Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 5 - Evidence - Meeting of March 3, 2008
OTTAWA, Monday, March 3, 2008
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), met this day at 2:08 p.m. to give clause-by-clause consideration to the bill.
Senator David P. Smith (Chair) in the chair.
[English]
The Chair: Honourable senators, as you all are aware, our primary item on the agenda today is the clause-by-clause consideration of Bill S-3, an Act to amend the Criminal Code (investigative hearing and recognizance with conditions).
Do members agree to proceed straight away?
Hon. Senators: Agreed.
The Chair: Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill S-3?
Hon. Senators: Agreed.
The Chair: Agreed. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Senator Nolin: I propose that we replace lines 15 to 19 on page 2 with the following:
information that relates to the offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit the offence referred to
Do I need to explain this amendment?
The Chair: I would like to have a brief explanation.
Senator Nolin: Senator Baker raised this issue in this committee and in the second reading debate. The minister, when he appeared before us, agreed that he would propose such an amendment. Therefore, that is exactly what I am doing in the name of the minister. I think we should let Senator Baker speak.
Senator Baker: That is fine, Mr. Chair. Senator Day may have some comment.
The Chair: Is there any discussion?
Senator Day: Please give me half a minute to read it over.
The Chair: I will give you two minutes. An amendment must represent a sober second thought.
Does anyone wish to speak to this? Are there any questions for the mover?
The Chair: We have a motion dully moved. Carried?
Senator Nolin: Are we still on section 1 of the bill?
The Chair: Yes.
Senator Nolin: I have another amendment. This amendment is to address the question raised by Senator Day. I propose in the name of the minister that, on page 6, lines 28 to 30 be replaced by the following:
(C) the detention is necessary to main-
[Translation]
I move, on behalf of the minister, that Bill S-3, in Clause 1, be amended by replacing lines 28 to 30 on page 6 with the following:
``(C) ...''.
[English]
The Chair: Essentially, you are proposing to delete ``any other just cause'' without limiting the wording leading up to ``the detention is necessary.''
[Translation]
Senator Nolin: I will say it again. I move that lines 28 to 30 be replaced with the following:
``(C) the detention is necessary to main-''
[English]
The Chair: Are there any comments?
Senator Baker: Yes, Mr. Chair, we support this because this responds to the decision of the Supreme Court in R v. Hall, 2002, Carswell, Ontario, 3259, at paragraph 46, in which the Chief Justice on behalf of the court struck down those very words in section 515 of the Criminal Code. Therefore, it stands to reason that the government should do this with this particular section. It allows a judge unlimited discretion in coming up with any other just cause whereas, in cases of detention, the statute should be specific.
Senator Andreychuk: I support it because I find the words ``or any other just cause'' a bit like the words in the Immigration Act: ``international relations.'' We are going into generalities that I think are difficult for the public to understand. The necessary portion is on page 6 in proposed section 83.3(7)(b)(i)(B), which is concerned with the protection and safety of the public; that is what this is all about.
I think that already gives a lot of latitude for interpretation within those issues for dealing with people who may come before the court. I think doing it that way strengthens the legislation and makes it less of a shady, grey area.
The Chair: Are there any further comment or questions? Carried?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry as amended?
Senator Baker: Do we have a representative from the Department of Justice Canada?
I would like to know to which section of this bill this would refer. I would also like to hear the department's opinion as to the inclusion of a reference to the Supreme Court of Canada decision in Vancouver Sun (Re) as it relates to this particular clause.
I would like to know whether the Department of Justice Canada thinks it is advisable for us to insert a sentence in this legislation that would reflect the decision of the Supreme Court of Canada.
The Chair: On a point of order, is there anyone here from the Department of Justice? Would you like to respond to that question? Do we have an agreement? I am not suggesting he has to respond but I am happy for a representative of the department to comment.
Could you please identify yourself and advise us of your position?
Yves Parent, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: I am responsible for the review of the ATA legislation.
The Chair: Would you like us to rephrase the question?
Mr. Parent: No, I can address the issue right away. I believe I spoke on this issue when I appeared on December 3 in relation to questions on that very topic. This is also an issue that was discussed in the context of our government response to the recommendations that had been made. However, we continue to believe that it is not advisable to put in a clause to try to codify what was said in Vancouver Sun (Re). I believe this for the various reasons I mentioned when I appeared here on December 3. We feel that this may open the door to a requirement to state this type of principle — because it is a principle — in every piece of legislation. This is a danger we do not want to start at this point.
I do recognize — and Senator Baker has pointed it out to me — that in section 486 of the Criminal Code it says, ``Any proceedings against an accused shall be held in open court . . . .''
This is a principle recognized in every court. The rule is that a case will be heard in public unless the judge is provided with such evidence that he or she deems it necessary for the case to be heard in private, or behind closed doors. What you have here is the very reason I state this is not something that we should do. It opens up the door to try and codify the principle of openness. It exists, has always existed and will continue to exist.
Furthermore, section 486 of the Criminal Code refers to the accused person. What you have in this proposed legislation is not an accused, but an individual who is there to provide testimony, which may be helpful to the police force in the context of a terrorism investigation.
As per other arguments I had raised in my appearance on December 3, we said that it would not be advisable because, when you are trying to codify a principle, you are cluttering the Criminal Code. That is not something we want to do. Consequently, I continue to recommend that the Vancouver Sun (Re) issues with regard to the openness concept remain as is and not be codified.
Senator Baker: I raised it because I am sure the witness understands there were two witnesses who appeared before us that recommended this be addressed in an amendment to the particular legislation. I do not know if any of other members wish to comment on it. I do not wish to take it any further.
The Chair: Are there any other speakers? We are still on the question as to whether clause 1 as amended should carry. Are we agreed?
Hon. Senators: Agreed.
The Chair: Gentlemen, you may remain here in event someone has another question for you.
Shall clause 2 carry?
Senator Day: We have not voted on clause 1 have we?
The Chair: We did vote on clause 1 as amended. That is what you were voting on, with unanimity.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 3 carry?
Senator Day: I am acting as an interlocutor on behalf of Senator Joyal in this regard. I support the proposed amendment on page 8, line 40 in the English and line 41 in the French. In effect, it changes the word at the end of the line to ``shall'' from ``may,'' and in French from ``peut'' to ``doit'', making it stronger than it was. Line 40 of proposed section 83.32(1.1) would read:
83.28, 83.29, and 83.3 and their operation shall
That wording then brings us very close to section 145 of the Anti-terrorism Act, which used the word ``shall.'' In this iteration, the word ``shall'' was changed to ``may'' and we are asking to go back to ``shall''.
Senator Andreychuk: I am not adamantly opposed to this; however, I find it curious that we would put the word ``shall'' because it binds the House. Recently, we have been saying strongly to the House that they should not, in convention and practicality, tell us what to do. I think by putting ``shall,'' although there is later wording allowing for some discretion, it is mandating the other side. I think ``may'' is more permissive and, therefore, they can do what they wish and we can do what we wish.
If we are as concerned about anti-terrorism and the rights of individuals, I do not think we will let up on our vigil to look after this. I do not think I need to be told to do it. I will want to do it. This committee has acted very responsibly. It has a continuing mandate and to put ``shall'' in the bill is almost an admission that we have not been properly scrutinizing the work to this point.
I find that nuance in the proposed amendment. Maybe I am reading too much into it. However, I prefer to have it ``may'' and put the onus and responsibility on us and to leave the House of Commons to its own rules, procedures and conscience. I do not like the ``shall''; I like the ``may.'' It is not something on which I will stand firm.
Senator Day: I was speaking on behalf of Senator Joyal and now I will speak on my own behalf.
I am glad Senator Andreychuk is not strongly opposed and that she will agree to go along with the proposed amendment. I point out that the word ``may'' appears in the last line of that clause. The word gives the Senate and the House of Commons flexibility.
I also point out to be consistent with Senator Andreychuk's argument that she should be moving to change the ``shall'' on page 9 proposed subsection 83.32(1.2) to ``may.'' However, I did not hear that amendment. I am assuming that if she let that one go, maybe she will let this one go at the same time.
The Chair: Senator Day, could I ask a question for clarification? Where it says, ``may,'' it says that either House may do it or it can be done jointly. If it is ``shall,'' does that mean they both have to do it?
Senator Day: No, I think it could be either House or both Houses can do it independently or jointly as they may determine case-by-case if you read the rest of that section. However, having decided to do it, proposed subsection 83.32(1.2) says that we shall report back within a year.
Senator Andreychuk: That makes sense to me. If we are to exercise discretion, we are setting a time limit to it; it is not open-ended. Therefore, the word ``shall'' makes sense to me. The trigger is we determine we want to do it and then, we have a certain amount of time in which to do it. That is efficiency for resources for expectations in the public about our work. We shall work expeditiously thereafter.
It is no different from the March 1 deadline, is that not right? We expeditiously worked toward that, and we will, if there is a trigger. I simply do not like the first trigger. I have made my point.
The Chair: Any further comment or question on this amendment?
I am about to ask if the amendment shall carry. I am trying to clarify if anyone else wishes to speak to it.
Senator Baker: Does the chair have an opinion?
The Chair: I have been asked whether the Department of Justice Canada has any opinion on this suggested amendment.
Mr. Parent: I will reiterate. That point was raised by Senator Joyal. I believe that was done pursuant to some reference to a report by Mr. Kent Roach. However, we have pointed out that it was the prerogative of either House to call upon their members to review the act at any time. We preferred to approach it in that fashion rather than give them a pre-set timetable. This legislation will evolve with regard to the tools used by the police force. The Senate and the House of Commons will be in a position to determine when the best time is to call a review should they believe there is a requirement for one. Our recommendation had been that the legislation use the word ``may'' to allow for this possibility.
With regard to proposed subsection 83.32(1.2) as pointed out by Senator Andreychuk, when either House decides to call for a review which is at their discretion when they want to do it, we recommend that you leave the word ``may''. Once you have made the decision to do the review, there is an obligation under that proposed section to provide the report within a year. That is why the word ``shall'' is there and we believe that is the proper wording.
Senator Day: Could I have confirmation that is a change from section 145 of the Anti-Terrorism Act, which has the word ``shall''?
Mr. Parent: It is a change.
You have to put things in context. When the anti-terrorism legislation was adopted in 2001 it was new legislation. It was felt by members at the time that it may be proper to impose a review within a set time frame because this was new and you wanted to revisit a number of the issues raised in the legislation. However, now after five or six years, there has already been a review process. We believe it is the evolution of the legislation. It is now at your discretion to decide when you wish to call for a review and what issues you want to review.
The Chair: Are there any other questions?
Senator Day: I want confirmation about changing the earlier wording. Would this amendment go back to the wording of section 145 of the Anti-terrorism Act? Recommendation 40 of our report of this committee states:
That the Anti-Terrorism Act be amended to require, within eight years
We are saying that eight years is required, in this instance. That is ``shall'' be required. If we did not pass this amendment, we would be going against our own recommendation.
The Chair: Any further speakers on the amendment before I call as to whether the amendment shall be adopted? Any further speakers?
Those in favour of the amendment?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Some Hon. Senators: Opposed.
The Chair: Senator Fairbairn; are we doing a roll call?
Senator Fairbairn: I am fine.
The Chair: I know you are fine.
I am trying to clarify as to whether we need a roll call. I only need to vote if there is a tie.
Adam Thompson, Clerk of the Committee: No, you have a deliberative vote, so you do not have a tie-breaking vote.
The Chair: Senator Fairbairn, I assume you are voting in favour of the amendment.
Senator Fairbairn: Yes.
The Chair: I did not mean to ask you a leading question, before we hear from learned counsel.
Okay, let us do it again. All in favour of the amendment? The amendment carries.
Shall clause 3 carry, as amended?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that this bill be adopted, as amended?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Since no one is suggesting observations, we are not appending observations to the report.
Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: I believe we will be going in camera for the next item so we might take a 60-second break.
The committee continued in camera.