Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 4 - Evidence - Meeting of February 12, 2008
OTTAWA, Tuesday, February 12, 2008
The Special Senate Committee on Anti-terrorism, to which was referred Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, met this day at 2 p.m. to give clause-by-clause consideration to the bill.
Senator David P. Smith (Chair) in the chair.
[English]
The Chair: Honourable senators, Senate communications have asked if we had any objection to a couple of action shots being taken of us hard at work. Better now than at 10:15 last night, probably.
Since there is no problem there, we will have a few minutes of general discussion as to where we are going from here. At some point, it may be appropriate to go in camera, but I will wait and see if and when someone wants to do that.
I have had copies made of a letter that was received from Public Safety Minister Stockwell Day, who was here yesterday. I think it is sufficiently self-explanatory that it does not need a lengthy explanation, but I might call on Senator Joyal, who has had some discussions regarding this as to the rationale and desirability of doing it.
I know that some people think there are issues on the overall matter that we have been discussing that people are not comfortable with. However, we are certainly aware of the deadline; and I think we want to be respectful and comply with that deadline.
This letter would appear to indicate that the government is supportive of our continuing to discuss these issues. They referred to security certificate provisions. At such time as a motion from the Senate refers it back here, it might not be restricted just to that.
I know that in our report — take, for example, the first recommendation, cleaning up the definition — some of us might have a look at that as there has been a case on that. We might want to discuss how broad the reference should be that might be agreed to by both sides — to draft something that is within the spirit of what we are talking about. In that case, we might not require any amendments today.
We can go through clause-by-clause and report today and get this moving so that we will not have any problem regarding the deadline. I think that is the gist of where we are.
Senator Joyal, would you like to comment as to where you see us at this moment?
Senator Joyal: Mr. Chair, we heard witnesses for more than 10 hours yesterday, and each one of them brought to light one or another aspect of the bill.
It seems to be simple — it is not a long bill and it deals only with a very specific section of the Immigration and Refugee Protection Act. Yet I do not think that any one of us was totally comfortable that everything had been said or that this bill is the definitive and final answer to the issues that were raised by the Supreme Court in its decision of February 2007 or raised by the various witnesses that we heard after the minister had an opportunity to make his presentation.
During the meeting with the witnesses yesterday, I became convinced that we had to do something; we could not just pass the bill because there is a deadline. I think we want to abide by the deadline. Personally, I have always respected the Supreme Court and its wisdom, even though, at some points, I might have disagreed with one or another aspect of a decision. However, that is irrelevant for the sake of what we are here for.
As a chamber of Parliament, I think we have to recognize that there is a deadline. We have been put in an untenable position to adopt the bill within a couple of days. If we had been able to structure our work with the kind of freedom or openness in the agenda that we normally have, we would probably have extended that over a couple of hearings — certainly not only one — and had time to reflect upon it.
The first option I thought at that time was to put a provision into the bill that would demand a review after three years. The minister himself, when the question was put to him, stated clearly that he expected there would be changes or points to be discussed again along the line in one, two or three years.
We all know, and it was mentioned in the testimony yesterday, that there are pending court decisions at the highest level in the Supreme Court and the Federal Court. There are other aspects of the anti-terrorism legislation that would lead the government eventually to amend other legislation.
I thought that one way to address that would be to add a clause to the bill. I will read it to you so that you will know exactly what I was contemplating.
(1) That within three years after this act receives Royal Assent, a comprehensive review of the provisions and operation of this act shall be undertaken by the committee of the Senate, of the House of Commons, or of both Houses of Parliament that is designated or established by the Senate or the House of Commons or by both Houses of Parliament, as the case may be, for that purpose.
(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken under that subsection, or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament.
That would have made a total of four years — an obligation to start a review after three years plus a year to complete the review.
It seems to me there are urgent issues to consider. To wait four years before we have a second look or continue to maintain our second look at this was something to consider. On the other hand, we do not want to challenge the situation we are in. I am very sensitive to saying that, and I say it publicly. We want to abide by the decision of the Supreme Court of Canada. We do not want to create an impossible situation in the other place. At times, the other place might want to tell us what to do, but we do not want to respect the other place's agenda, which might be founded on different ethics than those under which we operate in the Senate.
On the other hand, we do not want to risk that the date be passed. We do not want a no-stand situation whereby the government has to go back to the Supreme Court of Canada and everything gets mixed up again.
I think the only sensible thing to do would be to pass the bill as it is, with all the flaws that it might contain. However, I also suggest that we continue our work. I expressed the sentiment that was shared by many members around the table, on both sides.
The discussion and the exchange of views that we had with the minister were good. The minister was open, fair- minded and genuine in his answers yesterday. I think all members appreciated that. The minister has agreed to write a letter to you, as chair of this committee. It would allow us to continue our study of the security certificate provisions of the Immigration and Refugee Protection Act and give this committee a deadline to report.
The deadline is important. As I said, had I introduced my amendment, that would have extended the study to four years. I think there is an urgency to reconsider it in a tighter time frame than four years. By stating that he would expect that our committee would be in a position to come forward with recommendations before the end of the year, the minister gives us fair opportunity to canvas and consider the additional points that we would have liked to study.
You will remember that we heard a witness on the last panel yesterday mention that there might be different models. She asked us to reconsider those models. There might be an opportunity to do so within the remaining months of this year.
Receiving this letter from the minister seems to be a fair approach to the situation. I have had an opportunity to speak to the Leader of the Government. That would give an extension to the life of our committee. As you know, we were created for a specific purpose. If we can have the commitment on the government side that the life of the committee would be extended for up to the end of the year to allow us to continue —
The Chair: It may not be a problem.
Senator Joyal: I had a word with the Leader of the Government. She was very open and cooperative in recognizing that we will sit for the next year, at least, on this very issue. I said to her, quite openly, that if the government comes forward with legislation that is appropriate to refer to this committee, we would consider that, of course, and prioritize. We know what the government priorities are. We would not be closed to other legislation.
On the other hand, we would have the time frame and the mandate to report on this issue. We would be able to do it with cooperation from both sides in preparing our report in the most objective manner possible, as we had before.
That is where we stand so far as this bill is concerned, Mr. Chair.
The Chair: Before I go to Senator Andreychuk, I will have the clerk speak to the question of our tenure. Following that, if anyone is out of sync with the dialogue so far, we need to know that. I think we should do the clause-by-clause. I will read this letter into Hansard when I am there. I hope we are able to do this in time to get it on the record today before the house adjourns. However, I do not know what the Senate agenda looks like.
Adam Thompson, Clerk of the Committee: The motion that established this committee for this session did not have a deadline attached to it. It was not a specific order of reference. It was simply to establish the committee similar to the manner in which standing committees are established under the rules.
Once we conclude this bill and bill S-3, the committee will still exist. However, it could not conduct any work unless and until it received a further order of reference from the chamber.
Senator Andreychuk: I support Senator Joyal. While that may be the case for the ordinary rules of committees, we are still at the will of the Senate. Therefore we now have a firm direction and undertaking, and I think that gives us more reasonable comfort.
I want to make a few comments. I do not think that any government has come and said that they have the definitive answer for these issues. As senators, we have said that a fundamental issue is the oversight role. I see this as strengthening that oversight role. Also, to Senator Joyal's point, we are acting expeditiously. We are not part of the problem. We are allowing the bill to go ahead.
Other than those who do not wish any security certificates, which was not the Supreme Court's situation, everyone else has conceded that there are elements that are better than the existing law. The sooner we move forward but continue to weigh this and look at points of view, the better.
It will also let us do something else. We seized on the special advocate model. It certainly was not my idea. I can recall the members of the committee who did. In deference to them, it was the U.K. model as it was presented to us. Now, there are some questions about where their model came from. We took it, we worked with it and we came to some different answers. In my humble opinion, I still like our answers. However, I have come to the conclusion that we should examine whether we made the same correct choices in retrospect, with more evidence, as the government is doing.
I think it is in the best interests of Canadians to continue this dialogue rather than try to come up with a solution and not have been seized with it in any fundamental way. I think this has all of us looking to December 31. We have heard people saying not to wait until the end of December but to start now. I am sure we will.
I think we should just pass it, move on, and start working on the plan of action for our next meeting.
Senator Joyal: Mr. Chair, in all fairness to the witnesses we heard yesterday, if that is the course of action that this committee accepts, we should inform the witnesses of the position that the committee has adopted. In that way they will know that within the next year they might be invited again. Therefore, they are not left with the idea we have just passed the bill and flushed them away after. I think it would be the respectful course.
The Chair: We are all agreed on that.
I think we have a consensus emerging here. I have three more speakers down, but I am sure we can all speak succinctly.
Senator Day: I had a chance to look at this letter. I am not sure that I would describe it the way Senator Andreychuk has, if I understood the senator's comments correctly, as being an undertaking by the minister.
I would have liked some wording in there that the minister would be prepared to consider any recommendations that we give them, but I understand how difficult it is to get this kind of letter. There has to be some faith involved. I suppose he is concerned about not wanting to interfere in any way with what is going on in the Senate. I note that he tells us that he would like our committee to continue. That may be a contentious issue with some of our colleagues.
I think we can all argue that this committee has been seized of this issue, in part, for five or six years. Therefore, it makes sense that it would be this committee.
I had anticipated initially that we were going to do an amendment to put in a mandated review of the legislation. I heard the comments and I am prepared to move on that. I am not doing this with a great deal of enthusiasm, after having heard all of the witnesses yesterday. For the integrity of the Senate, of the institution, it is very important that a letter go out quickly to reassure those witnesses who said, ``Please tell me I am not wasting my time having come here.'' Perhaps an email should go first so that they do not read that we passed this quickly without any amendment and without any comment.
When you take the bill back, is there any way we can attach a comment?
The Chair: I can read it in, but I can ask leave to table it. Hopefully, there would not be a problem with that.
Senator Day: Can you attach it to your report? I believe you can.
The Chair: Mr. Thompson, can you attach it to the report? If I read it and I ask leave to table it, surely that would be the same thing.
Senator Day: That stays as part of our archives. It does not follow with our report that goes to the House of Commons. Normally, we put observations that follow. Another way to do it, as I understand it, is attaching it to the report. We got into that in the old Bill C-2.
Mr. Thompson: I am certainly not aware of other documents being attached to a report on a bill. Observations are, in and of themselves, a relatively recent development in the Senate. There are concerns with attaching things to a particular report on a bill without amendment, because that report is deemed adopted. There is no debate. Therefore, generally there is an effort to avoid having other things go with it that may be considered adopted or considered as having some decision by the Senate ascribed to them other than the adoption of the report of the bill without amendment.
Senator Andreychuk: We have a Speaker's ruling. Senator Day and I were involved in Bill C-2 and we put the observations. Observations do not form part of the report, nor other documents. That was a ruling of the Speaker.
I think any either of the methods that our chair is pointing out is okay. As long as it gets there, that is what we want.
The Chair: If it is a matter of public record, I think that is reasonable.
Senator Day: I would feel more comfortable if we could attach an observation saying we will be continuing a study of this bill as part of our report back.
Why do we have to report it today? This is February 12. We do not have to report it today.
The Chair: I think it is desirable to get this done.
Senator Day: I think it is desirable to put an attachment to it.
[Translation]
Senator Nolin: Senator Day, look at the text again. First, getting a commitment from a minister before he has seen the recommendation — no government in the world would agree to write that.
I do not want to get into semantics, but look at the text of the letter. The minister was very forthright in his letter. Look at the last sentence in the first paragraph:
[English]
``. . . and reporting any recommendations to the Government . . .'' He does not say reporting to the Senate nor to Parliament. I think there is one point there. In the second paragraph, he says, ``I welcome your work . . .''
[Translation]
I think we can take some assurance from that. I share your concerns. I think that it is important that what was done yesterday does not go by the board and that the witnesses who came are satisfied that they took part in a productive process. We should do all we can to bring this to a successful conclusion. We also have a tight timeline. In politics, eight months is not that long, you will agree, and that is the deadline.
No one can make recommendations before December 31 but us. If, when the chair rises to table his report, he reads the text of the letter and asks leave to table it, we will have achieved the objective that you are looking for.
[English]
I am quite confident of that. Otherwise we will be in a debate of whether we can do or whether he can do it. Let us keep our focus on the big picture.
[Translation]
Senator Day: If I accept that, can I comment?
Senator Nolin: You certainly can.
[English]
Mr. Thompson: I want to point out one quirk. Leave will have to be sought to speak to the report itself, as a report on a bill without amendment is automatically deemed adopted. Therefore, comments can be made at third reading if you ask for leave to be considered later this day.
Senator Nolin: That is what we will try to do today.
Senator Jaffer: Yesterday, at lunchtime, I understood Senator Stratton to urge me to do some observations. I did them and I gave them to the clerk. I specifically understood that we would have some observations, and in what you set up, I did not hear you talk about observations. I do not want to lose that. I think it is very important that we do have observations. They are not long, but we should have some observations. Upon Senator Stratton's suggestion, I gave Mr. Thompson the observations.
Senator Joyal: Do not interpret my intervention as inimical to your suggestion, but if we are to discuss observations, it should come after we have passed the bill.
Senator Jaffer: In all fairness, I am not saying that. The chair was setting up a process and I was saying not to forget observations. I did not want that to be left out.
Senator Day: When he gets to the end, he says, ``Shall I report this back, with observations?''
Senator Nolin: That is the moment.
Senator Baker: Mr. Chair, there is no rule that says you cannot attach something to a bill being sent back to the House of Commons. If there is no rule that says you cannot, then you can do it. If you want to attach the transcript of these proceedings to the bill being sent back to the House of Commons, there is nothing preventing you from doing that.
I just want to put on the record my interpretation of this letter from the minister. It says specifically: ``Further parliamentary review,'' Of what? I believe it is of the amendments that we are now discussing before this committee. He is asking for recommendations to be given to him by December 31. Why? He says it is because he listened to concerns about this yesterday.
Now, Mr. Chair, I think that is important to have on the record. It is simply because it is logistically impossible to do amendments to this bill before the end of the week. That is impossible to do.
How soon could someone propose amendments? We heard the Canadian Bar Association; we heard bar representatives from national and international legal authorities yesterday saying that there are faults with this bill, basic problems with this bill, and they suggested amendments. Some of them were in conflict, and they have gone all the way from Stinchcombe up to the most recent decisions of the Supreme Court of Canada. That ranges from 1990, as the chair knows, right up to today.
The point is this, and it should be on the record: If I were to propose amendments to this bill, which I certainly would wish to recommend to the government, it would take me months to decide on the wording, get the proper translation and put the proposal forward. I interpret the two paragraphs that the minister has given us to mean that this is a problem. Why is it a problem? It is a problem because the government did not act on it for the first eight months of the year and then the House of Commons took three and a half months. The Senate was given two weeks, and one of the weeks was a vacation on the part of the House of Commons, to get something back to the House and approved.
My interpretation of the solution proposed by the minister in the letter signed by him is as follows: If we were proposing amendments to this bill as passed by this committee, then he would like to have those recommendations concerning the bill that is presently before Parliament by December 2008.
I would like that on the record and, of course, it is on the record because I just said it. In other words, shame on the government for behaving the way it has — to shut us off that way, However, they have given us an opening, so if anyone is interested in amendments, they will hear them by December 2008. The minister is saying this because it is obvious from the authorities who appeared before this committee that amendments are possibly needed but cannot logistically be done by this committee; therefore, he is opening the window to the end of the year.
This makes more sense to me than a review three years down the road. It is my humble opinion after listening to the witnesses, especially those from the Canadian Bar Association, that these amendments should be considered by the government immediately. This gives us until the end of 2008 to consider such recommendations and give them to the government.
That is how I read this situation, and that how it should be communicated to the witnesses who appeared before this committee. It is not the fault of this Senate committee that we find ourselves in this situation, but the minister has given us a way out so that the government can consider the amendments that, I am sure, every member of this committee will make before the end of December 2008.
Senator Andreychuk: Shame on the House of Commons.
Senator Baker: Yes, they could have introduced the bill before the break month.
Senator Andreychuk: He answered. I do not answer for the minister, but the House of Commons.
The Chair: Moving on, are there any more speakers before we proceed to clause-by-clause consideration?
Senator Baker, I would point out that at such time as a reference goes to the committee from the chamber, we will sit down and draft what we think are appropriate terms. I am sure we can do that, quite apart from what is in here.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-3?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Is it agreed that this bill be adopted without amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
Senator Day: Once we have given it all away, we have no bargaining power, so now is the time to do this.
The Chair: Does the committee consider appending observations to the report?
Senator Day: Mr. Chair, may I speak to this?
Senator Tkachuk: Will we report the bill back?
Mr. Thompson: With observations?
Senator Tkachuk: If we do not have a copy of the observations —
The Chair: Can we go in camera? We had better go in camera.
Senator Baker: Mr. Chair, would an alternative be that observations be read into the record and thereby accompany the bill back to the House of Commons?
The Chair: I would like clarified whether the observations have to be attached to the bill immediately.
Senator Baker: The key question is what I asked, Mr. Chair.
The Chair: It might take a little work to agree on the observations.
Senator Andreychuk: There was a meeting held on this when some of us had to attend another meeting. I am not sure what the observations say, but we did say yesterday that one way of dealing with this expeditiously is to have the chair point out at reporting stage, as opposed to observations, where our consensus points were. That would be the way to do this. All of us can support that as a way of getting over the technical hurdle.
Senator Tkachuk: It is a done deal. It can go back to the House of Commons.
Senator Baker: The point is that we are not finished with the provisions of the bill. The minister said that the government wants recommendations by December.
Senator Tkachuk: He did not say that.
The Chair: I have a suggestion from the Clerk of the Committee. Let us go in camera because we have a draft of the observations. Perhaps we can then have a more candid discussion as to whether we are in agreement. We also have one paragraph by Senator Jaffer that she would like added to the observations. If we will do this today, we had better proceed in camera.
The committee continued in camera.
The committee resumed in public.
The Chair: I will repeat the last point we were at, so that everyone knows where we are. Is it agreed that this bill be adopted without amendments?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: Agreed.
The Chair: Agreed. We will do it immediately, with all due haste and forthwith.
Is it agreed that I report this bill with observations, as we have agreed on, to the Senate?
Hon. Senators: Agreed.
The Chair: We are done. We now stand adjourned. Thank you all.
Senator Jaffer: I have one thing that I would like to record. I want to thank the steering committee and the clerk for the excellent witnesses who were there yesterday. There was a wide variety of witnesses. I know that is difficult to arrange in such a short time, and I want to thank them for that.
The Chair: If I was abrupt with anyone today, I apologize.
Senator Andreychuk: Will the committee let us know, on Bill S-3, when we are going clause by clause? We were told the witnesses were through. When will we deal with Bill S-3?
The Chair: Monday after the break; I am flexible on the time. That should not be a long meeting. We could even do it mid-week. Would it be more helpful if we did it mid-week?
Senator Nolin: Let us look at our calendars first.
The Chair: We will mandate the clerk to consult regarding calendars and do it at the most convenient time. We are probably talking about a half-hour meeting.
Senator Nolin: Our next meeting would be clause-by-clause consideration of Bill S-3, is that correct?
The Chair: Right; at the call of the chair, in consultation with the clerk canvassing senators for their calendars.
The committee adjourned.