Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 3 - Evidence - Meeting of May 14, 2012
OTTAWA, Monday, May 14, 2012
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, met this day at 1:30 p.m. to give clause-by-clause consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to welcome colleagues and members of the public in the room and viewers across the country watching on television.
We are meeting to resume consideration of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. We have completed the public hearing stage on this bill and we are now at the stage where we will begin to go through the bill clause by clause and consider observations. Before we do this, I would like to remind senators of a number of points that, as most around this table are more experienced than I am, they need no reminding of.
We are eager to ensure that in this committee we do our best so that the Senate takes up the bill that is the best possible product our committee is able to present.
If at any point anyone around the table is not clear about where we precisely are in the process, with respect for example to any amendment or any clause, please do not hesitate to ask for clarification. We need to do our utmost to ensure that we are at all times at the same point of understanding about where we all are in the process.
I am delighted to point out that we have officials from the Criminal Law Policy Section of Justice Canada with us today who are readily available to come to the table and provide further information or clarification should senators wish to seek that. Catherine Kane is the Director General and Senior General Counsel, Criminal Law Policy Section, and Doug Breithaupt is Director and General Counsel. Thank you very much for being with us today.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or show of hands, the cleanest route is then to request a roll call vote, which will provides clear results. While I hope we can proceed without that, it would be the way we have to proceed if there was a lack of clarity.
Are there any questions from senators before we begin?
Senator Joyal: We have received a letter from the Canadian Bar Association dated May 11, 2012. In that letter, they mention that they had asked to appear on March 14 before this committee, and that it was not accepted.
The Chair: I have no recollection of getting the letter from them.
Senator Joyal: Neither do I.
The Chair: If any other senator is aware of a letter from the Canadian Bar Association, it would not have been my intention to be anything other than as courteous and facilitative as possible.
Senator Joyal: I was under the same impression. They have appended comments about Bill C-17 to that letter, which is the predecessor to Bill S-7. I was going to suggest that we print their brief as an appendix to our minutes so even though they did not appear at least their view would be part of the minutes of this committee.
[Translation]
The Chair: Senator Joyal, what you are suggesting is perfectly reasonable.
[English]
He is suggesting that the letter submitted by the bar association be added to our minutes.
Senator Tkachuk: Would we do that with any association who had not been given the time to come and asked permission?
The Chair: I think that has been done in the past.
Senator Joyal: I am translating freely from the letter.
[Translation]
We regret that our March 14, 2012 request to appear before the Special Senate Committee on Anti-terrorism was not granted.
[English]
It is the fourth paragraph. In order to pay due respect to their intention to appear and their views, I am suggesting that their brief or comments be appended to our brief.
The Chair: I am not troubled by doing that. I think it is a courtesy; I do not think it is a precedent.
Senator Joyal: We do the same at the Standing Senate Committee on Legal and Constitutional Affairs.
Senator Tkachuk: I do not know what it says.
Senator Joyal: They do not ask specifically for amendments to the bill. They make general comments about the various sections of the bill, but they mention that there should be an oversight capacity to be established later on.
The Chair: Could I make this recommendation? As most members are seeing this letter for the first time, could I suggest that as one of our last orders of business — once or if we do get through the clause-by-clause consideration and the observations — we come back to this issue and decide whether or not we wish to append it to the minutes? Would that be acceptable to you?
Senator Tkachuk: We could receive the letter, but we do not have to make it part of the report.
The Chair: It would not be part of the report; it would be part of the minutes.
Senator Joyal: I do not ask that it be part of the report to the Senate. I am just asking that they be printed in the minutes as a brief. They have asked to appear. Normally we manage to —
Senator Tkachuk: They say they have.
Senator Joyal: Since they did not appear, I thought it would be the proper thing.
Senator Tkachuk: I know you are being a lawyer, Senator Joyal. You may be more prone, but I do not belong —
The Chair: Senator Andreychuk, are you comfortable with the notion?
Senator Andreychuk: I am comfortable with appending it. We have done it in other committees. My concern is whom did they contact? That seems rather strange to me. The other thing is they have appended their brief. For what it is worth, their opinions are from December 15, 2010, and this is already 2012.
The Chair: Indeed.
Senator Andreychuk: They are referring to a previous bill. I appreciate that. If you want it to put it in legal terms, what weight and what value the appended material is —
The Chair: I think the proposal is in the context of courtesy.
Senator Andreychuk: My concern is that we follow up, and you as chair write them, asking whom they contacted. That would be difficult.
The Chair: I am glad to do that. I do not have a specific recollection of a direct request from them to appear, but that could be a failing on my part. I am glad to follow that up and report back to the committee. I am not troubled by the proposition that their letter, with whatever value might be associated therewith, be added to the minutes if the committee is comfortable with that.
[Translation]
Senator Dagenais: Is this the first time that this bill is being studied by the committee or has it been discussed previously?
The Chair: Part of this bill was discussed in the context of other proposed changes. Unfortunately, the decision of the steering committee regarding the suggested amendments was not followed through with at the time, because of prorogation or elections.
The bill presently being studied by the committee therefore represents the changes made by the government in response to the decisions of the Court of Appeal and to the recommendations of the steering committee of the House of Commons. It also takes into account the government's new proposals regarding travel for purposes of criminal activity.
This bill therefore represents a compilation of all of these things. Some of the principles at play here have given rise to comments from our colleagues at the Canadian Bar Association.
Senator Dagenais: Am I to understand that the brief the CBA is talking about would have been tabled much earlier? We are talking about 2010; that is almost two years ago.
The Chair: Senator Andreychuk has just advised us that the content of the letter from the CBA relates to legal principles that were studied in 2010. Some of these principles have flowed through into law and some of them have been modified by the government.
Senator Dagenais: Thank you.
[English]
The Chair: Are there any other comments on this before we perhaps move to clause by clause?
Senator Day: The letter that was attached, dated December 15, 2010, from the Canadian Bar Association indicates they were not able to participate at that time, I guess because of their own reasons, and therefore they prepared that letter.
This time they are suggesting that they did request, and I share my colleague Senator Andreychuk's concerns. I think we should try to investigate that to the best of our ability.
The Chair: I am glad to do that and get back to the committee. If it was an oversight on my part, I will be abject in my apology should that be the case, but I do not have any recollection of it. I went to school with and was a roommate of the president of the Canadian Bar Association, John Hoyles, who I thought would have called if he wanted to appear before a committee I happened to be chairing. I did not receive any such call, but I will look into it and get back to you.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: With respect to clause 10, honourable senators, it is my understanding that Senator Frum has an amendment to make, which is consistent with the advice we received during the consideration of the bill by Senator Day, who had some concerns about inconsistencies in the English and the French. I am in the clerk's hands here. Should we put the clause before us and then take the amendment, or take the amendment first? What is the advice?
Senator Frum: There are two amendments and maybe, with your permission, I could discuss both of them at the same time.
The Chair: By all means. Have copies been distributed to all members of the committee?
Senator Frum: Indeed.
Do you have a copy of both amendments?
Senator Day: I do, but from a procedural point of view, it would be easier to deal with one amendment to clause 10 and the other amendment to clause 12.
Senator Frum: My pleasure.
The amendment to clause 10 that is being proposed, indeed, partly thanks to Senator Day's observations, has do with the judge. It deals with proposed subsection 83.3(13) of the bill, which addresses the power to vary conditions imposed in reconnaissance with conditions. Subsection 83.3 appears to limit that power, to vary the conditions to the same judge who imposed them, and this amendment proposes that it could be that judge or another judge of the same court who may vary the conditions. This is consistent with similar provisions in the Criminal Code.
The Chair: Could I ask colleagues whether we would like to consider that amendment first and then go to that particular clause and then proceed to the next amendment as it comes up relative to clause 12?
Some Hon. Senators: Agreed.
The Chair: Shall the amendment to the bill relative to —
Senator Joyal: It should be read formally into the minutes.
The Chair: I was afraid you were going to say that.
It was moved by Senator Frum:
That Bill S-7, in Clause 10, be amended by replacing line 36 on page 10 with the following:
(13) The judge, or another judge of the same court, may, on application of the
The French reads:
[Translation]
That Bill S-7, in clause 10, be amended by replacing line 36 on page 10 with the following:
(13) The judge, or another judge of the same court, may, on application of the
[English]
It is your pleasure, honourable senators, to adopt the motion in amendment from Senator Frum?
Hon. Senators: Agreed.
The Chair: The chair declares the motion in amendment carried.
Senator Andreychuk: I do not understand "the motion in amendment." Are we now accepting the amendment?
The Chair: We are accepting the amendment. We will now accept the clause as amended.
Senator Andreychuk: All right.
The Chair: Therefore, is clause 10, as amended, carried or defeated?
Hon. Senators: Carried.
Senator Joyal: There is another amendment.
The Chair: I know. That is another clause. Why do we not wait until we get to that clause? That is clause 12.
Shall clause 11 carry? It is not amended.
Hon. Senators: Agreed.
The Chair: For clause 12, I call on Senator Frum to offer her amendment.
Senator Frum: As it is before you, this, again thanks to Senator Day, points out that the English and French versions did not relate and that while the English had the right understanding, that this was a mandatory review, the French did not. The proposal is that clause 12 be amended by replacing the French version at line 27 on page 11 with the following:
83.28, 83.29 et 83.3 et de leur application doit
Then there must be a corresponding grammar change, and it would change "cas, designe ou constitue a cette fin" to the present tense to line up with the "doit."
The Chair: That is the amendment. Are there any questions of our colleagues on that? If not, I am delighted to put the motion with respect to the amendment.
It is moved by Senator Frum:
That Bill S-7, in Clause 12, be amended by
(a) replacing, in the French version, line 27 on page 11 with the following:
83.28, 83.29 et 83.3 et de leur application doit
(b) replacing, in the French version, line 31 on page 11 with the following:
[Translation]
cas, désigne ou constitue à cette fin.
In the other language:
moved by, Bill S-7, clause 12, page 11:
That Bill S-7, in clause 12, be amended by,
(a) replacing, in the French version, line 27, on page 11, with the following:
83.28, 83.29 et 83.3 et de leur application doit
(b) replacing, in the French version, line 31, on page 11, with the following:
cas, désigne ou constitue à cette fin.
[English]
Colleagues, that is the amendment in English and French. Shall that amendment pass?
Hon. Senators: Agreed.
The Chair: Shall clause 12 as amended pass?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 28 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 30 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill to the Senate, as amended?
Senator Joyal: Agreed.
Senator Andreychuk: I had wanted to speak to one of the amendments. I asked whether that was the right time and you said "No, it would be later." You breezed through the entire bill.
The Chair: I am sorry; I thought at the time, Senator Andreychuk, you were asking me whether we were talking about the amendment or the actual clause. I apologize. I misunderstood. If you wish to speak to one of the amendments, please be my guest.
Senator Andreychuk: I do not know if it is wise or advisable to put "judge, or another judge of the same court." This is clause 10, that it be amended by replacing line 36 on page 10. We have only two, so it was the first one. My reason for —
The Chair: It is a substantive concern and not a grammatical issue, correct?
Senator Andreychuk: There is no such thing as "grammatical" when you are into legislation; each word means something. The words "or another judge of the same court" are my concern; I am not quite sure under what circumstances another judge would take jurisdiction. There was some merit in having the initial judge continue in the recognizance because of the very difficult nature of the subject matter.
This leaves it open that anyone in the same court could be the judge, so you lose the continuity, and that was one of the issues we had throughout, namely, that you get a certain understanding. What we are now doing is diminishing rather than, as you say, simply facilitating the ease in the courts. I think it goes to the substance of someone, and the public, if you can go and judge shop or move around in a way that was not contemplated at the start.
I am not in favour of this amendment, but it has passed, so I am putting it on the record.
The Chair: I am more than delighted to do two things with the committee's approval: I am more than delighted to seek advice from the officials on the point that you raise, if that would be helpful; and I am also more than delighted to have, if you wish, your opposition to that amendment recorded, if that is your preference.
Could I ask the committee, are we comfortable asking advice from the officials?
Senator Joyal: Yes, since the Department of Justice Canada has agreed with that amendment, and we have the benefit of their presence, I think it will be a good thing to hear from them.
The Chair: Could I invite either one of our two guests from the department to give their advice and reflection on the concern raised by Senator Andreychuk?
Doug Breithaupt, Director and General Counsel, Department of Justice Canada: We had looked at other provisions of a similar nature, although no provision is exactly the same as the investigative hearing, and we thought that the amendment might provide a degree of flexibility. Should the original judge not be available for one reason or another, the variation of the change in circumstances could be addressed by another judge of the same court.
The Chair: Senator Day, did you want to ask a further question?
Senator Day: Honourable senators, I think the witness intended to say "recognizance with conditions." The amendment in clause 10 is with respect to reconnaissance with conditions.
In fact, at page 5, the same wording does appear, now as we have just amended for recognizance, in relation to investigative hearings. That is just to be consistent, a point we made earlier. The wording "or another judge of the same court" is for investigative hearings and is at the bottom of page 5, subsection 7. We are trying to pick up the same wording of the amendment, if passed.
Senator Joyal: I think the point raised by Senator Andreychuk certainly has some merit, but in the practice of the court, what happens if the judge who was granted the first decision is unavailable for X, Y or Z reason — he or she is incapacitated for all kinds of reasons; maybe he got into another trial — how could that be implemented if there is no amendment?
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: It could be an impediment, senator, and the reason is to make them consistent. It is not intended to be for judge shopping; it is so that another judge of the same court could entertain the variation application if the initial judge were not available to vary the order.
The Chair: The law now, as drafted, to be fair to Senator Andreychuk, does not say that; it does not constrain the process around judge shopping. When a bill passes, I assume the department issues a memorandum of enforcement around how various sections are to be dealt with. Would you be specifying that in some way?
Ms. Kane: Senator, we do not indicate how the law is to be enforced; that is a matter for those enforcing the law in the various provinces and territories. We aim for as much clarity and consistency as possible in the way a law is drafted.
Senator Andreychuk: Most judicial acts have a contemplation of illness or death, and others can come in, so this is not necessary. In other words, in any case where a judge cannot handle the case, there is a contemplation of how another judge steps in, and it is the administrative judge who assigns cases. It is all judicial.
What bothers me is that I think the investigative hearing is different than the recognizance, and the continuity of recognizance with one judge seems important. When you go in and you put certain recognizance, if they are not kept or if they are complied with, the previous judge would have the reasons and the understanding of the case, whereas the new judge will have to start afresh and trace the whole conditional release.
I understood the difference between the investigative hearing and the recognizance. We are now saying it does not matter. With respect, I thought they did matter, and I thought it was a better use of the security provisions for the public and for respecting the rights of the person who may be before the court.
However, that was one thing. The other is "the judge, or another judge of the same court." Will the normal, administrative practices of the court be here, or will this, as I say, lead to the ability to select a judge, and who will be doing that?
Ms. Kane: Your considerations are for the committee. It was drafted in a particular way; this is a motion to amend. If the committee is of the view that the bill should stay as it is, that is entirely within your discussions.
Senator Andreychuk: I think I was the only one. Everyone else wanted to pass it, but I wanted it noted on the record.
The Chair: So we are perfectly clear here —
Senator Andreychuk: There are consequences to this.
The Chair: There are consequences, and the amendment did not come from Mars. It was drafted by the Department of Justice Canada. That is so we are clear about our sourcing. The notion that Justice Canada does not have views as to whether we should or should not pass the judgment is fascinating and interesting, but it is not the view I have.
I think we made a decision, and I would like to stick with it, but I am in the committee's hands. If the committee feels uncomfortable based on Senator Andreychuk's very thoughtful advice and counsel, then I believe we should reflect the views of the committee.
Senator Joyal: May I ask a question of Senator Andreychuk and maybe get a reaction from the Justice Department?
The Chair: Will you accept a question from Senator Joyal?
Senator Joyal: Would you be more comfortable if the words added "the judge, if available, or another judge," so that it avoids the judge shopping that you are considering?
Senator Andreychuk: Well, I am not a drafter.
Senator Joyal: You do understand the term. What you are preoccupied with is that there will be judge shopping by the defence.
Senator Andreychuk: Well, it could be just judge shopping, but I also think, for the protection of the accused and the protection of the public, the person who put on the first recognizance had certain facts before them, and I have done that. You grant bail on certain conditions. If they are not complied with or if circumstances change, it comes back to you to re-adjust. Here, it will be a judge who did not hear the evidence in the first place. We hope that file will be transferred to him, that there will be sufficient evidence and the same lawyers and all of that, but I am not sure. I do not know whether "if available" helps me or not. It certainly seems to imply that you should go to the first judge.
The Chair: The other option we would have, colleagues, is to leave the amended clause as we have approved it, namely, standing, but to add to our observations the specific nature of Senator Andreychuk's concerns about how that particular provision might be applied. That is another option I put before the committee for its consideration.
Senator Joyal: Can we get the reaction of the Department of Justice?
The Chair: By all means, I would be delighted to seek the advice of the Department of Justice on the matter. Either of our guests is welcome to engage.
Mr. Breithaupt: Thank you, Mr. Chair. We just wanted to point out in this respect that we had regard to various subsections in the existing peace bond provisions where there is a variation of the conditions fixed on the recognizance, and the introductory language is the "provincial court judge may," so it is a provincial court judge, not necessarily the original judge, and we had that in mind in drafting this amendment.
The Chair: Colleagues, how do you wish to proceed? We have approved an amendment brought forward in the best of faith by Senator Frum. It has been explained to us by our guests from the Department of Justice that this brings it in alignment with other circumstances that exist in other parts of the code.
Senator Andreychuk has raised a concern about the rights of both the accused and the rights of the Crown and how they might be implicated by the government amendment in this respect.
I am in your hands. My instinct would be to proceed with what we have approved, but if the committee feels strongly about going back and approving that clause un-amended, that is in the committee's hands.
Senator Andreychuk: I think you moved by it so quickly, it has been passed. I will reflect whether I wish to raise it in another form when it comes to the Senate.
The Chair: There is the opportunity to do that on third reading.
Senator Andreychuk: I am sure the rest can be guided by their own evaluation of it.
The Chair: I appreciate that indulgence from Senator Andreychuk.
Also, of course, this is only one chamber that is considering the matter. It will go to third reading in our chamber, and then it will proceed to the other chamber where other issues may very well be addressed that have emerged through the consideration of this proposition, and where the Canadian Bar Association may get a chance to make its brief before their committee.
On that basis, colleagues, could I have your permission to discuss the observations that we would like to append to this report?
Hon. Senators: Agreed.
The Chair: Agreed. I think that all colleagues of the committee have two documents in front of them, "Draft Observations — Bill S-7." For the French, "Observations preliminaries," I would have thought ébauche is a better term. I am glad either to discuss this in general terms or to go observation by observation. I am in the hands of the committee.
Senator Joyal, would you prefer to proceed observation by observation?
Senator Joyal: I think it would be better.
The Chair: There is the introduction, which is in front of you.
Senator Dallaire: If I may.
The Chair: Yes, Senator Dallaire.
Senator Dallaire: The first line represents an important step in these ongoing efforts, versus "next step."
The Chair: You would like to see the word "next" removed from that line?
Senator Dallaire: If that is okay.
The Chair: Does anybody feel troubled by that? No? Let us proceed on that basis.
Senator Dallaire: At the third line from the bottom, additional changes could be made to strengthen it. Should it not be "this bill's provision"?
The Chair: I think that grammar is a huge improvement over the existing draft, and I would be prepared to support it.
Senator Dallaire: This is in my second language.
The Chair: Incroyable.
Senator Dallaire: You are right, which means I got great staff.
The Chair: We have now dealt with the introduction. Let me just see if there are any other comments on the introduction.
Senator Andreychuk: I wanted to make an overall comment. Observations do not form part of the bill.
The Chair: Right.
Senator Andreychuk: Therefore, it is one of those things that the Senate got into. I hate to say that it was often because of negotiations to get a bill through that you appended observations. There is a Speaker's ruling that they have no effect on the bill, per se.
The Chair: Correct.
Senator Andreychuk: Therefore, I wonder why we are doing this massively at this time. That was one thing.
The second comment is that some of these observations go beyond Bill S-7. They seem to refer back to this committee at a time when I was not on the committee.
The Chair: Right.
Senator Andreychuk: We are sort of talking about the study of terrorism and anti-terrorism rather than Bill S-7, so I am uncomfortable that we are extending the observations beyond.
They are rather lengthy, subject only to Senator Day, who produced a monumental work in a certain bill that he and I were involved with. They had the majority, so we disagreed with the observations, but nonetheless, the volume went forward.
This is the first time I have seen them this long and beyond the scope of the bill into a subject matter that I appreciate the committee studied, but we did not in our hearings here.
The Chair: I will respond to the first part, and then throw myself at the mercy of the committee for the subsequent parts.
For the first part, namely, why do we have observations that are so broad, I think it is because while there may not be complete agreement on all sides of the committee about the precise and total detailed content of the bill, we did have, I think, a working agreement between the two sides that the bill itself would pass with very minor amendment, in return for which we would put on the public record, for discussion and debate, concerns that had come up in some cases because of testimony we had in front of us for various groups, and also because of concerns that colleagues on the committee felt were important to have on the public record.
As to whether any particular section is in excess of our present focus of study, namely, this legislation, I think when we get to that section, I would invite members of the committee to suggest whether or not they wanted that section modified or, perhaps, deleted from the observations, and we could deal with that at that time. However, I think as to the extensive nature of it, the rationale is as I described it.
As to whether every piece of it should survive this debate, that is an open matter between all of us on the committee, and we will seek to deal with it event by event and clause by clause and get advice from colleagues as we proceed. That would be my suggestion to address the very substantive part of your second concern raised.
Senator Andreychuk: I will raise some issues. You very delicately put it that it was a negotiation, and that was what I had said before. That is how sometimes you get a bill through, and that is how we developed this process in the Senate.
It seems, however, to the uninitiated, when you read the entire thing through, you wonder whether we agreed with Bill S-7, and I happen to be a strong supporter of Bill S-7, so I want to be sure that the language here does not diminish my support for Bill S-7.
The Chair: I guess I would argue that when we decide unanimously to approve every clause in the bill and approve two minor government amendments to the clause, we are saying that, as a committee, we support Bill S-7, but that does not necessarily mean that as a committee we are of the view that that ends the discussion about best practices in this area of activity. Where we can put on the public record suggestions, ideas, even reservations, that does not in any way dilute our unanimous support for the bill, but it does say that this is an ongoing moving target, and therefore members of the committee felt strongly that some of these concerns should be part of the discussion and the consideration going forward.
I think that is what we are trying to say. Whether we have said it effectively or not is open for all of our respective judgment. That would be my response, but do other colleagues on the committee wish to engage? Senator Dallaire?
[Translation]
Senator Dallaire: Senator Andreychuk stated very clearly that these observations have no weight in law, that they are simply provided as additional information. However, these observations will be used publicly, and they could potentially be used by colleagues in the other chamber, because they will have access to them. In that context, these observations bring depth to the bill rather than simply adding a legal technicality component.
This is why I believe that observations should be used more and more, because they illustrate the depth of the debate surrounding an issue and do not close off debate on legislation. Given that no authority is attached to them, we have leeway to discuss and debate them.
[English]
Senator Tkachuk: They are not even part of the report.
The Chair: Well, we have a motion that we would put at the end of our consideration of the observations as to whether in the report I am empowered as your chair to report the bill as amended and also to have in the report the observations. That is what a chairman would normally ask to do after observations or recommendations have been considered, and I think that has been the normative practice since long before I arrived in this place.
Colleagues, are we prepared, with the caveat raised very constructively by Senator Andreychuk, to continue working through the observations and just get various comments? We are now through the introduction and on to section A, investigative hearings.
Let me just say that our research counsel points out to us that because of the amendments that we have adopted, we can remove two of the paragraphs that are already in that observation, paragraph 3 on page 2, starting with "Firstly" and continuing on to page 3 right up to before B. Those paragraphs can be deleted because they have already been addressed in the amendments that we have made.
If that is agreeable to colleagues, I would instruct that they be removed from the final version. Unless I hear otherwise, I would proceed on that basis.
Hon. Senators: Agreed.
The Chair: Senator Dallaire, I think you had a concern with respect to line 3 of the section that starts under A on page 1, "By reintroducing provisions that allow" further on after the word "potentially" in line 3. I am informed you had some concerns?
Senator Day: Line 3 after A?
The Chair: Yes, where it says "bill put these procedural tools back into the hands . . ."
Senator Dallaire: Oh, yes, I was just trying to follow up what we have crashed and what we still have left. Forgive me.
The Chair: By all means.
Senator Dallaire: I was proposing that after the words "enforcement officials and courts, potentially" instead of "enabling them," I do not want to quibble here, but "facilitating their ability" would be what I am proposing "to stop terrorist acts."
The Chair: That does not trouble me in any way as chair, but I am in the hands of the committee. I think it adds a little bit of texture to the intent constructively, and if people are not troubled by that, I am prepared to accept that as a change to the draft before us. Senator Joyal?
Senator Joyal: I also have one to suggest, on page 2.
Senator Day: Could you tell me where it is? It took me a while. It is the second paragraph under A. I found it finally, but I was searching so hard I did not hear what Senator Dallaire's amendment was.
The Chair: On line 3 where it says "into the hands of law enforcement officials and courts, potentially enabling them," Senator Dallaire would replace "enabling them" with "facilitating their ability to." That is the only change that he is making in that context, senator.
Senator Day: Thank you.
The Chair: Okay.
Senator Andreychuk: In the paragraph after the bullets on page 2, you say, "While we are encouraged to see that several of this Committee's . . ." that is the part that we did not really study in full. I wondered if you would not say something like, "While we note that several of the committees and subcommittees were taken into consideration when introducing these provisions to the code" because the minister did say that. Then go on to say, "it is our view that these legislative and procedural safeguards could be strengthened even further" blah, blah, blah.
Senator Joyal: Period.
The Chair: Senator Joyal is recommending there should be a period there.
Senator Joyal: Yes, because the rest addresses two amendments we have deleted, so it makes sense to delete the second part of that sentence.
The Chair: Senator Andreychuk's recommendation strikes me as completely rational. If there is no problem with that, I would suggest we put that into the content.
Senator Day: I agree. Mr. Chair, I interrupted Senator Joyal when he was holding forth on something so I could have an amendment clarified. My apologies.
Senator Joyal: That is fine. I wanted to continue with the amendments in that paragraph by removing, as you have accepted, the last two lines because they were of course obsolete, taking into consideration that we had removed the next three paragraphs introduced by the second part of that sentence.
The Chair: I guess we are moving to the paragraph that starts with "In addition." We can take out "In addition" because it is no longer relevant. The paragraph that now starts "While subsection 83.28(10)" is the next area of observation. Can I ask if there are any comments or concerns about that? It is the last paragraph on page 2.
Senator Day: Page 2?
The Chair: Yes, the last paragraph on page 2.
Senator Day: I thought that paragraph was deleted.
The Chair: No, the paragraph that was deleted was the one that started with "Firstly." That is the paragraph that was deleted. The second paragraph, which begins "While subsection 83.28(10)," is not deleted. It remains part of the observations as we speak, and I am seeking the approval of the committee to leave them there, should that be your wish. Are we comfortable, colleagues, with proceeding on that basis?
Senator Day: Yes.
The Chair: All right. The top of page 3 was deleted, so we are now at section B, "Leaving or Attempting to Leave Canada to Commit Terrorism Offences (Clause 6)."
Can I ask if there are any comments with respect to those three paragraphs that are before us on page 3? Suggested changes, additions, deletions, magnifications or elaborations? Are we content to proceed?
Senator Andreychuk: While you refer to it in the paragraphs, the one point that I have been hammering away at is that there should be protocols in place, and I am not sure if that is captured. Maybe it is just the fact that I flew in at 3 a.m. That would be the key to this Bill S-7, so if that can be strengthened.
The Chair: Could you give us advice as to where you would like to see it inserted, senator?
Senator Andreychuk: I think for the drafters, so they have continuity, it could be at the end, just to underscore the importance of protocols and practices.
Senator Joyal: If I may, Mr. Chair, on that, I think it would be on the last third of the second paragraph, under B, where the sentence starts with the words "The Committee accordingly urges Canada's law enforcement . . ."
I remember very well that we also raised this issue with the RCMP, with the border agencies, and I think even when we had the Chief of the Toronto Police Service, we raised the issue. I think it would be fair to mention that this is the way it should be implemented, through a formal protocol of understanding.
The Chair: The sentence after the word "law" says: "The development and implementation of formal protocols of understanding between the various security agencies would be something the committee strongly recommends."
Are we all comfortable with that proposition?
Senator Joyal: Yes.
Senator Dallaire: Just a question. The term "protocols," that is sort of reflective of MOUs and other standing operating procedures.
The Chair: Essentially, ways of proceeding. In English it means "ways of proceeding." I do not know what the right word would be in French.
Senator Dallaire: I am just wondering, to make sure we do not limit it in French. I just want to make sure it covers the full spectrum of types of protocols and not just the term "protocol." Is it a generic term?
The Chair: It is a generic term. "Operational protocol" is a pretty explicit proposition, and it is referred to and it has legal standing.
Senator Dallaire: Good. Thank you.
The Chair: Are there any other comments on that page before we go to page 4? Are there any comments on page 4, section C? If not, I would proceed to page 5, with your permission.
Senator Tkachuk: Proceed.
The Chair: Page 5.
Senator Dallaire: Mr. Chair, if I may. Section D is where my attention is right now, on page 5. First, I would like to indicate that I feel quite ill at ease with the fact that last week when we had witnesses and we were concentrating on the concern with regard to youth, child soldiers and the Anti-terrorism Act, I was unfortunately absent. I was at that time presenting in front of the American Psychiatric Association, where 5,000 American psychiatrists were meeting to discuss post-traumatic stress disorder in the U.S. army and how to adopt the Canadian methodology, where we call it "operational stress injury." It was not an insignificant one, because the U.S. army was ready to make a major change, and they have 1.1 million people in their army.
I felt that my duty was there on that day, and so I regret not having been here, even though I thank Senator Peterson for taking the questions we prepared for them. Thank you for that.
That brings me to the amendments, which I am pushing to try to clarify more and more with regard to how we are using the terms "terrorism" and "youth," and how the two can fairly easily clash.
I bring this all the more so by just looking at what is being considered for the four youths who threw those smoke bombs in the subway in Montreal, and the fact that we are looking at charging them under an Anti-terrorism Act, which will be rather interesting to see play out. The amendments are additions, and if I may read them out.
The first one starts at the sixth line of D, and it says "obligations under the Convention on the Rights of the Child and other international instruments." I would like us to consider clarifying that by the following: "such as the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict, and the Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (The Paris Principles)."
The Chair: May I say, in defence of your proposal, that that was the precise testimony that we received from the two experts who were our witnesses on the day when you were otherwise engaged. That is consistent with what they said, and certainly from my point of view it adds a level of specificity, which I think is actually constructive and more faithful to the evidence we received. I do not think it changes the purport of the report or the observations. It adds specificity.
However, let me defer to the committee. That is just my view.
Senator Andreychuk: We would have to change it all to ensure it complies with Canada's obligations under the Convention on the Rights of the Child and other international instruments that Canada has signed on to and/or ratified. There are conventions that we have not signed or ratified, and by enumerating them we are getting into that conundrum. I rather liked "and other international instruments" because it is not narrowing it to the two that happen to preoccupy Senator Dallaire. There are others that preoccupy me too.
The Chair: Sure.
Senator Andreychuk: I do not want to use the language that Canada complies when in fact it has not bound itself.
The way it is now is simple. It gets the point across. Senator Dallaire can elaborate in third reading, as can I, as to which ones are of importance, et cetera. However, I think to narrow it is not correct, and we have not signed on to some of them.
Senator Dallaire: In rebuttal, I did qualify it by "such as," meaning that it is not a definitive list; it is an example of a list. Unless I am mistaken, we have signed on to the Paris Principles and also to the optional protocol.
The Chair: Could I ask this question, in defence of Senator Andreychuk's proposal? If we put "international instruments to which Canada has subscribed, such as," then we achieve both purposes: We list the two that you would like to see listed, but we make it perfectly clear that the condition préalable is that it has to be an international agreement to which we have in fact subscribed. We would be achieving both without limiting the specifics.
Senator Day: Is that not syntactical redundancy, when we say "Canada's obligations"? We do not have obligations on protocols we have not signed on to.
The Chair: I defer to your legal mind on this, but there will be people who argue that we have obligations of a moral nature beyond those agreements that we have or have not signed.
Senator Day: The moral nature would be outlined in a protocol we have not signed on to?
The Chair: If we said "formal obligations," if we put in one word that said Canada in some way had to subscribe — Senator Andreychuk, did you want to engage?
Senator Andreychuk: The problem of not signing on to some of them is that we may not agree that it is the best interests, and so that is why we are opening up a whole different issue, which we studied in the Human Rights Committee under the Convention on the Rights of the Child. I think that is where it rightly belongs, in that report, with all of it, rather than trying to enumerate here and worry about whether we would put reservations on optional protocols. I do not think that was the purpose of this study. I think drawing attention to the fact that we should be complying with the convention is sufficient. Therefore, "and other international instruments" is sufficient without reopening a debate on issues that we did not fully study.
The Chair: We have two proposals on the table.
Senator Dallaire: I want to be sure, and I am not au fait exactly. I was left with the fact that we ratified both these documents, but we have not put them into legislation yet. I am preparing legislation in that regard for next winter, so the fact that we have ratified them does put us in the moral responsibility sphere, even though our laws have not necessarily been modified to reflect the content. That is the way I have seen the international sphere working at the UN. That is why I put them there. I am aware that we did not amend the laws, the optional protocol; we amended only the National Defence Act. We did not amend the other ones.
Senator Joyal: Senator Andreychuk has raised a valid point. Some of the parts of the enabling legislation will be under provincial jurisdiction because they deal with human rights. In terms of youth, a lot of amendments or implications fall under the responsibility of the provinces.
There is merit to recognize the first point, the principle, which is, in my opinion, well stated in the original text. The proposal for amendment should not affect the status of those instruments, which, in my opinion, as I mentioned, are as much under federal jurisdiction as provincial. I would be rather tempted to have it remain generic —
The Chair: I think what we are facing is the following proposition. Typifying the two views on the table and trying to be fair to both sides, we either take the wording in that paragraph as it was presented, which would be option one, or as amended, which is what Senator Dallaire is suggesting, which would be option two. I think that is a fair characterization of where we are. I would like to avoid a recorded vote, but I do not quite see at this moment in time how we avoid that unless there is some advice on the table about how that might transpire.
Senator Andreychuk: I suggest we leave the text as is and that Senator Dallaire is free to comment on the instruments of greater concern to him that Canada should be complying with —
The Chair: On debate at third reading?
Senator Andreychuk: Yes, with that phrase there, which gives him the opportunity because it says "and other international instruments." He can elaborate on it, and I may choose to elaborate on others that he may not. We have to bring witnesses in to talk about what we have signed and what the implications are, and we have not done that. It is beyond the scope of what we studied. That was my original comment.
The Chair: I understand. Senator Dallaire, I am more than delighted to have a recorded vote.
[Translation]
Senator Dallaire: We will push the argument as far as possible. I am not familiar with the legal nuances that have just been brought up. I wished to ensure that, with this bill, the rights of youth are not infringed upon by this philosophy surrounding anti-terrorism legislation. There is already sufficient proof, in this area, that we have reacted poorly. I do not wish to dwell any more than necessary on Omar Khadr's case, but where terrorism is concerned, we have no examples of cases where the rights of children were protected. This is why I wanted to ensure that everyone was very much aware of this aspect. If we do not wish to include this here, fine. I will cover it in my speech and this will be my reference point.
The Chair: I would first like to thank you for your wisdom regarding this procedural matter. As for the questions put by Senator Peterson on your behalf to the Department of Justice and the other witnesses, we have received statements under oath and hard and fast confirmations that all of the laws protecting youth will have precedence, at trial, in this area relating to terrorism.
[English]
We received those assurances, both in your presence and on your behalf, based on Senator Peterson's interventions, and on my own and on some others. I think in that respect we can be comfortable, but I think that raising it at third reading so that this nuance is well understood would be very much in the public interest. I would encourage you as a colleague and friend to do that. Senator Andreychuk, I am sure, will engage at that level.
Senator Joyal: May I ask a question of Senator Andreychuk? At the time that you were the chair of the Human Rights Committee, did you not produce a report on that issue?
Senator Andreychuk: Yes.
Senator Joyal: Did you not study all those international instruments and their level of application in Canada?
Senator Andreychuk: No. Being a good lawyer, I will say that we did not study everything. We were studying the UN Convention on the Rights of the Child, and we used certain paragraphs to be illustrative of how children should be taken into account because the Charter of Rights and Freedoms does not refer to children, so we pointed that out. We pointed out the implementation problems and we pointed out the federal-provincial problem, but I do not think you can do an exhaustive study. That is my point. Every day there is a piece of legislation that could impact children. When you talk about international instruments, there may be paragraphs embedded in all kinds of conventions. I do not think we should go down that route. That was the point.
Senator Dallaire: I will back off because I have been working already for over a year on preparing legislation to move this into law. Hopefully, I will pick it up, if the legislation that I will be proposing will be accepted.
I have another amendment, if I may. It is long, so I hope you will indulge me. It goes at the end of the paragraph.
The Chair: After YCJA, is that correct?
Senator Dallaire: Yes. It is as follows:
However, the committee feels that for greater clarity and certainty, clause 10, sections 83.28, investigative hearing, and 83.3, recognizance with conditions, of the bill should be read in such a manner that it is consistent with the fundamental principles governing the YCJA and in accordance with any applicable provisions of that act and that access to legal counsel for persons under the age of 18 is assured.
[Translation]
I come back here to my scepticism concerning the promises made with regard to the interpretation aimed, precisely, at protecting children in the context of what we are discussing, namely terrorism.
[English]
The Chair: On your behalf, senator, could I ask our guests from the Department of Justice, who will know, having no doubt gone through our minutes of our meetings, that we did receive assurances from your colleagues in the department that every provision of this act would be governed by the youth justice provisions that pertain with respect to any aspect of the Criminal Code. In that respect, would it be your view that the amendments suggested to the observation by Senator Dallaire would be underlining a practice that would, in normal circumstances, be provided for in the normal application of the act as it sits before us today, or do you think it adds a measure of specificity that would give the Crown unplanned difficulty in the prosecution or protection of the public interest?
Ms. Kane: Not having the benefit of the context of the observations, it is a bit difficult to comment on how your proposed wording would fit in.
With respect to the application of the Youth Criminal Justice Act, generally the provisions are engaged when a youth is suspected of having committed a criminal offence or is involved in a criminal offence of some type. If that is the reason why the youth has been questioned in an investigative hearing, then it is our view that the provisions of the Youth Criminal Justice Act would be engaged.
However, if there were any dispute about whether the act was engaged or not, it is also our view that the common law, as stated by the Supreme Court of Canada in a number of cases, would provide sufficient guidance so that the rights of the young person would be protected. Certainly most superior courts have inherent jurisdiction, and they would seek to do all that they could to ensure that the youth was provided with counsel and all the other provisions necessary to protect and safeguard their rights.
The Chair: Thank you. Any other comments?
Senator Joyal: In relation to that, may I ask you a question on clause 10 of the bill, the one referred to by the proposed amendment on page 6, subparagraph (11), which is entitled "Right to Counsel"? It says: "A person has the right to retain and instruct counsel at any stage of the proceedings."
Ms. Kane: Clause 10 of this bill?
Senator Joyal: Yes, clause 10, section 83.28(11), page 6, lines 28 and 29: "A person has the right to retain and instruct counsel at any stage of the proceedings."
The way I read this is that, at any stage of the proceeding, a person has the right to retain counsel. The preoccupation of Senator Dallaire, the way I understand it, is that a youth before a judge for an investigative hearing might not know that he has the right, at any stage of the proceedings, to be assisted by counsel. This section does not say that counsel is present from stage one of the proceedings. The preoccupation of Senator Dallaire, the way I understand it — unless I do not get the point — is that there should be a preoccupation or an obligation to provide a lawyer or counsel from the beginning because the youth does not know the system or how to proceed with that.
Ms. Kane: At all stages of the proceedings.
Senator Joyal: Yes.
Ms. Kane: Referring to my earlier response, that was our understanding of the concern. Where the youth is engaged in one of these processes because of some potential involvement, even if they are not the particular suspect in the particular offence, there is an interpretation that the Youth Criminal Justice Act would apply. If it did apply, then the right to counsel would be at the initial stage and throughout. If there were any doubt that the Youth Criminal Justice Act applied, it was our view that the common law would provide that guidance that the youth must be afforded greater safeguards than other persons.
However, I think it would be quite valid to highlight that it was a concern of the committee that youth were indeed afforded those safeguards.
Senator Dallaire: Senator Joyal touched on this, of course. The other aspect is that when you are doing the investigative hearings or recognizance, the youth has not been charged or is not being looked at as having committed an offence, which the Youth Criminal Justice Act peaks of. We have a bit of a grey area there where the youth has not committed it yet, and we are just looking at it. The protection of the youth during that time frame is not clear in the Youth Criminal Justice Act. We wanted this brought in so that it would potentially cover this sort of newish type of area for youth to be engaged in, all the more so because the whole dimension of terrorism being what it is can sometimes override some other what we would consider normal assessments because of the nature of the offence or potential offence.
Ms. Kane: I understood that to be your concern, just to avoid any doubt.
The Chair: Just so I am clear about the advice you gave us a moment ago, it is your view that the common law and the other aspects covered by the legislation would operate with regard to protecting the rights of a young person to counsel at all the stages even of an investigative process, as opposed to a charged process. An observation on the relevance of that point would not be troubling, if I understood you correctly.
Ms. Kane: The observation would not be troubling.
Senator Andreychuk: I do not have the benefit of the written point that Senator Dallaire has made.
Senator Dallaire: I am looking at procedures for how to do that, yes.
The Chair: I only have one copy that staff has. I did not receive any copies or I would have distributed them. I am glad to make one available, though.
Senator Dallaire: I have copies to distribute.
The Chair: Where are the copies to distribute?
Senator Joyal: I can share my copy, and sit with Senator Dallaire to follow his copy.
The Chair: Can we ensure that everyone who wants a copy has one? I think that that is not unreasonable. I assumed that was the case. I apologize.
Senator Dallaire: Here they are.
Senator Day: In D, as written, the Supreme Court of Canada decision of 2005 is cited. I do not have that case, but are we over-speaking on that? It seems clear that the Youth Criminal Justice Act applies to all of the provisions of Bill S-7. That is what we have said here.
The Chair: That was the question I asked ab initio, which our friends from Justice answered very clearly and precisely. That does not diminish your colleague's desire to have it outlined in a more precise way so that there is no misunderstanding possible in terms of what this committee's intent was in the passage of the legislation. I think that that is what your colleague, Senator Dallaire, is seeking.
Senator Day: We have not over-spoken on this case. This case actually says what we have said it says.
The Chair: That is my understanding.
Senator Andreychuk: It is not what our opinion is; it is what the courts have said. The Youth Criminal Justice Act applies, period. I find that, in adding this, we are now suggesting that somehow or another it does not, that the government has not or the courts have not, et cetera. I am not sure I agree with that.
What we had before was a sentence that said, "Nevertheless, the Committee is of the view that the bill would benefit from a thorough analysis of its provisions . . ." That might be timely, but we did not do that study. We did not do that analysis. I cannot come to Senator Dallaire's conclusion. I would like that paragraph, as it is in observations, to stay, but what I was going to add is: Who will do the analysis? Is it the Department of Justice who will report to us as a committee? We have done that in the past where we have said that we would like an analysis and would like it filed with our committee. The Standing Senate Committee on Legal and Constitutional Affairs has done that often.
The Chair: The Supreme Court decision that we are talking about is not a decision about Bill S-7. It is a decision about other legislation.
Senator Andreychuk: Yes, but it definitively indicates that when you deal with a child, you deal with the Youth Criminal Justice Act. If there is to be analysis done, either we have to undertake a full analysis —
The Chair: Or we have to seek that it be done by others.
Senator Andreychuk: Or seek that it be done by someone else, for the purposes of Bill S-7, not come to a conclusion that there is a grey area or that there has not been compliance.
The Chair: Correct. Thank you for that.
Senator Dallaire: I am hedging my bets on exactly what you are saying because between now and the time that we might do this study, we might have youth engaged by or brought before this legislation. It is not some sort of I was almost going to say "ordinary crime," if there is any such thing; we are talking about terrorism. There is still all kinds of room for interpretation in the realm of terrorism, how it is being applied and how some other countries, let alone ourselves, are handling it. I needed just that much more reinforcement that when you throw that angle into it, you are not throwing out all those other provisions, potentially even having to go back to the Supreme Court and get it changed.
The Chair: I think it is fair to say that the witnesses who appeared last week, with respect to the rights of young people, specifically requested that there be a Department of Justice study as to how those rights would be protected under the provisions of this bill.
Senator Dallaire: We discussed that.
The Chair: As that was actual testimony before us, I wonder if we could simply take what you had provided and replace it with the idea that the committee very much endorses the idea of a Department of Justice study as to the application of the youth justice law relative to the provisions of Bill S-7 and every one of its characteristics. We are then taking Senator Andreychuk's advice about getting the study done, so that we understand the linkage, and we are accepting your advice that nothing should be taken for granted, we should in fact be specific with respect to our observation on this matter. If colleagues are comfortable with that general approach, then we will ask staff to write it in a way that your committee on agenda can approve in its final editorial form, as is normally the case.
Senator Andreychuk: I think that supports what has been happening in the past because while particularly one witness last week, for whom I have great respect, is saying you apply it, you apply it, you apply it. However, Senator Dallaire will remember that when he brought in an amendment so that the entire Convention on the Rights of the Child did not apply, in other words we allowed youth to go into the military. You read the Convention on the Rights of the Child, no one under 18, and the middle of the road, which Senator Dallaire pointed out, was they could not bear arms but they could join the military.
These witnesses have a difference of opinion on how to apply the Youth Criminal Justice Act. That is why it is incredibly important to have the study on Bill S-7 as opposed to our getting into a debate on incrementalism or black and white on the legislation.
The Chair: Senator Dallaire, did you wish a final word on this?
Senator Dallaire: Only to say that I was the assistant deputy minister of personnel when Foreign Affairs was ramming through the optional protocol on child rights and that we sought that amendment in order to be able to recruit young future officers out of high school, who are 16 or 17, to go to an academic institution and not to go fight.
We also did, if you remember, decide at that committee that we would require of National Defence that within three years of our report they come back and tell us how they will find another way around it. I do not know if we have held them accountable for that.
Senator Andreychuk: No, we have not. That is the point. It is not so simple. It is worthy of studying rather than coming to our conclusions.
Senator Day: I agree we should put this wording. I am still concerned, having heard your comment in relation to the Supreme Court decision, that we are dealing with other legislation and not Bill S-7. I think we might have over-spoken and have been a bit too strong in our wording here to say we understand it does apply to Bill S-7.
Senator Andreychuk: It applies to all children, therefore it applies to Bill S-7, and if we have not captured that —
Senator Joyal: It applies to —
Senator Andreychuk: Everything.
Senator Joyal: I stand to be corrected by the Department of Justice, but it applies any time the Criminal Code is in play, and clause 10 is amendments to the Criminal Code. It is part of the Criminal Code, per se. It is criminal in nature.
Senator Day: I hear the arguments now that this is extraordinary legislation for extraordinary times.
Senator Joyal: It is no more extraordinary legislation; it is Criminal Code legislation.
The Chair: We do have, at various points in the minutes, very clear engagement by the Department of Justice that there is no doubt about the application of the youth justice principles to any aspect of this law. They have been very clear not only today to their credit but in the past when they appeared.
Senator Day: Why are we asking for an analysis?
The Chair: We are asking for an analysis because expert witnesses that we had last week took the position that there is often a difference between cup and lip with respect to the way in which legislation is anticipated in its operation and the way in fact it actually ends up operating because of different enforcement agencies across the country at the provincial level proceeding perhaps in different ways. Seeking an analysis by the Department of Justice is a way for us to have further clarity about the precision of its application and to ensure that the principles about which we have been reassured are in fact being safeguarded in the process. That would be the reason we would seek that analysis, senator.
Senator Day: We are definitely dancing on the head of a pin on this one, but that is fine. I am happy to go along with this; I just wanted to soften the "without any question it applies" wording that is in here.
The Chair: I understand.
Senator Joyal, do you have a final comment?
Senator Joyal: I was going to concur with the suggestion of wording you have proposed because it seems to me that it encompasses the point raised by Senator Andreychuk and the point raised by Senator Dallaire.
The Chair: Colleagues, with your approval, could we move to the wording of the conclusion to make sure we are all comfortable with it?
Senator Day: This will not be concluded.
Senator Dallaire: That is right.
The Chair: Senator Tkachuk, did you have a comment on the conclusion?
Senator Tkachuk: On the second sentence, "It remains to be seen how these legislative changes will affect investigations, intelligence activities and court proceedings." We have passed the bill and now we say, "Well, we passed it but we are not sure whether it will work or not." I am not of that view. We passed the act and we believe that it will do what it is supposed to. I think we should skip that, take that whole sentence out and then go to "With respect to . . . review these . . . as is proper," and end it there.
As far as the parliamentary oversight is concerned, that is a separate matter and applies not only to this act; the whole concept of parliamentary oversight surpasses this act. I agree with the fact that we believe hopefully we will be doing maybe a study on this sometime, but it is not just with this act, and it seems to imply here that it is narrowed here, but really what we are talking about is parliamentary oversight over CSIS, over other bodies and other pieces of legislation. I would like to see that little editorial out of there.
The Chair: Let me say, as the person probably who is as responsible for that final line as anyone, I think your advice and direction on that is both sound and constructive and I am delighted to delete it. My view is that if the committee seeks to proceed further on the issue of parliamentary oversight, we have to consider a formal reference and discuss it amongst ourselves, and then bring it to the chamber for its consideration. We do not need to anticipate that in this document, which also connects us with one of Senator Andreychuk's earlier concerns that we should not talk about things we have not talked about in this legislative consideration. I am comfortable to delete that line, if colleagues are comfortable with that.
Senator Day: Both lines?
The Chair: I am dealing with the one that starts with "However." With respect to "It remains . . ." I am not uncomfortable deleting it, but I respect that others on the committee may have a different view and I do not want to shortchange the expression of that view.
Senator Joyal: I agree with the first proposal of Senator Tkachuk to remove "It remains to be seen how these legislative changes will affect investigations, intelligence activities and court proceedings." I am not so sure about the last one because we have raised it with the minister and many witnesses. We raised it continuously during our proceedings. It reflects a preoccupation that in my opinion has been fairly stated by members and witnesses. I remember we put it to Professor Roach; we put it to the RCMP and even to the chief of police of Toronto, who skipped the issues and so on.
The Chair: To be fair to Senator Tkachuk, could we then merely report in the final sentence that the committee posed questions about parliamentary oversight to various of the witnesses and the answers to those questions can be found in the minutes of the committee hearings.
Senator Joyal: That is fair; at least it states the fact.
The Chair: Are colleagues comfortable with that? That does not express an opinion, it merely reports a fact, that we did put those questions to witnesses before us.
Senator Joyal: It is fair to state it, in my opinion.
Senator Dallaire: If I may, in that last paragraph of section D, I was proposing that instead of "Nevertheless" we use "Additionally." This is the last paragraph of D.
The Chair: Let us just deal with the conclusion.
Are there any other comments on the conclusion, beyond what has already been said?
Thank you. Senator Dallaire, you wanted to go back.
Senator Dallaire: You have finished the conclusion.
The Chair: Yes. Do you want to go back to section D?
Senator Dallaire: Section D, the last paragraph, we went over it. I would like to propose that we change the term "Nevertheless" to "Additionally." On the second line, "benefit from a thorough," again, I am bringing specificity here, add "child impact assessment and analysis."
The Chair: I think we are going over territory that we covered. We have already agreed that we would simply make the request that the operation of this act with respect to the Youth Criminal Justice Act be given detailed analysis by the Department of Justice. I believe that is what we agreed to. Senator, if you want to reopen it, feel free to do so; but I thought we had that agreement moments ago.
Senator Day: It will be rewritten.
The Chair: Yes. The final version of this will require unanimous approval from the steering committee of this committee.
Senator Day: The word "nevertheless" may not appear there.
Senator Andreychuk: Nevertheless, it is there.
The Chair: I am about to put a motion with respect to how we go forward with this text in a way that reflects —
Senator Dallaire: I want to conclude this last paragraph of section D, if you do not mind. I will withdraw my amendments.
The Chair: Thank you very much, senator.
We have gone through the text, and colleagues have given instructions for how they want to see portions deleted, changed and rewritten. I move:
That the Subcommittee on Agenda and Procedure 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.
Is it agreed?
Hon. Senators: Agreed.
The Chair: Is it agreed that the bill be reported as amended with observations to the Senate?
Hon. Senators: Agreed.
The Chair: I have one other matter. The way we ended it with respect to the Canadian Bar Association should be specified. As you know, they are concerned that they did not get a chance to appear. We discussed whether we wanted to append their letter to the minutes, and there was some concern about that. Is it agreed that the steering committee discuss how best to proceed with the documents sent to us by the Canadian Bar Association? If all are in agreement, that is the basis upon which we will proceed.
Senator Day: Why would it not be just like any other letter we receive that just becomes part of a record?
Senator Andreychuk: We are not in testimony.
Senator Tkachuk: The letter says that we have denied them the right to participate; and we do not know if we did that.
The Chair: We have not disposed of the matter. They suggested in their letter that they sought to appear and were refused the chance to do so.
Senator Tkachuk: That we turned them down.
Senator Day: That is another issue.
The Chair: We will look into how that transpired and whether any mea culpas on my part are necessary. We will then consider as a committee what to do with the text in their letter on your behalf, if that is acceptable.
Senator Tkachuk: Fair enough.
Senator Day: It is just part of the record. It is. We have discussed it.
The Chair: The actual text is not a part of the minutes unless we decide, I believe; and you correct me if I am wrong.
Normally we file a letter as an exhibit and sometimes we post it to the website. We tend not to post the full brief, I am informed by the clerk. That, of course, relates to managing costs. I am in the committee's hands in that respect.
Senator Joyal: They did not appear, and their brief is only seven pages in total, not 50 pages. Now that the chair is authorized to report the bill, they will not be appearing, even though they had requested it. It would be fair to print their seven-page brief as an appendix to the minutes of the committee.
The Chair: Senator Joyal is suggesting that it would be fair to print their seven-page submission as an addition to the minutes of the committee for today. I am more than delighted to entertain the proposal.
Senator Andreychuk: I have no problem with that, providing the date is also included, which shows their brief is from 2010. That is important.
The Chair: Absolutely.
Senator Andreychuk: The other issue, when you follow up, is that they may contact the clerk. You keep saying "you" but most witnesses do not contact the chair; they contact the clerk or sometimes even the researcher. The Canadian Bar Association sometimes has its own gap when they determine who should prepare briefs; and it goes to their varying sections.
I do not think it is fault but rather a question of tracking it and reassuring them that we would have heard from anyone — perhaps build a linkage as well for how to do it in the future.
The Chair: Sure. As chair, I will take full responsibility for any infelicity that may have transpired in that circumstance, and I will report back to you in that respect.
Senator Dallaire: Sort out your classmate.
The Chair: Senator Joyal's proposal is acceptable with the comments made by Senator Andreychuk.
If there is a motion for adjournment, I will certainly accept it. Senator Day? Thank you.
(The committee adjourned.)