Proceedings of the Special Senate Committee on Bill C-36 (formerly the Subject Matter of Bill C-36)
Issue 7 - Evidence (Morning Sitting)
OTTAWA, Tuesday, December 4, 2001
The Special Senate Committee on 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, met this day at 9:35 a.m. to give consideration to the bill.
Senator Joyce Fairbairn (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are beginning the second day of our hearings dealing with Bill C-36, the anti-terrorism bill. This week is the first time this committee has actually had the bill formally before it. We did a pre-study of the bill earlier, at the request of the government, and produced a report with our recommendations and concerns, a number of which were met and have become part of the bill that is before us today. Not all of our suggestions were accepted, and we will hear more about that in the days ahead from witnesses.
Today, we are pleased to welcome representatives of the Barreau du Québec.
If you will, please proceed.
[Translation]
Ms Anne-Marie Boisvert, Chair, Criminal Law Committee, Barreau du Québec: The Barreau du Québec welcomes the opportunity to take part in the committee's proceedings. With me today is Mr. Gilles Ouimet who is also a member of the Criminal Law Committee. The Bâtonnier du Québec, Mr. Francis Gervais, sends his regrets. Unfortunately, he cannot be here to make this presentation on behalf of the Barreau du Québec.
I will get right to the point. Bill C-36 is a voluminous document and we have not had a great deal of time to study it. In our submission to the House of Commons, we expressed a number of concerns and made recommendations, some of which are addressed in the version of the bill now before you. I will attempt to highlight the differences between the initial version of Bill C-36 and the version now under consideration.
The events of September 11 last and their aftermath have given everyone reason to reflect. Clearly, Canada must assume international and national responsibilities in the fight against terrorism in order to ensure the safety of its citizens. The Barreau du Québec does not question the efforts that Canada must devote to this cause.
[English]
The Chairman: Ms Boisvert, I was quite remiss when I opened the meeting today, so enthused was I to have you start your presentation, that not only did I not introduce you to our committee, but I failed to introduce you to all those who will be watching us on television today. I would like to do so now.
Honourable senators, we have before us today Ms Anne-Marie Boisvert, who is the Chair of the Criminal Law Committee of the Barreau du Québec, and Mr. Jacques Ouimet, who is a member of the Criminal Law Committee. I apologize for that and thank you again very much for coming.
Please continue.
Ms Boisvert: Madam Chairman, we are used to being invited to present our position, often with the Criminal Lawyers' Association or the Canadian Bar Association. I would like to stress that the position we present emanates from a consensus within our Criminal Law Committee, which is composed equally of federal and provincial Crown attorneys, defence attorneys, law professors and one member who represents a police force.
[Translation]
The Barreau du Québec continues to be concerned about one thing. The fair balance which we felt had been achieved in Canadian society between, on the one hand, protecting the safety of the public and, on the other hand, protecting the fundamental freedoms of Canadians, seems to have been shaken. The bill makes provision for granting some exceptional investigative powers as well as some extraordinary powers to certain ministers in the area of secrecy.
We have noted that a partial sunset clause has been incorporated into the bill whereby certain provisions would cease to apply after a certain period of time. The Barreau du Québec would have liked to have seen a provision calling for a thorough review of the legislation after five years. The following question was discussed at some length. Is the antiterrorism bill a piece of emergency legislation, or is it destined to become a permanent statute?
Generally speaking, Bill C-36 was introduced in response to an emergency situation. In our opinion, it would have been a good idea to have the option of verifying, after a certain period of time, whether the legislation was indeed on target, whether it provided the appropriate tools and whether these tools were used properly.
The Barreau would like to reiterate at this time an earlier suggestion made to the House of Commons, namely that this remain a special measures statute the provisions of which should not be incorporated into existing legislation. If these special measures were confined to a separate statute, it would be impossible to incorporate them gradually into the Criminal Code.
With an omnibus bill, it could be a simple matter - and I am thinking here in particular about exceptional investigative powers - to add new offences to the list of offences that could be the focus of similar investigations. Confining special measures to deal with terrorism to a separate statute would ensure that these special measures do not find their way into the Criminal Code.
An omnibus bill also disrupts the flow of the Criminal Code by incorporating here and there certain provisions respecting terrorism. Take, for example, special sentencing provisions which will be found in the proposed new section 83.26 of the Criminal Code. In point of fact, sections 717 et al of the Criminal Code also deal with sentencing provisions.
In our opinion, a separate statute containing special measures would be easier to review. It may be unrealistic to expect to review the legislation once its provisions have been incorporated into twenty laws of general application.
Despite the amendments to the bill, the Barreau du Québec still has some concerns about the exceptional powers it confers in the area of detention and investigation.
The proposed new section 83.28 of the Criminal Code makes provision for detaining a person under order for the purposes of conducting an investigative hearing. It is difficult to imagine what a hearing of this nature might look like or what role a presiding judge would be willing to play.
The Barreau understands the temptation to detain persons and to compel them to answer questions. History has shown that forcibly detaining people and compelling them to answer questions under coercive circumstances does not necessarily produce reliable answers.
Furthermore, the bill makes no provision for setting a limit on the length of the detention should an individual refuse to answer questions or fail to answer them in a satisfactory manner. We feel that this could further complicate matters. Henceforth, questions will be asked by an agent, but what happens if the person asking the questions is not satisfied with the answers given? The bill is not clear on just how long an individual may be detained for the purposes of conducting an investigation.
Regarding the arrest warrant that may be sought under the proposed new section 83.29, which ties in with the previous provision, we note that such a warrant can be issued for a wide range of reasons. The criteria applied are quite broad. Indeed, an arrest warrant may be issued when a person fails to attend the examination, regardless of whether the person was duly served notice of the investigation.
The proposed subsection (3) notes the following with respect to release on recognizance:
A peace officer who arrests a person in the execution of a warrant issued under subsection (1) shall, without delay, bring the person, or cause the person to be brought before the judge who issued the warrant or another judge of the same court.
In our opinion, given that persons may move freely within Canada, the bill should provide for an extra-provincial enforcement mechanism.
Thus, if the person in question was located in a province other than the one in which the warrant was issued, as the bill is now worded, that person could not be released on recognizance since by definition, he could not be brought before a judge of the same court. This opens the door to the possibility of lengthy detentions.
More important, regarding the preventive detentions measures set out in the proposed new section 83.2, we note that the amendments to the bill provide for a lengthy period of detention. Originally, a period of preventive detention could not exceed 48 hours. Now, the judge may adjourn the matter for 48 hours, and may do so an unlimited number of times, meaning that a person could be detained under this provision for an extended period of time. Moreover, if in fact the ultimate aim is to grant police officers the authority to resort to preventive detention, then the Barreau would have preferred to see this fact stated clearly. It seems rather odd that a person suspected of a being a terrorist could be thus detained if the ultimate objective is to have the person released on order to enter into a recognizance to keep the peace. The purpose of the act is in fact the accessory mechanism, that is the order to enter into a recognizance to keep the peace, and not the extraction of a promise from a terrorist to behave and keep the peace. We would have liked to see this provision stated more clearly. Moreover, we do have some reservations about the possibility of a person being detained for an unlimited period of time.
The bill does contain a sunset clause whereby these exceptional powers cease to apply after five years. Nevertheless, this is a considerable amount of time. We are concerned about the possibility of abuse in the application of these provisions. As far as the Barreau is concerned, this poses the biggest problem. In our opinion, there is no provision in the bill for properly monitoring police activity, in spite of the requirement to table a report to Parliament. The risk of abuse is significant, while there are few control mechanisms in place, particularly since any information of interest can be excluded from the report.
In essence, these are the comments we wanted most to make. We have not had a great deal of time to look over the new bill, but we will be happy to answer your questions to the best of our ability.
Senator Beaudoin: My question concerns the interpretation of section 1 of the Charter. There is no question that this bill grants additional powers to peace officers, the aim being, among other things, to safeguard our entitlement to live in security. The danger is that in exercising these powers, peace officers may violate the provisions of the Charter.
The problem that presents itself is this: if ever the legislation is challenged before the courts, the latter will be called upon to determine if these additional powers are warranted in a free and democratic society. The Minister of Justice was faced with a choice: either declare a national emergency, which clearly she would have been entitled to do, or bring in a permanent statute, one that makes provision for permanent powers.
If permanent legislation is brought in, rather than temporary or emergency measures, then it becomes important that the legislation contain a sunset clause. This type of clause is not really needed if emergency measures are invoked, because, de facto, such measures are only temporary.
One things does worry me. When the Supreme Court is asked to interpret section 1 and to rule on whether legislation like this is warranted in a free and democratic society, and if it can be demonstrated that there is justification for the legislation, will the Supreme Court rule more harshly if the statute is permanent than it would have in the case of a temporary legislative measure? We are talking about two different scenarios. When a nation is at war and emergency powers, which are always temporary in nature, are invoked, the court is more apt to be lenient in dealing with violations of rights and freedoms. However, if permanent legislation has been adopted instead, the court will likely take a harder line in interpreting section 1 of the Charter.
As a legal expert, are you inclined to draw a distinction where section 1 is concerned, based on whether the legislation is permanent, or merely temporary? Is my question clear?
Ms Boisvert: Yes, it is very clear. I share your opinion, although I would suggest to you that this is not emergency legislation as such, but rather legislation introduced in response to a state of emergency. From the moment this state of emergency is deemed to be permanent, it is clear that the statute must be incorporated into existing legislation and that it must be incorporated into the Criminal Code just as any other provision would be. One can assume that the legislation will be dealt with in the same manner as any other Criminal Code provision. It is more likely that the legislation would be dealt with somewhat differently if, as the Barreau suggests, we were dealing with exceptional measures. However, the moment the decision was made to incorporate these special measures into the Criminal Code and into existing legislation, we can no longer speak of a permanent emergency. I agree with you that the court cannot be more lenient in its interpretation of this part of the Criminal Code than of other parts.
Senator Beaudoin: However, the government has made its choice.
Ms Boisvert: Exactly.
Senator Beaudoin: Which it is well within its right to do. The government is seeking additional powers, powers which are destined to become permanent. We can debate until the cows come home the need for the government to declare in due course a state of emergence, but the choice is the government's to make. If it opts for permanent legislation, then that legislation must contain a sunset clause, and a fairly broad clause at that. That is what we are recommending.
[English]
Senator Jaffer: I have read your paper. As a result, I have a few questions on the definition of terrorist activity. I did not understand what you meant by "economic security." Can you define what economic security is?
Mr. Gilles Ouimet, Member, Criminal Law Committee, Barreau du Québec: We are talking about the proposed section 83.01 of the Criminal Code, which provides for the definition of, notably, terrorist activity. There is a problem in the French version. The English version does not have the same problem. I refer you to proposed subsection (b)(ii)(C), states in English, "causes a serious risk to the health or safety of the public..." and in French:
[Translation]
(C) à compromettre gravement la santé ou la sécurité de tout ou partie de la population.[English]
The problem that was raised is that "securité" in French at (C) has the same term used in (B) above, which includes economic security.
In English, you do not have that problem. Perhaps it is a question of the way it was drafted. The answer to the question could be that when you read the English version "economic security" does not seem to be covered in (C).
If the intention was to put at risk economic security, we were clearly in the realm of work disruption, which was targeted at (E). Our concern was that economic security should not be included in (C), but when you read the English version it does not appear to be.
Ms Boisvert: This concern was more important before the bill was amended because the links with economic activity before the amendment made it clear that some conduct that was not terrorist could be labelled as such. Since the amendment, this point becomes less important. It now looks more like a question of drafting of the remaining portion.
Senator Jaffer: The minister has added another paragraph for greater certainty. I would appreciate if you could comment. Does this help or allay some of your concerns?
Mr. Ouimet: I must admit that I have had difficulty understanding that specific provision. With some effort, I think it reaches the goal of clearly taking out of the definition of "terrorist activity" activities that are not aimed at or for the purpose of terrorism. I admit that I had some difficulty reading it, but it helps, once we understand what it says.
[Translation]
Senator Lynch-Staunton: Your interpretation is quite accurate. You have raised some troubling issues and I hope the drafters of the bill are listening carefully. We have had very little time to examine the proposed legislation. The more we do read it, the more new sticking points we uncover. Recently, I found the same provisions in three different places in the bill, namely on pages 18, 79 and 89. Initially, it refers to listed entities, and later on, to the disclosure of information. I am puzzled by the way in which this clause is worded. In the French version on page 18 of the bill, the clause reads as follows:
Le juge peut recevoir et admettre en preuve tout élément qu'il estime digne de foi et approprié - même si le droit canadien ne prévoit pas par ailleurs son admissibilité - et peut fonder sa décision sur cet élément.
The English version, on the other hand, states the following:
[English]
The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.
[Translation]
First of all, why is the admissibility of evidence left to the judge's discretion? This implies admissibility of hearsay, lying under oath - in short, anything that is considered inadmissable under Canadian law. Indeed, the law is quite specific as to what can be received into evidence. Is this provision really necessary?
Mr. Ouimet: Similar provisions can be found in the Criminal Code. Unfortunately, the proposed section 83.05 will be incorporated into the Criminal Code. In the case of a judicial release hearing, pursuant to section 515 et al, a judge may receive into evidence anything that in his opinion is reliable.
This provision has always been interpreted and applied in such a way as to soften the normal rules of evidence. The problem I had with the provision you quoted is with the following element: "even if it would otherwise not be admissible under Canadian law." I always interpreted section 515 as allowing the necessary evidence to be introduced, provided the usual rules of evidence were respected. Since a judicial release hearing is not a trial, a more flexible approach can be taken.
What purpose does it serve to say that evidence may be received, even evidence that may otherwise not be admissible under Canadian law? Are we then saying that unreliable evidence may be deemed admissible? I see no point in including this. Moreover, I feel it represents a dangerous shift in our evidence policy.
Senator Lynch-Staunton: Do the words "even if it would not otherwise be admissible under Canadian law" appear anywhere else in the current Criminal Code? Or, do we merely find the reference to "reliable and appropriate" evidence?
Mr. Ouimet: Yes.
Senator Lynch-Staunton: I want to be quite certain that this is the first time ever that the expression "even if it would not otherwise be admissible under Canadian law" is used in the bill.
Ms Boisvert: To my knowledge, it is the first time. When the law provides for more flexible rules of evidence, one guiding principle remains in effect, namely that the evidence must be reliable and appropriate. Either the legislator uses certain key words to restate this principle of reliable and appropriate evidence, or he sets the principle aside. In this particular instance, it is unclear. The provision already contains a reference to reliable evidence. Any evidence or information gathered during an examination in which a person is compelled to testify could be considered of questionable value. Therefore, just what this refers to exactly is unclear.
Quite apart from the reliability and appropriateness of the evidence, the reference to Canadian law may also be a reference to the applicable rules for excluding evidence under the Charter, rules which are not often applied during preliminary hearings. Such rules are applied only at trial.
The Barreau has speculated as to the meaning of these words. We wondered if this might mean that pointless or unreliable evidence would be deemed admissible, given that Canadian law would provide for such a possibility.
Senator Lynch-Staunton: We will put the question to the minister this afternoon. I find this to be an extremely dangerous provision. I too feel that it could open the door to a variety of things.
Persons targeted by the legislation are afforded certain protections and have the right to be heard in federal court. I have always believed that judges were leery of getting involved in political decisions and preferred to confine themselves to ruling on whether a minister had acted in good faith or on whether he had made an inappropriate decision.
I am using strictly laymen's terms, but when a decision was strictly political in nature, judges tended to avoid getting involved. As I see it, many of the decisions that will be made will be political in nature and judges will be uneasy about endorsing them. Is my assessment of the courts' role in this matter correct? Are judges more open-minded when asked to render an opinion on such matters?
Ms Boisvert: It seems that we are of like mind on the subject. Generally speaking, when the courts are called upon to evaluate the way in which a power has been exercised, particularly when it flows from a political decision, the criteria applied are very stringent. Judges are extremely cautious when it comes to reversing a political decision.
While extremely limited, the type of control mechanism provided for in the legislation is better than nothing at all, which was what we had in the earlier version of the bill.
We commented on the lack of control mechanisms, but now that provision has been made for one such mechanism, we feel it would take a great deal of imagination to conceive of more minimal controls that we see here.
[English]
Senator Bryden: When you were discussing the protections within the bill, you indicated you would have preferred a sunset clause applicable to the whole bill. You then indicated that the time was too long, that you would prefer a review. It is probably in the translation, but the fact is that the complete review of the act will occur within three years. At that time, Parliament can either repeal the bill or change it in any manner it wishes. Is that a fair statement?
Ms Boisvert: Yes.
Senator Bryden: At the urging of this committee and as a result of our pre-study and hearing witnesses such as yourselves, the issue of continuing parliamentary oversight, whether by an officer of Parliament or otherwise, was raised. In that regard, the bill now requires that the Minister of Justice file an annual report in Parliament detailing the investigative hearings and the preventive detention provisions. That was as a result of something that was requested.
In addition to that, a similar annual report is to be filed by the Solicitor General.
In addition to that, attorneys general and, where appropriate, solicitors general provincially are required and have agreed, as I understand it, to do the same thing in their provincial legislatures.
Finally, if all of that does not act as a safeguard, the most difficult clauses, which impede on our normal rights in criminal law, automatically sunset in five years.
This bill is designed to deal with threats to the security of the Canadian public. In your opinion, is that sufficient? Does it come close to being sufficient? We never get everything we want in this business.
Ms Boisvert: I appreciate that there is now more protection than there was. However, given what can be left out of the report for security reasons, there is the risk that these reports do not say much and will not be very informative. We can imagine a mechanism that would enable, after three years, access to more information about the way the law has been applied.
As I said last week, we in Quebec, at least, are very sensitive about the abuse of power by the police. There is no provision for a yearly report. We do not consider it as sufficient civilian control over the actions of the police. For us, the lack of civilian control over the police is an endemic problem. In this bill, the police are given extraordinary powers that are open to abuse and which we know will be abused. By how much they will be abused, we do not know. However, there will be excesses. That is human nature.
Senator Bryden: Representatives of the Canadian Police Association will be appearing before us later today. I am sure they would think that is quite a categorical statement.
Ms Boisvert: Accidents always happen.
Senator Bryden: I am a former provincial deputy attorney general. I have had the experience of seeing some abuses as well.
These reports are not nearly as perfunctory as you seem to think they are. They will be tabled in both Houses of Parliament. The House of Commons, and clearly this institution, is capable and will, I am sure, bring the Solicitor General, the Minister of Justice and so on to a committee to cross-examine them on the reports and demand further information. We have a right to do that.
I do not think we should leave the impression that all they will do is file a piece of paper and that is the end of it. If that is the end of it, then we have fallen down on our duties and so have the members of the House of Commons.
I wish to deal with the question of forced interrogation. In your brief to the House of Commons committee the question you raised was whether a person in Canada has a right to remain silent. I believe it is the case - and you can correct me if I am wrong - that there is no right to silence in Canada. That is to say, a witness can be compelled in any proceeding to give evidence. There is a right that if he or she does that, then that evidence cannot be used against that person. We do not have, as they do in the United States, a fifth amendment, which says, "I claim my right to remain silent." Witnesses in a proceeding are compellable. However, they are protected so that, when compelled, the evidence they give cannot be used against them. Is that fair?
Ms Boisvert: Yes.
Senator Bryden: I have one question in relation to the judge in the hearing accepting evidence that would be other than what would be acceptable if it were a normal criminal trial.
I have one suggestion and I have no inside knowledge on this matter. Since we are dealing with terrorism and international terrorism, some of the evidence that may be brought forward may be evidence of things that have happened in a foreign country, things that we could not possibly prove. In fact, it could be evidence that you could not introduce in a criminal proceeding against someone who lives in Canada. That is encompassed by this provision. Perhaps other things are encompassed in it as well. I will let you comment on that. Before you do, however, I want to make one other comment.
Not many years ago I was the vice-chair of a committee on security and intelligence. We proceeded on the basis that if we could put the people who would do us public harm in a certain position that they would also do themselves harm, we could prevent such harm from happening. In North America we had never had any experience of it otherwise.
Terrorism in the world has evolved. We are now included in that aspect of the world. This bill must address the prevention of an act, not the prohibition and the punishment of someone for committing an illegal act. If we do that, the act has already been committed and it has been defeated.
I guess I am trying to give a philosophical justification to this aspect. Why do we need preventive detention? In some instances, if you do not have it, you are too late. It would be nice if you could punish the perpetrator and then the next perpetrator would not do it, but then who cares? They are part of the bullet in some of these instances. The same is true with regard to investigative hearings. If there is evidence of a bomb in the Eaton Centre, or wherever, I think we have gone far enough to say we must be able to stop. That is why the air marshals are saying, "You do not worry about trying to land the plane and getting the passengers off. You have to take action that stops the perpetrator."
My final comment is this. I believe that some of these provisions - and in fairness, you have indicated that - have to be read in the context of those really dramatically changed circumstances for Canadians.
Can you comment briefly? I am sorry I was not as brief as I should have been.
Mr. Ouimet: I believe it was in my response to Senator Lynch-Staunton that I raised the point about whether it is admissible in Canadian law or not. The problem is simply that we would need two different wordings to achieve the same goal. One is a current section of the Criminal Code, which serves to introduce evidence that is otherwise not admissible. We agree on that point. Our point is that by using different wording we do not know what it is.
With regard to preventive detention, we could debate whether it should be included or not. The House of Commons is saying that it will be in and this is what it is. The next issue we raise concerns the mechanics of it. When you try to understand how it will work, our point is that it does not really make sense to say that you want to detain someone in a certain manner when the ultimate goal is to have that person sign a peace bond. We are talking about terrorists. If that is the case, then say that you can detain someone for 48 hours, 72 hours or up to seven days, but that is the limit. After that, you must set that person free and impose conditions on that person.
In my respectful opinion, that part is poorly drafted. That is one of our concerns.
Ms Boisvert: There are two regimes here. There is the prospective terrorist and the prospective witness. They are the two people you can detain. As to the prospective terrorist, detention for the purpose of signing a peace bond is something with which we have problems. As far as the prospective witness is concerned, we have concerns with the fact that there is no limit to the detention of that prospective witness.
It is true that we have no right to silence in Canada, but we have no obligation to cooperate. In Canada, the police have no power to detain for investigation. Now it seems that they can do that if there is a judge in the middle somewhere. The judge looks like a substitute for the constitutional rights of Canadians. There is no limit to the detention and we ask the question: What if the person does not answer and what if the answers are not satisfactory to the person asking the questions? How long can you hold someone? These are our concerns.
Senator Fraser: Following directly on from that, I was struck by your argument that a peace bond seems like an awfully limp excuse for something to be driving at here. When I was first exposed to this bill, my initial reaction, too, was: All this for a peace bond? When I thought more about it, it occurred to me that this process is, perhaps, very clever. The first thing you do is pick someone up for a short period of time and in so doing, you say to that person, "We know who you are." Terrorists do not want you to know who they are. They think you do not know who they are. They are not like motorcycle gangs; they do not wear their names on their backs. They really do try to operate in secrecy. If you pick them up, that means not only that you know that Joe Blow is probably up to no good, it means you know he is associating with people. Then you can set a peace bond which may say things like, "You will not associate with those people; you will not go to the places where you were associating with these people."
It seems that is a useful tool to have, not a weak noodle, pointless effort, but a useful tool. I would assume that once they have been through this procedure, the police would be watching them to ensure that they abide by the terms of the police bond.
How does that line of argument strike you?
Ms Boisvert: It is the same point that we made, that the peace bond is a pretext for detention.
Senator Fraser: It is not a pretext; that is what I am arguing with you about. As I read this bill, I do not think it lays the groundwork for repeated 48-hour detentions. It means what it says on the face of it, which is that you must get this process disposed of quite quickly.
I am suggesting that the mechanism of setting the conditions for the way in which this person may behave in the future is not weak; it is a realistic, good and substantial goal. Why would it not be?
Ms Boisvert: These conditions would not be effective for someone who is about to detonate a bomb; perhaps they would be for people who facilitate.
Mr. Ouimet: I do not think that police officers are really looking forward to having someone sign a peace bond as an efficient tool to get the result. I agree that having that person detained for a period of X number of hours is much more efficient. This is our point. The accessory is what they are looking for. If it is urgent, they now have a way to stop and detain someone for a period of one, two or three days.
The detention amendment clearly changes that element of the bill. A person who appeared before a judge could not be detained for more than 48 hours. The wording has been changed so that the adjournment of the proceeding shall not be for more than 48 hours.
Ms Boisvert: At the time.
Mr. Ouimet: That does not mean that the detention is limited to 48 hours. This is a fundamental change.
Senator Fraser: I know the paragraph you are reading.
Mr. Ouimet: I do not know if that was intended or not. Our point is that police will now be in a position to arrest someone and that person could be detained for a period that is not limited. They could go before the judge and say, "Judge, we are looking for evidence and we have evidence that this person is involved in a big plot, so we will ask you to postpone it 48 hours so we can detain that person."
True, they will have to go before the judge every 48 hours, but there is no limit. Ultimately that person could say, "Hey, I will agree to sign the peace bond. Impose all the conditions that you want, I will sign that peace bond. That is what the bill says. You are detaining me for the purpose of determining whether you should force me to sign a peace bond. I want to sign it, bring me the paper."
This is something that we do on a daily basis. People are charged with criminal offences and when we can talk to the prosecutor and say, "Listen, my client is ready to sign a peace bond. Let us settle this matter by a peace bond." It is reparative justice, if you will.
We are fighting in court to have peace bonds day in and day out. If we have a client is detained, we will tell the judge, "Listen, my client wants to sign a peace bond today, why keep him in jail?" There is the problem: What will the judge do in that situation? When the goal is to get the person behind bars and keep that person behind bars, then say so and provide for a limit. That is our problem.
Senator Fraser: As I say, I did not read it the way you are reading it. This will be a question we will have to put to the minister. I still think the conditions are a substantive thing to work for, not a pretext.
Senator Furey: My question goes back to an issue raised by Senator Bryden. It concerns your expression of concern in your brief that the bill introduces new provisions into the Criminal Code in section 83.28, the consequences of which are that a person named in an order obtained under that section will be obliged to cooperate and talk.
As Senator Bryden pointed out, there is no immunity from compellability in Canada. As Minister McLellan testified before the committee in the pre-study, there is a protection against self-incrimination under the Canada Evidence Act.
You go on to say that the right to silence has, to all intents and purposes, been eliminated and the consequences will be to profoundly undermine the values and principles of the criminal law.
Where we have no immunity against compellability and where we have ordinarily in Canadian law protection under the Canada Evidence Act, does this not allay some of your fears that you are raising about 83.2(a)?
Ms Boisvert: No, it is true that we have no right to silence or no immunity when we face some adjudicator, judge or are summoned to appear before a court of justice. We have no obligation to cooperate in investigations. Now people can be forced to cooperate - we are talking about investigation and intelligence gathering and detention for that purpose.
I have trouble determining what the role of the judge will be in that proceeding. He will not decide anything; we are at the stage of intelligence gathering here. It seems to us that the judge will not be an adjudicator. He will be in the room so that now we can say we have no right to silence in front of a judge. I do not know if judges will appear before this committee. I do not know how they will react.
We do not have investigating judges in Canada. What will his role be? Other than the fact that the person under questioning will be in front of a judge, at which point we can say that there is no right to silence.
As far as we understand, we have no right to silence and we have obligations to cooperate when we are in front of an adjudicative body or when the judge has something to decide. We have no obligation to cooperate and the police have no right to detain when they are intelligence-gathering.
It looks now has if the judge was the means by which you can detain and force cooperation. I do not know how that will work.
Senator Furey: Are you drawing a distinction here between an accused and a witness who is compellable at an investigative hearing?
Ms Boisvert: A suspect who is not an accused and a witness who is not an accused are in the same position.
Senator Furey: They are both afforded the protection under the Canada Evidence Act of not having self-incriminating evidence used against them. Is that correct?
Ms Boisvert: That is when they testify in front of an adjudicative body.
Senator Furey: That is generally where this goes, if the investigators feel that a crime is being committed. Is that correct?
Ms Boisvert: The police are not an adjudicative body. We have no protection regarding what we say to the police because we have no duty to collaborate with the police.
Senator Furey: I am somewhat confused. Absent all of this, if you are in the ordinary course a compellable witness in an investigation, you do not have any American-type Fifth Amendment rights. You do not have the right to silence, but you do have the protection of the Canada Evidence Act against self-incrimination. What has changed in that regard?
Mr. Ouimet: We are talking about the right to silence and protection. As you correctly pointed out, senator, we do have protection under the Canada Evidence Act and under the Charter. The right to silence is the protection. It is the use of the evidence that we provided.
What is at stake and what we are talking about without saying it is the right to liberty, which is at stake with proposed section 83.28. The decision is being made that from now on, because of urgent circumstances or exigent circumstances, people in Canada will now be coerced or forced to participate with police investigations. That is under certain circumstances, I agree, but that is what is at issue: not the right to silence per se but the right to liberty. Our liberty will now be restricted under those circumstances.
Ms Boisvert: I just add that we have no right to silence. We have the obligation to cooperate with some investigative bodies, but it has always been in the context of non-criminal prosecution-oriented bodies. It is always, also, in areas of administrative evidence-gathering for administrative purposes, never for criminal purposes. Now we are now doing it. Intelligence-gathering in the area of terrorist activity has nothing to do with administrative law. It is a criminal business.
This is new. I am not sure that in this area the law is Charter-proof. When we were told that there was no right to silence in front of commissions of inquiry, it was always said that since it was not in the pursuance of a goal of criminal prosecution, we have no right to silence. I am not sure that is the same thing here for everyone. We will see what the courts will do, but there is something different in substance.
Senator Andreychuk: Thank you for your evidence. It has been very helpful with regard to some of the points. You give a practical approach as to how this bill will be implemented or could be implemented.
As I understand, in your introduction, you say that:
While no one can logically challenge the appropriateness of creating new offences to eradicate terrorism and force Canada to meet its international obligations, we must be apprehensive about the fallout from enacting measures that will leave a permanent imprint on our law.
Are you saying that although we must combat terrorism and that tools have to be found, these tools are so broad in some cases that they leave with the government the right to define when they will be used? The definitions of terrorism are so broad, the processes are so broad, the procedures are so broad, and now you have pointed out that some of them are subject to new and innovative interpretations. Are you saying that the reach will be farther than terrorism?
Ms Boisvert: Yes. That is one aspect. As well, if I can make a parallel, at one point - I do not remember exactly when - we introduced in the Criminal Code exorbitant measures for designated offences. The list of designated offences was very short. Look at what a designated offence is now. It is the whole Criminal Code, save a very short list. We say as well that once you introduce these exorbitant powers in the Criminal Code, by a slight amendment at one point we can say, "Well, the gangs; well, kids' gangs." Everything will be found to be difficult when it come to intelligence-gathering. If we make just a little switch, these terrorist things will be applicable to many dispositions.
We advance that there is less chance of having all these dispositions less exceptional than they are today if they are kept separate, in separate legislation. It will always be more difficult to write an amendment to the Criminal Code saying that the terrorist act applies to investigations in this area or that area. There is a danger that these exceptional provisions will contaminate the Code at some point.
Senator Andreychuk: In clause 37 of the bill, the objection to disclosure of information reads:
Subject to sections 38 and 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of specified public interest.We recently looked at an act where public interest was included, and it was included in a broad, sweeping generic way. We questioned its use in that way. In our Criminal Code, public interest had been used that way before, but in a narrow, defined way. Here, public interest is not narrowed in any way except the object of the entire bill. You just pointed out that it is fairly broad in its mandate.
Does this give you some concern that we will deny people the right of information and a public scrutiny of what is going on because public interest can continue to be enlarged and defined in such a way that virtually everything could be sealed?
Ms Boisvert: It is already there. I do not want to be misunderstood in anything I have said today. I think that everyone is making his or her best effort in good faith. We are just discussing the possibilities of abuse.
Our experience with the police bodies that will transmit the information is that they have a tendency to consider secrecy to be of the essence. There is a risk that deletions will be great.
Mr. Ouimet: One comment that we did not make specifically, but we must keep in mind, is that ever since Canada has been in existence we have had some provision either in our common law or in the Canada Evidence Act to protect our secrets. It is not because we are suddenly faced with this terrible terrorist threat that we need to come up with some completely new provision to protect our secrets. The proposed sections 37 and 38 were drafted broadly. My understanding is that has worked. I have not heard anyone say that our national security is at risk because we have no way of protecting our secrets. That is not the case. I have not heard any convincing argument to the contrary.
With respect to your point, senator, clause 37 uses language that is already in the act. It is broadly drafted to cover many situations.
This bill sends the message that the government can now prevent secrets from being let out in the open, which is not what is happening at the present time anyway. I do not know if that answers your question.
[Translation]
Senator Joyal: I would like to focus on something you said toward the end of your presentation which ties in with the issue of overall accountability in the enforcement of this legislation. You mentioned -
[English]
Civilian control or oversight of police forces is one level. Then there is the parliamentary level. We could consider how the parliamentary oversight is managed in the bill. Then there would be the independent authority charged in this bill with some aspects of its implementation.
I am thinking especially of the proposed amendments to the Official Secrets Act, in particular proposed section 15(5), which deals with the commissioner appointed to review the Communications Security Establishment.
[Translation]
Given that we are dealing with permanent amendments to the Criminal Code, you state that it is our duty to ensure sufficient civilian control over police forces charged with enforcing the legislation's provisions.
In Quebec's case, when the sunset clause will be invoked in five years, the oversight council of the Sûreté du Québec will have ceased its operations. This is slated to happen on June 15, 2005. When the sunset clause kicks in, legally, there will no longer be any control over the Sûreté du Quebec In terms of this first oversight mechanism, this is an extremely important consideration, to my mind.
As for the second oversight mechanism, when the Parliament of Canada was called upon to debate security management issues two years ago, the members of the Kelly committee issued a number of very specific recommendations. Committee members were sworn in and had to agree not to disclose any security related information.
Consequently, while the minister is required to report to Parliament, experience has shown us that in our quest to deal with security issues efficiently, we followed very clear procedures which involved swearing in members of Parliament before any security related information could be disclosed to them.
While we will be receiving a report, my concern is that we not make it available to persons who could use it to undermine our security interests. Therefore, any parliamentary review of this kind could be limited given that the hearings would be open to the public. Moreover, even if the hearings are in camera, there are still restrictions on the information that can be disclosed to Members of Parliament.
Provision is also made for a third oversight mechanism in the legislation, namely the appointment of an independent commissioner to review the activities of the Communications Security Establishment. The provision in question is the proposed new section 273.63(1) on page 127 of the bill:
The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.
In other words, the legislation provides a mechanism for controlling an activity which as a rule, is not monitored by authorities. If similar provision was made for controlling activities of a highly sensitive nature where security is critical, would this not be a way of rectifying two of the shortcomings identified with respect to the other two levels of control, namely the police and Parliament?
Ms Boisvert: Regarding the third oversight mechanism, the legislation clearly states that the Governor in Council "may" appoint a commissioner. He is not compelled to do so. As for the parliamentary oversight mechanism, information that could be of greatest interest will not appear in the report. As soon as it is clear these reports will be made public, their content will be restricted.
The report in question will contain quantitative information, for instance, answers to questions such as this: Which powers were exercised? On how many occasions? They will not be highly informative documents.
Last week, I appeared before the standing committee that was examining Bill C-24. We learned that further to a Supreme Court ruling, the RCMP suspended 59 investigations. When we pressed for more details, that is when we asked which types of investigations were suspended and what these investigations were about, i.e. were they large-scale or small investigations, we did not receive any additional information aside from the fact that they had been suspended.
I am not convinced that the report will be sufficiently informative to provide any kind of effective oversight. A mechanism is needed to ensure that those with oversight authority have access to more information. When the time comes to review the legislation, I do not see the point of knowing how many times certain powers were invoked.
It would be interesting, however, to find out if there were any instances of abuse, or whether certain persons were arrested and subsequently released by a judge for some reason and how many times this in fact occurred. Given the type of information likely to be found in this report, I share your view and do not feel that it will be an effective oversight mechanism.
Senator Joyal: Should the legislation not spell out clearly the kind of information the report to be tabled to Parliament should contain, in the event we choose not to appoint an independent commissioner?
Ms Boisvert: Generally speaking, yes, it should. Some information would indeed be useful to have when the time came to review the legislation. In my opinion, information of a purely quantitative nature is not sufficient.
Mr. Ouimet: On the subject of appointing a commissioner, I should like to emphasize that we do not object to having control or oversight mechanisms. The greater the number of such mechanisms incorporated into the legislation, the more protected we will be from potential abuses. As such, we are not opposed to the idea of appointing a commissioner. It is a question of striking a fair balance and of coming up with the most effective, and least costly, mechanism. As to whether this mechanism would be truly effective is another matter entirely.
Senator Beaudoin: With respect to certificates, an application for an order may be filed with a federal court judge. Mention is made of a judge of the Trial Division and of a Federal Court judge. I am pleased to see this amendment because I have maintained from the very beginning that there must be access to the courts. I put the question to Mr. Radwanski and he in turn referred me to senior Justice Department officials. I intend to follow up the matter with them, but I still do not understand why an appeal court judge is involved. Were you surprised by this as well?
Ms Boisvert: I think you need to ask them that question. We have speculated as to the legislator's intent. Obviously, there are fewer appeal court judges than there are trial division judges. Our impression was that this was an attempt to limit the number of individuals who would have access to information to be disclosed at the hearing. However, you would be better advised to heed the minister's answer,
Senator Beaudoin: I am curious as to the rationale for having one single appeal court judge. As a rule, three judges serve on the court of appeal.
Ms Boisvert: I really cannot say.
[English]
Senator Tkachuk: The witnesses have raised some interesting issues. I have been troubled with this bill from the beginning. This bill was purportedly drafted to stop terrorism. However, we have domestic terrorism such as a Timothy McVeigh in the United States. Canada probably saw terrorist acts during the Quebec crisis. I believe that Canada handled it wrongly with the use of the War Measures Act. In the United States, they were able to find and convict the guy and blissfully send his devilish soul on its merry way. They were able to solve the problem.
We are concerned about foreign terrorists. This bill is aimed at people like those who did the harm in New York. Canadian citizens are not sitting around in Regina or Kenora trying to figure out how to bomb the capital buildings in Ottawa. Is there another way we could have addressed the problem?
This is a huge piece of legislation that forces all Canadian citizens to fall under an act. I do not think there is any evidence to suggest that Canadians are prepared to commit these crimes.
Ms Boisvert: Frankly, we have decided that this is neither the place nor the time to address the fundamental wisdom of this bill because we would look like we are in favour of terrorism. Now is not the time to be against this bill in a principled way.
There are good things in the proposed legislation, however, many things that are redundant, not necessary and not useful. I will use an anecdotal example. The terrorists came from outside. When you read this bill, you see the terrorists come from outside. They used airplanes; you almost see the airplanes. The bikers in Quebec used bombs; you see bombs in the bill. I doubt very much that the prospect of a longer jail term will deter anyone who has decided to blow something up with a bomb.
We are pleased to see that there will be revisions to this bill. Usually, when you put up exceptional measures for exceptional offences, you make a risk management decision to potentially innocent person. In England, they have adopted exceptional common law measures and now we make films and mini-series about the Birmingham Five. These are the dangers that, at present, that is the kind of risk we will accept. We will see in 10 years if we make mini-series or films about these events and if this proposed legislation has been helpful. We will see.
Senator Tkachuk: It says more about our country, though, that you would be not prone to say what you want to say because you are afraid of being accused of being for terrorism. Many politicians have the same fear: "Oh, gee, we have to vote for the bill, because if we do not, we will be accused of being for the terrorists," which is not what this bill is about anyway.
The Chairman: I wish to thank our witnesses for an interesting morning. I know that it was short notice for you to appear.
I also wish to thank all of my colleagues for being very concise today. I hope that is a kick-off for the whole week and I look forward to that.
The committee adjourned.