Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 5 - Evidence - April 1, 2004
OTTAWA, Thursday, April 1, 2004
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-7, to amend certain acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, met this day at 10:52 a.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum.
Welcome to this meeting of the Standing Senate Committee on Transport and Communications that is continuing — for the first part of its agenda — its study of Bill C-7, as was agreed and announced at the last meeting and circulated to all senators. The first item on the agenda today is the clause-by-clause consideration of Bill C-7.
May I have a motion to proceed with that?
Senator Day: I so move.
Senator Andreychuk: Madam Chair, your opening comments cause me some difficulty. My understanding of any steering committee decision was that witnesses had been provided from our side but that there was no discussion about immediately proceeding with clause-by-clause consideration. In fact, in proceedings on Tuesday, March 16, the Chair indicated that, a practice has been developed in some committees, when dealing with certain bills, to pass a motion at the beginning of the hearings to indicate that there will be no attempt to dispose of the bill in committee until all scheduled witnesses have been heard. In other words, no votes will be taken until we have heard all the testimony.
I would remind honourable senators that our side indicated that the issue of safety and security was paramount. We were not disputing the principle but there were certain clauses and certain procedures in the bill that caused us difficulty. To fully understand them, we needed to call witnesses.
Our concerns were of a legal and constitutional nature. It was our position that the bill should have been referred to the Standing Senate Committee on Legal and Constitutional Affairs. However, in the wisdom of the majority, it was sent to this committee, the Standing Senate Committee on Transport and Communications. We have had the interesting job of trying to balance our own responsibilities and studying this bill in the Transport Committee.
A list of mainly legal expert witnesses was provided to try to address the constitutional questions and the implications of the interim orders. I am using that as only one example because there are other areas where the Charter of Rights and Freedoms applies. As yet, we have to hear those witnesses.
On Tuesday, I heard that the witnesses were not available. As I recall, the witnesses on the list are professors. They teach and, since it is nearing the end of the university semester, they have exam papers to mark. I, frankly, was not given any indication that those witnesses were not available. Had I had known this, I would have made efforts to encourage them to come, or I would have provided a list of substitute witnesses.
We are embarking on a two-week break, so that gives us two weeks to call these witnesses. Therefore, I am asking for the consideration of this committee to defer the clause-by-clause consideration of the bill so that when we return on our scheduled date, which I understand is April 20, the committee could sit and hear those witnesses and then proceed to the clause-by-clause consideration of the bill without unduly jeopardizing this bill and its conduct through the Senate.
This is not an indication that we want to thwart the bill. I want to be assured that we understand what is contained in this complex bill.
The Legal and Constitutional Affairs Committee can spend, as we did yesterday, two hours on a bill of three pages. It had legal implications for over 100 pages. Length is not everything.
I would suggest that it would be in the best interests of justice that we fully understand the implications of this bill, and that we hear the legal witnesses on the constitutionality of the bill.
I was cut off on Tuesday, and fairly so, by the minister. In the second round I could not ask the minister questions about the interim orders. We have really not had time to examine that question.
We also remains an issue about what happens to data after it is collected at the airports. The Chair indicated that, when Air Canada representatives and the air transport safety people attended the committee, we would be able to address those questions. They told us they were unable to do that. Someone in the system needs to answer questions about the conduct of this information. My proposal would be that we hear some witnesses immediately upon our return and then proceed to clause-by-clause consideration of the bill.
I am asking for the consideration of the committee for the deferral to the next available date.
The Chairman: Are you proposing an amendment to Senator Day's motion?
Senator Andreychuk: I would so amend by moving that we defer the clause-by-clause consideration of the bill until we have heard the witnesses. I would be prepared to proceed on that same day.
The Chairman: That date in theory would be on April 20.
Is there any other discussion?
[Translation]
Senator LaPierre: I really do not see the reason for this delay. The committee has heard from several witnesses since undertaking this review of the proposed legislation. I do not think another witness will shed any more light or provide a different perspective on the legality or constitutionality of the act. I think we should move on and settle this matter before tackling something else when we reconvene.
[English]
The Chairman: For the information of committee members, we have held nearly 13 hours of hearings on this bill. We have heard from 35 witnesses, two of whom returned. The steering committee decided at its meeting on Tuesday March 23, 2004 that clause-by-clause consideration of the bill would take place at this time.
Does anyone else wish to speak to Senator Andreychuk's amendment?
Senator Corbin: I would simply add that we were given a detailed briefing book as well.
The Chairman: Indeed, we were given a huge briefing book.
Therefore, it is moved by Senator Andreychuk in amendment to the motion of Senator Day, that clause-by-clause consideration of this —
Senator Gustafson: Just for clarification, I did present a list of witnesses that should be called.
The Chairman: Indeed you did.
Senator Gustafson: The week after, I was in Washington to deal with the matter of mad cow disease. I have been a little bit out of touch. I certainly acknowledge that Senator Andreychuk has done a lot of research and hard work on this. From this standpoint, we are in the hands of the committee.
Senator Tkachuk: Were you at the committee meeting that discussed moving to clause by clause?
Senator Gustafson: I do not recall that, no.
The Chairman: According to the minutes of those proceedings, the meeting was held at 3:15 p.m. on Tuesday, March 23, 2004, and Senator Gustafson was present.
Senator Gustafson: I do not recall the clause-by-clause discussion, but I do recall presenting the list of names.
The Chairman: Indeed you did, Senator Gustafson. As we noted at that meeting, and have noted both formally and informally, on other occasions, significant efforts were made to have the witnesses on the list appear.
Senator Gustafson: I stand corrected.
The Chairman: We are, therefore, proceeding to a vote on Senator Andreychuk's amendment to the effect that clause-by-clause consideration of this bill be deferred until the meeting of this committee scheduled for April 20, 2004
All in favour please say ``yea.''
Some Hon. Senators: Yea.
The Chairman: Against?
Some Hon. Senators: Nay.
The Chairman: In my opinion, the ``nays'' have it.
Do you want a recorded vote?
For this section of our proceedings, the voting members of this committee present are as follows: Senators Corbin, Day, Graham, LaPierre, Mercer, Munson, Phalen, Andreychuk, Gustafson, Stratton, Tkachuk and myself as Chair.
Will the clerk call the roll?
Mr. Till Heyde, Clerk of the Committee: The Honourable Senator Fraser.
Senator Fraser: Opposed.
Mr. Heyde: The Honourable Senator Andreychuk.
Senator Andreychuk: In favour.
Mr. Heyde: The Honourable Senator Corbin.
Senator Corbin: Opposed.
Mr. Heyde: The Honourable Senator Day.
Senator Day: Opposed.
Mr. Heyde: The Honourable Senator Graham
Senator Graham: Opposed.
Mr. Heyde: The Honourable Senator Gustafson.
Senator Gustafson: In favour.
Mr. Heyde: The Honourable Senator LaPierre.
Senator LaPierre: Opposed.
Mr. Heyde: The Honourable Senator Mercer.
Senator Mercer: Opposed.
Mr. Heyde: The Honourable Senator Munson.
Senator Munson: Opposed.
Mr. Heyde: The Honourable Senator Phalen.
Senator Phalen: Opposed.
Mr. Heyde: The Honourable Senator Stratton.
Senator Stratton: In favour.
Mr. Heyde: The Honourable Senator Tkachuk.
Senator Tkachuk: In favour.
Mr. Heyde: Four in favour; eight opposed.
The Chairman: I declare the motion in amendment lost. We will proceed to the main motion.
It is moved by the Honourable Senator Day that the committee proceed now to clause-by-clause consideration of Bill C-7.
All those in favour please say ``yea.''
Some Hon. Senators: Yea.
The Chairman: All those opposed please say ``nay.''
Some Hon. Senators: Nay.
The Chairman: I believe the ``yeas'' have it. Do you wish a roll call vote?
Senator Tkachuk: On division.
The Chairman: The motion carries, on division.
We proceed then, honourable senators, to clause-by-clause consideration of this bill. We can go at it in one of two ways. As you know, we can deal with each clause of the bill separately. There are 113 clauses to this bill. If the committee prefers, we can deal with each of the 24 parts of the bill, which is still a fairly lengthy procedure, as a block of clauses. However, if we deal with the parts of the bill as blocks of clauses it remains that, if a senator wishes to debate in detail or propose an amendment to one clause in a given part, we will certainly allow that to be done.
I am in the committee's hands as to how it wishes to proceed.
Senator Gustafson: I have one question. What is the rush? We are probably going into an election. Is the government saying that they need passage of this bill?
I am a long-standing member and I believe that our committees generally work well. At times we have even overlooked some mistakes and problems.
The Chairman: This committee has just voted to proceed to clause by clause.
Senator Andreychuk: It would be good to know, on the record, why we would be denied the right to hear witnesses.
Senator Day: Madam Chair, to talk to the relevant issue at hand, it seems to me logical to proceed part by part. If there is any specific clause within any part that anyone wishes to deal with, we should do that.
The Chairman: Absolutely.
Senator Gustafson: On a point of order, I would like an answer to my question.
The Chairman: That is not actually a point of order, Senator Gustafson.
Senator Andreychuk: It is a fair question.
The Chairman: This committee has heard 35 witnesses. We ran into difficulty in arranging for other witnesses to appear. We have heard witnesses representing a broad array of opinions and expertise. It was agreed by the steering committee, and now by this committee, that clause-by-clause consideration should be conducted now.
Senator Tkachuk: Perhaps we should deal with each clause.
The Chairman: Is that the wish of the committee?
Senator Tkachuk: We could do that.
[Translation]
Senator LaPierre: We cannot focus our attention on this bill forever.
[English]
The Chairman: No, we will proceed on a clause-by-clause basis, unless the committee decides, as we proceed, that it is too cumbersome a process and that we should proceed on a part-by-part basis.
Senator LaPierre: May I move that we proceed part by part?
The Chairman: That is a motion but before it is before the committee formally, it is useful and customary in these proceedings that, if some senators wish to proceed in a more detailed manner, unless there is an overwhelming reason for overruling their wish, we will do that. I am prepared to proceed on a clause-by-clause basis.
I will hear two more interventions on this issue and then we will proceed.
Senator Andreychuk: I believe that we have been eminently fair. We are concerned about many clauses of this bill, and I believe certain senators opposite share some of those concerns. I had hoped that there would be an openness to continue to study this bill without unduly delaying it, but that does not seem to be the case. We can read how the majority has voted and, in fact, that will precipitate the process here.
I believe that you have indicated only two more people can speak to this amendment.
The Chairman: Not to this amendment, this is purely a procedural question with regard to the bill.
Senator Andreychuk: I think that we will record an on-division vote on this bill, not because we oppose the principle of the bill but we have some grave concerns. We will be move our amendments at third reading. We may as well proceed. I believe we have heard from the majority of the committee.
Senator Phalen: I want to emphasize a point. I am a member of the steering committee as is Senator Gustafson. At a meeting of the committee, we agreed to proceed to clause-by-clause consideration on a certain date. We are doing something underhanded. The process was discussed and agreed to. However, there now seems to be a problem.
In respect to the part-by-part, I see no problem with going part by part and then if you want to go into that part and raise some issues for anything that is covered under that part we can do it.
The Chairman: I understand that the opposition has agreed to proceed on a part-by-part basis.
Senator Stratton: Senator Phalen, in defence of Senator Gustafson, he also assumed we would be hearing from the list of witnesses that we had submitted. I think that point has to be made, and you must respect that. I will defend our senator on that point. There was an agreement, yes, but he had expected fully that we would hear from witnesses.
The Chairman: I will not only acknowledge that, I will reinforce it. That is true. At that meeting, both sides agreed, unanimously, that attempts would be made to bring in as many witnesses as possible, and those attempts were made. We had spare time at one of our meetings last week when we were anxious to hear from witnesses but they were not available. In fact, to the best of my understanding, based on conversations with them and others, they would have been making points that had already been made before this committee.
We will now proceed.
Senator Graham: May I ask a question? I am a little confused as to some of the remarks that have been made with respect to the timing. Senator Phalen has just said that, as a member of the steering committee, Senator Gustafson represented the opposition and agreed that we would go to clause-by-clause consideration today. I want to be clear on that.
The Chairman: That is true and I referred to the minutes of that meeting so that it would be formally on the record of this meeting. I believe we have now aired this particular topic.
Senator Corbin, did you want to make a final point on this?
Senator Corbin: I do not know if it is final, but I think we should not lose sight of the overall objective of this bill, which is to fight terrorists and terrorist acts. There is one part of the bill that we have not questioned specifically, and that is the coming into force of the act. Parts of this bill need to be put in place immediately. I say this in light of what is going on around the world in regard to various police actions, not only in this country but abroad.
Items in here concern explosive substances which are not currently covered and that is an urgent matter, especially in light of what was discovered in Britain in past days. In light of the comments of the Auditor General, criticizing lapses, lacks or slowness in the application of certain antiterrorist efforts and measures, I surely would like to call witnesses before the committee's to clarify this, because a question has never been put to officials.
Senator Andreychuk: No, no.
Senator Corbin: I would like to hear from Mr. Read.
Senator Andreychuk: Witnesses are witnesses.
Senator Corbin: This is a government bill. I am asking for clarification and specificity with regard to the coming into force of the act. It would enlighten the committee. These are antiterrorist measures and a clause-by-clause study of this bill is simply a dilatory tactic.
The Chairman: We have agreed to go through the bill part by part and, if you wish, when we reach those clauses that concern the coming into force, since Mr. Read is in the room, if senators were agreed, we could ask him to discuss that.
Senator Corbin: That is usually the final act of the committee before adopting the title. It is important for the committee to know that there is some urgency with regard to many portions of this bill. We are all against terrorism. We should not put it on the back burner. That is what this bill is all about.
Senator Gustafson: In response to Senator Corbin's suggestion, that is exactly what I asked. I asked what was the urgency, and I got no answer here this morning.
Senator Corbin: We have an opportunity to get the answer right now, if you agree.
The Chairman: Senators, do you wish now to ask Mr. Read to come to the table?
Some Hon. Senators: Agreed.
The Chairman: Opposed?
Mr. Read, would you join us please?
Senator Stratton: I thought we were in part-by-part consideration and we agreed that when the appropriate time came, we would hear from Mr. Read.
The Chairman: When the time comes we will ask Mr. Read to come to the table.
Honourable senators, is it agreed to stand the title?
Hon. Senators: Agreed.
Senator Stratton: For the record, rather than recording a vote each time, we will record a division throughout, as a point of principle, because we really firmly believe that additional witnesses should have been heard. Every vote will be recorded on division with respect to this bill.
The Chairman: I will note that in every case unless you request otherwise.
Is it agreed to stand clause 1, the short title?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 2 to 23 contained in Part 1 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 24 to 25 contained in Part 2 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 26 to 31 contained in Part 3 carry?
Senator Corbin: It would be helpful if you would give us the page number as well.
The Chairman: Indeed. Part 3 is on pages 28 to 32 of the bill.
Shall Part 3 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 32 contained in Part 4 on pages 32 and 33 carry?
Some Hon. Senators: Agreed.
The Chairman: On division.
Shall clause 33 contained in Part 5 on page 33 carry?
Some Hon. Senators: Agreed.
The Chairman: On division.
Shall clause 34 contained in Part 6 on pages 34 and 35 carry?
Some Hon. Senators: Agreed.
The Chairman: On division.
Shall clauses 35 to 51 contained in Part 7 on pages 35 to 44 carry?
Some Hon. Senators: Agreed.
The Chairman: On division.
Shall clauses 52 to 65 contained in Part 8 on pages 44 to 49 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 66, contained in Part 9 on pages 49 and 50, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 67 to 69, contained in Part 10 on pages 51 to 55, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 70 to 72, contained in Part 11 on pages 55 and 56, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 73, contained in Part 12 on pages 56 and 57, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 74 to 81, contained in Part 13 on pages 57 to 65, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 82 to 93, contained in Part 14 on pages 66 to 70, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 94 to 96, contained in Part 15 on pages 71 to 73, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 97, contained in Part 16 on pages 73 and 74, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 98, contained in Part 17 on page 74, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 99, contained in Part 18, on pages 74 to 76 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 100 to 101, contained in Part 19 on page 76, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 102, contained in Part 20 on pages 77 and 78, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 103, contained in Part 21 on pages 78 and 79, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 104 to 105, contained in Part 22 on pages 80 to 83, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 106, contained in Part 23 on pages 83 to 90, carry? This clause, I would note, enacts the Biological and Toxin Weapons Convention Implementation Act?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clauses 107 to 112, contained in Part 24 on pages 91 to 103, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
I would interrupt at this point to notice that this is the point at which, if senators so wish, we would normally hear an expert comment on the coming into force provisions, and a senator has indicated his wish to do so. We have an expert witness in the room.
Senator Stratton: We agree. However, there is a point of order on the table in that there was an amendment to Senator Day's motion that we hear more witnesses and that was defeated, so we already have it on record that we will not hear from additional witnesses.
The Chairman: You are right about that, Senator Stratton.
Senator Corbin: I beg to differ as to the qualification of ``witness.'' This is a government bill. The coming into force question has never been asked and I think it is of crucial interest and importance. It is a clause of a bill like any other clause. Of course, I concur with that view, but this is at the very heart of government action. Surely, the committee is entitled to know when this bill will come into force.
Senator Tkachuk: Is it not a little late for that?
Senator Corbin: No, we are not a little late. It is timely. It is before us now. I am not trying to play tricks. I am asking for pertinent information.
Senator Tkachuk: You should have asked that before we went to part-by-part consideration — when we were dealing with the question of witnesses. If it was that important to you, why did you not raise the matter of calling him then?
Senator Corbin: Because we are here now.
Senator Tkachuk: It did not suit your purposes.
The Chairman: Senators, order!
Senator Corbin: Let us not be personal.
Senator Tkachuk: I am not personal.
The Chairman: Order, senators. The motion in amendment that was defeated did not actually refer to hearing no further witnesses, it read postpone clause by clause in order to hear additional witnesses. We defeated the motion to defer clause-by-clause consideration.
Senator Andreychuk: Honourable senators, my plea was to hear witnesses to determine whether the Charter of Rights and Freedoms applies to interim orders. That has never been asked and answered and I think it is as fundamental as the implementation provisions. We are talking about democratic reform as we speak in this Parliament. Either we are fair or we are not; so go ahead and call your witnesses.
Senator Corbin: I do not want to raise a ruckus. If committee members are not interested in getting the information as to the coming into force of certain antiterrorist measures, which affects the lives of every citizen in this country, that is fine. I withdraw my request.
Senator Andreychuk: On a point of privilege, that is not what I said, and I have constantly stated that we care very greatly about terrorism and that we have the right legislation in place — that we use the right tools, because we have many tools out there that are not functioning. I do not want other tools that will not function and will not help us, and that is what we are trying to get at. However, we want to ensure that the tools we have can withstand constitutional challenges and do not violate the provisions of the Charter of Rights and Freedoms, so do not put me down.
The Chairman: Senators, I believe it to be the case that every senator in this room, every member of the Senate, is dedicated to the proposition that we need the right tools to fight terrorism. We are capable of honest and heartfelt disagreement about what the right tools may be, but no one has any motive other than to do the best job possible for the country in these circumstances, and I do not believe that anyone at this table is suggesting otherwise.
I would note therefore that Senator Corbin has withdrawn his request and I will proceed with the part-by-part consideration.
Senator Jaffer?
Senator Andreychuk: Has he withdrawn his remarks?
Senator Corbin: Yes, of course. Senator Andreychuk, I am sorry that you feel offended. I certainly did not in any way, shape or form point my finger at you. I am talking about the generality of the concern. I know of your dedication to rights and the Charter, so please do not take this as a personal remark to you by me. I am the last one to want to do that. If that is how you feel about it, then I withdraw my comments. I apologize.
The Chairman: Handsomely done.
Senator Jaffer, if you do not mind I will come back to you once we have completed this portion of the proceedings.
Senator Jaffer: I do not want to blindside the committee. I will be introducing amendments.
The Chairman: Would you tell us about that after we conclude this phase since, at the moment, we are at the voting on the parts of the bill?
Senator Jaffer: My comments relate to what Senator Corbin was saying on enforcement. At third reading I do not want anyone to suggest that I should have raised the matter of the enforcement provisions earlier. I will be raising it.
The Chairman: I will give you the floor once we have concluded this phase.
Shall the schedule carry? It is on pages 104 to 105.
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall clause 1, the short title, carry, on page 1?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Shall the title carry?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
The Chairman: Is it agreed that this bill be adopted?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Is it agreed that I report the bill to the Senate?
Some Hon. Senators: Agreed.
The Chairman: Carried on division.
Senator Jaffer: On third reading, I will be asking for an amendment regarding enforcement. I want to raise this before the committee so that, at third reading, no senator will ask why I did not deal with it while hearing Mr. Read.
The Chairman: Thank you very much, Senator Jaffer.
Senator Tkachuk: Senator Jaffer, considering you are on the majority, on the government's side, why would you not have brought that amendment here?
The Chairman: Senator Jaffer is not a voting member of the committee.
Senator Tkachuk: She could put forward an amendment.
The Chairman: No, she cannot.
Senator Tkachuk: Can one of her colleagues do that, perhaps?
The Chairman: It is not the procedure. We have now passed the voting stage. I take Senator Jaffer's notice with interest and appreciation. I might also note that as Chair of this committee, even though we are now going to be reporting this bill back to the Senate, I will take it upon myself to communicate in writing with Mr. Read to ask him for his comments, for the information of members of the committee, about the coming into force provisions.
Senator Andreychuk: Under whose authority would you do that?
The Chairman: I just asked the senators if they would agree. If they do not agree, I will not do it.
Senator Andreychuk: We have passed that point. We are now trying to get information that we should legitimately have gotten through witnesses, and I think that Senator Jaffer has every right to forward an amendment. If she were not going to be doing that, I would be doing it. We will be moving many amendments, but I think it is too late in the day for the Chair to hear us. We have gone as far as we can. We will put questions to the Leader of the Government, who I am sure will be able to respond.
The Chairman: Goodness knows that I would wish to be procedurally correct in all things.
Honourable senators, that concludes this portion of our meeting. I would thank you all. This has been an intense time. I am grateful for the hard work and the civility of senators, as we have gone through this extremely difficult time.
I shall report the bill this afternoon.
I will now suspend the proceedings for five minutes to allow the room to be cleared and we will have an in camera session.
The committee continued in camera.