Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for April 16, 2008
OTTAWA, Wednesday, April 16, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-210, An Act to amend the Criminal Code (suicide bombings), met this day at 4:15 p.m. to give clause-by-clause consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. As the agenda that you have all received notes, the first item of business is clause-by-clause consideration of Bill S-210, An Act to amend the Criminal Code (suicide bombings).
Is it agreed, colleagues, that the committee proceed to clause-by-clause consideration of this bill now?
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 the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: On division? I was wondering if someone might say that: On division. Opposed, abstentions, carried.
Does the committee wish to consider appending observations to the report?
Senator Andreychuk: Well, I do not want extensive observations but I believe it would be fair to say that the intent of the bill to deal with suicide bombings was not the issue. I think there was consensus that the issue of suicide bombings is abhorrent. However, witnesses who dealt with the legal issues, and that is basically the Department of Justice, indicated that suicide bombing is already captured within the law and that this does not add anything to the law. If a suicide bombing occurred in Canada it could be dealt with by the law; in fact, with this bill, would probably still be proceeded with by way of investigation and processed through the courts, et cetera, in the same way.
It would appear that this bill is not before us because of a legal inadequacy. It was brought here for a moral or an educative statement but not as a legal necessity. Therefore, if that could be captured, and it could be done one of two ways, if we wished we could have observations or each one of us could speak to it on the floor when we get to third reading.
One concern is that the Standing Senate Committee on Legal and Constitutional Affairs was to deal with the legal adequacies, inadequacies, and the only witnesses who dealt with that issue basically said — and I think others, in fairness — said that it is a crime now. However, they went on to say what sort of social and education benefits of the bill there might be if this was in there.
The second point is valid if this is inserted specifically into the legislation. Would this be a way of narrowing the kinds of activities under the rubric of terrorist activity that could be contemplated? I point out that the words are "for further clarity," whereas — I think it is "for greater certainty" and there had been some discussion about putting something like "without limiting the generality" and "for greater certainty." My concern is that once you start listing the listed item becomes the example for anything else that could be listed.
Could that narrow the kind of terrorist activity that would then be trapped under the entire definition? I believe there is some debate about that; it may or it may not. I would have hoped that this committee would have had some evidence on that specific point.
Senator Joyal who asked the last witness about the existing sections in the Criminal Code quite rightly pointed out the other issue. Senator Joyal asked Mr. Trudell how the existing sections in the Criminal Code would they be affected by this amendment. Mr. Trudell did not have his copy of the Criminal Code and he did not really address that issue in his opening statement but he did not think the sections were implicated in this bill. Again, I am not quite certain about that.
The bill seems to be a statement that we as Canadians want to make as opposed to legal import, and I hope that there would be some ongoing scrutiny to ensure we have not narrowed the bill and that we are not leading to some unintended consequences throughout the Criminal Code, most particularly the two sections that have been identified.
I am not sure my colleagues all agree with me and I certainly could make those comments on the floor of the chamber in third reading, and we do not need observations. We could universally note some hesitancy with the legal implications and hope that another committee, for example, the Special Senate Committee on Anti-terrorism would follow up with the issue. That committee is in fact, seized with looking at issues like this and has a reference that could lead it to look at definition and implications.
I leave it to the discretion of the committee.
The Chair: Are there other senators who wish to comment?
Senator Grafstein: I will deal with Senator Andreychuk's arguments. I am confident that when it reaches the Senate floor the bill will be widely debated. I am sure that the testimony will be scrutinized under a microscope and issues that I thought were settled will not be settled, but that, of course, is what third reading is all about. If people choose at third reading to take a further step to seek to amend the bill that is the appropriate venue for that process.
Based on the evidence, which I have gone through again, it is absolutely clear that the bill is clear. It does not harm any other part of the Criminal Code. We have had evidence, aside from the officials at the Department of Justice, from two academics and two other practising lawyers and Mr. Trudell.
Mr. Trudell's evidence was an extraordinary piece of support for the bill. I did not anticipate that evidence. I did not know what he was going to say until he said it, and to have the Criminal Lawyers' Association support this bill is an unbelievable thing because rarely do we ever get support from that association.
As to unintended consequences, we have the overwhelming evidence, other than that of the Department of Justice, that there are now unintended consequences. It is not narrowing and, on top of that, we have heard from the RCMP that this will be helpful in prosecutions. I think that the arguments that were made with respect to the Internet and other arguments indicate that this goes farther than the Criminal Code without having any negative impact on it.
Finally, I did read the articles we received this afternoon and I would just refer senators to page 37 of the article that the government gave in support of its contention, which is exactly the opposite of its contention. I ask you to read the last paragraph on page 37.
The Chair: Is this the chapter by Kent Roach, or the other one?
Senator Grafstein: This is from Law and Liberty in the War on Terror.
The expressive function of the criminal law cannot be overstated; a conviction for political or religious violence sends a symbolic message that certain kinds of violence cannot be tolerated in plural, secular democracies, which are duty bound to ensure the safety of their peoples and to suppress those who wish to influence politics and interfere in the autonomy of others by resorting to violence. Here the criminal law has a role in reinforcing the ethical values of democratic political communities, which are constructed on a shared commitment to peaceful deliberation and participatory dialogue, rather than using the unilateral force of arms against one's fellow citizens or their democratic institutions.
This came not from us, if you recall, but from the Department of Justice to support their contention and, frankly, I think it does the opposite. It supports the substance of the bill. It certainly supports the overwhelming evidence that was received by the bill but, as I said at the outset, I am sure this will be debated. The evidence will be gone over by senators who are not fully satisfied, and I hope that we will have an open and free debate on the floor of the Senate and persuade senators who do not understand this bill, because it is so short and so sweet in a way, that they will support it on third reading.
The Chair: Thank you, Senator Grafstein. We have now one suggestion that observations might be useful and one suggestion that they are not necessary.
Does anyone else wish to participate in this debate?
Then, in the absence of a groundswell of opinion, Senator Andreychuk, any comment?
Senator Andreychuk: I put it out as one alternative; it was not my suggestion to have them per se.
I should say that the paragraphs that were read by my colleague —
The Chair: Senator Andreychuk, could we conclude our voting process?
Senator Andreychuk: This paragraph should be read with the whole article because it talks about motives and racial profiling. Senator Joyal and I recommended that the definition be changed, that motive should not be an issue and you should not have crimes motivated by politics and religion.
The Chair: Thank you.
Is it agreed, colleagues, that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Did I hear a no? D'accord.
Opposed? Abstentions? Carried.
Senator Joyal, you have the floor.
Senator Joyal: I wish to comment on the articles, especially the one from Professor Kent Roach. I want to draw that article to the attention of Senator Andreychuk because both Senator Andreychuk and Senator Stratton sit with me on the Special Senate Committee on Anti-terrorism.
The article confirms Senator Andreychuk's and other senator's position that there should be no motive in the definition of terrorism. I want to mention this because we are struggling at the Antiterrorism Committee essentially with this issue. It is important because we have heard the Department of Justice on the definition also. I think it is an issue that is still open and we will want to revisit this issue in our study of the bill following Bill S-3.
The Chair: I expect that these points are likely to be made in speeches on third reading.
For the record, the articles to which we refer are two chapters from a recent Australian book entitled Law and Liberty in the War on Terror, published by The Federation Press, Sydney, 2007. Included in that book are two articles, one by Ben Saul and the other written by Kent Roach. These articles were forwarded to us by the Department of Justice.
I think that concludes our proceedings on this bill, colleagues. It has been an interesting experience. Congratulations, Senator Grafstein.
Senator Grafstein: If you will forgive me, I have another private member's bill that I have to attend to across the street.
I just want to point out to those who are supporting the government, the reason why we are filling the Order Paper with private members' bills is we want government business but absent that, we have to keep ourselves busy.
Senator Stratton: My father had a saying for that. We tried, you guys would not vote.
The Chair: Colleagues, there is a great deal of material awaiting this committee's attention. You will notice that the second item on the agenda for today is that the committee will go in camera to consider a draft report on our reference from the Senate to conduct a review of amendments to amend the Canada Elections Act and the Income Tax Act.
We will now pause while everything that is necessary is done to take us in camera.
The committee continued in camera.