be, that it indeed is and that it should be to an even greater degree in order to deal with these new situations in a quickly-changing world. Soon, we shall have to cancel all the policing contracts signed with the provinces, in order to make the Mounted Police the lead agency everyone will report to. Senator Jaffer, with a great deal of sophistication, mentioned the sensitivity, newly-found if I may say so, of your approach.

I therefore have no fundamental criticism to express regarding these bills. Canada is entitled to defend itself. My concerns lie with the words "an act or omission, in or outside Canada that is committed in whole or in part for a political, religious, or ideological purpose, objective or cause." I am concerned because this is not a clearly-defined concept. Those who will have to deal with these matters will have to demonstrate a great deal of sophistication. This brings me back to the first point I made. I am convinced that the RCMP will have to deal with this.

In your testimony, there is only one thing that gives me pause, that is, your definition of terrorism, these people with bombs everywhere. This reminds me a bit too much of something I have tried to stand up for these last 40 years, I mean the Palestinian question. I do not like to beat around the bush. The police know me.

In 1970, I was best of friends with the commissioner, Mr. Strong, a great man. You know, this requires a lot of sophistication. Where does terrorism start and where does the struggle for liberation begin? Mr. Mandela recently became an honorary Canadian citizen. I agree, it is just that I do not like this way of going about it.

[English]

We have to develop processes. You cannot arrive at a job and suddenly declare someone an honorary citizen. It should be done in an orderly fashion, if it is to be done.

I look at many other names that come up in history. Count Bernadotte was assassinated and also Lord Moyne - who was British - in the Middle East. The people involved in those assassinations became prime ministers and we embraced them - Mr. Begin and Mr. Shamir.

Are you not concerned about this definition? How will we be assured of "a whole or a part for a political, religious or ideological purpose, objective or cause?"

[Translation]

It seems so broad to me that I would like to have the opportunity to think about this a bit more, especially about this particular language.

[English]

Mr. Zaccardelli: Senator, I understand your concerns, but I believe that the application of the law, whether it is through wiretaps or informants or any other way, will be used by us to do our investigations. I will look for people who have intent - people who are intending to commit the most heinous crimes we have seen, in terms of serious violence that is directed towards the destruction of human lives and property in this country, as is defined by this proposed legislation. It will have to be interpreted, without question, but I believe that we have always done well in interpreting legislation. With lawyers and police officers and society as a whole applying our Canadian values, I believe we will be able to determine, in those heinous acts, the intentions of people who are committed to creating such acts, and concentrate on those. It will not stray into dissent, different views or opinions.

People have asked me if someone could have been arrested at the Quebec Summit under such legislation as this. I said absolutely not. Protest, even violent protest that we might sometimes have, does not come anywhere near the definition here. That is the way it will be applied, in my view.

I do understand the concerns. This law takes us where we have never been before. It gives us extra powers, but I believe the safeguards are appropriate. When we have to go to the Attorney General or when we have to go to the courts to be subjected to those reviews, it will be applied in the right way for the right things.

I questioned some of this myself in our discussions, senator, as I believe we must. It should not be easy for police to exercise the powers they have. It should be very difficult in our society and, as Commissioner, I am committed to ensuring that these laws will be applied in a very careful and thoughtful manner against the most serious offences that might take place in Canada. I hope that I never have to apply this law, in all sincerity, senator, but I must be ready to apply it if circumstances require.

The Chairman: Thank you.

The committee adjourned.