Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 2 - Evidence - Meeting of February 21, 2005, Afternoon meeting
OTTAWA, Monday, February 21, 2005
The Special Senate Committee on Anti-terrorism Act met this day at 1:30 p.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are now ready to continue our review of the Anti-terrorism Act. We began our work this morning by hearing from Justice Minister Irwin Cotler. While the minister's commitments to the House of Commons did not permit him to remain this afternoon, we are fortunate to be joined by officials from his department: Mr. Breithaupt, Mr. Cohen and Mr. Dolhai. We are grateful that our witnesses have agreed to stay.
Our session this morning was full of questions and answers. There are senators around the table who are eager to follow up on some of those questions and answers with you this afternoon.
Senator Lynch-Staunton: When I asked the minister which features of the bill had been found useful and why certain provisions had not been used, as I recall his answer, he did mention the list of entities. He did mention the provision that allows the seizure of funds — I forget the acronym he used — amounting to $70 million, which is impressive. There did not seem to be much else that he could remember. Could someone else tell us what other provisions in the bill had been helpful in this judicial war against terrorism?
Mr. Stanley Cohen, Senior General Counsel, Human Rights Law Section, Department of Justice Canada: Honourable senators, the point was made that the mere fact that the legislation is not necessarily used is not a measure of its importance. That point deserves underscoring.
As well, I understand the interest in gaining an appreciation of what is or what has been used. Certainly, the provisions in the Canada Evidence Act are provisions that have been used and have been found constitutionally sufficient by the courts.
There has been a prosecution launched using one of the provisions of the Criminal Code offences as well. The freezing provisions have also been mentioned. The investigative hearing provision was used in the Air India prosecution. Those would be some of the provisions in a rather large act.
Other provisions, such as those dealing with the Security of Information Act, which replaces the Official Secrets Act, are matters that have a long history within Canadian law. The overhaul of the Official Secrets Act has been on the mind of parliamentarians certainly since the 1980s during the time of the Macdonald commission. That is another piece of legislation that is of undoubted importance.
Senator Lynch-Staunton: The minister went to some length to explain the protections involved in the preventive arrest provisions, and they have not been used. However, the security certificates under the Immigration Act have been used.
If the process in Bill C-36 seems to be fair — nothing could be more unfair than a security certificate — why has Bill C-36 not been used? Am I mixing apples and oranges? Detention is detention.
Mr. George Dolhai, Director/Senior General Counsel, Strategic Prosecution Policy Section, Department of Justice Canada: Honourable senators, the two areas are directed at different matters. The security certificate — and this is not an area in which I practice — is directed toward a situation where the ultimate goal is the removal of the individual from Canada. Whereas, the preventive arrest provision is intended to deal with a particular concern at a particular time: reasonable grounds to believe that a terrorist activity will be committed and reasonable suspicion about the individual who needs to be dealt with at that moment and for a limited period of time.
The section contemplates that if there is detention to be ordered, it cannot be longer than 72 hours. The conditions that are imposed on the individual are conditions that address the safety concern that was posed, are irrespective of the person's immigration status and are not directed toward resolving that immigration status. It is focused only on the safety issue, whereas the certificates are focused on the immigration status of that person as well as the safety concern he or she represents.
Senator Lynch-Staunton: I see the difference, but I do not understand why they wish to remove a non-citizen. Why can that not be initiated under Bill C-36, so that person will have an opportunity to know what the charges are. After 72 hours the government would be forced either to charge him or not, or to get the normal judicial process working.
Mr. Dolhai: There is no mechanism in Bill C-36 to address the immigration issue that the person presents. There is only an ability to deal with the safety aspect that is presented at that point in time. In respect of a particular threshold, there must be reasonable grounds to believe that a terrorist activity will be committed and a reasonable suspicion with respect to that individual.
Senator Lynch-Staunton: I suppose that I am the only one who does not get nuance; I will not belabour the point.
I know this security certificate business does not come to your department directly, but you cannot help but be affected by it. What kind of guarantee does the government ask from a country to which a citizen will be sent back that torture or other means deemed unacceptable here will not be used against him or her?
If you say that does not fall under your section and you will have to ask the appropriate officials, I am willing to wait for those officials to come before us.
Mr. Daniel Therrien, Senior General Counsel, Department of Justice Canada: Honourable senators, part of my responsibility is to advise, among other departments, the Canada Border Services Agency, which is responsible for security certificates.
Before we get into assurances when someone alleges a risk of torture, the allegation of an individual that he will be at risk of torture is assessed by the Department of Citizenship and Immigration based on the country of destination, on the individual circumstances of the individual and the likelihood that that person is at risk of torture, as opposed to the country having a human rights record that is less than perfect. There is an assessment of the facts of the case to determine whether the person is actually at risk of torture.
In the determination of whether there is a risk of torture, it happens in some cases that assurances are sought from the country of destination that human rights will be respected. This is part of a diplomatic process, so the assurances will vary, but there is a certain level of specificity to the assurance sought so that what is obtained is not a general confirmation that human rights will be respected but that the individual about to be removed will have his or her rights respected, and sometimes there is even an assurance that torture will not be inflicted.
These assurances are sought in very few cases. Of course, even if an assurance is sought and obtained, the assessment by the Department of Citizenship and Immigration looks at the reliability of these assurances, all circumstances being considered. We have seen risk assessments by the Department of Citizenship and Immigration that have not given full weight to the assurance received and have been made regardless of it.
Assurances are given and they are weighed in the risk assessment, but assurances are not accepted without considering the reliability of them.
Senator Lynch-Staunton: There is no guarantee that assurances will be carried out.
Mr. Therrien: No. They are assessed on a case-by-case basis.
Senator Lynch-Staunton: That means that if you want to send someone back to his country of origin but that country will not give assurances, that person can be detained indefinitely. I am not questioning the reason for which you want to deport someone to his country of origin. You want to ensure that his basic human rights are respected, but you do not get that assurance. You consider him a threat to our society, so what do you do with him? Do you keep him in detention indefinitely?
I am worried about how this unravels eventually. I am not questioning the reasoning behind the detention. I will question the process, but I want to find out what the end result of the process is in case a country either will not accept the individual or the Department of Citizenship and Immigration does not believe that there are sufficient assurances to protect that individual once deported.
Mr. Therrien: Even though some persons who have been the subject of certificates have been held for relatively long periods, we do not have indefinite detention in this country.
Senator Lynch-Staunton: No, but they are being held indefinitely.
Mr. Therrien: Some have been held for relatively long periods.
Senator Prud'homme: How long is ``long?'' Is it five years, 10 years or forever?
Mr. Therrien: I recognize that some people have been detained for long periods. A decision by the Federal Court of Appeal rendered only last week or the week before holds just that: It recognizes that we do not have indefinite detention in this country. We detain people under a security certificate with a view to removing them. That is the end result. It may take a while, but it is not indefinite in the sense that we will not be able to remove them yet we are detaining them.
That was the situation in the United Kingdom that was looked at by the House of Lords. The U.K. government was unable to remove and was detaining with no end to that detention in sight. We cannot say what the exact date is, but the end in sight for us is the removal date. I fully recognize that the process leading to removal can be lengthy and results in long periods of detention, which is a question of concern. However, I respectfully make a distinction between ``lengthy detention'' during a removal process and ``indefinite detention'' such as was occurring in the United Kingdom.
Mr. Cohen: You have put your finger on what is a policy dilemma for all western democracies. It comes down to the question of how we move to safeguard our security while at the same time ensuring that we are faithful to our belief that people should not face the consequence of torture or the death penalty, for example.
This issue is being grappled with in this context, but it is not the first time that this kind of issue has arisen for the consideration of parliamentarians. We have experienced this watershed in the past in relation to the way in which we deal with dangerous offenders. We have a regime that deals with indefinite detention of dangerous offenders according to a procedure that has stringent safeguards built into it. The challenge is to come up with a mechanism to deal with the novel dilemma that democracies have to face in these circumstances.
Senator Lynch-Staunton: These people do not have the opportunity of a real trial while a dangerous offender does.
Mr. Cohen: I was not making an exact analogy. The determination of dangerous offenders is made in a hearing after conviction for a previous offence. In this situation, there is a hearing into the kind of danger that an individual poses to the state. This is essentially what is also being addressed in the security certificate process. I would not want to put the two proceedings on exactly the same footing.
Senator Lynch-Staunton: In the case of Mr. Charkaoui, we finally allowed a release. After reading the conditions of his release, I believe that he is going from one form of detention to another. He will breathe some fresh air, but he still has to report. He cannot use a cellphone; he has to be home by a certain time, et cetera. I agree that that is better than being in solitary confinement in jail, but he is no further ahead. The case will be reviewed in six months, and maybe he will go back to jail.
This process seems to be endless until you convince a judge that the assurances being given are such that we must let him go.
Mr. Cohen: As I said, it is a policy dilemma that must be addressed by parliamentarians, and not only in Canada. It does require some fresh thinking and some international coordination in order to determine how to deal with some of these situations. It may be that it cannot all be solved within the borders of one particular country.
Senator Lynch-Staunton: I appreciate the gentleman from the Department of Citizenship and Immigration coming without warning. I would like the chair to suggest strongly that we do have the Minister of Citizenship and Immigration and his officials come here so that we can talk about this with those who are directly responsible. I thank our friends from the Department of Justice for putting up with us.
The Chairman: I have noted your suggestion, Senator Lynch-Staunton.
Senator Day: May I have a point of clarification? Is the security certificate the responsibility of the Minister of Citizenship and Immigration, or is that a border security issue now and therefore under the Department of Public Safety and Emergency Preparedness?
Mr. Therrien: The certificates are signed by two ministers: the Minister of Public Safety and the Minister of Immigration.
Senator Day: We should have both of them speak on that issue.
Senator Fraser: I would like to find out more about the investigative hearing provisions of Bill C-36; they are not much used, which is good news. Nonetheless, the law stands. Has any other Western democratic country allowed for this kind of procedure in its anti-terrorism legislation or methods?
Mr. Doug Breithaupt, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Our information is that the United Kingdom has an offence of withholding material and information in relation to a terrorist investigation. The United States has its grand jury system. Australia has an equivalent investigative hearing without the same legislative safeguards as Canada — for example, no derivative use of immunity. South Africa has an anti- terrorism bill that has passed through Parliament but has not been enacted, which also has this power.
Mr. Dolhai: Although the United Kingdom does not have a process like the investigative hearing and has the positive obligation to come forward, they have the ability to detain suspects in respect of terrorism-related offences. One of the purposes for which a person cannot be detained by the police is facilitating the collection of evidence through questioning by the police. They do not have an investigative hearing per se and do not involve the judiciary, but they have a power of arrest that includes the power to try to obtain information through questioning.
Senator Fraser: That is like a blending of our preventive arrest and investigative hearings.
You mention the American grand jury system that has been in existence since time began. How does this system in Bill C-36 compare with the grand jury system? What would be the similarities, the major differences?
Mr. Dolhai: Some of the similarities are that both can be used or are used in order to obtain information or gather evidence. They both have an ability to compel individuals to come and speak. One of the differences is that the grand jury is presided over by the prosecutor. If there are disputes in certain matters a judge can be involved, but the prosecutor is the one who runs the grand jury. There is a more limited role contemplated for counsel in many respects than what is granted in the investigative hearing context, where although the counsel for the Attorney General participates, it is presided over by a judge. That was one of the issues dealt with by the Supreme Court of Canada: Did that take away from the judicial independence of judges? The court concluded in the majority that it did not.
The judge is there in order to safeguard the interests of the person being questioned and the investigation and any third parties. In addition, there is an express right to counsel granted. Counsel for the person has a role to play right at the hearing, including the ability to make an objection to questioning. The ordinary rules with respect to assertions of privileges would also apply.
We also had a grand jury in Canada at one point. There is some similarity between the two processes but, ultimately, they lead to different results. In the grand jury structure, the end result, if it has concluded successfully, will be the preferring of an indictment. Whereas, this structure is not necessarily leading toward a charge against anyone, because it can include the gathering of information, not just evidence.
Senator Fraser: There is one thing I would like to clarify on a slightly different point: the matter of preventive arrests. You have all been talking — and the minister also made a point — about detention being possible for a period of 72 hours. I had referred to detention being possible for as long as a year. I am saying this as much for the television as anything else. What I was talking about was the detention that becomes possible if, after your hearing by the judge, you do not accept the conditions that are set for your release, for whatever reason. You can be put away for up to a year, even though there has still not been a trial, even though you have not been charged with anything, even though you may not have done anything. You have been detained on the grounds of what someone has deemed to be reasonable suspicion. It is an architecture that we are not used to in this country.
I was trying to clarify what I had been saying earlier but if anyone wishes to comment on that, I would be glad to hear it.
Mr. Dolhai: The only comment I would make is that the ability to impose detention or incarceration, if the person does not wish to agree to the conditions, is one that is also reflected in the other similar provisions: the peace bond provisions, be those the ordinary peace bond provisions or those applicable to organized crime. They reflect that same ability in the same periods of time.
The other thing I would add is that there is a reasonable-suspicion component but also a reasonable-grounds-to- believe component. There is the double test. The reasonable-grounds-to-believe component is a significant one in the balancing and weighing that occurs.
Senator Fraser: A peace bond is normally called for only after a trial, is it not?
Mr. Dolhai: It is the same sort of thing. The threshold for a peace bond is reasonable grounds to fear that a person will commit an act.
Senator Jaffer: When we finished our study and Senator Fairbairn reported to the Senate on our behalf, one thing we had suggested was an advisory committee. I have correspondence from one of your previous colleagues; I will not go into the details except to say it was not a satisfactory process. Now I understand that the cross-cultural round table has been put in place, and there will be a meeting next week.
I would like to know this: What is the mandate of the cross-cultural round table? Are these people being paid? How often are they meeting? Will they be holding meetings? What exactly will they be doing?
Mr. Breithaupt: I am sorry, senator, we are searching for that information. It was as a result of the national security policy that the cross-cultural round table was announced and has been formed under the — we do have a press release on that.
Senator Jaffer: I do not want the press release. I have it and I am not impressed with the press release. I am concerned that all four of you do not have the details of the cultural round tables.
It is not a reflection on you, but every time both ministers are in the public, they talk very eloquently or articulately about how they have formed cultural round tables. This is the place where the ethnic community is going to be able to voice its issues, yet nobody has been able to tell me this: Are these people being paid? How often are they meeting? With whom are they going to consult?
I have the press release, and it does not tell me much, except the names of the people. This cultural round table was promised last July. It has now come before the review, and there are no details, so may I please ask that you provide to our committee the details for which I have asked?
Mr. Breithaupt: We can endeavour to provide more details than may be available on the website. Yes, the round table was an initiative under the national security policy that was announced last April. It provides a forum to discuss emerging trends and developments emanating from national security matters and will facilitate a broad exchange of information between the government and diverse communities on the impact of national security issues. It will serve to better inform policy-makers by providing insights on how national security measures may impact Canada's diverse communities, and it will promote the protection of civil order, mutual respect and common understanding. The Department of Justice and Public Safety and Emergency Preparedness Canada have been involved in the work underpinning the development of the cross-cultural round table. We would be happy to provide further information to you on that.
Senator Jaffer: May I have a timeline on that? May I ask the chair at what time we will receive it, because we are continuing, and we may need some of the officials to come back, so how soon will we get the information that I have asked for?
Mr. Dolhai: Senator, I have just been informed that the members are not being paid, and it is anticipated they will meet four times a year.
Senator Jaffer: With whom and for how long? These are volunteers from the community.
Mr. Dolhai: Yes.
Senator Jaffer: My understanding is that there are other intelligence committees and other committees being set around the security issue. Those are all people who will be paid, but the members of the ethnic community will not be paid. Is that correct?
Mr. Dolhai: That is what I am informed, senator.
The Chairman: Certainly, Senator Jaffer, we will pursue that issue more fully.
Senator Jaffer: You know the struggle I have had for three years in getting this information. I have asked members of this committee not to have another three years pass before this issue is resolved.
The Chairman: Yes, I understand that, Senator Jaffer, and we will make sure that this is a full topic of conversation as we pursue our hearings.
Senator Jaffer: I also am very distressed, Madam Chair. I want to bring it to your notice that it is always members of the ethnic community that are expected to do work for free. We are not expecting anybody else who is part of this security framework to do work for free. I think a time has come when we should take a stand, as senators who respect and look after issues of minorities, that the ethnic community should not once again be asked to work for free.
The Chairman: Senator Jaffer, we will take great care to have this properly discussed and, with your assistance, all these issues raised. I thank you for raising them, because they were certainly important issues at the end of our hearings in setting up this legislation, and they should be right at the top of important issues now, and we will pursue them.
Senator Prud'homme: On this specific point, we know the debate we had in the Senate, and how strongly some senators felt. This committee was a kind of concession in order to smooth the bill. I am surprised, and I join with the senator. When we asked and were told, ``We are going to give it to you,'' I followed up on it in my office this morning, because I am not a member of the committee.
First, I hope that it will be a precise time when we are going to get answers to the questions that madam asked. Second, I am extremely surprised to see the people for whom I have high esteem not knowing by heart what any senator could tell you: 12 people, a one-year appointment, meeting four times a year. They seem unaware of how this committee functions. It is like it was a bone given to us in order to smooth passage of the bill. I join with you when you say it is strange that we sometimes treat — at least that is the feeling — them badly by passing them by, and I used to be a member of the multicultural group in Montreal.
She asked a very specific question. I would hope, and that is my only intervention, that she would get a very specific answer as to when and how and who is best prepared to answer her question about the importance of this committee. I am not satisfied with the answer as she is not, and I thank you for your kindness.
The Chairman: Senator Prud'homme, you can be assured that this has been taken note of and will be part of our committee hearings, because those are questions that need to be answered, and they will be.
Senator Day: I think before I start, Mr. Dolhai wanted to make a further intervention.
Mr. Dolhai: With your indulgence, I wanted to indicate, as well, that the members of the other committees are not paid either. Costs incurred by members of any of the committees are of course reimbursed, but the members of the other committees are not paid either. We will obtain the additional information you asked for, senator.
Senator Jaffer: With the greatest respect, on the parliamentary committees we are paid, so I do not think that is a correct statement.
Senator Day: What other committees are you referring to?
Mr. Dolhai: The National Security Advisory Committee, senator.
Senator Day: With respect to preventive detention or preventive arrest or recognizance with conditions — I think those three terms have been used today for the same procedure — and with respect to investigatory hearings, is there not a sunset clause in the legislation? After five years, if the government does not request an extension, then they expire? Is that correct?
Mr. Cohen: It is done on resolution of both Houses.
Senator Day: However, the initiative will come from the government, presumably, from the responsible minister in relation to those two particular procedures. That is about a year and a half from now. Do we know now whether it is likely that the minister will be requesting an extension of another five years for those two procedures?
Mr. Cohen: I think it is fair to say no decision has been taken on that. There is no indication as to whether or not they will be extended or renewed. Your review will have some views to share with the minister on that particular point perhaps.
Senator Day: Do we have any recommendation from the Minister of Justice or from any of the other government officials with respect to their position on these two? One has been used once; one has not been used. Do we have any indication one way or the other?
Mr. Cohen: I would come back to what I have said before, which is the fact that whether these provisions have not been used or have been used only sparingly is not necessarily the measure of their importance or potential importance, if circumstances arise wherein they might become necessary to use. The preventive arrest provision could well sit on the books not invoked. A circumstance might arise where an unfolding event, which would not be otherwise reachable by law, might require the use of this extraordinary power. The purpose behind the preventive arrest provision is to try to disrupt nascent terrorist activity. If it can serve that potential and use, even if it is done only rarely, and can actually avert something of serious proportion from taking place, then that should be an argument in itself for its preservation.
That may not be the way in which the government will come down on this issue, but whether or not this is something we require must be considered.
Senator Day: Can you not give me any indication whether the government will be requesting an extension, requesting each House to put forward a resolution to extend these two provisions, which are sunsetted in a year and a half?
Mr. Cohen: Both ministers have undertaken to return to testify before you, and they would be in a better position to advise you.
Senator Day: If these provisions are not renewed by a resolution of both Houses, will that put us offside with respect to any of our international obligations, or any of the 12 resolutions of the United Nations if we do not have these provisions in our domestic law?
Mr. Cohen: I stand to be corrected on this, but I do not believe that there is anything in the international undertakings that we have that directly addresses these two particular points.
Senator Day: Other than the provisions of the international conventions with respect to bombing and money laundering, which have been highlighted as two international conventions covered by the Anti-terrorism Act, we have also been told that the Anti-terrorism Act helped us to meet our international obligations. Are there any other aspects of the Anti-terrorism Act that we must keep in order to be onside with respect to our international obligations, particularly the 12 resolutions of the United Nations?
Mr. Cohen: The 12 conventions to which you refer are all taken up in the definition of ``terrorist activity.'' They constitute a form of implementation of our undertakings when they are taken up in the definition itself and become part of the Criminal Code provision that deals with terrorist activity. Offences that are linked to this definition tie into that as well. To a certain extent, you could say that the way in which we have blanketed the field of terrorism and terrorist activity is linked to those 12 conventions.
Senator Day: If this Anti-terrorism Act were not there any longer regarding the provisions with respect to charities and listing charities with terrorist activities, to the seizure of funds, to hate crimes — those particular provisions — would we not be in compliance with our international obligations under other conventions?
Mr. Breithaupt: Through the Anti-terrorism Act we implemented a number of international obligations that allowed us to ratify, as you mentioned, the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of Financing Terrorism. We created offences and measures in this act to allow us to be able to ratify those international obligations.
Also, UN Security Council Resolution 1373, of which the minister spoke, has a number of obligations built in. Canada must report to the UN Counterterrorism Committee on our implementation of that resolution.
We also implemented the Convention on the Safety of UN and Associated Personnel through the provision of offences in the Anti-terrorism Act.
The Anti-terrorism Act enabled Canada to comply broadly with the Financial Action Task Force on Money Laundering, or FATF, with special recommendations on terrorist financing. There are some international obligations in relation to the charities legislation, though I cannot pinpoint what they are exactly. That is part of an overall international effort as well.
Senator Day: We have been charged with a responsibility under section 145 of the act to review the act in its entirety. That could potentially result in us suggesting that many provisions that are in this particular piece of legislation are not necessary. Other than just analyzing the effect on our society, what other international obligations do we have that might influence a decision with respect to any one of those recommendations that we might make?
If someone has done an analysis within the Department of Justice saying that this section is necessary not only to achieve its international objective, but also it meets our obligation internationally, then that would be helpful for us to know and to see that analysis.
I am interested in the act as a whole and many of its different provisions. Which ones must we consider regarding our international obligations, as well as considering its effect from a national point of view?
Mr. Cohen: My answer will not directly respond to that, but I would like to stress the other side of the coin, if I could, which has to do with asking yourself the question of whether or not the main elements of the Anti-terrorism Act are elements that are necessary, not because of what were regarded as the extraordinary circumstances of September 11, 2001, but rather are necessary as part of a good and strong public security environment and as part of substantial public policy in this era in which we live.
In doing that, you would consider things that are not part of the international obligations that we have undertaken. Among those would be our reform of the Official Secrets Act, our reform of the Canada Evidence Act, our use of provisions that have their origins in the criminal law approach that we have taken, for instance, in the area of organized crime or in the area of money laundering.
The provenance of these elements of the legislation has already been tested in other ways, and not necessarily against the yardstick of whether Canada had signed on to an international agreement. There would not be an international agreement on official secrecy or on evidence, per se. These are still matters that had long been of concern to the country and had been explored in other commissions of inquiry or in other public policy.
The international equation is important, and you deserve a comprehensive answer to the question that you put, but they are only part of the equation that we must consider.
Senator Day: Mr. Cohen, do I have an undertaking from somebody to provide me with some type of analysis?
Mr. Breithaupt: We will undertake to provide that information.
Senator Joyal: I wish to return to the subject of the advisory group involved with ethnocultural organizations. First, what is the status of the legal advisory committee to which you referred?
Mr. Dolhai: I am informed, senator, that the creation of the committee has been announced but the membership has not yet been determined or announced. That is where it stands right now. The constitution of the committee has not been completed.
Senator Joyal: Is it right to say that it has no statutory basis?
Mr. Dolhai: It is my understanding that it has no statutory basis.
Senator Joyal: In other words, as I understand the situation, the previous Minister of Justice, who happens to be now the Minister of Public Security, has committed by letter to establish such a committee by the end of 2002, and it took three years for the department to come forward with a press release announcing the committee. Am I right or wrong?
Mr. Dolhai: I believe that that time period is correct.
Senator Joyal: Of course, you are well aware that the special committee that studied the first bill, Bill C-36, in its December 10, 2001 report, now over four years ago, recommended the creation of a special ongoing advisory group including representatives of ethnocultural organizations to provide factual and anecdotal evidence of how the provisions of this bill are being implemented and advise adjustments if warranted.
You have to realize that this committee has been very clear on the importance it placed on monitoring the impact of the bill on the groups, like it or not, that were targeted. The minister has referred to racial profiling. We know the Muslim community in Canada felt targeted by that bill. Would it not be better for us to recommend that Bill C-36 be amended and that the Advisory Council on National Security be given a statutory base, if this bill is to stay as the Minister of Public Security mentioned to us last week, and as the present Minister of Justice has stated in the same context?
Mr. Dolhai: It is certainly a matter that the committee could consider, and consider whether a recommendation would be appropriate.
Senator Joyal: Madam Chair, at this stage in our discussion we should maybe reserve some time in the future to consider the kind of substance that should be given to amendments to the bill in which we would give statutory base to the functioning composition and operation of the Advisory Council on National Security. That is what I wanted to say first to our witness.
[Translation]
Mr. Therrien, could you come back to the issue of the time periods during which detention certificates were used in the past? What is the longest period of time during which a person was detained in the past?
Mr. Therrien: To my knowledge, the longest time period was approximately nine years. Currently, amongst those who are the subject of a security certificate, the detention period is less than two years, in the case of Mr. Charkaoui, and less than five years in the case of another individual.
Senator Joyal: We are therefore discussing a period covering approximately two to five years. I do not want to make any comments on the Charkaoui case as it is still before the court. It would not be appropriate to ask questions on that matter. Let us stick to how the system works. Are you not somewhat surprised by the spirit of the decision of the House of Lords and Lord Bingham, according to which a person can be held for an indeterminate period of time in England, and of the decision of the House of Lords and annex, in which case the period under consideration was three years, if memory serves me well, when I read the decision. The period of time being discussed was three years and the Lords came to the conclusion, eight to one, that it was unacceptable to hold someone indefinitely, even for a period of three years.
Does it not make you wonder; detaining a person for two to five years, without that person having the opportunity to appear before court or without the Department of Immigration authorities being obliged to appear before a court in order to explain any changes in circumstances that may have come about within that two-to-five year period? If we look at the decision handed down last week, that aspect is a key element of the court decision; circumstances change, and as a result a person's status may be reviewed.
In accordance with the principle of due process, would it not be better to amend the act in order to set fixed intervals at which Immigration authorities would automatically be obliged to appear before a court and report on the duration of a person's detention?
Mr. Therrien: The system is complex. I would have to take some time to answer your question. concerning the detention of individuals who are the subject of a security certificate, the current Immigration Act makes a distinction between permanent residents and foreign nationals who are not permanent residents. In the case of permanent residents, there is a mandatory review every six months. While the Federal Court is reviewing the reasonableness of the certificate, the person who is the subject of the certificate is entitled to a custody review at least every six months. The review at regular intervals you were referring to already exists for permanent residents.
For foreign nationals who are not permanent residents, and most of those currently being held under a certificate are not permanent residents, there is no judicial review of custody for the period for time during which the Federal Court is reviewing the certificate. This may be a relatively lengthy period of time — but we are not talking about the five-year period for one of the people who is the subject of a certificate. This period of time is always shorter; it can last a year or two, it can be longer, but the court's review of the reasonableness of the certificate generally takes a year or two. During this time, for foreign nationals, there is no regular review of custody as such.
One could claim that the review of the certificate as such is a form of judicial review of detention. When the court has delivered the verdict on the reasonableness of the certificate, after that one or two-year period, even in a case of a foreign national who is not a permanent resident, if he is not deported within 120 days of the court decision — or within four months if my math is good — this person may turn to the court and ask it to consider whether or not the detention should be maintained.
So there is a form of judicial review of custody. This is not currently the case for foreign nationals who are not permanent residents. It is a review at regular intervals, during the time the federal court is determining whether the certificate is reasonable. When the court has decided whether the certificate is reasonable, there is another review within 120 days, and the law is silent as to any other judicial reviews of detention.
Senator Joyal: Thank you for having explained this mechanism to us, because as you yourself said, there are subtleties. Does it not seem unusual to you that a person can be detained for up to five years, if not nine, without anyone managing to render a final decision on the rights of this person?
Mr. Therrien: Even in the case of foreign nationals, the review of the reasonableness of the certificate by the Federal Court is a form of judicial review and is legally justified by government arguments according to which the person must eventually be detained or deported. This determination of whether or not the certificate is reasonable is a form of judicial review. I recognize that in the existing legislation, there is no review of custody as such, as far as foreign nationals are concerned, as opposed to permanent residents. That does not mean we should minimize the importance of the court decision as to the reasonableness of the certificate. It is not a purely executive decision.
Senator Joyal: I am not talking about the decision regarding the merits of the certificate. If we look at what is happening today, I think that deciding on the merits of the certificate and on the detention of the person would be two decisions that are taken in parallel, that develop at the same time. What seems absurd to me is not that it takes time to render a verdict on the merits of the certificate, but on the status of the person who is waiting.
As you yourself have said, to be detained without knowing where one stands for one or two years, has to be seen as an exceptional procedure if we hold it up to the standard of what we accept in a free and democratic society such as ours. This is what I am trying to understand in the workings of the system; is there not some point at which we should establish parameters to ensure that we are not using the legal system to detain a person without having to show cause?
Mr. Therrien: I would say two things on that subject. I will come back to what I was saying about the review of the merits being a form of judicial review of the reasonable and legally sound character of the government's position. There is a distinction made between permanent residents and foreign nationals. In the case of permanent residents, there is a form of judicial review of detention, at regular intervals, that does not exist for foreign nationals. What you would like to see is whether there is a way of reviewing the detention. In the case of permanent residents, there is a review every six months. We can only recognize that currently, this is not the case for foreign nationals.
[English]
Senator Andreychuk: At our last hearings, when we initially looked at this act, there was great discussion about the definition. The government was rather insistent at that time in saying ``in whole or in part for a political, religious or ideological purpose, objective or cause.'' In other words, a terrorist's motives being political, religious or ideological seemed important to the government.
Some other countries have similar provisions and some do not. I heard the minister say this morning that he did not want to get into the distinction of one man being a terrorist and another being a freedom fighter.
On reflection three years later, would it make any difference to remove that section? I am not concerned, for the sake of my safety, to know whether a terrorist is acting for political, religious or ideological reasons. Yet, if I shared that terrorist's political, religious or ideological views and was not carrying out terrorist activities, it would bother me. I think that is happening in Canada now. People who share religious and ideological views are being lumped in as terrorists simply because they have the same views.
Would it not be better to remove that section? It does not seem to have helped us. We are concerned about stopping terrorist acts and attempted terrorist acts. Why should it rest on those three matters? Three years ago I fought against this, but I thought there may be some compelling reason to have it. I have not found any literature or any case law to support the contention that it assists the definition of ``terrorist activity.''
If you want to take that under advisement and provide us with a response, that is fine. I think that is the nub of a problem that still exists.
Mr. Cohen: In partial answer to your question, it is important to understand the purposes that this phrase serves. The minister tried hard this morning to explain that these words do not exist in isolation within the provision, but rather they only become significant when you consider them with the rest of the clause.
In other words, you must have a political, religious or ideological purpose along with an intention to intimidate the public in conjunction with the intended consequences that have to exist, such as the intent to cause death or serious bodily injury, the endangerment of life, causing a serious risk to health or safety of the public or serious interference with or disruption of an essential public service facility or system. That means that simply an ideological, religious or political belief is not sufficient to criminalize. You have to have that belief along with these other intentions, both as to the effect you want and the consequences.
That is the substantive reach of it. If you take that away, you are, in a sense, making it easier for the prosecution. That may be desirable as a matter of public policy, but there are higher consequences in terms of penalties that go along with this. There is an element of commensurate treatment for people who are charged with this.
This creates an offence called ``specific intent,'' which means that the prosecution has to actually prove the motivation in order to secure a conviction. That is the substantive reach of it. If you look at the procedural dimensions of removing this requirement, it may be that you will make it easier to target other people within society in the investigation of terrorist activity, because you will have removed one of the things that we must demonstrate in order to have a valid charge. If you take away the requirement that the prosecution has to shoulder, there may be a rather larger net of potential investigative activity that can occur.
I appreciate that this is complicated.
Senator Andreychuk: On the other hand, we may take away the racial profiling and make it easy to target a segment of our society inappropriately.
Mr. Cohen: It has no bearing on racial profiling. What is getting mixed into the consideration is the fact that you see these words that are directed at politics, religion or ideology; however, that does not mean that this is the basis upon which you target people. You still have to have targeting based upon accurate and valid intelligence that is based upon reasonable and probable grounds and not upon what I think everyone would recognize as racial profiling.
Senator Andreychuk: I will leave the rest of the questioning on this. Perhaps we will have other witnesses speak on how we blended terrorist activity and international crime, et cetera, and therefore the motive appears to be less clear than the witness has stated.
Regarding this act, the Anti-terrorism Act, I know that the Evidence Act was changed as a result of the O'Neill case. For all the acts that the Anti-terrorism Act affects, have any of them been changed in the three years that would affect the Anti-terrorism Act in any way? In other words, we have a lot of pieces of legislation. I do not sit on all the committees, so I do not know if you have changed any of the other acts that may have an impact on this act.
I think you can study that and follow up as you will, Senator Day.
Senator Day: We will be getting that undertaking from somebody. We asked for it the last day.
Senator Andreychuk: That was not quite the same question. Perhaps we can get that?
Mr. Breithaupt: We can give you some idea of the subsequent amendments to the Anti-terrorism Act. There was Bill C-14, for example, An Act to amend the Criminal Code and other Acts, which received Royal Assent on April 22, 2004.
It repealed the requirement for special rules relating to hearings under section 37 of the Canada Evidence Act, and made several minor amendments to certain sections of the Security of Information Act and the Canada Evidence Act, which were brought into law. For example, the Canada Evidence Act, in section 38, talks about protecting information injurious to international relations or national defence or national security. Previous to the Anti-terrorism Act, section 38 existed. There were Canada Evidence Act provisions that protected information of that sort. However, it said information relating to international relations, national defence or security. The word ``national'' did not fall in front of the word ``security'' in English; it did in French.
When the Anti-terrorism Act was given Royal Assent, it was missing the word ``national'' in front of ``security'' in a few places. That was fixed. Also, the definition of ``special operational information'' was altered in English to match the word in French; the word ``was'' was missing, and that was fixed.
There is an additional minor amendment, which is not yet in force, made to the Security of Information Act by Bill C-25, The Public Service Modernization Act. It relates to terminology. I gather, as well, a minor amendment was made to section 5 of the Federal Courts Act to provide detail in the composition of the Federal Court.
Other provisions have been passed into the law. For example, the terrorist hoaxes section came into effect on December 2, 2004. That was not amending the Anti-terrorism Act, but it added a new section — 83.23(1) I believe. That gives you a flavour of some amendments that have been made subsequent to December 18, 2001.
Senator Andreychuk: Just a final point: Senator Lynch-Staunton had a series of questions about security and moving people to another country, and what undertakings were being given, although not binding, between countries. We may or may not accept those assurances.
Have there ever been any undertakings requested that if we returned, or allowed our Canadian citizens to become subject to a country, that they would then not be able to turn them over to a further authority in another country? In other words, if we return someone to the United States or Syria, do we have any assurance that they not then go on to another country? We have never used that provision. In theory, we get undertakings from one country, but we do not really know whether they hold on to those people or whether they move them on; we do not preoccupy ourselves with that.
Mr. Therrien: I want to ensure that I understand the situation you are putting before us, senator. This would be in a removal context — removing someone from Canada to another country. Are we seeking an assurance from the country of destination that they will not send the person elsewhere?
Senator Andreychuk: In other words, you said you were seeking assurances that they would not be tortured or subject to a death penalty, but do you seek an assurance that they will not immediately move them on to somewhere else where those things could occur? They would be upholding their commitments to us, but that person might be suffering the consequences that we were trying to stop.
Mr. Therrien: I will answer this way: When Canada seeks to remove someone who says they are at risk of torture, we cannot remove them to just any country. There are a number of countries where the Immigration Act permits removal from Canada: the country of the person's nationality, the country from which he or she arrived in Canada, et cetera. There is a limited list of these countries.
If we remove the person to a given country where there is risk of torture, we will seek assurances. The question of the potential to remove the person to a third country, neither Canada nor the country where the torture would be suffered, is actually an alternative we look at in order to minimize the risk of torture. If, among a short list of countries, there is a third country to where the person can be removed and would not be at risk of torture, then we will seek to remove the person to that country as opposed to the country where there is risk of torture. I would suggest that the person's removal to a third country is something about which we should be less preoccupied than an alternative that would allow Canada to remove a potential threat posed by a person who is a terrorist without putting that person at risk of torture.
To answer your specific question, I do not think we seek assurances from the country of destination in the context I am explaining, because we would not be concerned about removing to a third country. We might actually look for removal to a third country if that would minimize the risk of torture.
Senator Andreychuk: I understood the third country. It is a question of us making a deal with one country and having some reasonable assurances, but then once they have seized this person, they can move them on to somewhere else to accomplish their ends without violating our terms.
Mr. Therrien: I do not think we have seen this in practice.
Senator Jaffer: I want to thank everyone for listening to the cultural round table issue. I know none of you were involved in my struggle with the advisory committee, and now the round table.
The Advisory Council on National Security that you were speaking about is composed of security professionals, as far as I understand. That is their job and they are involved in security issues, unlike the cultural round tables. However, I will wait to hear from you.
I have two or three questions about things I do not understand, and maybe you can give me some answers. Regarding oversight, I believe that CSIS has SIRC oversight and the RCMP has the complaints mechanism oversight. Who oversees the integrated national security team? Is there an oversight for that, or am I wrong?
Mr. Dolhai: The integrated national security enforcement team is a multi-disciplinary team with a number of different memberships from different agencies and departments. The RCMP component is overseen by the RCMP element, and the other members of the group each have their own oversight mechanisms that apply to them as individual forces.
Senator Jaffer: Can you tell me who else would be part of that RCMP team please?
Mr. Dolhai: The membership includes provincial police forces and municipal police forces. As well, they can have membership from the Revenue Agency or Canada Border Services Agency.
Senator Jaffer: Who is the oversight for the Canada Border Services Agency?
Mr. Dolhai: There is ministerial oversight.
Senator Jaffer: The other question was on the motivational elements in the definition. Some people have said to me that by just including the three elements — political, ideological or religion — and not other sorts, there can be a Charter challenge, because there are only the three motives you are looking at and not others.
I know that Minister McLellan and Minister Cotler said this legislation has been looked at for Charter purposes. Is this terrorist definition Charter proofed?
Mr. Cohen: I think the minister has indicated that the legislation has been assessed during the developmental stages — when it was here last at Bill C-36 — so all elements of the legislation have been assessed in terms of their compatibility with the Charter. To that extent, the answer to your question would be, yes, it has been assessed.
Senator Jaffer: It has been assessed? Thank you.
We have been hearing the words ``risk management'' a lot. What is risk management? We did not hear it today, but in reading all the material I see the term ``risk management.'' I will try to be clearer.
Last week when the minister was here, and I understand it may not be part of your area, she said that we do not racially profile, but we do risk management. What is risk management?
Mr. Cohen: I would hate to speak for the minister, but I would assume if she has linked it to racial profiling, she is talking about basing whatever targeting of individuals takes place upon proper intelligence risk factors rather than on something such as race or ethnic identity.
Senator Lynch-Staunton: I have one question, which is to repeat one from this morning. When I said I was apprehensive, at the time of our pre-study and study of Bill C-36, about some of the wording and clauses and how they could be applied, it turns out that our apprehensions have been ill-founded. Bill C-36 has hardly touched the more controversial clauses, and so, as Senator Day brought up as a subject matter, maybe we will conclude that some of the provisions are not needed and what is found elsewhere is enough.
I am taking the wording from your resource materials prepared for the House and the Senate in which it is written, ``the measures contained in the Anti-terrorism Act provide additional statutory tools needed to effectively deter, disable, identify, prosecute, convict and punish terrorists.'' My question: Has Bill C-36 effectively deterred, disabled, identified, prosecuted, convicted and punished terrorists? If it has, how has it done so?
Mr. Dolhai: That is a question, senator, I think that those in the enforcement and intelligence community would be in a better position to answer. I would indicate that the act provides additional tools as part of a larger tool box for the police in relation to the particular phenomenon of terrorism.
Senator, I agree there are other provisions in the Criminal Code that address other matters: provisions dealing with the possession of explosives; a whole number of matters that may have a terrorism element or not. However, the particular provisions of Bill C-36 address some of the particular threats or dangers that terrorism has posed and that were crystallized after 9/11, and those that have been mentioned by you and many witnesses. There is prevention and the need to be able to act early, to act in respect of a situation that causes a danger and to be able to have the police have a tool that respects the rule of law, but allows for enforcement activity at that point. I am thinking, for example, of the participation or contribution offence or the facilitation offence, which requires a high mens rea, a knowing element to what is being undertaken, and the actus reus with respect to the actual activity that the person is undertaking.
Senator Lynch-Staunton: I suggest that you speak to whoever wrote this and try to curb his or her enthusiasm, because I expected that to be your answer. That is an exaggerated statement, and it gives the impression that with Bill C-36, we got all we need. That is not correct; we will never have all we need against the kind of enemy we are trying to fight. Second, I will ask the authorities responsible at the Department of Citizenship and Immigration to tell us those parts which have been valuable, and I hope they will be more convincing than, let us say, the minister was this morning.
Senator Fraser: This morning the minister, in response to a question from Senator Jaffer, I believe, indicated some continuing sympathy with the notion of inserting a non-discrimination clause into the act. If memory serves, the views advanced at the time were that such a clause was not necessary because the whole act comes under the Charter of Rights and Freedoms given to every citizen in Canada, including freedom from discrimination.
Politically, obviously, it has enormous appeal to reiterate formally the country's dedication to fighting discrimination, even in the context of terrorism, but are there legal arguments against such a clause? I am not asking you to talk against your minister here. I know he knows all the arguments for and against, but I do not. Are there any legal arguments that would be opposed to the insertion of such a clause?
Mr. Cohen: It would be hard to address that in the abstract. Basically, you want to see the clause. One can always posit a situation where a clause that is meant to have a positive or rhetorical significance becomes, through usage or through mischief, used as an interpretive device and in ways it is not intended to be used, but I cannot think in the abstract of arguments against the provision in that way. I would have to see the exact wording.
Senator Fraser: This is a supplementary question and I hope you will answer me, ``No.'' Would there be an argument that to insert such a clause in this bill would somehow suggest that the protection advanced by the Charter for other bills was, by ricochet effect, weakened because the other bills would not have such a clause in them?
Mr. Cohen: Again, I am hesitant to talk about this subject in the abstract, but I should not think that you could weaken a Charter provision by inserting a provision that merely reasserted a right that all people already have.
Senator Joyal: I would like to return to the issue of Guantanamo. How many people with Canadian citizenship were detained originally in Guantanamo?
Mr. Dolhai: I would ask to defer that question. We are not in a position to respond at this point.
Senator Joyal: Then I will give you a series of questions: How many were detained originally? How many have been released? How many are left? What is the status of those who are still left? Why did the Canadian government not appear at the Supreme Court of the United States to request the application of the rule of law in relation to Canadian citizens in the same way that the Department of Justice appears amicus curiae in cases of the death penalty being applied to people under 18 years of age, whereby you file a brief with the European Union in the Supreme Court to contest the constitutionality of such a penalty for that person?
If the Canadian government is so concerned with application of the rule of law, it has to be concerned at all levels, especially considering the fact that we were one of the signatories of the establishment of the international penal court and we believe in international justice, which means that the rule of law applies to everyone everywhere.
I would like to have those questions answered, if possible.
Mr. Dolhai: We will make our best efforts.
The Chairman: Thank you very much. You have been a stalwart set of witnesses. You have been here since before 10:30 this morning. We do appreciate the time you have spent with us. We do not need to tell you that this is a difficult issue in so many respects. We have a very good committee here that has been involved with this issue through our hearings, in most cases, since 2001.
I do not apologize for the tough questioning. I am rather proud of the committee; however, I do thank you for your patience and generosity. I am sure that if there is anything else that needs to follow from today that you will follow it up. We hope to see you back again. Thank you very much.
Honourable senators, we will now turn to the subject of our budget.
Senator Stratton: If I may, just briefly, could we not talk about future business and then go to the budget, because we have to do budget in camera?
The Chairman: No, the budget is discussed in public.
Honourable senators, the urgency for passing this budget is that we were told, and I think most of you remember, that for the coming fiscal year we needed to have it in by February 25. What you see before you are the kinds of services we are using now, with meals, research and that kind of thing for the committee as it is now proceeding.
We have then included, because of our discussions earlier, another section that is aimed at taking the committee to a point in the immediate weeks ahead, where we will all, to the greatest degree, be able to go. That is why there is urgency.
The grand total is $129,692. I am looking for a motion to approve this budget.
Senator Jaffer: When we received this mandate, it was my firm understanding that we would be travelling across Canada to meet with various groups. It says in our mandate that we have the power to meet people within Canada and outside the country. My understanding was that we talked about going to various cities when we talked about the mandate. Senator Austin joked, saying we would start in March in Vancouver, that the weather would be nice.
I have no problem with what is set out, but I do not want it to be taken that we will not be going across Canada to meet with communities. I clearly understood that was part of our mandate.
The Chairman: I will look to the clerk for some assistance on this. The numbers that we have here presumably could be used in whatever way we wished. In our meetings there has been a strong desire to have a visit to Washington, at some point in our proceedings, where we will probably have the most direct kind of hearings and discussions with colleagues south of the border. I would ask the clerk if she could speak to the other issue that Senator Jaffer has mentioned.
Ms. Heather Lank, Clerk of the Committee: Honourable senators, in the order of reference that the Senate gave this committee was the power to travel within and outside Canada. Having the power does not mean that it is an instruction to the committee that it must; it empowers the committee to do so if it chooses. It remains in your hands to decide whether or not you do wish to conduct other travel, in which case it would require another budget submission.
The Chairman: When would that other budget submission have to go in?
Ms. Lank: We know that the Internal Economy, Budgets and Administration Committee has asked for budgets by later this week, but presumably it would be up to this committee to decide if they want to do a supplementary budget later on. That would be within the committee's power at the time that this committee considers appropriate.
At this point, the committee has decided on the Washington trip. That is what is in the budget. If other travel plans are made, then at that time a further budget would have to be submitted to Internal Economy, Budgets and Administration Committee.
The Chairman: At this point in time, submitting this budget does not preclude further travel. Is that correct?
Senator Jaffer: I have a concern with this. In our first meeting there was absolute understanding that we would be travelling across Canada. I am not saying to every city, but we would be travelling to some cities. My concern is that it was not my idea to go to Washington, D.C. That is fine; going to Washington, D.C. is important, but within these walls it is important that it not just be me who talks about racial profiling and not just be me who you hear from on issues that are impacting the community. When members of the various communities call me, I tell them that it is very important that the community hear from them. I should not be the only voice. All along I assured people, as I was assured by Senator Austin and as this committee was assured, that we would be travelling. My concern is that either I have not been heard or it has been forgotten. We are not guaranteed to be granted a supplemental budget request. As a member of the Internal Economy, Budgets and Administration Committee, I know how that process works.
Why can we not include travel in our budget? I am not saying that we should travel to every city. Although I may be criticized for this, I think that we should travel to Vancouver, Montreal and Toronto in particular. We should put that in our budget now rather than requesting supplemental funds later and risk being turned down by Internal Economy, Budgets and Administration Committee, because that was very clearly in our mandate.
The Chairman: I would like to hear from other members of the committee with regard to whether they would be agreeable to including another budget item for travel within Canada. We still have time to do that. The budget has to be submitted by the end of the week. If we could agree on numbers today, we could proceed with this budget covering both domestic and foreign travel.
Senator Lynch-Staunton: I am not commenting on racial profiling as such, but is racial profiling in itself a reason to travel across the country? Surely we can get representatives from the various groups that feel targeted to come to Ottawa to speak on their behalf. I do not see the value of going to Vancouver or Toronto just to hear someone who has been racially profiled tell us that.
Senator Jaffer: I was using that only as an example. If we use the rationale that we can call everyone here, then no committee should travel. We should have all witnesses come here. Why do we treat different groups differently? Senate committees travel. Why should this committee be different from the Social Affairs, Science and Technology Committee or the National Security and Defence Committee? It was Senator Kinsella who asked that we have the option to travel. Why should we treat this committee any differently from other committees? I was only using racial profiling as an example. Surely there will be other things that the committee will want to hear about.
Senator Lynch-Staunton: That is the question. What else do we want to hear about that we cannot hear here? That is standard wording. Every committee has that right, as they have the right to televise, but it does not mean that they have to televise.
I have nothing against travelling; I am just wondering what we would be listening to elsewhere that we cannot hear here to help us in our review of the bill. What are the topics?
Senator Jaffer: It seems like I am the only one in favour of this. I guess I am being overruled. I know when I am defeated.
I cannot tell you what we would hear. If I knew that, I would know everything. I do not have a crystal ball. This is an important study that will take a year to do. This budget is for funding to 2006. I think that we should include this. I had absolute confidence when I became a member of this committee that we would travel. If I get overruled, so be it, but I am telling you that that was my understanding and there is no money set aside in the budget for that.
Senator Andreychuk: We hear from the government that terrorism is still the same high risk that it has been in the last three years, that the government needs all the horrific powers it has and that Canadians seem comfortable with that. Minister McLellan quoted statistics from public opinion polls, but that is not the feeling I get from across Canada. I think there is a lot of unease that we are paying a high price but that we are no safer than we were three years ago; therefore, there is some merit in travelling to talk about that.
There was talk at one time that we would conclude our work in June. Are we now going to continue for a full year? If so, what will our agenda be during that time, and is there time to incorporate travel?
Senator Stratton: I am not arguing against travel; it is just that I do not have a sense of what we would hear. I would suggest that if we need to travel we should ask for supplementary money from Internal Economy Committee for that purpose. I am quite sure that such a request would be considered positively; however, until we can justify reasons for travelling, I would like to leave it that we will make that requested if we need to.
Senator Jaffer: This legislation is enforced by municipal forces as well. As an example, when the Air India investigative hearing took place in B.C., the municipal forces were involved. Provincial Attorneys General are also involved in this legislation. It was always my understanding that we would be hearing from some provincial Attorneys General and from some city forces, because this legislation applies provincially as well as federally. If we sit in Ottawa, we will get the viewpoint of the federal government but not of the provincial governments, although I know that we can call them here.
I have made my point and I know that we can go for supplemental funding. My concern is that the Internal Economy Committee can turn down such a request, as they can this request, but this is a very reasonable budget.
Senator Fraser: I have instinctive sympathy for the position that Senator Jaffer is advancing, with no specifics to back it up; however, a couple of specifics do occur to me. One is that this committee is about to adjourn, and we are not scheduled to meet again until after the deadline for submitting budgets to the Internal Economy, Budgets and Administration Committee, and we cannot possibly draft travel budgets in the next three minutes. That is a significant problem.
Second, if we believe that we need to travel as we move forward, I think this committee is more likely to get a favourable reception to a supplementary budget request than any other committee now sitting, because everyone in the Senate, from the leadership on both sides on down, has such a clear understanding of how important this work is.
I really do not think that we are foreclosing any options here, but I do think that we are stuck at the moment. Mechanically we cannot get another budget drafted in time, but I really do not believe that that constitutes foreclosure.
Senator Jaffer: Could we not say that the specifics of the travel are to be approved by the steering committee?
The Chairman: The advice I have been given is that if the committee wants to travel and could agree on the major cities to which it wishes to travel, you could authorize the steering committee to approve the required amount and a budget could be submitted by Friday.
Senator Joyal: For the information of the members around the table, I do not happen to be a member of the Standing Senate Committee on National Security and Defence. I have not attended any of their meetings. I know Senator Day is a member. Can we have an idea of what the yearly budget is of the committee? How many times do they travel around the country? I know they have an agenda. They review the defence policy. We are reviewing a bill.
Senator Stratton: It is irrespective of that.
Senator Joyal: I know. I am trying to understand the way they approach their mandate or terms of reference and the way we approach ours. I am not saying that we should travel because they travel; — not at all. I am trying to understand their methodology versus ours so we can learn that before we make a decision about whether or not we feel we should travel.
Senator Day: There are three major travelling committees that have requested the right. The Standing Senate Committee on Social Affairs, Science and Technology, Standing Senate Committee on Transport and Communications, and Standing Senate Committee on National Security and Defence all have very significant travel budgets this year.
The Chairman: Significant in what sense?
Senator Day: None have been approved, of course, as yet, but significant in terms of activity, so the cost will be over half a million dollars each.
Senator Jaffer: Senator Lynch-Staunton is asking, ``What is our agenda?'' I know I am a new senator, but not that new any more. The way I understand it is that it is the job of the steering committee to suggest an agenda for us, and we have been waiting for that, and that is how I think our committees work. Therefore, as to our agenda and what we are trying to achieve, we can have a working group, and I can certainly suggest things that need to be done in this area. I will gladly do it, but no one has asked me, because I am not on the steering committee. However, to come today and say, ``Well, we do not know what we are going to do,'' that is not this committee's role; it is the steering committee's role. That is how I have understood it, and correct me if I'm wrong, for I have been wrong many times before. I think that is the steering committee's role, and to say today that we do not know what we are going to do, and so we cannot do it, is not appropriate.
Senator Lynch-Staunton: Let us be careful. No one has suggested to me that there is a need at this stage to travel in Canada. I do not know of any need; I cannot think of any need. We thought of going to London, but we thought that may not be important at this stage. Washington is an obvious destination. We talked about Canada, and nothing came out. Now you are discussing it. Do not say we dismissed it, because there was nothing to dismiss. There was nothing tangible to accompany the idea.
Senator Jaffer: I have discussed with the chair the proposal of going across Canada. I cannot do it right this second, but I can put something together. I have not been put on the steering committee, so I did not see that as my role, but I can provide that information. I hear Senator Fraser saying that we will get a good hearing, but I also sit on the Standing Committee on Internal Economy, Budgets and Administration. I know what is happening there, and I do not want to get the answer. I am very surprised that we are in this discussion, because I thought all along we would be travelling across the country. This has come as an absolute surprise to me.
Senator Lynch-Staunton: I am sorry too, but I was not under that impression. If it had been on my part, I apologize.
Senator Jaffer: At the first meeting, senator, if you look at the minutes, it was absolutely discussed that we would be travelling. In fact Senator Austin made a joke of it saying we will start in Vancouver. That is how clear it was in my mind.
The Chairman: Senator Jaffer, the only thing that I can say is that I think we have been looking at, and perhaps too narrowly, the initial work of the committee without a detailed idea of the future work to come. We wished to get the foundation of what we are doing or hearing in the kinds of hearings we have been having in the last two weeks. I have no objection to travelling in Canada, but I remember that meeting as well, and there was a very strong suggestion — again, it may have been wishful thinking — that we would be travelling all over the place outside this country.
When we came together, we drew a conclusion that in the early part of our hearings, when we were trying to get the basic information, a trip to Washington would be really — and others around the table agreed — the only foreign trip that we would need to take. We could do the rest by video conferencing, to the degree we wished to do that. This does not preclude travelling within this country.
I obviously take full responsibility for this committee, and if a miscalculation has been made, then I will take responsibility for it. I must say in my own mind that I had thought that any further travel would be budgeted further down the road. I do not believe that is impossible. I am inclined to believe we also would get permission to do that. Today, I am in the hands of the committee. If we want to take that route and Senator Jaffer feels uncomfortable that we might not be given permission — I am not sure I agree with that, but there are two routes to take: Proceed with the budget that we have and then, as we get witnesses before this committee who are going to tell us quite different stories from what we have been hearing in the last two weeks, we would be in a position to decide where we wanted to go in Canada and we would produce another proposal to the committee. The only way that we could do otherwise today would be to pull out of the air a sum of money and whack it through the steering committee without having discussed what we want to do as a committee. That is a little bit tricky.
Senator Lynch-Staunton: Perhaps what would help resolve the issue is that the budget be submitted as is, with a covering letter to the effect that because of the deadlines, because we are a brand new committee, it is impossible to firmly plan for next year. We intend to plan to travel across Canada to certain parts, but at this stage we cannot be more precise and, rather than ask for a global amount, we would ask the subcommittee's kindness in expecting something more firm in the next month or two.
Senator Joyal: I totally support that. That is a reasonable approach.
The Chairman: That is the impression I had in my mind as to how we were proceeding, and I am more than happy to go in and fight like a tiger for that.
Senator Joyal: I think Senator Lynch-Staunton should propose a covering letter. There should be a letter to reserve our detailed decision, an opportunity for somewhere down the road in the next month. This is so the Standing Committee on Internal Economy, Budgets and Administration would know that they might expect something down the road, if such is the common wisdom of this committee.
The Chairman: Just to follow that up, Senator Joyal and I thank you for saying that because the fact of the matter is we are learning the kinds of things that concern us every time we have a meeting here, which may settle some of our difficulties with this very difficult piece of work. I know in my own mind that we have a way to go before we can have what would be, hopefully, a very productive trip to the right places and seeing the right people in this country. You are not going to be able to do all that here in Ottawa, and I agree with that, Senator Jaffer. I do not think that the absence of future travel across this country from this particular budget should be seen by you in any way as something that has been forgotten, that was not understood.
Senator Stratton: There will be another committee meeting here. We are supposed to be out of here at 3:40 p.m.
Senator Lynch-Staunton: I move approval of the budget with the confirmation of the suggestion that a covering letter be added.
Senator Stratton: With respect to the agenda, we were going to talk about that as well. There were two aspects to this agenda, and we have taken 40 minutes to discuss something that should have been done in 15. I am sorry for my impatience; however, I have three meetings yet to go to. When we are looking at the agenda for the future work of this committee, we seem to be going shotgun with the officials now. First, I would like to take a look at what other countries are doing in their reviews and how they are doing them. What officials should we bring in to get a proper overview of what is taking place?
Second, when we are looking at the review, outside this bill, what is happening surrounding this bill with other bills and regulations? We should have a summary of what is happening, so that we have people in the chair who can give us a summary of what is happening outside. We can ask the appropriate people rather than shotgunning and the official saying, ``I do not know,'' or ``I cannot answer that; you have to go somewhere else.'' Those issues are critical to what we are doing here.
The Chairman: Senator Stratton, that is what we will be discussing in our steering committee. We are on that road.
Senator Prud'homme: I wish to remind colleagues that the Joint Interparliamentary Council has said we can travel four times to Washington out of our 64 points, all expenses included: transportation, hotel, taxis and all. Since the majority of members do not use their 64 points, I am well aware of that. This is a suggestion to the committee. I expect that some members may be able to go to Washington with you, even though they are not members of the committee, using their 64 points. I stand to be corrected.
The Chairman: We will tuck that away for a further meeting.
The committee adjourned.