Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 6 - Evidence - Meeting of July 12, 2010
OTTAWA, Monday, July 12, 2010
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to deter terrorism and to amend the State Immunity Act, met this day at 1 p.m. to give clause-by-clause consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: With your indulgence, honourable senators, I would like to start on time. As the chamber will be gathering at two o'clock, I would like to use our time as effectively as possible and ensure everyone has a chance to participate in the process.
This is the eighth meeting of the Special Senate Committee on Anti-terrorism of the Third Session of the Fortieth Parliament. On the agenda for today, colleagues, is clause-by-clause consideration of Bill S-7.
Various discussions have taken place over the last several meetings, many observations have been reflected and a document with respect to a good portion of those observations was prepared by committee staff. It has been circulated to all members of the committee. I believe that took place on Thursday and Friday.
Also circulated was a list prepared by the Department of Foreign Affairs of those countries with whom we actually do have extradition treaties and those with whom we do not. I was surprised at the length of the list of those countries with whom we do not have an extradition treaty. It struck me that work needs to be done to ensure that our laws are applicable abroad when necessary with respect to Canadian citizens, but that is not our purpose here today.
Here is what I would recommend as a modus vivendi for our meeting today. Before moving to clause by clause, I would like to reflect on the observations prepared for our consideration and get the views of senators. I have had a very constructive discussion with Senator Jaffer, who has specific proposals to make for addition to the observation list beyond the observations that are before us. If it is acceptable that we first discuss the observations and then move to clause-by-clause consideration, then we will proceed in that fashion.
With your permission, I would call on Senator Jaffer to help us with the observations she would like to see included with the list that has already been distributed. Once we have had that discussion, I would like to then get views on the list of observations already distributed before we move to clause by clause.
If that is acceptable, honourable senators, I will call on Senator Jaffer to help us through those very constructive additional thoughts she wanted to put forward for our consideration.
Senator Jaffer: Thank you, Mr. Chair, for giving me this opportunity to speak. I understand that the bill will go to the Senate after clause-by-clause consideration and that if we want to make amendments, we will make them at third reading.
The Chair: Absolutely. Nothing we do here in any way constrains or limits the debate on third reading. It is fair to say that as a matter of good faith, the sponsor of the bill and I will work as hard as we can over the summer months to see how many of the observations might be turned into amendments before third reading. If that happens in our chamber, the bill will then go forward to the House of Commons. Providing the house does not make amendments, the bill does not have to come back to the Senate. If, on the other hand, it goes to the house and all the amendments are only addressed there, the bill will come back to the Senate, which will add to the time frame considerably. Your understanding in that respect is correct.
Senator Jaffer: I also had a good discussion with the sponsor of the bill, Senator Tkachuk. I am pleased that he consulted with me, and we will work together in the summer to look at amendments. I appreciate the fact that he contacted me about my concerns.
I want to thank the people who prepared the observations. They were very thorough.
I have prepared my comments in both languages. You have already covered the first one. I will go to number 3.
On page 3 of your list, you have already talked about the government considering victims' rights to sue the Government of Canada in the event that the Governor-in-Council delists a country. I would like you, chair, and the committee to make this stronger by saying that we recommend that the government consider becoming the defendant if they are going to delist a country so that the victims' rights are clear.
The Chair: You will recall the question that was asked last time, and a public servant came back to us from the Department of Justice to offer clarification. In the event that a case is launched and a judgment is rendered for the plaintiff, if the government involved is delisted before a judgment has been achieved, before some restitution has been given by virtue of that judgment, then the effect of the act is null and void. At that point people asked the question: Could the defendant not then sue Her Majesty in Right of Canada? Having taken the action to delist, that would then produce a circumstance where the plaintiff had nowhere to go and no option.
Senator Jaffer appears to be making the conclusion of that discussion quite explicit: If the Canadian government were to decide to delist a country on the terrorist list, one that had been found responsible for a terrorist act and a judgment had been rendered, the act of delisting would mean that the Government of Canada would become the respondent in that circumstance. That is the purport of that recommendation. I must say that I think the principle strengthens the bill quite substantially. I would like to open that proposition to discussion around the table.
Senator Baker: I agree with everything you say, simply because of the experience in the United States and the advice given to you. You have not gotten to your observations yet.
The Chair: Not yet, no. We are dealing with Senator Jaffer's additional observations to the core list, and then we will move directly to the core list of observations.
Senator Baker: I think Senator Jaffer pointed out that it is addressed in the core list.
Senator Jaffer: Yes.
I did not know where to put the other one so I would like some assistance with that. If you remember, Mr. Comras said that in the U.S., four countries are listed. If there is a place for this, and if the committee agrees, I would like us to look at encouraging the government to be more — I do not know the word — creative.
The Chair: You mean more robust in creating the list.
Senator Jaffer: Yes.
The Chair: That can go into the section on the list and its criteria, which was addressed. The premise is that rather than have a list with the same three countries on it all the time, when the criteria are established, the government should be looking for a list that actually reflects the terrorist threats as they exist from time to time, not just in one region of the world but other regions of the world, so that Canadians who are victims of terrorism are not disenfranchised because the list is too narrow. I think that reflects some of the discussion we have had around this table. Are colleagues comfortable with that?
Senator Marshall: I have a question. I think it is probably better left to when we get into the main observations.
Senator Jaffer: My last comment is this: I am, as are others in this room, preoccupied with how victims will enforce these rights. I circulated something where the ICC has created a trust fund for victims. I have not had the privilege of working on this bill as long as others have, but from what I know, in the U.S. a bill like this goes hand in hand with another bill that helps victims. It is called the Justice for Victims of Terrorism Act. It becomes the defendant and it takes over; once the judgment has been entered, it is the government that helps the victim.
If everyone agrees, I would like to encourage the government, as part of this package or as part of what we are doing, to consider a similar kind of bill to the U.S. Justice for Victims of Terrorism Act of 2000, because I believe those go hand in hand.
The Chair: Just to be supportive of that proposition, we have had testimony indicating that various governments with robust programs to protect the victims of terrorism have a range of instruments. It is not just one act; it is a range of instruments. One of the instruments used, at least by our neighbours to the south, related to a standing in between in a way that provided a measure of financial support and assistance to the actual victim plaintiffs.
When I saw this as a recommendation, it struck me that this was true to the testimony we have heard and, as an observation, would strengthen the robust nature of the debate at third reading in many ways. As chair of the committee I certainly have no difficulty with the recommendation, but I defer to others who may wish to comment or put questions to Senator Jaffer in that respect.
Senator Tkachuk: I have no problem with the principle and the idea itself. I have no problem with the way the senator words it as "consider."
The Chair: We have difficulty in this place creating any financial obligation for the Crown, and I am very sensitive to that. However, an observation is an observation.
That being said, if, for example, the government were to make an announcement in the next six months about new legislation to add to our instruments for the protection of Canadians from terrorism, that would respond outside the frame of reference of this particular bill but consistent with the observations.
With that caveat, senator, I am quite comfortable as well.
Senator Dallaire: Are we allowed to insert into observations to a bill a reference that could incur financial measures?
The Chair: I defer to the other, more long-standing senators around the table than myself, but my understanding is that we cannot make an amendment to a bill or create a law that will add to the Crown's expenses. However, recommendations about what legislative program we think would strengthen the purport of this bill are completely within our purview, and many reports of Senate committees have done that over the years. I think we are okay to do that.
Senator Dallaire: I have no problem with the report. It is just that the observations, to me, represent another level.
The Chair: I do not think there is any difficulty at all. They have the status of formal observations of a committee of this place and, if passed by the chamber when the report is considered, then of the chamber itself.
Colleagues, are we comfortable with adding those recommendations to whatever it is we might now approve with respect to the observations before us?
Senator Tkachuk: Providing we are consistent with what we approve, yes.
The Chair: Absolutely.
Hon. Senators: Agreed.
The Chair: Thank you.
We will now move to the draft observations.
Senator Baker: I was here for a portion of the evidence on this bill. I want to observe on the record that I was pleased to hear the government say — the interpretation given — that it covers all damages that one would expect through the normal damage proceedings one would have in Canada. In other words, it would not just cover bodily injury, as in section 6 of the State Immunity Act. This has been interpreted by the Supreme Court of Canada, as everyone knows, to mean just bodily injury, although the English says "personal . . . injury."
The senator to my right has litigated this many times. Personal injury normally covers pain and suffering, loss of enjoyment of life, psychological and mental damage, et cetera, and I was pleased to see that the department defined, as the purpose of the bill, damages to include all of those matters.
I have one other small point. The Supreme Court of Canada in Schreiber, 2002, observed that our State Immunity Act is worded differently than some of the other nations, but it made mention of Britain. In Britain, the wording is that the event being litigated need not take place in Britain, but the cause of it would commence with or be associated with an event in Britain.
That was an interesting observation by the Supreme Court of Canada. Perhaps the department could have a look at that particular paragraph for future reference.
The Chair: I may be answering a question that you are not asking, and I would be delighted to be corrected by you should I do so. My understanding of the critical criteria is that they involve a Canadian who is a citizen of this country or a permanent resident and that there is no constraint as to whether the terrorist act transpires within the geographical territory of Canada or in some other part of the world. If I misunderstand that and officials from the Department of Justice want to bring that to our attention, that would be fine. However, my understanding is that this bill does not limit the geographic context within which someone might claim damage — which I believe is your definition of damage — and seek redress under the provisions of this law.
Senator Baker: Yes, whereas the State Immunity Act, as presently worded, is different in that the damage sought would have to be from an event that took place within Canada.
The Chair: One of the interesting implications of this bill going forward, of course — and it says right on the cover — is that it is a series of amendments to the State Immunity Act. However, as the jurisprudence rolls out and various courts make different decisions about its provisions, we will see how profoundly the State Immunity Act has or has not been changed, which we can only surmise as we sit here today.
Senator Baker: Excellent.
As it relates to the present bill, one would assume that a court would look at the present provisions, the meaning of damages under the State Immunity Act, and the exceptions. However, the court need not do that now because it has been explicitly explained in the presentation of this bill that it covers all damages, which is I think what Senator Tkachuk wished to do in the beginning.
The Chair: Indeed.
Senator Tkachuk: Yes, I did.
The Chair: Are there any other questions or comments about the general observations that were circulated by our Library of Parliament staff on Thursday and Friday?
Senator Marshall: I wanted to make a comment about delisting.
The Chair: Could you give us a page number?
Senator Marshall: I am speaking from memory because I have read the document. In one area we talk about a listed country being delisted in the middle of an action, and later on we talk about establishing a fund to provide money for people to sue, including the Government of Canada. Are we setting this up so that the Government of Canada provides funding for an individual to sue the Government of Canada?
The Chair: My understanding is twofold. First, once a judgment has been rendered against a country on the list, we will be recommending in our observations that Her Majesty the Queen in Right of Canada not delist that country because that would have the effect of rendering null and void the judgments already achieved in open court.
Second, in the event there is a delisting — and that is something Senator Jaffer has tried to help us with — we would then ask that Her Majesty the Queen accept the liability because the Government of Canada has made the decision to delist, and there are implications in doing so.
If you read some of the testimony we heard when you were serving a higher purpose on another committee, we discussed, in effect, that when the Crown delists a country deemed to be a terrorist country, you face the liability of someone suing the Canadian Crown for having done so.
Moreover, in the negotiations around delisting, we would expect that Foreign Affairs would say to the country they are about to delist, "There are one or two matters in which we need you to engage because there has been a judgment rendered on behalf of Canadian citizens, and if you could help us with that, it might obviate the problem and allow us to go to delisting more quickly." We wanted to ensure that that was part of the testimony and the thrust of our discussion.
Are there any other questions about the observations before us?
Senator Tkachuk: I move that we accept them.
The Chair: Senator Tkachuk moves that the observations be accepted as added to by Senator Jaffer. All in favour?
Hon. Senators: Agreed.
The Chair: Contrary minded, if any?
Unanimously agreed.
With that, I would like to now move to clause-by-clause consideration of Bill S-7. I am informed by our clerk that we have two options. One is to go through the bill clause by clause, with the postponement of the title and the preamble; or we can go the other route, which is to merely ask for a motion to approve the entire content of the bill, all the clauses, the title and the preamble.
Because of time constraints, I would be delighted to move in the latter fashion but would certainly understand if colleagues had a preference for moving in the former fashion, namely, going clause by clause in the traditional way.
We do have either option. Is there a consensus with respect to proceeding in the second fashion, which is approving all the clauses, the preamble and the title with one motion?
Senator Tkachuk: I so move only because no one has given any indication of amendments, so we can deal with it in one fell swoop.
The Chair: Senator Furey, do you agree?
Senator Furey: Absolutely.
The Chair: We have a motion to approve the content of Bill S-7 — the preamble, the title and all the clauses — and to do so in a report that will include all the observations we have also discussed and approved this afternoon. All those in favour?
Hon. Senators: Agreed.
The Chair: Thank you.
We also require your approval with respect to the tiny editorial overview by our staff regarding the observations that have been made by Senator Jaffer. It is an editorial function, not a content function. Traditionally, committees seek a motion that the Subcommittee on Agenda and Procedure, which is Senator Tkachuk, myself and Senator Joyal, be empowered to approve the final version of the observations being appended to the report, taking into consideration today's discussion and with any necessary editorial, grammatical or translation changes as required. If Senator Joyal is unavailable, then I am delighted, on behalf of the other side, to offer anyone who might work with us on the content.
Senator Jaffer: Because he is the critic, I suggest Senator Furey.
The Chair: Let us put in Senator Furey's name. Will someone move that motion?
Senator Jaffer: I so move.
The Chair: Thank you, Senator Jaffer.
Hon. Senators: Agreed.
The Chair: That motion is now approved.
Let me now talk about timing. We believe that the chamber will sit at least today and most likely tomorrow. We know for sure about those two things. Would it be the will of the committee that if the editorial function is consolidated and done quickly between today and tomorrow, that this report be filed with the chamber tomorrow and that this committee cease its review of this bill?
Senator Tkachuk: At the earliest opportunity.
The Chair: If honourable senators are agreeable, then we will proceed on that basis.
Hon. Senators: Agreed.
The Chair: Is there any other business?
Senator Dallaire: Not having participated, I hope I am not throwing in a red herring into things. From my background and experience, I know there are people who have felt that the security by our own government is failing. Although that is not touched upon here, is there a provision in the security act where an individual could argue that the Canadian government has not been effective in its protection of the individual? Could they actually use a similar exercise to go against the Canadian government?
The Chair: The normal rights that a citizen has when he believes that the laws and statutes of this country have not been observed by the Crown and have not been enforced are not in any way diminished by this bill.
There is a series of recommendations from the Major royal commission on the Air India bombing. When we meet to consider what our agenda may be as a committee in the fall, notwithstanding bills that may emerge in the House of Commons with respect to the renewal of the anti-terrorism legislation, we might give some thought to considering those recommendations. Moreover, we may wish to give some thought to serving notice that we would like the senior agencies addressed in the those recommendations to appear before the committee and answer precisely your question and see what they have done since the work of that royal commission or what they are in the process of doing to accommodate those recommendations and to make them real. Given our general reference from the Senate to look at anti-terrorism initiatives broadly, independent of specific legislative matters, we would have the freedom to do that. If that is the will of committee members, I would be more than delighted to have both sides take that to their respective leaderships in the fall.
Senator Jaffer: I am pleased that Senator Dallaire has suggested this. I was going to suggest to the Senate that our committee study the Air India recommendations and have senior officials tell us what the plan is.
I would like the committee to look at the issue of special advocates. Minister Day wanted us to study that issue, and the work has not been done. I would like us to visit that issue because that is the job he asked us to do.
The Chair: I agree. We have a general order of reference on anti-terrorism measures, so it is up to the committee to reflect on where we next wish to go when we meet before the fall. I will circulate ideas in that respect to all members of the committee so we have a chance to reflect on them, share them with our respective leaderships, get their direction and proceed accordingly.
Senator Jaffer: In the past, the challenge has been that there has been a point of view that we are a special committee and we only meet when there is legislation or a special study before us. We may have to convince our leaderships that this should be continued.
The Chair: I think that is right, but I am grateful to our respective leaderships for approving the general reference that the Special Senate Committee on Anti-terrorism shall consider matters relating to anti-terrorism. That is a separate reference from the one we had for this bill, and it would be separate from the one we might have for Bill C-14 and Bill C-17, which are still working their way through the lower house.
Senator Tkachuk: Senator Furey was the critic on Bill S-7, and he and I have worked together very well. This is the second committee that I have sat on with Senator Furey, and we have never had a vote on division in two years. I would like to thank him, but I also wish to say that if we were in charge in the Senate today, we would probably not have a vote and would be going home tomorrow morning.
The Chair: The risk that our two leaderships want to contain is that goodwill and cooperation leave this room on a contagious basis. They will worry about that, but here we can celebrate it for as long as we are able.
Senator Tkachuk: A few minutes, I believe.
Senator Dallaire: Senator Wallin is not here, but as Deputy Chair of the National Security and Defence Committee, I want to raise our workplan for the fall where we might consider having the two committees sit together on the Air India scenario. There has been no discussion on whether the National Security and Defence Committee or the Special Committee Anti-terrorism should take the lead. That discussion should happen before we finalize our workplan.
The Chair: To be fair to your chair, who is sadly delayed today, she has raised the prospect of the two committees meeting together. That would probably require some intervention by our leaderships, and the chairs and deputy chairs of the two committees would probably have to meet together to consider how that might proceed. Certainly, this particular chair would be open to that idea because many of the people who sit on this committee also sit on the other committee and it would be a productive use of everyone's time.
Senator Dallaire: Perhaps we can note that it should be brought forward, because the National Security and Defence Committee has a continuum of which this is a component, and perhaps the leadership thereof should be notified of this plan of action.
The Chair: It is in the minutes now.
Senator Tkachuk: Until we solve the budget problem, the committees can merge.
The Chair: Let us not go down that road just now.
Colleagues, I would entertain a motion to adjourn.
Senator Furey: I so move, Mr. Chair.
The Chair: This committee stands adjourned until the call of the chair in the fall.
(The committee adjourned.)