Proceedings of the Special Senate Committee on the
Subject Matter of Bill C-36
Issue 1 - Evidence, October 22, 2001 (morning sitting)
OTTAWA, Monday, October 22, 2001
The Special Senate Committee on the Subject Matter of Bill C-36 met this
day at 9:07 a.m. to examine the subject matter of Bill C-36, to amend the
Criminal Code, the Official Secrets Act, the Canada Evidence Act, the
Proceeds of Crime (Money Laundering) Act and other acts, and to enact
measures respecting the registration of charities, in order to combat
terrorism and explore the protection of human rights and civil liberties
in the application of this act.
Senator Joyce Fairbairn (Chairman) in the Chair.
The Chairman: Honourable senators, this is the first meeting, with
witnesses, of the Special Senate Committee on the subject matter of Bill
C-36, the Anti-terrorism Act. Before we start, it might be helpful if I
said a few words about the nature of these committee hearings for those
who may be watching television.
We are here with this legislation because of the tragic events in New
York, Washington, D.C., a field in Pennsylvania on September 11 and all
that has happened since. This bill deals with a wide-ranging Canadian
response to those events. It is now before the justice committee of the
House of Commons. When it passes all stages in that Chamber, it will come
to the Senate for formal Senate debate and hearings.
Because of the unusual importance of the legislation, the Senate today is
beginning a special process, which is rarely used, called pre-study. This
will enable us to hear witnesses and prepare advice and recommendations,
in advance, to the House of Commons committee which, hopefully, will be
reflected in the legislation when it comes officially to the Senate. After
senators debate the bill, our committee will see how well we did with our
recommendations, fully examine the bill clause-by-clause, and either
recommend approval or further changes in our final report to the Senate.
Our hearings will be intensive in the days ahead. We will begin this
morning with the minister who is responsible for this legislation,
Minister of Justice, Anne McLellan, and officials from her department who
have played a key role in drafting the bill, Richard Mosley, Assistant
Deputy Minister, and Donald Piragoff, Senior General Counsel, both
representing the Criminal Law Policy Section of the Department of Justice.
The bill is complex so we want to hear our witnesses fully and enable
senators to ask their questions. To keep the ball rolling, our Deputy
Chairman Senator Kelleher, himself a former Solicitor General, and I will
not hesitate to remind each of you to be as concise as possible with both
questions and answers.
Please begin, Minister McLellan.
The Honourable Anne McLellan, Minister of Justice and Attorney General
of Canada: Madam Chair, it is my pleasure to appear this morning to
start our discussions on Bill C-36. I would like, first of all, thank you
for your very serious examination of this bill.
Since the introduction of the bill one week ago, it has received
considerable attention. The quality of the debate in the House and in the
Senate speaks to the real concern that we all share about the threat of
terrorism. Without being alarmist or dramatic, it is fair to say that
September 11 was a turning point for all free and democratic nations. As
with every other democratic nation, we were forced to re-examine the
measures in place to protect our national security and, by extension, the
security of each and every Canadian. We have recognized the critical
importance of strengthening, in as directed a manner as possible, our
legislative and law enforcement tools.
Before commenting on specific provisions, I wish to emphasize our
government's commitment to the fight against terrorism. We should keep in
mind the very important nature of our goal.
As such, Bill C-36 is intended to respond to serious threats to our
society. Bill C-36 is one element of the government's anti-terrorism plan.
The bill includes the following elements: A process for establishing a
list of terrorist groups, a definition of terrorist activity,
comprehensive new terrorism offences, circumscribed new tools such as
preventive arrest and investigative hearings, and new measures to deal
with discrimination and hatred. There are also many other new measures,
including amendments to the Official Secrets Act, the Canada Evidence Act,
the Federal Court Act and others. However, today I intend to focus on the
central elements of Bill C-36.
Before I speak specifically about the different elements of the bill, I
would like to discuss with you the justification for a bill like this. As
many honourable senators know, currently in the Criminal Code we have
hijacking, sabotage and murder offences. While those remain available to
us, terrorism is a special threat to our way of life, and it is with this
in mind that Bill C-36 focuses on acts of terrorism. As the Prime Minister
stated in the House:
It has become clear that the scope of the threat that terror poses to our
way of life has no parallel.
We, in North America, have been extraordinarily fortunate to live in
peace, untouched by attack. That has changed.
I believe honourable senators will agree that, when we are talking about
people who would give up their own lives to kill thousands of innocent
people, criminal sanctions may not be enough. However, for those who are
involved in a network that assists terrorists to enable them to carry out
their horrific acts, deterrence can be effective and prevention is key. We
must be able to detect terrorists and their supporters early. We must be
able to break up terrorist organizations early. We must be able to stop
their financing early.
Honourable senators, the way I describe this, which I believe is readily
understandable by most Canadians, is that we must have laws, intelligence
gathering and investigative tools that stop terrorists from getting on
planes. If terrorists get on the planes, it is too late. We have failed.
Therefore, the approach we have taken in this bill is directed at cutting
off the terrorists from their financing and property, with a view to
seriously impeding them from carrying out their intended acts. The
approach we have taken in the bill is a preventive one because punishing
terrorists for crimes after they occur is simply not enough.
We must be able to disable organizations before they put hijackers on
planes or threaten our sense of security, as we have seen in recent days
with the scare of anthrax. We cannot wait for terrorists to strike before
we begin investigations and make arrests where there is a reasonable
suspicion that a terrorist act will take place. To wait would be
The anti-terrorism proposals included in the bill represent fair,
measured, effective and, in some cases, aggressive improvement to our
legislative framework to help combat terrorism.
Let us now look at some of the key elements of Bill C-36.
A first step in disabling and dismantling terrorist groups is to identify
them. Bill C-36 - and I refer, in particular, to clause 83.05 - sets up a
distinct procedure to enable the Governor in Council to create, by
regulation, a list of entities that have carried out, attempted,
participated in or facilitated terrorist activities, or that are acting on
behalf of such entities, or at their direction, or in association with
This list supports the application of other provisions in the bill,
including the new anti-terrorism offences, the new offences relating to
financing of terrorism and provisions relating to the freezing, seizure
and forfeiture of terrorist properties. So that we do not sweep up
perfectly legitimate groups and organizations, this listing procedure must
be and has been carefully designed. The bill requires that the Governor in
Council have reasonable grounds to believe that a group meets the criteria
with respect to terrorist activity in order to be listed. It is important
to keep in mind that being on the list does not itself constitute a
criminal offence. Where offences are charged, each of the elements would
still have to be proven beyond a reasonable doubt.
Madam Chairman, I know that my colleague, the Solicitor General, will be
with you later today. The Solicitor General plays an absolutely key role
in the listing of designated groups, and I know that he will talk to you
in detail this afternoon about the procedure outlined in the bill.
Another core element of the bill is the definition of terrorist activity.
Many of the other elements of the proposed legislation are directly tied
to the concept of terrorist activity, including the establishment of the
list of terrorist groups and new terrorism offences. There are significant
legal consequences attached to terrorist activity, so it is important that
we set out clearly what we mean by that term.
The definition in the bill is detailed. We have directly confronted the
challenge of defining the target of this legal regime. Some
parliamentarians, senators and the media have expressed concern with the
definition. While we believe the definition is appropriate, I urge this
committee to consider it carefully.
The definition first makes reference to offences that are set out in the
12 international conventions relevant to terrorism. This is one form, and
an important form, of terrorist activity. However, a general definition is
also provided. It covers acts that are committed in whole, or in part, for
a political, religious or ideological purpose, objective or cause that are
intended to intimidate the public or force governments to act, and which
are intended to cause serious harm.
Harm includes causing death or serious bodily harm by the use of violence,
endangering a person's life, causing a serious risk to the health and
safety of the public, or causing substantial property damage likely to
result in harm to persons. Thus there is a clear connection to acts of
violence, especially threats to the Canadian public.
The intended harm can also include acts intended to cause serious
interference with or serious disruption of an essential service, facility
or system. However, here it must be noted that we have added an important
safeguard. This definition of terrorist activity does not apply to lawful
advocacy, protest or dissent, or stoppage of work that does not involve an
activity that is intended to cause other types of harm, related to
violence, which I have described earlier. Let me be clear, the definition
targets terrorist organizations that intend to cause terror - and this is
absolutely key. It is not violent activity that is described or defined in
this legislation, it is terrorist activity.
The bill goes on to establish comprehensive new terrorism offences under
the Criminal Code. There are distinct offences of participating,
facilitating, instructing and harbouring as well as extensive offences
with respect to the financing of terrorist groups. For example, with
respect to participating, it will be an offence to recruit an individual
to receive training with a terrorist group.
I would like to observe as well, that various offences, including those
relating to facilitation and instruction of terrorist activity, are
specifically defined to be crimes regardless of whether the terrorist
activity facilitated or instructed is finally carried out. This returns to
my earlier point about the preventive focus of the legislation: We must
stop terrorists from getting on planes.
One of the elements of the bill that has received considerable attention
is that of preventive arrest. Under this provision if a police officer
believes, on reasonable grounds, that a serious terrorist offence is about
to take place, and suspects, again on reasonable grounds, that the arrest
of a particular person would prevent that, then that person can be
arrested, to be brought before a judge.
The object of bringing the person before the court is for the court to
consider whether restrictions should be imposed on the person's movements
and associations. The court may impose such conditions or may release the
person without conditions. If the person refuses to accept conditions, the
court may commit him or her to prison for up to 12 months.
Some have inappropriately likened this power to those of the former War
Measures Act. I assure members of the committee, and all Canadians, that
the preventive arrest measures we are proposing under the bill would be
available only under strictly defined conditions and would be subject to
numerous procedural safeguards. Save for emergency circumstances, the
consent of the Attorney General would be required as a prerequisite. The
person must be brought before a provincial court judge within 24 hours, or
as soon as possible, and a maximum further period in detention of 48 hours
will be allowed, following appearance before a judge - but only after
appearance before a judge.
Under the War Measures Act, by way of comparison, a person could be
detained for seven days prior to being brought before a judge, and
detention could continue for up to 21 days. Rather than being similar to
provisions under the War Measures Act, the provisions of this bill are
more accurately compared to existing provisions of the Criminal Code
relating to arrest without a warrant of a person who is about to commit an
offence and to subsequent release without a recognizance. We are extending
and expanding these concepts under the bill for the special purpose of
Honourable senators, other countries are considering the preventive arrest
mechanism, or already have it. Our friends in the United Kingdom have a
preventive arrest mechanism. The United States is proposing a preventive
arrest mechanism under which it will be able to detain for up to seven
days. Australia is examining a preventive arrest mechanism in its proposed
legislation. This is by no means novel in the sense that we are working
together with other countries to determine what is required to prevent
terrorists and their horrific acts, such as those of September 11. We are
all working together; in Canada we work within the principles of the
Charter of Rights and Freedoms, the U.S. works within its Constitution and
the U.K. works within the European Convention. We are working within that
value structure to do that which we think is reasonable and fair to
provide Canadians with the level of security and safety that is the
obligation of any government to provide.
Another widely debated element of the bill has been the provisions on
investigative hearings. There are concerns about the power to compel
testimony in these hearings. I wish to assure the committee that, here
again, we have included numerous limitations and safeguards. While a
person may be ordered to provide evidence by a judge, privilege and other
laws relating to non-disclosure would continue to apply, as would the
right to counsel. Also, the evidence will not be used against the person
in future criminal proceedings. It is important to note that there is an
existing procedure under the Mutual Legal Assistance in Criminal Matters
Act that already allows us to do this in Canada to gather evidence for
other countries. The United States has investigative grand juries that
perform evidence-gathering functions.
The power we are proposing is not unknown under the law of Canada or under
the law of the United States. We are extending the law in this area for
the special purpose of terrorist investigations, as I have said, subject
to appropriate safeguards and limitations.
Legislative changes would also be made under the bill to allow us to
better address discrimination and the communication of hatred within
Canada. I wish to emphasize the point made by the Prime Minister in the
House of Commons last week that discrimination against persons of any
religious, racial or ethnic background will not be tolerated.
Bill C-36 introduces amendments to the Criminal Code that will allow the
courts to order the deletion of publicly available hate propaganda from
computer systems such as an Internet site. The Canadian Human Rights Act
will be amended to clarify that the communication of hate messages using
new technology, such as the Internet, constitutes a discriminatory
practice. Criminal Code amendments would create a new offence of mischief
motivated by bias, prejudice or hate, based on religion, race, colour,
national or ethnic origin, committed against a place of religious worship
or associated religious property. This is not about freedom of expression.
It is about tolerance and what is appropriate and reasonable in a free and
Some have suggested that the provisions of the bill are not strong enough.
It has been suggested that we create an offence of membership in a
terrorist group. As you know, we are not proposing to do this. As
discussed during the he debate on Bill C-24 dealing with organized crime,
it would be exceedingly difficult to define membership. Also, the Charter
risks of criminalizing membership would be high. Moreover, we question the
necessity of a membership offence, given the broad ambit of the
participation offence that we have provided under this bill, similar to
the approach that we took in Bill C-24 on organized crime.
I will now address the general question of respect for the Charter of
Rights and Freedoms. I wish to assure the committee that the bill has been
subjected to a thorough review on Charter grounds and that its measures
have been designed so that they will respect the values embodied in the
Charter and survive legal challenges. We all know that there will be
challenges; no one should be surprised or alarmed by that. These measures
have been developed through a concern for what has been referred to as
My colleague in the House, Irwin Cotler, before becoming a Member of
Parliament and noted constitutional scholar, spoke compellingly about the
importance of human security and the fact that one should not think that
the Charter of Rights and Freedoms is in any way antithetical to the
paramount objective of any government to provide human security. One
cannot have human security without respect for rights and freedoms, or the
key element of persons feeling safe and being reassured that their
governments are doing all that they can to keep them safe and secure.
We have tailored specific measures to the objective of addressing
terrorism and improving national security. We have taken into account
international law, and the laws of other countries such as the United
States and the United Kingdom, and we have adopted safeguards within
Finally, I would point out a provision at the end of the bill concerning
review of these measures. This issue has received considerable attention,
as you might imagine. Clause 145 of Bill C-36 requires that three years
after the bill receives Royal Assent a comprehensive review be undertaken
of its provisions and operation. A committee of the House of Commons, the
Senate, or possibly a special joint committee, would have one year to
complete this review.
Only after an appropriate period of time - we think three years - will we
have evidence of the effectiveness of these major new laws. Unfortunately,
we cannot expect that terrorism will have disappeared in only three years,
and that must be emphasized. It would be wonderful if we knew definitively
that by working together globally we could eradicate terrorism within a
finite period of time such as three years. We all know that will not be
the case, in spite of the best efforts of this country and other countries
Although terrorism will not be eradicated at the end of three years, I do
think that three years will be sufficient time to see how this law and the
laws of other countries are operating. A thorough review at the end of
three years would be beneficial for everyone to take stock of whether
there continue to be gaps in our laws and whether refinements can be made
to the law.
We believe that a three-year review is the appropriate safeguard
mechanism. I also understand that there has been much discussion in the
Senate and elsewhere about other mechanisms such as a sunset clause for a
few discrete sections of this legislation. The committee of the House of
Commons raised that issue with me. I said that I would look forward to
hearing its advice and recommendations on that issue, as I will look
forward to hearing your advice and recommendations on review mechanisms,
whether three years is appropriate or whether some other mechanism for
limited sections of the bill might be appropriate.
I welcome the committee's review of the bill. Its provisions are worthy of
close scrutiny and debate. I also welcome consideration of possible
refinements of its provisions. We must ensure that the bill is the fairest
and most effective response possible.
In conclusion, two general principles or concepts guided the work of the
committee on national security and that of my policy people, of other
departments, my Charter analysts and my drafters. We want every provision
to effectively add to the arsenal of tools necessary to detect, break up,
disturb, identify and root out those who committed the horrific acts of
September 11 and those who support them. It must also be fair. Fairness
includes the broad range of Canadian values as well as the rights
guaranteed in the Charter of Rights and Freedoms. We must, however, keep
in mind that none of those rights are absolute and that, under section 1
of the Charter, any limit that is demonstrably justified in a free and
democratic society is in keeping with Canadian values.
With that, I will conclude. I am sure that you have many comments and
questions about the challenge faced by the entire civilized world.
The Chairman: Thank you very much. Indeed, colleagues on both sides
do have questions.
I will recognize senators for one question and a supplementary on a first
round before proceeding to a second round to ensure that senators have the
opportunity to get the information they want.
Senator Kelleher: Madam Chairman, could you outline the procedure
for questioning by people who are not members of the committee?
The Chairman: Certainly. I will offer those who are not members of
the committee the opportunity to ask a question at the end of the first
round. Depending upon the time available, the second round would be
focused on members of the committee. I welcome those who are not on the
committee and certainly want to give them the opportunity to ask
Senator Lynch-Staunton: Minister, I want to emphasize, as did the
chairman, that this is a pre-study and that the bill will be given the
same thorough study as if we had not done a pre-study. It should not be
assumed that we are accelerating the process by this unusual pre-study.
That being said, I was very disturbed to read in the Montreal Gazette
this morning the headline, "No expiry date on anti-terror bill:
PM." The story, originating in Shanghai, reads:
Prime Minister Jean Chrétien has put a quick end to Justice Minister Anne
McLellan's musings that she might alter her sweeping anti-terrorism bill
to include a provision that some of the harshest measures would have to be
re-introduced after a certain period if still needed.
The story goes on to say that the Prime Minister will not hear of a sunset
clause or its equivalent.
Does this put an end to the possibility of your carrying on with your
Ms McLellan: No. I muse on a regular basis.
Senator Lynch-Staunton: You have been musing out loud on a very
Ms McLellan: Yes. In fact, the Prime Minister himself has made it
clear in the House of Commons that we both want to hear the advice and
recommendations of both the House of Commons committee and the Senate
committee. The Prime Minister, in response to questions in the House, has
talked about the possibility of various kinds of review mechanisms, each
of which will have to be considered very carefully.
I stand by what I said this morning, which is that we want to hear the
advice and recommendations of both committees on whether you believe the
appropriate review mechanism is in the legislation, whether it is for the
appropriate period of time, whether that mechanism should apply to all
provisions, whether you wish to offer us advice and recommendations in
relation to general review of the legislation in its entirety or perhaps
some other mechanism in relation to one or two discrete provisions. I
offer that only as a suggestion.
However, the Prime Minister and I are both very open to hearing the advice
and recommendations of the committee.
Senator Lynch-Staunton: You are speaking only of a review
mechanism, not of an absolute deadline for one or more clauses in the
Ms McLellan: We expect both committees to give us their best advice
and recommendations in that regard. The Prime Minister, I, the committee
on national security and the entire government are all open to carefully
reviewing those recommendations. You will have heard from a wide variety
of people, you will have thought about this long and hard, as will the
House committee. No one is suggesting that we do not want your best advice
and recommendations in relation to all aspects of this legislation, both
substantive and procedural.
Senator Lynch-Staunton: Is the Prime Minister's definite rejection
of a sunset clause official government policy?
Ms McLellan: The Prime Minister and I have been absolutely clear
that we want the best advice and recommendations from both committees.
Senator Lynch-Staunton: That does not answer the question. Is this
headline accurate are not?
Ms McLellan: I have not read the paper. I do not know.
Senator Lynch-Staunton: You must have been in touch with the Prime
Minister when you heard on the radio this weekend that he was
Ms McLellan: No. What I know is what the Prime Minister said in the
House, that he is open to advice and recommendations from both committees.
I have not heard otherwise from the Prime Minister and I do not expect to
hear otherwise from him.
Senator Lynch-Staunton: In the past, we have received a number of
bills that have been immediately challenged for possible violations of the
Charter. Such bills include the Pearson Airport bill, some tobacco bills
and, more recently, the legislation regarding the Nisga'a treaty, which is
being challenged in British Columbia. This bill, as you said earlier, will
be challenged and you welcome the challenge.
I disagree with you in that regard. It is onerous to ask Canadian citizens
with limited resources to take time and money to go through the various
court stages to end up, years from now, with or without a favourable
judgment. Why does the government itself not refer this bill to the
Supreme Court, as it did on the separation reference? It is a unique bill.
Perhaps the word "draconian" is too strong, but, after the War
Measures Act, this bill is one of the toughest bills we have had as far as
federal liberties go. I would have thought the Supreme Court would be
agreeable to setting aside, for a period of time, its business in order to
assess this bill from a Charter point of view and we could then take it
from there with that opinion.
Now you tell Canadians that you will pass the bill without any major
changes, and that they can go ahead and challenge it. What will that
prove? Why does the government not heed its own responsibilities and refer
the bill to the Supreme Court first and then, depending on that opinion,
Ms McLellan: First, we believe everything in the bill is
Senator Lynch-Staunton: Your view is not unanimous. There are
competent people who disagree with you.
Ms McLellan: We live in a free and democratic society where, in
fact, debate and disagreement are touchstones of that free and democratic
Senator Lynch-Staunton: If you are so sure of your position, why
not ask the Supreme Court to confirm it?
Ms McLellan: The Supreme Court of Canada has made it absolutely
plain that it does not want such matters deferred to it. Keep in mind that
this is criminal law, which is fact-based. The Supreme Court does not want
to consider the constitutionality of Criminal Code provisions outside a
factual, concrete context, where, for example, there is a police officer
who picks someone up under the preventive arrest decisions. The Court will
have before it a transcript of what that police officer believed, whether
his beliefs and suspicions were reasonable, and the actions of the judge
Senator Lynch-Staunton: There is no comparison.
Ms McLellan: The Supreme Court has said, over and over, that it
should not be abused in terms of deciding questions in the abstract when,
in fact, it is possible to have a concrete, factual basis. These are
specific Criminal Code provisions. If there is a factual basis that arises
and if someone thinks that he or she has somehow had a right violated,
such a person can, as now, along with counsel, challenge it.
However, we believe that this legislation is demonstrably justified in any
free and democratic society that is concerned about the human security of
the people who live in that society.
Senator Lynch-Staunton: I disagree.
Senator Bacon: I entirely agree with the purpose of the plan
proposed by the government in order to reassure the public in this
extraordinary period of crisis. It entails the implementation of measures
that are also extraordinary in the sense that they are unusual.
When I hear that we are considering preventive detention provisions that
suppress the right to keep silent, extended powers concerning wiretapping
and the establishment of a list of terrorist entities, I must admit that
it scares me.
I hope that there is no possible comparison between what is considered in
Bill C-36 and the War Measures Act of October 1970. It was a page of our
history that should alert us to the necessity of carefully avoiding abuses
and potential errors.
Contrary to the situation in 1970, human rights are protected by the
constitutional Charter and nothing in this bill says that those rights are
More specifically, I would like to hear you tell us about the safeguards
against abuses that might stem from this widening of powers given to peace
officers for example, the power to question an individual to find evidence
of criminal offenses and terrorist acts even if no such act has been
What guarantees do we have that the implementation of those provisions
will not give rise to the abuses feared by some people?
Ms McLellan: Your point is well taken. Those who would make any
comparison between this and the War Measures Act are very irresponsible.
Such comparisons, in substance and in other ways, are unfortunate and must
be dealt with quickly to help Canadians and those who would make such
ill-informed comparisons understand the differences in our society since
then - including the Charter - but also, to understand the key
distinctions in the substance of this legislation.
In terms of specific safeguards, let us look at the two areas that have
created the most discussion. We knew that they would, of course.
Preventive arrest and investigative hearings are not new. Investigative
hearings are not new to our law; we carry them out for other countries.
Preventive arrest is not new in other countries, although we have not had
a similar provision in this country. Those are the two areas that have
stimulated the most discussion to date.
Investigative hearings deal with someone who, for lack of a better
expression, we would describe as a material witness. Anyone who wishes to
bring someone before a judge must have my consent - the consent of the
Attorney General - to begin the process. The peace officer has to go
before a judge, who will assess whether he or she believes that there are
reasonable grounds to believe that the would-be witness either has
information in relation to a terrorist act that has been committed and
that his or her evidence would lead to the identification of those
involved in that act, or that a terrorist act will be committed and the
individual in question has material evidence that would prevent that
terrorist act from occurring.
A judge will make this determination. It is only after a judge has
assessed the information provided to him or her by the peace officer that
the judge could require a person to be brought before him or her and be
asked to testify. In relation to that provision, we have ensured that the
individual has the right to counsel throughout the entire proceeding. We
have also ensured that there is protection against self-incrimination.
Keep in mind, senators, that there is no protection in our law against
compellability. You can be compelled to testify. There is no fifth
amendment in our constitutional jurisprudence. Constitutional
jurisprudence speaks to the right to be protected against
self-incrimination, not compellability. Those are two profoundly different
concepts in our law. Protection against self-incrimination continues and
it is specifically set out in this legislation.
In relation to preventive arrest, again, any peace officer who wishes to
exercise his or her power would first have to have a reasonable belief -
which is, of course, a standard well known in criminal law - that a
specific terrorist act was going to take place. That is not
"could" take place, but was "going" to take place. The
peace officer must then have a reasonable suspicion that the preventive
arrest of the very individual involved is necessary to prevent that
terrorist act from taking place.
Again, the officer requires, in most circumstances, the consent of the
Attorney General to proceed with preventive arrest. In fact, the person
will be brought before a judge within 24 hours. The judge, after hearing
the evidence of the peace officer, can determine whether there is any
necessity to hold the person for another 48 hours, for a total of 72
hours, whereupon, either at the end of 24 or 72 hours, the person will
either be charged or released and, if released, with or without
conditions, on his or her own recognizance - a concept well known in our
Senator Bacon: It seems that more judges will have to be appointed.
You referred several times to the judges' role in the implementation of
the bill. Why not take this opportunity to do like the French or other
European countries and establish a special court for terrorist crimes? The
creation of such a tribunal would help us in avoiding abuses, would
reinforce the efficiency of the legislation, and would limit powers that
might restrict basic freedoms to certain judges. Why not review this
legislation every year instead of three years from now as is provided for
in Bill C-36? Earlier, you mentioned three years and five years, which I
find troubling. It is an emergency legislation and as such it should not
stay in place three or five years. If we could consider a sunset clause,
it would really be an emergency measure.
Ms McLellan: The basis of the legislation is not an emergency. The
basis of the legislation is the threat of ongoing terrorism. We saw a new
and profoundly ugly face of terrorism on September 11. From that horrible
event we have all learned things about how we, as societies, must move
forward in terms of working domestically and with our allies to detect
early terrorist activity, to break it up and to stop it.
The basis of the legislation is not emergency. The basis of the
legislation is the criminal law power of the federal government. It is
important that people remember that we are not dealing with an emergency
in the sense of some brief, finite period of time. If only that were the
case - I know Canadians, Americans, and others would be very reassured by
that. In fact, we know that the fight against terrorism has been a long
one to date. It will continue to be a long fight for all of us. It would
not be fair to suggest to Canadians that it will be a short fight and that
is why the Prime Minister indicated in his comments in the House that this
will be a long fight. He also said it is a fight that, with our allies, we
You spoke about the possibility of a specialized tribunal, senator. We
discussed that idea in the House of Commons committee last week. We are
increasing the number of judges. We are opening the door to the
possibility that the Federal Court may foresee the number of judges it
currently has, both in trial and in appeal, increased to deal with the
possibility of an increased workload. Whether or not that increased
workload will come about, we do not know. Keep in mind that, at this
point, no one has any way of knowing how many cases will be taken up in
the coming months and years after this legislation is passed. We have
taken a preventive step in terms of the size of the Federal Court. We will
change, in the act, the number of possible judges. Whether new judges are
appointed and, if so, how many, clearly remains to be seen.
Most of the jurisdiction in this legislation is concurrent. Therefore, in
most circumstances, you can have either a prosecution undertaken by the
provincial Attorney General or the federal Attorney General. Generally,
our courts are well seized with criminal jurisdiction. Generally, they are
well equipped to deal with the criminal law.
Having said that, the challenges of terrorism are unique. I hope that
within both provincial superior courts and especially in the Federal Court
Trial Division, there would develop, as there has with organized crime in
the provincial superior courts, a cadre of judges who understand the
complexity of these trials, the complexity of multi-parties and who are
able to deal with them efficiently and effectively.
If people wish us to consider the possibility of a specialized tribunal, I
am not opposed to that. Therefore, I am interested in hearing your views.
As I mentioned to the House of Commons committee, if you think this would
make the law more timely and more effective, then please let me have that
advice. At this point, we do not have plans to move toward a specialized
tribunal. However, that has been raised by both committees and I am
interested in your input.
The discussion has taken place, although again at a cursory level, as to
whether in the context of immigration matters one would have a specialized
tribunal within the Federal Court to deal with immigration and refugee
issues. There is discussion in terms of whether one would want specialized
units within the existing courts, be they the provincial superior courts
or the Federal Court. That is something I would be interested in hearing
your advice on.
Senator Murray: Minister, with regard to the ministerial consents
that are required under preventive detention and investigative hearings, I
cannot resist asking you whether a peace officer in one of the provinces,
say Manitoba or New Brunswick, might have that consent denied by the
federal Attorney General and then go down the street to the provincial
attorney general and obtain it. Is that conceivable?
Ms McLellan: I will let Mr. Mosley respond. It is a highly unlikely
scenario, but it is one that is important to consider. The issue of the
inter-relationship of federal and provincial attorneys general has been
raised in other contexts.
As attorneys general, it is fair to say that we work very well together.
We do not fall over each other and we do not contradict each other in key
elements, although we may on issues related to policy. In terms of the
administration of the criminal law, we do not.
Mr. Richard G. Mosley, Assistant Deputy Minister, criminal Law Policy
Section, Department of Justice: In those circumstances, it would
likely be considered an abuse of the process of the court to go
forum-shopping, in a sense, to find an attorney general that might support
Senator Murray: We will leave it at that.
We have discussed sunset clauses. I would like to have a word with you
about parliamentary oversight in general. When we passed the Emergencies
Act in 1988, we took some satisfaction in inserting quite explicit
provisions with regard to parliamentary control of orders and regulations.
This was in contrast to the War Measures Act, which the Emergencies Act
replaced. We had help from Liberal senators who had a majority in the
house at the time. All orders and regulations made under the act would
have to be laid before each House within two sitting days of being made.
The parliamentary review committee would consider, in private, orders and
regulations referred to it under section 61(1). If within 30 days of an
order or regulation being referred to the committee, a motion amending or
revoking that statutory instrument is adopted, then if not less than 10
members of the Senate or 20 members of the House of Commons move that an
order or regulation brought before Parliament be revoked, such a motion
must be taken up and debated.
That is the drift of what was done under the Emergencies Act. Under Bill
C-36, I suppose it is not so much a question of orders and regulations as
it is of the exercise by individual ministers, or their officials, or the
Governor in Council, of authorities that, as Senator Bacon said, are
somewhat extraordinary. What would you say, in principle, to the idea of
Parliament inserting into this bill a provision analogous to what is in
the Emergencies Act that would allow parliamentary oversight of the
specific exercise of ministerial and governmental authorities that you
propose to grant by this bill?
Ms McLellan: We would have to be careful. I would want to consider
that case by case. Do you have an example?
Senator Murray: That is what we would want to do.
Ms McLellan: If you have an example for me this morning in terms of
an area where an attorney general, be it provincial or federal, would be
exercising his or her power where you think oversight might be
appropriate, I would be willing to engage in that specific discussion.
Senator Murray: There are other ministers, of course.
Ms McLellan: Yes, the Solicitor General and the Minister of
National Defence all have key responsibilities in this legislation, and
one would have to have considered each exercise of that power.
I cannot generalize in terms of the various exercises of ministerial power
because they are different, and in thinking about oversight mechanisms,
one might want to think about different possibilities in relation to the
nature of the power being exercised by a given minister, whether it be the
Minister of National Defence in relation to the securities establishment
or the Solicitor General in terms of designating organizations to a list,
or whether it be myself, for example, in terms of issuing a certificate to
preclude the disclosure of certain information in a court that deals with
international relations or national security issues.
One cannot lump those things together and say that one oversight mechanism
is necessarily appropriate for each exercise of that power. One must
examine them closely, determine what each is about, and what, if any,
additional oversight mechanism was necessary. Of course, as you are all
aware, ultimate political accountability will lie with each of those
ministers, including myself, or the Attorney General of Canada.
Ultimately, political accountability to the Parliament of Canada and to
the people of Canada does exist. Having said that, I understand that you
might like to consider whether other specific and discrete oversight
mechanisms might be appropriate.
I want to clarify that the basis of the proposed legislation is not
emergency. This legislation is ongoing criminal law that will help us
fight and prevent terrorism and terrorist activity. It is important for
people to understand that.
Senator Murray: I understand that, minister, and I take your point
that the oversight mechanism might be different depending upon the power
being exercised. It may be an interesting exercise for us, Madam Chairman,
to examine the provisions of the bill and decide amongst ourselves which
of them ought to have extra oversight by Parliament, identify those, and
perhaps come up with a formula.
I thank the minister.
I want to take the opportunity to say there are other ministers that we
ought to consider calling. In particular, I note that we do not seem to
have scheduled the Minister of Citizenship and Immigration. There are a
number of questions that we would want to ask her.
Senator Kenny: Minister, I will stay with the question of
parliamentary review and the sunset clause. It is fundamental to the
approach that parliamentarians and this committee, in particular, will
take with the bill. It affects the time and the level of scrutiny we want
to put into the bill, knowing how it will be dealt with later on. You are
acting promptly, as you should, with respect to these terrible acts of
terrorism. No one expects terror to go away, but we are also acting in a
time of high anxiety. Everyone feels stressed right now, and history has
shown that governments often overreact to acts of terror and to periods of
stress like this.
Would you describe to the committee the advantages and disadvantages of a
sunset clause versus parliamentary review, from your perspective?
Ms McLellan: Keep in mind that parts of the proposed legislation,
most of it, in my opinion, it would not be appropriate to apply a sunset
clause against. For example, large parts of this legislation implement our
obligations in relation to the UN conventions in relation to the
suppression of terrorist bombings and the suppression of terrorist
financing. Those two conventions were signed and we have to implement
them. You do not put a sunset on compliance with UN conventions because
you are then in violation of those conventions, and a whole set of other
issues flow from that.
To consider the prospect of a sunset clause, you have to carefully analyze
the provisions where you might want to consider that.
A sunset clause is an extreme measure that is used very rarely in Canadian
federal or provincial parliamentary process. The reason such clauses are
used infrequently is one runs the risk of creating a legislative lacuna or
vacuum. In our fight against terrorism, we do not want to run the risk of
not having effective laws in place for a period of time.
Furthermore, if law enforcement authorities know a provision will
automatically have a sunset, they will start to ramp down in anticipation
of that. If the sunset clause is of a nature where, as of a certain date,
the law is not existent, one could be in the middle of court proceedings
and investigations and run the risk of losing valuable work. To prevent
that, law enforcement agencies will start to ramp down early. That would
be unfortunate because we need our most vigorous intelligence gathering
and law enforcement at work to deal with the scourge of terrorism.
We can view this in different ways.
The Senate and the House of Representatives in the U.S. have taken
different approaches on this.
Mr. Mosley: The Senate bill had a sunset clause.
Ms McLellan: The House of Representatives did not have a sunset
clause. Obviously, the discussion we are having is also taking place in
other countries at the same time.
Mr. Mosley: They have now agreed on a four-year sunset clause.
Ms McLellan: The Americans were discussing the prospect of a sunset
clause, but the President could choose to exercise executive authority to
extend the effective time of that legislation for a period of time over
and above the sunset. Therefore, you would not run into the problem of
freezing court cases and investigations with the application of that
There are different mechanisms. Everybody is grappling with the same
problems and trying to figure out the best ways to strike the right
balance. Sunset clauses have the kinds of problems that I have just
described. It is a pre-emptory weapon or oversight mechanism that may be
hard to nuance, although I would not for a minute suggest it is
The review process provides the opportunity for parliamentarians, senators
and members of the House of Commons, either sitting together or
separately, to review the application of the legislation at a reasonable
time. A review after one, or even two years, probably would not provide
much of a track record for the process. We deliberately chose three years,
because, of course, upon the passage of a law, it takes time to ramp down,
and so it takes time to ramp up, in terms of investigations, judicial
proceedings and other activities.
We felt that, at the end of three years, there would be a record that
would provide parliamentarians an opportunity to determine whether the
provisions are hitting the mark and helping to increase the effectiveness
of intelligence gathering agencies or law enforcement agencies, whether
the courts have the powers they need, or whether we need to supplement or
fine tune. However, you do need a record. You cannot review on the basis
of one, two or even a handful of situations. A fulsome record would be
useful to obtain a full sense of whether the legislation is being used and
whether it is hitting the mark.
Senator Lynch-Staunton: I have a supplemental theory. Clause 145(1)
will be reviewed in three years, not after three years. The review could
be done within one year.
Ms McLellan: Our recommendation is at the end of three years.
Senator Lynch-Staunton: That is not what the bill says.
Senator Kenny: Thank you, with Senator Lynch-Staunton's permission,
I have a question.
Do you favour the executive extension you have described to us, minister?
Could you outline the disadvantages of parliamentary review?
Ms McLellan: In fact, the legislation anticipates a parliamentary
review and our suggestion is that it be at the end of three years. I do
not see a problem with that oversight process.
Senator Kenny: Are there no disadvantages?
Ms McLellan: I do not see any disadvantages. Within our respective
departments we review legislation on an ongoing basis, as cases or other
matters highlight either inefficiencies or unintended consequences in the
law. It is quite appropriate and that is why we have in the bill that a
fulsome review, at the end of three years, would be appropriate. Let us
see whether we are starting to win the war against terrorism, what
evidence there is of that, both here and with our allies. If we are, that
is good. Do we need additional tools or, if not, why do we not?
Senator Kenny: What is your response to my question about whether
you favour executive extension?
Ms McLellan: That is something that was discussed in the U.S. My
first impression is that I would not consider that to be the best approach
for Canada and our parliamentary democracy.
Certainly, I would suggest that you examine all the possible mechanisms
and give us your best advice and recommendations. However, the discussion
around review is an important one. That is our preferred option. There is
also, as I have indicated, much discussion around the mechanism of sunset.
We must be careful in terms of any kind of executive extension and whether
that would be done by the Governor in Council, and on what terms. Again,
that is something that you might want to examine. I would be very
interested in your views.
Senator Beaudoin: I have two preliminary remarks. First, there is
no notwithstanding clause in this bill.
Ms McLellan: No, there is not.
Senator Beaudoin: Thank you very much and congratulations. Second,
there is no declaration of emergency.
Ms McLellan: No, there is not.
Senator Beaudoin: The main problem concerns criminal law and the
Charter of Rights and Freedoms. There are many laws, of course, but the
dominant factors are criminal law and the Charter. The three relevant
points are preventive detention, the right to silence and the mandate, or
warrant, accorded not by the judicial branch of the state, but by the
minister. This is my main issue, because obviously we will talk about$
... preventive arrest. It is a subject that we will discuss all week, as
well as the right to keep silent.
I am particularly interested by the eavesdropping of private
communications as there have been several court decisions on that issue.
There has been the Duarte, Thompson, Garofoli, and
others decision. Why do you feel the need to give to a member of the
executive the power to eavesdrop private conversations? Obviously, this
power is necessary, but considering for many years our federal legislation
has been clearly saying that for each wiretapping the authorization of the
judicial power should be obtained. Why leave it now to the executive? This
is something new. I am not opposed to novelty, but I would prefer an
unbiased referee. In our system, the best referee is a court of justice. I
agree with everything that is in Section 1.
It is true that no right is absolute. Rights may be restricted in a free
and democratic society, but the burden of evidence is on the legislator
when it is challenged in court. That is my main objection. Obviously,
there are many arguments in favour of preventive detention or the right to
Everything depends on the first part, and we will hear pros and cons. The
last part is particularly important because there is a shift for the first
time, from the judicial to the executive. As a parliamentarian, I am not
too sure that we are going in the right direction.
Is there a necessity to do that?
Ms McLellan: Senator Beaudoin, I think that you are referring to
the Communications Security Establishment, and in particular, section
273.65 of this legislation, that states:
273.65(1) The minister may, for the sole purpose of obtaining foreign
intelligence, authorize the Communications Security Establishment in
writing to intercept communica tions in relation to an activity or class
of activities in the authorization.
Senator Beaudoin: I refer to that clause.
Ms McLellan: Yes, that is it.
Senator Beaudoin: "The minister may, for the sole purpose of
obtaining foreign intelligence," et cetera. Why is this shifted from
the traditional warrant issued by the judicial branch of our state to the
executive branch? Is it a question of necessity?
Ms McLellan: We are dealing with issues around national security.
The courts themselves, including the Supreme Court of Canada, have
indicated that different tests might well apply and different approaches
might be appropriate if one is dealing with issues around national
Having said that, Mr. Mosley or Mr. Piragoff will talk specifically about
that because you suggest that there is a shift from that which was
traditionally done in this area in relation to the CSE and with what we
are doing now. However, before we talk about that, I would say, that if
you look at subclause 273.65(2), the power of the minister to authorize
under subclause 273.65(1) is carefully circumscribed. Keep in mind that
when one refers to the interception of private communications, the CSE's
interceptive capabilities are directed at foreign targets. The Minister of
National Defence wanted us to clarify that matter. He will be coming here
and certainly you should take up these issues with the minister who is
responsible for this agency.
In this context, the target is foreign. I will give you the following
We wanted to clarify the existing authority of the CSE and to ensure, for
example, if Osama bin Laden were phoning from somewhere in Afghanistan to
a supporter somewhere in Canada, that simply because the transmission
ended in Canada, CSE would not be unable to pick up that transmission. You
can realize how ludicrous that would be. If Osama bin Laden were phoning a
supporter in Canada, because of the current restrictions on the CSE for
termination points in Canada, that private communication could not be
intercepted. We are clarifying the mandate of the CSE.
The minister would authorize interception only as it is focused on a
foreign target. It might be a supporter in Canada calling Osama bin Laden.
We want to be able to intercept that conversation for obvious reasons.
However, the target is foreign. In addition to that, the restrictions on
the minister are further set out in subclause 273.65(2), but Mr. Mosley or
Mr. Piragoff may want to add to that.
Mr. Mosley: This is an area, Senator Beaudoin, where Canadian
courts have never played a role. The interception of these communications
has been done for many years with ministerial authorization. This is the
first occasion on which a legislative base will be set out in a Canadian
I would also say that this is the norm in each of the countries of the
Anglo-American common law world with which we compare ourselves, such as
the United Kingdom, United States, New Zealand, Australia. They are our
partners in the intelligence that is gathered by the Communications
Security Establishment and agencies of a similar nature in those
countries. They all do it by ministerial authorization.
I would also point out that in the United Kingdom, for example, all
electronic surveillance under its 1985 legislation, which is now repealed,
and its 2000 legislation is done under ministerial authorization. We are
not suggesting that would be appropriate where the target is in Canada.
Clearly, where the target is in Canada, the investigative agencies must
obtain a judicial warrant, either under the Criminal Code, if it is a
criminal matter, or under section 16 of the CSIS Act, if it is a matter
relating to national security.
However, in this case, all the proposal would do is clarify that in the
course of intercepting the communication of a foreign target, where no
warrant is required under our law and one end of that communication may be
in Canada, that the employees of the CSE do not incur criminal liability
for making that interception. Oftentimes it is not clear whether that one
end of the communication is in Canada or in the United States, but it is
in North America somewhere.
Senator Beaudoin: In the internal sphere, will the law remain what
it is now? If we need a warrant-
Ms McLellan: Yes.
Senator Beaudoin: I am not against warrants. On the contrary, we
have to protect society. Until now, it was the domain of the judiciary.
This will remain. This refers only to the international situation.
Ms McLellan: Yes, foreign targets. As Mr. Mosley points out, the
warrant requirement continues. The existing law continues as it relates to
Senator Beaudoin: That is the best system so far for internal
communications. There is no doubt about that.
Ms McLellan: Absolutely. That is why we are not changing it. It
remains exactly the same.
Senator Beaudoin: As I said, the entire debate, concerning the
Charter, is that rights are restricted. We understand that.
It is under the first part that the debate will last. I will come back to
this, but that question was surprising.
The Chairman: I understand that the minister can remain until
Ms McLellan: I could remain for 15 minutes or 20 minutes more.
Actually, colleagues will be meeting this morning. We obviously want to
look at the new provisions that the Home Secretary is providing in the
United Kingdom to supplement the U.K. anti-terrorism legislation of 2000.
I obviously want to attend that meeting because working with our allies in
this context is so important.
Senator Fraser: Minister, since you asked, I will give you a
tentative answer. You talked about review and oversight mechanisms for the
issuance of certificates. I would be interested in having a look at the
establishment of some kind of independent review or oversight panel
consisting of perhaps a judge, a privy councillor who is no longer in
active politics, or maybe a journalist who could report annually to
Parliament on the appropriateness of the decisions of that minister.
My questions deal with definitions, particularly the definition of
"terrorist activity." I agree, the bill has been carefully
drawn. At least as applied to acts or omissions in Canada, it is pretty
watertight, I think. However, I have difficulty with the portion of the
definition of terrorist activity that talks about acts or omissions that
are intended to cause serious interference with or disruption of an
essential service, et cetera, other than as a result of lawful advocacy,
protest, dissent or stoppage of work.
In Canada, I believe that is clear. We understand lawful protest and
strikes. However, there are countries where protests or strikes, or,
indeed, labour organizations of any kind are illegal. Therefore, such acts
occurring in those countries would not be lawful. I am sure you did not
mean to say that if the Canadian Labour Congress were trying to help
Chinese workers organize that would be a terrorist activity, although I
understand that labour unions and strikes are not lawful in China under
Could we think about adjusting this to include, in the permitted acts,
acts that are lawful in Canada, or if committed in Canada would be lawful?
Do you understand where I am going?
Ms McLellan: It is actually an interesting point that you raise.
While obviously one would presume that, in this context, if this matter
came before a judge, he or she would be assessing the conduct through the
filter of Canadian law in spite of the fact the activity may have taken
place outside Canada. I have no objection to examining the possible small
clarification that you have pointed out. I would not want to agree to it
today, obviously, and I do not think it is required as such. However, if
perhaps it provided some higher degree of certainty or clarification, let
us consider that.
Senator Fraser: Similarly, further on, when we get into the
official secrets area, there is the definition of a foreign power. You
will recall that the definition of foreign entity includes a foreign
power, so it is fairly broad category that we are talking about here. A
foreign power includes a political faction or party operating within a
foreign state, whose stated purpose is to assume the role of government of
a foreign state.
That surely would apply to the British Conservative Party or the
Democratic Party in the United States. Should we not specify that this
concerns assuming the role of government of a foreign state by unlawful or
Ms McLellan: Again, this is a definition section and obviously that
is important. However, this would be interpreted in the context of the
substantive offence provision. You cannot consider the definition of
foreign power separate from the substantive offence in which the
expression "foreign power" or even "foreign entity" or
"foreign economic entity" occurs. Again, that provides the
context in which a court would be defining the matter and working within
My concern in relation to this would not be particularly great, but having
said that, I believe either Mr. Piragoff or Mr. Mosley might want to add
something to that.
Senator Fraser: My concern is that this section is all about
information. While I am sure we all understand the need to control the
distribution of sensitive information to undesirable people, we must be
very careful about the lines we draw here.
Ms McLellan: I agree.
Mr. Donald Piragoff, A/Senior General Counsel, Criminal Law Policy
Section, Department of Justice: As the minister indicated, these
definitions must be read in conjunction with the offences. The honourable
senator indicated the example of a particular political parliament of an
allied state. What a particular ally may do domestically in terms of its
change of government is its own business. Its own political parties, while
they may have a right to change the government democratically, do not have
a right to spy on Canada or to seek information from Canada that is of a
sensitive nature. That is the example.
For example, there are offences concerning disclosure of special
operations information, things like our targets and our means of
surveillance. Even our allies have no right to know what our own national
security measures are. Even though we are allies, we still are a sovereign
state and still maintain protection from our allies. Therefore, it would
be an offence for a political party of an allied state to spy on Canada.
These offences are directed at protecting Canadians - protecting the
security of Canadians and our nationality sovereignty from outside
threats, whether those threats be from countries that are enemies or even
countries that are allies.
Senator Fraser: This clause of the bill is not only about
operational information. It also has, what appears to me, a much broader
category of information that the government is trying to safeguard. We all
know that the government tries to safeguard a great deal of information.
Huge amounts of quite mundane information are kept secret by
Given the heavy penalties here for communicating that information - life
imprisonment - I feel we should be very narrow in how we draw up our
Mr. Piragoff: Senator Fraser, you are right that there are more
offences than simply offences concerning special operations information.
However, if one looks closely at the other offences, there is a specific
intent that is also required in that the activity is done for a purpose
detrimental to Canada. Even though it may cover other types of
information, which is not simply special operations information, the
disclosure of the information or the acquisition of the information for
the benefit of a foreign state is done with the purpose of hurting
Canadian interests. There is a harm test involved. It is not just simply
leaking information, it is leaking information where that would cause harm
to Canadian interests and to Canadian sovereignty.
Those kinds of guarantees were built in and we considered that in
examining the proposed legislation in terms of Charter guarantees to
ensure that we were not simply capturing, or restricting information flow
and denying Canadians the right to know, but that we were trying to
protect Canadians from espionage or from harmful activities within the
country that are calculated to harm Canada.
Senator Kelleher: Since September 11 one of the major issues raised
in discussions of how to prevent a reoccurrence of this tragedy is to deal
in a rigorous way with our refugee and immigration policy. There is
nothing that I can find in this bill that deals with our immigration or
refugee problem. Do you agree with that?
Ms McLellan: Provisions like preventive arrest might apply to
individuals who have asserted a refugee claim or to landed immigrants.
However, you are right, there is nothing in the proposed legislation that
specifically deals with immigration and refugee issues. Honourable
senators, you still have Bill C-11 before you, where those issues are
being taken up.
Senator Kelleher: Bill C-11 was drawn up long before the events of
September 11. We have also been told, and led in evidence in the other
place, that Bill C-11 will probably not take effect, due to a lack of
regulations, until next summer. I am concerned that there is nothing to
address the concerns that have arisen with respect to the immigration and
refugee problem since September 11. There will be somewhat of a hiatus. I
am surprised that nothing has occurred in this bill to address that
problem. Did the Department of Justice, in considering this problem,
deliberately decide that we would not address it? Why was that decision
made? New concerns have arisen since September 11. My concern is that
those are not being addressed. Could you help us out in that area?
Ms McLellan: The National Security Committee, of which my colleague
John Manley is the chair, began a review in the context of that
committee's deliberations of those gaps in existing law or possible
enhancements in existing law to help us, especially on the preventive
side, in dealing with terrorism.
We believe that Bill C-11, although developed before the horrible events
of September 11, provide the requisite tools if the resources are provided
to the Minister of Immigration to deal with the enhanced sense of concern
and urgency around issues surrounding who gets into this country, on what
terms they get in, who claims refugee status and so on.
If honourable senators feel that more is required to deal with the
aftermath of September 11, I would say that Minister Manley and I would
both be interested in your recommendations in that regard and certainly,
we would ensure that they would be dealt with in a fulsome fashion by the
committee on national security.
I take your point that there may be additional perspectives on this issue
after September 11. The Minister of Immigration has said that she believes
she has the tools necessary if the resources are provided. However, there
is no harm in reassuring ourselves that those tools are in place.
To some extent we are dealing with an issue of resources if Bill C-11 is
proclaimed in force. I was as alarmed as anyone when I heard that due to
drafting of the regulations the law might not be enforced until next July.
I took that up right away with my drafters and with the Minister of
Immigration. We hope to be able to move on that more quickly.
Senator, you raise an important point.
Senator Kelleher: Perhaps I will quit while I am ahead, minister.
Perhaps we will come forward with a few suggestions for you.
Senator Jaffer: Minister, I have one comment and one point of
clarification. Over the weekend, I met with a number of religious leaders.
Their feeling is that you were very inclusive when you sent out the strong
message that acts of racism are condemned. As you know, two mosques were
bombed in Ontario this weekend. One involved gas pipes and could have
resulted in a bad fire.
On page 43, clause 12 amends the act by adding a new subsection 430(4.1)
that relates to those who commit mischief in relation to religious
property. The concern, minister, is with the word "mischief."
People who are affected feel it is more than mischief. I understand that
there is a criminal connotation to the word "mischief." However,
the people with whom I have spoken recently felt judges might interpret
that as just a mere mischief charge. I assured them, as much as I could,
that that is not how the government views this. The government views it as
a serious matter when religious properties are attacked. Perhaps, with
your expertise, you may wish to examine that wording.
Ms McLellan: Thank you, that is a good suggestion.
Senator Jaffer: At page 34 of the bill, proposed paragraph
83.28(10) under "Investigative Hearing" reads:
(10) No person shall be excused from answering a question or producing a
thing under subsection (8) on the ground that the answer or thing may tend
You said that was still intact. I see that as not being intact. Could you
clarify that, perhaps?
Ms McLellan: Is your point that you do not believe that we are
protecting the right against self-incrimination?
Senator Jaffer: I understood you to express that. The bill, in this
clause, seems to say that even if the response or information incriminates
you, you are forced to answer. I wanted you to clarify that.
Ms McLellan: You are forced to answer because the concept of
compellability and protection against self-incrimination are different
concepts in our law. We have no equivalent to invocation of the Fifth
Amendment. Our law never has and it does not today. The Charter protects
against self-incrimination. That means we must ensure, as we have in
subsection 83.28(10), that we include a mechanism whereby any evidence
provided in an investigative hearing cannot be used against that
individual in a criminal proceeding, nor can any evidence derived from
that evidence, derivative evidence, be used in the proceedings. That is
contained in subparagraph 83.28(10)(b). However, that is a
different issue from compellability where you can be compelled to testify
under Canadian law. The investigative hearing is an example of
compellability, but with the absolutely key protection against
Mr. Mosely points out that subclause 82.28(8) is also relevant to our
understanding of this provision.
Senator Tkachuk: Minister, the bill gives rather sweeping powers to
the government. To most Canadians that would mean that we have a problem
within our country.
I heard you speak in the House of Commons committee studying Bill C-36 and
you spoke eloquently about the need for security. To a Conservative,
hearing that from a Liberal, it was quite gratifying. I also equate our
security as a nation to sovereignty. There is no sovereignty if we are not
secure. September 11 was not only a wake-up call, but it is having a
tremendous effect on our economy. The sooner we deal with and solve these
problems, the sooner we move along and make people believe that we are
dealing with these problems, the better it will be for the economy itself.
I assume we are putting the bill forward because we fear there may be
terrorists within our country. Otherwise, why put the bill forward at all?
The purpose is to seek out terrorists in our country. Have we identified a
list of terrorist organizations inside our borders? Have we evidence of
where they came from and how they got into our country?
Ms McLellan: You raise an interesting point. It would be naive in
the utmost for us to believe that we do not have terrorists, accurately
defined, and those who support them in our country. It is our obligation,
not only to Canadians but to our allies, to deal with that reality in an
effective way. Not to dodge the rest of your question, but the minister
best able to answer that would be the Solicitor General who is responsible
for CSIS. I obviously have no role in intelligence gathering. I have only
a role as a member of the Governor in Council, in terms of listing
designated organizations as terrorist entities.
The Solicitor General is responsible for CSIS and the RCMP and is, in
fact, the person who would receive information on which he would then make
recommendations to the Governor in Council, as it relates to alleged
terrorist entities either inside or outside Canada. It is probably better
if you direct that question to him because he could give you a much more
informed answer than I can.
Senator Tkachuk: I am not sure he can or cannot. It just seems,
minister, that you are the lead minister on this. People must have told
you that we have a problem here. You must have asked what the problem was.
It seems you cannot answer what the problem is, that is, if there are
terrorists in this country, who they are and how they got here. You say
another minister can give us a better answer. I want to know your views on
it. I will ask him, too, but I want to know what you think about it.
Ms McLellan: My view is clear. As I said, it would be naive to
believe there are, in this country, no terrorists nor people who support
Senator Tkachuk: We will assume that there are then. Are the Tamil
Tigers considered to be a terrorist group? Do you believe that is a
Ms McLellan: You are now truly getting to a question best directed
to CSIS and the Solicitor General. Keep in mind, I have no role in
relation to CSIS, as the Attorney General or Minister of Justice, nor
would you probably want me to have a role.
I do, however, have a role as member of the Governor in Council. If my
colleague, the Solicitor General, on the basis of information from CSIS,
the RCMP or some other investigative agency, recommends that a group be
designated as a terrorist entity, the council would then consider that
information and determine whether there are reasonable grounds for such a
To this point, CSIS has not brought that information forward to the
Solicitor General, nor has the Solicitor General come forward to the
Governor in Council.
Senator Tkachuk: The bill applies to everyone in Canada. We have no
state of emergency. We have no state of war. We are passing this bill
because we believe there are terrorists in Canada. I believe there are
terrorists in Canada.
Let me ask one more question and perhaps I can get an answer. Do you
believe the terrorists are citizens of this country? Do you believe they
are refugees who have come to this country and have undertaken terrorist
Ms McLellan: I cannot answer that question.
Senator Tkachuk: We do not know?
Ms McLellan: What I know is that if the government seeks
extradition of an individual, in my capacity as Attorney General, I can
authorize my department to issue a provisional arrest warrant if there is
sufficient information under Canadian law to do that. Upon arrest, the
department lawyers identify whether that person is a Canadian citizen or a
landed immigrant or a refugee. However we deal with such extradition
requests, the request does not vary nor do we necessarily approach it
differently. The Extradition Act speaks to the extradition of someone who
also makes a refugee claim.
It is only in the context of me and my lawyers making a provisional arrest
that we would know if the accused were a refugee, a Canadian, or a citizen
of some other country. The Americans, British, or French may want to
extradite him or her for specific reasons. In a federal criminal
prosecution, after charges have been laid, the accused person obviously is
identified and we will come to know the individual's category in the sense
of citizenship or refugee status or landed immigrant status. Beyond that,
I do not want to speculate.
Perhaps representatives of CSIS or perhaps even my colleague, the
Solicitor General, can engage you in that discussion.
Senator Tkachuk: Why do we have this bill?
Ms McLellan: As I said, it would be na¿ve to believe there are no
terrorists or terrorist supporters in this country. The citizenship
category of those people is a completely different and separate issue.
Others, including CSIS, could more fully engage with you in that
discussion and pursuit of facts.
The Chairman: The minister must leave. We will hear from her again
before we conclude our pre-study.
Ms McLellan: Thank you, honourable senators. I appreciate the
opportunity to speak about this extremely important work. It goes to the
heart of our ability, as parliamentarians, to reassure Canadians about
their safety and security. It goes to the heart of our ability to work
with our allies.
I thank you in advance for the serious deliberation and consideration that
you will give to this legislation. I look forward to your advice and
recommendations, which, I reassure you, will be considered very seriously
by myself and by the committee on national security.
The Chairman: Mr. Mosely must attend with the minister. Thank you
both for your assistance.
Senators, we now have with us officials from the Department of Justice,
Donald Piragoff and Stanley Cohen.
Senator Fraser: Gentlemen, under "Interpretation,"
proposed paragraph 83.01(2), "Facilitation" says:
(2) For the purposes of this Part, a terrorist activity is facilitated
whether or not
(a) the facilitator knows that a particular terrorist activity is
To a layperson like myself, that sounds as if a little old lady, who
unknowingly rents her basement to a young man who turns out to be a
terrorist, has facilitated terrorism. As I went through the bill, all the
references to facilitation that I noticed talked about knowingly
facilitating something, which seems reasonable. If you knowingly
facilitate terrorism, you are not a good guy. I wonder what I am missing
here. Why does this section say that it does not matter whether you know?
Mr. Piragoff: Senator, there is an offence of facilitating a
terrorist activity that is located on page 28, proposed section 83.19. It
does provide that everyone who knowingly facilitates a terrorist activity
is guilty of an indictable offence. There are other offences such as
contributing to or participating in a terrorist group for the purposes of
enhancing the capability of a terrorist group to carry out or to
facilitate a terrorist activity. There is a definition at the beginning
which applies to the word "facilitate" wherever it is used,
whether it is used as the principal offence where the person actually
facilitates, or whether it is the ultimate object where one contributes
and provides aid to the group for the purpose of enhancing its capability
to facilitate or carry out a terrorist action. Examples would be training
people, providing flying lessons or providing false documents in order to
help a terrorist group facilitate or carry out its terrorist activities.
The senator pointed out that a terrorist activity may be facilitated
whether or not the facilitator knows that a particular terrorist activity
is facilitated or whether the terrorist activity was actually carried out.
That is meant to resolve a problem in the current Criminal Code in the
existing offences of aiding and abetting where you have to actually know
of the specific offence that you are aiding and abetting. This particular
provision is trying to capture the situation where a person knows that he
or she is assisting a terrorist group by providing false documents but
does not know that on September 11 the World Trade Center will be bombed
and that these documents are being providing for the purpose of getting
people into the United States illegally, for example. That is the notion
of facilitating. You know you are helping them. You do not know exactly
what particular crime is going to be committed but you know something bad
will be done. That is why the definition says that you do not have to know
the particular terrorist activity that will occur.
Senator Fraser: In that case, might I ask my French-speaking
colleagues to later look at the French version? The French version seems
to me to be a little more vague on zeroing in on a specific activity. When
I went to that for guidance, I got really confused.
The Chairman: What is the number of the clause?
Senator Fraser: It is on page 15, clause 4, proposed section
The Chairman: Senators, it seems that we have two different
versions of the bill. The page numbering seems to be slightly off. Until
we can rectify that, perhaps we could refer to clauses rather than pages.
Senator Lynch-Staunton: I apologize to Senator Kenny for having
rudely interrupted him, but I thought it important to point out that the
minister was taking us down the wrong track when she kept saying that the
review would take place after three years. In fact, the bill quite clearly
calls for a review within three years. A review could start within six
months or within one year. I do not know why that impression was being
left on the table. Parliament certainly has the right, should this bill be
passed as it is, with the review clause unchanged, to start a review three
weeks after Royal Assent.
That being said, I have a number of questions for information, rather than
debate, because I do not believe in debating with officials.
There are no regulatory provisions in this bill as such, that is, I found
nothing that says that regulations will flow. However, there are a number
of laws currently on the books in bills before Parliament which are being
amended and which contain their own regulatory provisions.
Is it expected that this bill, when and if passed in its current form,
will require regulations before going into effect?
Mr. Piragoff: Senator Lynch-Staunton is right that no regulations
are required to be promulgated under this legislation. There are
cross-references to other acts, but most of those cross-references are
consequential amendments changing a word or changing a section number as a
consequence. Some of the other acts may have regulation powers, but I am
not aware that any of the amendments that have been proposed in this bill
would require that regulations be promulgated under those acts to give
force or effect to any amendments put forward here.
Although not really a regulation, the bill provides the order for the
Governor in Council to designate a list of entities that are terrorist
Senator Lynch-Staunton: Could you double check that? Our feeling
about regulations is that sometimes they are passed without Parliamentary
scrutiny and do not necessarily reflect Parliament's intentions.
Have the UN conventions that were mentioned earlier, which are being
sanctioned in this bill, been verified to ensure that they are
Mr. Stanley Cohen, Senior General Counsel, Human Rights Law Section,
Department of Justice: There has been an examination of the work done
with respect to the UN convention. That work was regulatory in nature and
the framework of those conventions will be subject to the more specific
statutory provisions that will come into effect here in due course with
respect to designation, listing and the like. The regulations were a means
of moving swiftly initially, but ultimately it is a statutory framework
that should essentially govern.
Senator Lynch-Staunton: Having not read the conventions, I have no
idea what is in them, apart from their titles. Are we satisfied that they
are not in contravention, either directly or indirectly, with any
provisions of the Charter?
Mr. Cohen: Yes, there has been Charter analysis and opinions have
been given in that respect.
Senator Lynch-Staunton: Is everyone satisfied that they stand the
Mr. Cohen: Yes.
Senator Lynch-Staunton: Is it correct that clause 96, the amendment
to the Firearms Act, is to allow armed air marshals from outside of Canada
to arrive here?
Mr. Piragoff: The provision is broad enough to permit that.
Senator Lynch-Staunton: What else does it allow?
Mr. Piragoff: It also re-enacts a provision concerning the right of
the provincial minister to exempt certain classes of employees.
Essentially, we are considering individuals who may have to carry a
firearm as a requirement of their employment. For example, Brink's guards
have to have special exemptions under the law to be armed when they get
out of the truck and onto the street. This is the type of power that is
permitted. The bill would clarify that the federal government also has the
right to grant those exemptions.
Senator Lynch-Staunton: What kind of individual are you thinking
of, other than Brink's guards who already have the right to bear arms or
to carry a revolver?
Mr. Piragoff: Brink's guards have the right because they have been
Senator Lynch-Staunton: Are you widening the exemptions?
Mr. Piragoff: The law would give the federal government, not just
the provincial chief firearms examiner, power to give exemptions as well.
Senator Lynch-Staunton: Would that include sky marshals?
Mr. Piragoff: It could, yes.
Senator Lynch-Staunton: I understand that there are sky marshals on
Air Canada flights to Washington, to allow landing at Dulles Airport. Do
the Americans have any problems with that? Do we have a reciprocal
agreement? Will there be the same generosity from Americans in allowing
Canadians to land in the United States as we will display in allowing
Americans to hand here?
Mr. Piragoff: I am not aware of the exact details of the agreements
between the U.S. and Canadian authorities. That might be a question to ask
the Solicitor General.
Before I leave that, returning to your first question to me, one of my
colleagues mentioned that there is a regulation power in the act. Just to
bring it to your attention, it is at page 89, proposed section 38.16. It
is an amendment to the Canada Evidence Act. It would provide for the
Governor in Council to make regulations to carry into effect sections
concerning protecting national security information and judicial
proceedings; for example, regulations respecting notices, time periods for
notices, certificates, et cetera.
There might also be some regulations, not in the proposed act, but
consequential regulations that would result in Part 4, that is, amendments
to the Proceeds of Crime (Money Laundering) Act, the FINTRAC. New
regulations may have to be adopted to address the new mandate that this
act gives. The current mandate is to deal with money laundering in respect
of organized crime. The bill would give a mandate to monitor money
laundering situations concerning terrorist activity. Regulations may be
required, but the regulatory powers are already in the act.
Senator Lynch-Staunton: Is that in the existing legislation?
Mr. Piragoff: It was in Bill C-22, adopted by Parliament last year.
I can check some others, if you wish, and I can give you a note.
Senator Lynch-Staunton: I would appreciate that. Thank you.
Senator Beaudoin: I should like to go back to the question raised
by Senator Murray. The minister has said that there is no declaration of
emergency in the act. My question is a bit technical, but I think we have
to solve it. If we go back to the Anti-inflation Act case in 1976, two
judges said that if there is an emergency, it should be declared in the
bill. Of course, that was only two judges, Jean Beetz and Grandpré. All
the others said that emergency may be inferred from an act. I would like
This act is so important and does so many things that we are inclined to
think that it is a kind of emergency act, or that it may be inferred by a
court to be an emergency act. However, this is not the position taken by
the Department of Justice.
Mr. Cohen: As an initial observation with respect to your question,
the preamble to the bill certainly underlines the nature of the grave
threat that is facing the nation. Certainly, if one wishes to talk about
situations that are akin to emergency without using an emergency
justification for this legislation, the preamble speaks of acts of
terrorism that threaten Canada's political institutions, the stability of
Canada and the general welfare of the state, which underlies the gravity
of the situation and would support arguments of that nature.
Certainly the proposed legislation is in the nature of promoting peace,
order and good government of the country as well. Without wishing to
debate whether an emergency exists or whether this rests on an emergency
power, there is, within the structure of the legislation, a basis for
establishing the ability of the government to act in the way that it is
acting in enacting this legislation and addressing the pressing and
substantial nature of the issues being addressed by the legislation. That
would take us into the area of the section 1 Charter justification, the
pressing and substantial nature of the issue we are dealing with.
Senator Beaudoin: That is my question. No right is absolute. When
we legislate, we may restrict rights to a certain extent. We do.
Obviously, this proposed act does so in some areas. The problem does not
end there. The problem is whether it is justified under section 1 of the
In my opinion, some restrictions are justified by section 1 of the Charter
because the objective is important. It is urgent. It complies with the Oakes
case, in my view, in many areas. Detention, the right to silence, and the
private conversations are the three aspects where we may have a discussion
under the Charter because we have to interpret section 1. Are we
restricting too much, or are we restricting with regard to the
circumstances? If it is not an emergency measure, then, of course, the
interpretation under section 1 of the Charter is different. That is the
purpose of my question.
Mr. Cohen: I would agree with your observation in that regard.
Nevertheless, I would suggest that the grave nature of the threat that is
posed by terrorism and the necessity to respond in an ongoing way to that
threat can be justified under section 1. One would have to come to each
and every measure and determine whether the steps that are outlined in the
legislation are reasonable and proportionate. That is a large portion of
what your discussion here is about. You are creating, in essence, the part
of the section 1 record that courts will have to consider, and they will
be examining how these measures play out in the future.
The future context will, of course, condition how the courts regard that.
If the threat of terrorism does, as we all hope, recede and the measures
are used in a way that seems disproportionate, a court may be called upon
to determine whether that is a proper application of the legislation.
We do not suppose, in the construction of the legislation that has taken
place this far, that it is necessarily going to be something that results
in invalidation, but it may affect the way the bill is construed or
It is our view that there is a national security justification here,
which, in essence, is somewhat different in a jurisprudential sense than
in the criminal law justification. This national security justification
can essentially serve to rationalize the kinds of departures from
standards that we have become accustomed to up to this point in our
Senator Beaudoin: I heard talk this morning about the War Measures
Act, but there is no such thing now. If I am not mistaken, we changed the
whole system of emergency in our country in 1988. When we compare this
statute with the War Measures Act we see that it is very different from
the War Measures Act of 1914 and of 1939, as well as the one used in 1970.
There is no comparison now between a statute like this one and the War
Measures Act of the First and Second World Wars. For the purpose of the
record, I wish to say that. I would like to have your reaction.
Mr. Cohen: One reaction is that the proposed legislation is subject
to the Charter. The War Measures Act was enacted in different
circumstances and at a different time. Of course, when it was invoked in
1970 it was prior to introduction of the Charter. I think that is a
substantial change in circumstances that would put this proposed statute
on an entirely different plane to begin with. The proposed legislation
allows Canadians, who feel there has been, in some sense, manipulation,
abuse or disproportionality in the substantive measures, to question that
in court. That is a safeguard for everyone.
Senator Andreychuk: As I recall, in terms of international
obligations, there are some 11 conventions or treaties that have impact on
our national security and/or terrorism issues. Have we ratified all those
conventions? Are you treating this piece of legislation as the enabling
legislation in particular for terrorism and financing issues?
Mr. Piragoff: There are 12 conventions which countries consider to
be conventions specifically or primarily directed toward terrorist
activities. Canada has signed and ratified 10 of the 12. The two which we
have not ratified but have signed are the International Convention for the
Suppression of the Financing of Terrorism and the International Convention
for the Suppression of Terrorist Bombing. Once enacted, this legislation
would enable Canada to ratify those two remaining conventions.
Senator Andreychuk: If this is not emergency legislation, why did
we not proceed earlier to put in place enabling legislation on those two
Mr. Piragoff: The terrorist financing convention was only concluded
in 1999. To date, only four countries have ratified that convention. We
are actually well ahead of the pack.
Senator Andreychuk: Since enabling legislation was not called for
immediately, can I take it that you did not deem it to be an emergency
situation when those were signed?
Mr. Piragoff: I am not sure I understand the question.
Senator Andreychuk: We took two years to ratify the terrorist
financing convention. We are moving from September 11 to this legislation
rather quickly. I know that has put strain on the Department of Justice to
do so. We did not foresee, two years ago, the need to have enabling
legislation put in place quickly. Is that correct?
Mr. Piragoff: No, senator. With regard to the terrorist bombing
convention, the government has been working on draft legislation for over
a year, if not longer. With regard to the terrorist financing convention,
there have been discussions over the last year among the various
government departments with respect to that issue. At the same time, the
department was dealing with the money laundering legislation. There were a
number of issues with that legislation which had to be resolved. It was
just a question of logical progression, first to set up the FINTRAC
process and then to move on to the next issue, which would have been the
terrorist financing convention.
Senator Andreychuk: Are you satisfied that this piece of
legislation will give full force and effect to those two conventions?
Mr. Piragoff: The intent of the bill is to give us the legislative
basis such that we could ratify those two conventions.
Senator Andreychuk: I wish to turn to the issue of charitable
organizations. When I sat on the Special Senate Committee on Security and
Intelligence there was a great deal of discussion as to how to deregister
any charitable organization that may be involved in terrorist activity. At
that time, there were two concerns. The first was that any deregistration
process should not be in the hands of those who may be investigating
terrorism. In other words, we wanted a neutral analysis of whether the
evidence and the actions taken by CSIS or RCMP, in terms of national
security, warranted removal of a charity's registration. The proposed act
seems to have gone the other way. Could you comment, please?
Mr. Piragoff: I will defer to the Solicitor General on that issue.
Many of the provisions of the bill that deal with charities and their
registration were taken from what was formerly Bill C-16, which only
proceeded to committee stage in the House of Commons. Those questions
might be better answered by the Solicitor General and his officials.
Senator Andreychuk: There is no appeal provision for a charity.
There is the first application into the court, which would be followed by
a judge's decision, but there is no appeal from that process. Why is that?
Mr. Piragoff: That is a question of policy. You should ask the
Solicitor General why an appeal process was not chosen.
Senator Jaffer: Since we have you here, Mr. Cohen, could you
comment on the definition of terrorist activity in the bill, please? It
states that there has to be an intention and not an act committed. I have
concerns about that. Perhaps I am not reading the provision correctly.
Could you comment, please?
Mr. Piragoff: The issue of intention is important for one primary
reason, which is that we do not want to classify activities as being
terrorist simply because harmful conduct has occurred. For example, let us
say that a peaceful demonstration turns into a riot and death results, or
buildings are burned down, but there was no intent at the beginning or
during the protest that should occur. It is important that we focus on the
intent of the demonstration or the protest as opposed to simply the
With respect to whether intent alone is enough, the provision which deals
with intent has to also be read in conjunction with the opening words of
The opening words of paragraph (b), page 13, line 30 of my draft in
English, refer to "an act or omission in or outside Canada that is
committed." That does presuppose that an act is committed. In
addition to that act being committed, a number of purposes or intentions
are required that would characterize that act or omission as being a
Senator Bacon: It has been said that rights and freedoms are still
protected by the Canadian Charter of Rights and Freedoms. However, does it
not threaten our civil liberties? Is it not true that from now on, it will
be difficult and risky for groups fighting against globalization to
organize demonstrations against government policies? Is it not true that
once this bill is passed, anyone might be arrested without a warrant and
questioned even if no crime has been committed, or arrested preventively
and have one's name put on the terrorist list unknowingly?
Mr. Cohen: There is no doubt that the bill does pose a challenge to
our notions of liberty. We are living in an age where our accepted notions
of what constitutes freedom in society have been affected.
On the other hand, the need for legislation, at this point in time, is
manifest. The task of Parliament is to determine whether what is here is
reasonable and proportional in terms of what has been done. When one
speaks of preventive arrest, one has to examine whether the power that is
given contains sufficient safeguards to ensure it does not become an
instrument of oppression or abuse. The time limitations that might be at
play with respect to that power, what happens to individuals, whether they
can be held incommunicado or whether they have to be taken before a
judicial officer and what happens to individuals once they are taken
before the judicial officer are all tremendously important.
The preventive arrest example is a process for bringing an individual
before a judicial officer to determine whether it is appropriate to impose
conditions on that individual. Presumably, it is meant to be a way of
identifying an individual and considering the danger the individual may
pose, and also a way of indicating that there is some state awareness of
what that individual may be up to. Once that individual is brought before
a judge, the proposed legislation provides a mechanism for imposing
conditions on that individual that may restrict his or her freedom of
movement or affect his or her freedom of association, but that is done in
order to identify a threat and alleviate that threat at the same time.
Whether the exact mechanism is regarded as reasonable and proportional
will depend upon the context in which it is used. Ultimately, if it is
being employed in the context of a terrorist threat, the power to make
that arrest will, in our estimation, survive constitutional scrutiny.
With respect to the example of compelling people to answer questions, it
is not done and will not be done as a general matter in the criminal law
of Canada after the proposed legislation comes into force. It is
restricted to the area of investigating terrorist activity. It is not a
general aid to law enforcement. The purpose and the restriction upon the
use are important.
On questioning itself, as far as the individual's exposure to liability is
subjected to safeguards, we have to examine what the individual is exposed
to. The individual is not at personal risk with respect to the answers
that the individual may give. There is no possibility under the terms of
the proposed legislation itself that the individual will have evidence
that he or she gives used against him or her in another criminal
proceeding. There is no possibility that any evidence that is derived from
the evidence that individuals give can be used against him or her in
another proceeding. That is indicative of the kind of balancing that has
been attempted in the legislation, and it does go to the reasonableness
and proportionality of the exercise.
The difficult issue of protest and dissent is one where balance has been
attempted through the use in clause 4, proposed subparagraph
83.01(b)(i)(E), of the phrase "other than as a result of lawful
advocacy, protest, dissent or stoppage of work" that does not result
in the particular kinds of significant, serious harms that are discussed
in subparagraphs (a) to (c) in that provision, which involve death or
serious bodily injury, endangering a person's life or causing a serious
risk to the health or safety of the public. A genuine effort has been made
to strike a balance that is consistent with life in a free and democratic
society that does encounter protest and dissent, which we can expect, for
example, in protests involving globalization issues. The effort is to
recognize the difference between protest and dissent carried out in a
lawful manner, consistent with Canadian norms and values, and activities
that go beyond that and involve danger to life, health and safety. There
has been an attempt to layer in safeguards and to make the legislation
reasonable and proportional, given the nature of the threat it is designed
Mr. Piragoff: With respect to what has been called
preventive arrest, the bill does not use that term at all. In fact, the
heading of clause 83.3 is "Recognizance with Conditions." The
purpose of the provision is not to arrest a person but to put a person
under judicial supervision for the purposes of preventing the carrying out
of an activity. It is similar to a provision which already exists in the
Criminal Code in section 810, whereby one person, who fears another person
may commit a violence against him or her, can ask the court to put that
person under judicial supervision. For example, it is used often in
domestic violence situations where a person can go to the court and ask
the court to impose conditions on another person because there is a
legitimate, reasonable fear that that person may commit an offence.
This provision builds on existing provisions in the Criminal Code. There
is precedent. It is not something new. If one looks at the total scheme of
recognizance with conditions, there is very much a presumption that the
person will be released. The presumption is not that a person will be
arrested and remain arrested. Arrest is there for when it is necessary to
bring the person before the court, not when the person can be brought to
the court by way of a summons. However, if it is an emergency, and the
person, for example, is on his or her way to the airport, then that person
would be arrested.
The whole scheme is designed to bring the person before a judge, have the
judge evaluate the situation and decide whether it would be useful to
impose conditions on this person such as "Do not leave town, report
every day to a police officer," et cetera. The purpose of preventive
arrest is not the arrest. It is just a means to get a person before a
court for the purpose of judicial supervision. We have such provisions
elsewhere in the code such as bail provisions, for example, and also
section 810 of the Criminal Code, which does not involve arrest. However,
this provision would involve arrest. I wanted to create the focus.
Senator Bacon: Is it not true that preventive arrest such as
provided in Section 83.3(4), opens the door to abusive arrest and
detention? You seem to extend the possibility of arrest based on police
officers' suspicions rather than reasonable grounds which is a stricter
criterion than the suspicion criterion. What safeguards will help the
police to avoid abuses particularly in the application of preventive
arrest and detention considering that this section refers to suspicions
rather than reasonable grounds?
Mr. Piragoff: Police officers still have to base their suspicions
on reasonable grounds, not create them out of thin air. Whether it is
reasonable grounds to believe or whether it is reasonable grounds to
suspect, there must be a basis that can be reviewed.
Why is there a standard for reasonable suspicion as opposed to reasonable
grounds to believe? If there were reasonable grounds to believe that an
offence will be committed, which is the first test, and if there were
reasonable grounds to believe that a particular individual would commit
that offence, at that point, one would have grounds to actually arrest the
individual and charge him or her with an offence.
This particular provision will address the situation where authorities
have reasonable grounds to believe that an offence will occur when, for
example, as a result of intelligence sources, it is known that a
particular ambassador will be a target of an assassination attempt in
Canada, or that a particular bombing will be undertaken during a
particular demonstration - not by the demonstrators but by others who
might want to benefit through exploiting the demonstration. At times the
police have reasonable grounds to believe that an offence will be carried
out, but they do not have reasonable grounds to know who the actual
perpetrators are, although they have grounds to suspect individuals in
particular - grounds that are not just pure suspicions, but reasons to
suspect individuals who may have contributed to or been associated with
certain elements. Police do not yet have grounds to arrest such
individuals and to charge them, despite serious suspicions that these
individuals are involved somehow. This serves to ensure that such
individuals are arrested, brought before a judge and put under judicial
supervision in an effort to prevent any type of offence actually
Senator Tkachuk: My questions concern information as well. I was
reading an article in The Globe and Mail on Friday, October 19, and
it seems that Canada's Privacy Commissioner, Mr. George Radwanski, had
some very serious concerns about Bill C-36 and its effect on privacy
legislation. Part 5, Amendments to Other Acts, clause 87, to amend section
69 of the Access to Information Act, states:
69.1 (1) The Attorney General of Canada may at any time personally issue a
certificate that prohibits the disclosure of information for the purpose
of protecting international relations or national defence or security.
Under what definition would you or the Attorney General define
Mr. Piragoff: This amendment is in the Canada Evidence Act, or
parallels an amendment in the Canada Evidence Act. I do not have the
actual section number for you, but I believe it is in those amendments.
Senator Tkachuk: What is in those amendments?
Mr. Piragoff: There is the definition of "national
security," for example. There are definitions of "prejudicial to
Canada's interests" in the Security of Information Act, the former
Official Secrets Act.
Senator Tkachuk: Are there multiple definitions of "national
security" in different acts?
Mr. Piragoff: The prohibition certificate is in 38.13 of the Canada
Evidence Act. The provision to which you referred in respect of the Access
Commissioner is essentially the same certificate as that which would be
issued under the Canada Evidence Act.
Senator Tkachuk: Why do you need this, then?
Mr. Piragoff: The Canada Evidence Act applies to judicial
proceedings or administrative proceedings that are undertaken. In respect
of the actions of the Privacy Commissioner or the Access Commissioner,
there may not be any proceedings undertaken at that time.
Senator Tkachuk: I want to get this straight. I am not a lawyer and
I am trying to understand it the way any citizen in Canada would
understand it. I believe that the Attorney General can issue a certificate
and use national security as a reason to deny the media or anyone else a
request for information. Is that how this would apply? Is that what the
Attorney General would do, in layman's terms?
Mr. Piragoff: The provision is a last resort for the Attorney
General to ensure that information critical to national security is not
disclosed in judicial proceedings to which the Canada Evidence Act applies
or through other government processes. This power exists with our allies
who have a procedure whereby a minister is able to issue a certificate to
block disclosure. In the United States there are different levels of
certificates. Some come from the President and others come from the
Attorney General of the United States. The U.K. has a certificate system
as well and, I believe, New Zealand and Australia also have such systems.
Senator Tkachuk: I am not trying to be argumentative. I am just
trying to figure out what this means. I am not really concerned about the
certificate being used to protect national security, but I am concerned
about ministers using national security as an excuse to prevent
information from getting out that legitimately should get out. Under what
definition of "national security" would this exist? Is there
more than one definition? There must be definitions in the law. The
Attorney General would be able to say, "Because of this, I will not
let you see that."
Mr. Piragoff: There is no explicit definition in the Canada
Evidence Act. There is a power that exists under the Canada Evidence Act
to protect information that relates to national security. There is a
procedure whereby a person can object to disclosure. The existing law is a
black and white situation. If a judge in the Federal Court finds that the
information relates to national security, then that is the end of the
matter and nothing is released.
The bill tries to create a scheme very similar to what exists in the
United States where we try to give as much information as possible. Even
if the judge says that the information relates to national security, the
judge can order that it be released in the form of sanitized summaries or
possibly permit the government to admit facts.
For example, if the other side wants to allege that a certain fact exists
and wants the documents to prove that certain fact, the judge could
determine to not give out the documents, but for the purpose of that
trial, allow the assumption that a certain fact exists. The state would
have lost on that factual issue.
That is the basic philosophy behind the legislation. It is to promote more
disclosure of information. By promoting more disclosure of information, it
also leaves to the government a last resort safeguard. If all these other
measures to permit the flow of information cannot protect information,
ultimately the government has to protect sensitive information and
information that our allies give to us. That is the reason for this
Senator Tkachuk: Can the certificate be reviewed? If the
minister says no, you cannot have that on the basis of national security
and if I were asking for information and prevented from getting it, on the
basis of national security, what could I do? Let's say that I do not
believe the minister, what could I do?
Mr. Piragoff: There is no review of the certificate of the Attorney
Senator Tkachuk: If we use the American example, Americans have a
division of power, as you know. Here, we have a parliamentary system - if
the executive says something, no one else can do anything. In the United
States there are oversight committees and CIA reports to committees of the
Senate and the House of Representatives. There are ways to get around one
person doing something that is bad.
In Canada, it seems that can just be done. We do not have a definition. To
me, it means that the proposed legislation could be used for purposes that
are not necessarily meant in the intent of the bill. If we do not have
definitions of national security, do we have definitions of threats to
security? Is there a way to define a person or organization as a threat to
the security of the country? Do we have that?
Mr. Piragoff: The Attorney General, in exercising these powers, is
exercising them in a quasi-judicial role. She must exercise them as if she
were a tribunal or judge. She does not constitute a judge or a tribunal,
but has a quasi-judicial power that she is exercising.
The minister has indicated in the other place that, with respect to the
proposed amendments to the Privacy Commissioner and the Access
Commissioner, she is interested in hearing the views of members of
Parliament and senators as to whether there could be any type of
accountability or transparency mechanism included with respect to the use
of certificates in the context of the Privacy Commissioner or the Access
Commissioner. She is reviewing that matter.
Senator Andreychuk: The senator asked as a non-lawyer, and I am a
lawyer. Are you saying that when the judge indicates that something could
be released on a qualified basis, that the minister could sign a
certificate not allowing it to be released?
Mr. Piragoff: There is a mechanism to try to sanitize the
information so that it could be released. In the end, the Attorney General
has discretion to issue the certificate to say that, even after
sanitizing, release of information would harm our national security.
Senator Andreychuk: When something comes by the judicial route and
not the Privacy Act, if a judge sanitizes something, does the minister
have the final say on whether information is released, under this bill?
Mr. Piragoff: Yes, that is the safeguard.
Senator Andreychuk: That is what I thought that I had read.
Mr. Piragoff: The safeguard is necessary because some information
that may be held may not be our information. It may be information that is
given to us by a foreign country.
Senator Andreychuk: I wanted to clarify the legality of it.
Basically, the minister has the final say.
Mr. Piragoff: That is right.
Senator Kelleher: I am advised that the proposed act provides
protection for sensitive information under the Canada Evidence Act. Is
Mr. Piragoff: Correct.
Senator Kelleher: I had a situation a few years back dealing with a
warrant. The CSIS officials were in court and were giving evidence against
four people we had charged. We believed that those four people were the
ones who bombed Air India, but we did not have the evidence in the Air
However, we had another case going against them dealing with an attempt to
bomb an Air Canada flight to New York. Part way through the case, the CSIS
officials referred to their sources. The defence lawyers made a motion to
the judge for us to produce our sources so that the defence could
cross-exam them - which was utter nonsense because if we ever start to
produce our sources, we might as well pack up and go home. You cannot run
a spy service if you have to reveal your sources. Since we would not
reveal our sources, the judge dismissed the case. He just dismissed the
case. As I said, I think we had the suspects in Air India case and that
those were the people involved. We lost that.
I would have thought that was very sensitive information. Surely we cannot
be forced to produce sources. Will any of these amendments prevent what
happened in that case?
Mr. Piragoff: Yes. The certificate issued by the Attorney General,
which other senators have asked about, would be the ultimate guarantee
that information such as sources of information and names of informers
would not be made public.
Senator Kelleher: Could we use that?
Mr. Piragoff: Yes.
Senator Kelleher: Would we not be hit by the judge? That is my
Mr. Piragoff: The legislation recognizes that if the Attorney
General exercises power to withhold information, the trial judge could
assess the impact of not having that information upon a trial. That could
involve dismissing the case.
Other amendments try to get as much information to that trial judge as
possible. The Federal Court judge will try, for example, to make an edited
copy or indicate that for the purposes of a trial, certain facts may be
assumed to exist to try to keep the trial alive, but it is up to the trial
judge in the provincial court who is conducting a murder trial to finally
rule on whether there could be a fair trial without the information. That
is at that judge's discretion, not at the Federal Court's discretion.
Senator Kelleher: That is what troubles me.
Mr. Piragoff: We are now balancing two issues. We are balancing the
interests of the state to protect information and the interests of the
accused to have a fair trial, which is protected by the Charter. There may
be situations where both of those cannot be reconciled and it then becomes
a question of whether the prosecution of the individual or the protection
of the information is more important in a particular situation. That is a
difficult choice, but it is a stark choice that may have to be made
Senator Kelleher: There is not any protection against the trial
Mr. Cohen: Ultimately, it has to be regarded as a safeguard in the
legislation that the judge has power to protect the fairness of the trial
against the accused person.
If this were not in the legislation and if there were not recognition of
the ultimate ability of the trial judge to control the process in that
way, you could still run the same risk. We could become mired in
constitutional adjudication with respect to whether the legislation
adequately protects fair trial interests. Therefore, it is better to have
Senator Kelleher: This was, I believe, in the national interests. I
just do not think the trial judge really was prepared to give it much
Senator Fraser: Gentlemen, on preventive detention, again, we can
all understand why there would be a need to be able to bring people in if
there is reasonable suspicion. I have difficulty with the provision to
imprison such individuals for up to one year if they refuse to accept the
judge's conditions. If these are real terrorists and crooks, of course
they should accept conditions. However, is not unheard of for the police
to bring in the wrong person. In the past month, we have been made aware
of cases of mistaken identity. We can imagine an innocent person refusing
to accept conditions that would be reasonable for a terrorist but
otherwise are not reasonable and that person would be sent away for one
year. Is one year not an excessive term? Does that not confront
"cruel and unusual?" Could we have a shorter term and still
accomplish the essential objectives of the bill?
Mr. Piragoff: The one year period to which you refer is the same
period that exists in section 810 of the Criminal Code dealing with the
situation of domestic violence. For example, if the spouse - the abuser -
refuses to enter into conditions, then that spouse can be put in jail for
as long as one year.
Senator Fraser: That is if he is a known abuser.
Mr. Piragoff: No, it is based on fear. In fact, the test in section
810 is a lower standard than what is in the preventive arrest. I invite
senators to compare the two. Section 810 of the Criminal Code mentions
"reasonable fear," not "reasonable grounds to believe"
or "reasonable suspicion." The test in the code is based on a
fear test, which is lower.
Mr. Cohen: I have one other word on that. One year is a maximum
length of time. It is not any kind of mandatory term that is being imposed
in the circumstance. Where the person is not abiding by terms of the
recognizance it is a form of disobedience of a court order, akin to
contempt of court.
You used the words "cruel and unusual," obviously thinking of
the Charter's admonitions against cruel and unusual punishment or
treatment. Given the fact that there is no mandatory aspect to this, that
judicial discretion is involved and what can be involved is a rather
serious aspect of disobedience in a terrorist context, I do not think this
would be bound to outrage community standards or standards of decency. It
is likely that this kind of penalty provision, given the range of
discretion that does exist, would be found to be consistent with the
The Chairman: On behalf of the committee, I thank all of the
witnesses today from the Department of Justice.
The committee adjourned.