Proceedings of the Special Senate Committee on the
Subject Matter of Bill C-36
Issue 4 - Evidence
OTTAWA, Monday, October 29, 2001
The Special Senate Committee on the Subject Matter of Bill C-36 met this day at 4:06 p.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.
SenatorJoyce Fairbairn (Chairman) in the Chair.
The Chairman: Honourable senators, this is a final meeting
with the Minister of Justice who was our first witness when we
began our pre-study hearing on Bill C-36, the anti-terrorism bill.
Minister McLellan is present with her officials.
We have spent a week and many hours of intensive hearings
since you left, Minister. We thank you for coming back to review
with us some of what we have heard. I know that there will be a
number of questions from my colleagues on both sides.
We in the Senate are undertaking this special effort in order to
be able to put our views, concerns and suggestions to the minister,
the House of Commons, and to the commons justice and human
rights committee, in advance of the passage of the legislation by
the House of Commons in the hope that some of our ideas will
find their way into the bill before it returns to the Senate for
debate and clause-by-clause analysis.
Welcome, Madam Minister, and welcome to Mr. Mosley,
Mr. Piragoff and Mr. Cohen. Please proceed.
Hon. Anne McLellan, Minister of Justice and Attorney
General of Canada: Honourable senators, it is a pleasure for me
to be back here this afternoon with my officials. I know that this
committee has worked very hard in terms of its pre-study ofBill C-36. I speak for myself and for the entire government when
I say that I look forward to your advice and recommendations that
will help inform the work of the House committee, as well as the
work of the Government of Canada. I thank you very much for
what I know have been very long hours in a short period of time.
The review and debate that has taken place in the House of
Commons committee and before this committee has, it goes
without saying, been thoughtful and insightful, raising many of
the same issues the cabinet committee discussed in preparing this
Shortly after the horrific events of September 11, nations to
which we regularly compare ourselves - the United States, the
United Kingdom, and many of our European allies - took a
second look at the legal framework and investigative tools
available to them. We all recognize that the insidious nature of
terrorism demanded an appropriate and measured, but forceful,
response. Parliamentarians, academics, the media and individual
Canadians called for stronger measures to ensure that Canada
could deal effectively with the threat of terrorism.
We are now a number of weeks past the events of September 11. However, we should not let this passage of time
diminish our memory of the events of that date, nor the call for
action. Yes, we are part of a global community, however, this bill
is not just about keeping up with our neighbours. Yes, we take
very seriously our Charter of Rights and Freedoms, however, this
bill is not about choosing the fight against terrorism over our
guarantee to civil liberties. Yes, we need to have a process to deal
effectively with the threat of terrorism, however, this bill is not
about power to any one person or organization. This bill is about
what we need to do to protect our most basic human right - the
right to live our lives in peace and security. If we do not protect
this right, then the rights to freedom of expression, association
and all the other rights guaranteed by the Charter are at risk.
I remind you of the words used by Professor Bayefsky when
she appeared before this committee last week. She said:
Terrorism is an extreme violation of human rights. That
violation of human rights is our problem as Canadians. There
is an apt saying that evil triumphs when good people do
nothing. Our responsibility is to defend human rights, and to
do so by taking the kinds of actions that are in this bill.
Bill C-36 includes much needed measures that will
substantially increase this country's ability to fight the threat of
terrorism. For those who suggest that this is comparable to the
War Measures Act, their suggestion is simply wrong. The War
Measures Act was invoked to deal with a specific threat to the
security of Canada and was deemed necessary for a particular
period of time. The fact is that we do not know when the threat of
terrorism will disappear. We do not know how far reaching the
support is for this particular enemy.
The new face of international terrorism is one that seeks to hold
free and democratic nations hostage. So that this does not happen,
it is our responsibility and our obligation to act in concert with
other nations because, if we do not, if we choose to sit on the
sidelines rather than change our laws and improve our
investigative tools, we risk being part of the problem rather than
part of the solution.
Currently we have laws that can be used and are being used
against terrorism, including provisions in the Criminal Code and
other statutes. These laws are not ineffective, but they are clearly
not adequate. The commissioner of the RCMP has made
observations on this in testimony before this committee. I quote
from Commissioner Zaccardelli:
Some people say that Canada already has a strong
legislative framework and enforcement capacity to deal with
terrorist threats. It has been our experience, based on our
investigation into the tragic events of September 11, that it is
not true. Notwithstanding our efforts, it has become evident
that there are some significant obstacles preventing law
enforcement organizations such as the RCMP from detecting, deterring and destabilizing terrorist groups. Traditional
investigative tools are inadequate in some cases.
Yes, we can, under our current laws, convict terrorists who
actually engage in various acts of violence if we are able to
apprehend them after their acts. However, we must do much more
than that. We need investigative tools that will help us to gather
information on terrorist groups and operatives before they engage
in their attacks. This bill provides those tools. We need a broader
power of arrest and conditions on release that will enhance our
preventive capabilities and allow us to destabilize terrorist groups
that are in the planning stages of an attack. This bill provides
We need new Criminal Code offences that allow us to convict
those who facilitate, participate in and direct terrorist activity. As
we have already recognized with respect to organized crime,
current Canadian law in the area of conspiracy is not sufficient to
go after sophisticated criminal networks. These networks rely on
cells, multi-layered leadership and the assistance of those not
directly involved. Current law does not always allow us to pursue
those who, without being involved directly, enable such crime.
This is true for terrorist groups as well as for criminal
organizations. Therefore, Bill C-36, as we intend Bill C-24 to do
for organized crime, would provide new offences targeting
participation, leadership and similar activities. I would underline
that these offences include a vital preventive element, because the
terrorist enabling activities that they address are defined as
offences regardless of whether the ultimate terrorist acts are
actually carried out.
It has also been recognized that the enabling of terrorism
includes financial assistance. Financial resources provide the
necessary underpinning of the terrorist groups. That is why an
entire category of the provisions in Bill C-36 take strong measures
to address terrorist financing.
It is also worth mentioning that, in the area of terrorist
financing and in other areas, notably with respect to terrorist
bombings and the use of other lethal weapons, and with respect to
the protection of UN and associated personnel, Canada has
international obligations that it must fulfil. This bill does that as
All of these elements speak to national security and, as you
know, protection of national security includes protection of vital
national security information. Our current law includes a number
of gaps through which there may be potential unwanted disclosure
of such information. Such disclosure could jeopardize Canada and
its allies. This bill seeks to close those gaps.
To sum up on this point, while we do have a legislative
structure that can be used to fight terrorism, it is absolutely
essential that this legislative structure be enhanced. If we are to
effectively fight terrorism, we need tools specifically designed for
this purpose. We cannot ask our law enforcement and security
agencies to address the very real and very dangerous threat of
terrorism without a full and effective legislative base. This has
increasingly been recognized by other countries that have
implemented specific anti-terrorism legislation. We must
recognize this in Canada. The measures must be well-designed
and well-balanced, but we must have them in place.
This is an overview of why Bill C-36 is needed. I intend to
discuss in more detail particular areas of the bill that have arisen
repeatedly in the review and debate since the bill's introduction.
Before I do so, however, I should like to make three points.
First, I have said before, and I wish to emphasize here, that we
are open-minded about potential amendments to the bill. We
realize that there have been concerns expressed about certain
areas. We welcome examination of the bill from the perspective
of the concerns that have been expressed.
Second, although I wish to review particular areas of the bill
with this committee from the perspective of these concerns, I am
not in a position to make definitive commitments to any particular
amendments. I am certain that senators appreciate that this
legislation is currently before the House of Commons and its
standing committee on justice and human rights and that there
will be a specific process with respect to amendments in that
committee. That being said, we are extremely interested in the
anticipated report from this committee and any specific recommendations for changes that are included in it.
Third, and this is a more substantive matter, my first two points
being more of a process nature, I wish to address questions that
have been raised about whether this is emergency legislation. Let
me reiterate that I do not consider this to be emergency
legislation. Rather, this legislation is a combination of our
commitment to two UN conventions and our realization that we
must do more to prevent acts of terrorism, acts on a scale that we
are only just beginning to comprehend.
Bill C-36 is intended to deal with an ongoing and heightened
threat of terrorism. This threat clearly existed prior to September 11, 2001, and we can expect that the threat will
continue into the future. While we would like the threat to
disappear in three years or five years, we must be prepared if it
does not. What must remain is vigilance. Even as the current
crisis diminishes in its intensity, as we hope and expect that it
will, we must remain on our guard now and in the future.
Further, this is not a bill that changes Canadian law at large and
across the board. Rather, it is a bill specifically directed at the
threat of terrorism while making certain related changes with
respect to national security and the protection of Canadians
against acts of hatred. The measures in this bill are not so much
extraordinary in themselves but are measures to respond to an
extraordinary threat. In response to this threat, which I repeat is an
ongoing threat, they are balanced and reasonable measures that
include important and effective safeguards.
This is the perspective I have on this bill. With your help, we
may be able to further refine some of these measures and their
I should now like to turn briefly to discussion of some of the
key elements of the legislation, which you have heard a great deal
about here before this committee in pre-study. As you are aware,
Bill C-36 currently includes a provision calling for a review of the
provisions and operation of the proposed anti-terrorism act by a
committee of the Senate, the House of Commons or both Houses.
In our view, there will be a distinct benefit from reviewing the bill
in light of its actual operation. Further, we may wish to adjust
provisions of the bill in light of changed circumstances after three
years. This is the purpose of the review clause.
There have been numerous suggestions, however, for a sunset
clause in the bill, a clause under which some or all of the
provisions of the bill would expire after a predetermined time,
unless re-enacted by Parliament. We have, in the government,
listened with interest to these suggestions. There are a number of
considerations that must be taken into account in reviewing a
possible sunset clause.
First, as I have indicated, the threat of terrorism may not
disappear - probably will not disappear - after three or five
years. We must consider whether the tools Parliament enacts in
Bill C-36 will be appropriate tools well into the future. It may be
that we can refine and adjust these tools after some years of
experience. Nevertheless, we expect the basic need for the bill to
Second, there has been some suggestion that a sunset clause
would help to bolster the constitutionality of the provision of the
bill. On this argument let me be absolutely firm and clear. I
consider the provisions of this bill to be constitutional; otherwise,
I would not have presented them to you and the House of
Commons committee. I do not think that it is necessary to add a
sunset clause to make them more constitutional. If, after careful
consideration, it were felt that there was a need for a sunset
clause, then that need would have to be based on a ground other
Finally, with respect to the sunset clause, there has been some
misunderstanding with its existence in the legislation of other
countries, notably the United Kingdom and the United States. I
wish to clarify that neither country has a broad-base sunset clause
in its legislation. In the United Kingdom's Terrorism Act 2000, no
sunset clause applies with respect to the vast majority of the
provisions of the act. A sunset clause does apply with respect to
certain special provisions dealing with the situation in Northern
Ireland. When the Terrorism Act 2000 was enacted, there was
hope that the troubles in that area would finally be resolved within
an immediately foreseeable time frame. We see, then, a specific
justification for a time-limitation clause for those special
provisions. Let me just acknowledge with some satisfaction that
in recent days it seems that some of these expectations for peace
in Northern Ireland may be realized.
It is important to recognize, however, that the entire remainder
of the United Kingdom legislation dealing with the general and
ongoing effort against terrorism in that country is not time limited.
These provisions of the UK legislation are, as Professor
Wilkinson indicated to this committee, comparable to Bill C-36. I
also observe that Professor Wilkinson expressed the view that Bill C-36 should not be time limited.
In the United States, meanwhile, the core anti-terrorism
legislation that was enacted in 1996 also does not have a sunset
clause. As proved to be the case, terrorism in the United States
was not something that was about to disappear three years after
the enactment of that law. It is true that the United States'
legislation, which enhances their existing anti-terrorism law in
certain areas, does include a sunset clause. The President of the
United States signed this new legislation this past Friday. It is
important to note, however, that the sunset clause only applies to
one of the titles of the new act dealing with special powers of
electronic surveillance. It does not apply a sunset clause to any of
the other provisions of the new legislation.
Further, there was considerable controversy with respect to
even this limited sunset clause with many in the United States
doubting whether it was appropriate.
As honourable senators are well aware, the definition of
"terrorist activity" is absolutely central to Bill C-36, a point I
made when I first appeared here. Many of the other provisions of
the bill relate directly to this definition. In view of this, we did
spend a considerable amount of time crafting this provision.
Nevertheless, improvements may be possible, and it is entirely
appropriate that this definition has been the focus of considerable
An aspect of the definition that has drawn attention are the
words that exclude "lawful advocacy, protest, dissent or stoppage
of work" from its ambit. Some have questioned whether the
definition inappropriately fails to recognize that even unlawful
activities of this type normally do not amount to terrorism. This is
an important question and one that I know that honourable
senators are seized with.
I wish to emphasize that it has never been our intent to extend
the scope of definition to activities of this type that clearly do not
belong within it. This aspect of the definition merits attention, and
we would be most interested in the recommendations of this
Senate committee on that issue.
At this point, I should like to emphasize that we have been
sensitive to the perception that the definition and the bill as a
whole could be used to target ethnic and cultural communities.
We have reached out to these communities to explain that this is
not the case. Our discussions with them will continue.
I note an idea that has been raised on the subject matter of
discrimination and hatred. Clause 12 of the bill would add a new
provision to the Criminal Code that would make it a special
offence to commit mischief against a place of religious worship,
when the mischief is motivated by bias, prejudice or hate. It has
been noted that when the offence is of this nature, it is insufficient
to give it the name mischief and that some other term would be
more appropriate. This, too, is an interesting suggestion.
One of the provisions of Bill C-36 that has attracted
considerable attention is that of providing for investigative
hearings. We spoke at some length about this when I was before
you a week ago. Questions have been raised about the provisions
allowing the state to compel testimony under this proposed new
clause. It has been suggested that this is contrary to fundamental
traditions and rights under Canadian law.
It is true that these provisions would add a new obligation
under Canadian law. It is important to emphasize, however, that
the obligation is for the pressing and substantial purpose of
fighting terrorism. We are not proposing that the power be
enacted at large in the Criminal Code. It is also important to note
that the power is not without precedent and that it includes
With regard to precedents for such power, as I mentioned last
time I was here, there is an existing procedure under the Mutual
Legal Assistance in Criminal Matters Act that already allows us
to do this in Canada in order to gather evidence for other
countries. Our review of the records would indicate this power
has been used fairly frequently for other countries. Evidence
gathering of this nature is frequently used in Canada and, perhaps
more importantly, it has withstood constitutional scrutiny by the
Also, it is important to emphasize that while there are rights
against self-incrimination under the Charter, there is no general
privilege against giving testimony in Canada. Persons are
regularly required to testify at trials other than trials for an offence
charged against them and can be arrested if they refuse to testify.
In addition, a close analogy to the special power we are
suggesting for Canadian law, with respect to terrorism, exists in
the general criminal law of the United States with respect to
investigative grand jury proceedings.
Numerous safeguards would apply to the new provisions on
investigative hearings under Bill C-36. First, it should be
remembered that the person obliged to testify in these hearings
would not be doing so in the context of a trial for an offence.
Further, the person obliged to testify is extended protection
against self-incrimination, subsequent use and derivative use.
Also, while the individual is compelled to testify, laws relating to
the non-disclosure of information or privilege continue to apply.
The right to counsel also continues to apply in this setting.
Further, the prior consent of the Attorney General is required
before an application for compulsory testing may be brought. The
standard on which an order is obtained is based upon the Charter
consistent reasonable grounds believed standard. There must also
be reasonable grounds to believe that the person sought to be
compelled has direct and material information that relates to the
offence or that reveals the whereabouts of the person who the
peace officer suspects may commit that offence. Reasonable
attempts must have been made to obtain the information from the
The legislation also provides the judge with the authority to
order terms and conditions to protect the interests of the witness
or third parties. Therefore, while we have extended Canadian law
in Bill C-36 to provide for investigative hearings, we have done
so for a limited, important purpose and have ensured that the new
power is appropriately circumscribed.
Another measure of the bill that is receiving close scrutiny, and
rightly so, is that with respect to 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 it, 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.
Here again it is important to emphasize that the power is not
without precedent and is subject to numerous safeguards.
Canadian law currently provides for a power to arrest a person on
the reasonable belief that he or she is about to commit an
indictable offence, and numerous provisions of Canadian law
already deal with conditions placed on release of persons.
The preventive arrest provisions of Bill C-36 build on these
provisions, but only for the special purpose of our fight against
With regard to safeguards, except for emergency
circumstances, this substantial power can only be invoked with
the consent of the Attorney General. This section contemplates a
judicial hearing within 24 hours. Additional safeguards include
judicial supervision of the recognizance process, the requirement
for reasonable grounds for belief that terrorist activity will be
carried out, the requirement that an arrest without warrant can
only be made where it is necessary to prevent the commission of
a terrorist activity and the ability of the person to seek to vary a
I should like to turn briefly to concern about certain proposed
changes under the Canada Evidence Act and the related changes
under the Access to Information Act and the Privacy Act. The
changes that have led to concerns are those that deal with the
so-called Attorney General prohibition certificates that would
prevent the court from disclosing information in court
proceedings. Under Bill C-36, section 38 of the Canada Evidence
Act would be amended to provide the Attorney General of
Canada with the power to file a prohibition certificate in legal
proceedings to prevent the disclosure of information injurious to
international relations, national defence or security. The purpose
of these certificates is to provide, where necessary, a method to
absolutely prevent the disclosure of certain highly sensitive
information. This guaranteed protection from disclosure is
necessary, above all, with respect to security and intelligence
information shared with Canada by other countries.
In developing this amendment to the Canada Evidence Act, it
became clear that we also had to provide a similar guarantee
against disclosure in other pieces of federal legislation. In
particular, if Bill C-36 had been limited to the Canada Evidence
Act exclusively, individuals might still be able to use the back
door to get this information by making requests under the Access
to Information Act or the Privacy Act. Therefore, it was necessary
to equally exclude access to this information through these routes.
However, comments from several quarters, and particularly
from the Information and Privacy Commissioners, suggest that in
safeguarding this highly sensitive information we may have gone
too far. There is some concern that, without a check on this
exercise, the power to issue a certificate could be used beyond
what is necessary to protect international relations, national
defence or security. With that in mind, we acknowledge the need
to consider a review mechanism. We have made no decisions on
such a mechanism and very much look forward to your input on
As you complete your review of Bill C-36, I urge you to keep
in mind something that our colleague Irwin Cotler has expressed.
He said that the struggle against terrorism is part of the larger
global struggle for the promotion and protection of human rights
and human dignity. Terrorism must be seen as the ultimate assault,
not only on human rights but also on democracies themselves and
on the peace and security of humankind.
Accordingly, our anti-terrorism measures are a fundamental
component of our nation's human rights agenda. With that,
honourable senators, I look forward to your questions and
Senator Lynch-Staunton: Thank you, minister, for a very
strong presentation. I congratulate you and those who contributed
At the same time, I will try to convince you to keep an open
mind on the question of expiry date by bringing up the War
Measures Act. I agree with you that the contents of that act should
not be raised here, but the circumstances that led to it are similar
to the circumstances that bring us together today. Briefly, war was
declared on August 4; the War Measures Act was introduced in
the House on August 19; it was passed in both the House of
Commons and the Senate on August 21; and it was given Royal
Assent on August 22.
It was, as you said, aimed at a specific threat. The debates,
short as they were, both in the House and Senate, indicated
directly and indirectly that the War Measures Act was to be used
as long as the war was on. As it turned out, it stayed on the statute
books for74 years. It was applied for the last time in October 1970. As
delighted as those of us who were there were to see the army
come in, not many of us were delighted to see how the act was
I want to quote, from the Queen's Law Journal of the spring of
1993, an article written on the War Measures Act by Patricia Peppin, who was identified as an assistant professor at the Faculty
of Law. She said:
Immediately after the War Measures Act was invoked, the
police conducted 1,624 raids and arrested 350 people. Under
the regulations and the successor legislation, 465 people
were arrested and two re-arrested, for a total of 467 arrested
as of March 15, 1971. Of these, 403 were released without
charge. Against the 62 remaining people, 86 charges were
laid under the War Measures Act and 19 under the Criminal
Code. Forty-four pleaded not guilty and either were found
not guilty, or the Crown entered a nolle prosequi in the
record. Thirteen people pleaded guilty; five pleaded not
guilty and were found guilty. A total of 18 people were
I bring that out because I fear that if this bill becomes law and
remains on the books indefinitely, your successors in 10, 30 or50 years may take advantage of an interpretation to which we
today would not agree to engage in the same kind of excesses. I
think that alone justifies a sunset clause for the more contentious
aspects that touch on individual liberties.
You said that the sunset clause in the law that the president of
the United States signed the other day applies to only one aspect
of their act. That is so. However, in the United States, they also
have what they call congressional oversight, which we do not
have to the same extent. The president and the legislature are
partners in developing laws and also in their application and
supervision. The executive cannot get very far without Congress
calling them in and asking for justification. We do not have that
here, and the review does not give us that. A review within three
years would not give us the kind of oversight that some of us here
would like to have.
If you agree that that difference exists between our system and
the American system, does that not justify a sunset clause and, in
addition, some kind of parliamentary oversight, either direct or
indirect, not to interfere in the application of this legislation but in
order that the government, going into uncharted and untested
territory, which may infringe on individual rights, will know that
it has the support of Parliament rather than doing this on its own.
The government is giving certain ministers extraordinary
powers that I hope they will be hesitant to use. I should think they
would welcome the cooperation of some form of parliamentary
authority to help ensure the law is applied within the boundaries
that we are discussing.
That is my plea. It is not in the form of a question but I hope to
draw some reply, first, on the sunset clause to avoid the excesses
that the War Measures Act allowed in 1970 and, second, on some
form of parliamentary supervision that would help the govern
ment to develop or apply the act in the way that we all hope to see
Ms McLellan: That was a very articulate statement of
concerns. We are also engaged in addressing those issues. We
believe that we have the balance right, but refinements are also
possible. We look forward to hearing from the committees on
whether the review mechanism is sufficiently robust to meet the
needs of the Canadian public. Perhaps the committees will
suggest a review at the end of three years. Perhaps some of the
more contentious proposals should be reviewed after a longer
period of time.
You are absolutely right in your comment that we should not be
discussing this legislation in the same breath as the War Measures
Act, or even with our current emergency legislation. This
legislation deals with an ongoing threat. If there is any
comparison, our fight against terrorism should be compared, more
or less, with our fight against organized crime. Both are pervasive
and ongoing. Both have existed for a long time and both are using
globalization, technology and worldwide funding to fuel their
heinous criminal activities. We need the necessary legal infra
structure in place to address that activity.
The most contentious provisions in this legislation are offset by
safeguards, such as those surrounding investigative hearings and
preventive arrest. I went through them in some detail. I
understand the need for a review. A review at three years would
be sufficient to reassure Canadians that those provisions were
being used fairly and wisely. I will be most interested to hear
about any other potential review mechanisms in regard to those
Nothing would prevent Parliament from reviewing this bill
before three years. Parliamentarians can take up the issue on
behalf of Canadians at any time. The bill can require a review at
the end of three years. Parliamentarians can make the review
process sufficiently robust to question the application of the
legislation and the experience under the legislation, and it can
offer advice on improving the legislation at that point.
Any minister can be called before you to answer questions
about the application of the proposed legislation at any time. You
can issue any kind of report on any alleged misuse of any section
or any area where you would like to see additional safeguards.
I understand your point, senator, and although our constitu
tional framework is slightly different from the American
executive and Congress, I like to think that our executive is
respectful of Parliamentarians. I cannot, as a member of
government, achieve the objectives of my ministerial responsibi lities, unless I work very closely with the House of Commons and
the Senate, especially the two standing committees. Senator Joyal
knows this well. Those committees review the work of my
We need not minimize the degree of oversight that is possible
in our parliamentary democracy. Parliamentarians have enormous
power to ensure discussion between the executive and Parliament.
Senator Lynch-Staunton: The Emergency Act, which re
placed the War Measures Act, does include some form of
parliamentary oversight. Would you entertain an introduction of
similar procedures into this bill?
Ms McLellan: This is a different kind legislation to deal with
an ongoing and pervasive threat. Let us keep it in that context.
I am open to your recommendations for ensuring that we have
the appropriate oversight mechanisms.
Senator Stollery: Minister, I have no problem with most of
your presentation. It is obvious that you and your assistants have
been following the work of this committee.
I must respond to the comparison between the parliamentary
system and the congressional system. They have nothing in
common whatsoever. In my nearly 30 years of parliamentary
experience, no parliamentary committee, on its own, has had any
great effect on government, for reasons that I understand very
The Minister of Defence was here last week. This bill is set out
to combat terrorism. However, he said the Communications
Security Establishment can use this legislation to assist in
prosecuting big criminal activity in Canada, activity such as drug
trafficking, activity that has nothing to do with terrorism.
That is not my understanding of this bill. My understanding of
this bill is as you have described it. It is a bill to deal with
terrorism and to respond to the public concerns about the events
in New York. If one of your colleagues in the cabinet takes the
view that it can be used for other things, then I ask myself if there
are other items in this 200-page bill, which I cannot claim to have
studied in the short time that we have been looking at it in detail,
that some other minister may use to deal with something that is
not in the intent of the bill. What would you respond to that?
Ms McLellan: First, in relation to the specific issue, I wish to
clarify that clause 273.65(1) states that the minister may, for the
sole purpose of obtaining foreign intelligence, authorize certain
This is in regard to the clause you raised regarding Minister
Eggleton and his comments in relation to clause 273.65. When the
minister was before the House standing committee, my
parliamentary secretary clarified the record in relation to the intent
of this clause and the power of the minister. However, your
question is more general.
Senator Stollery: Minister, this is what I would have said after
the exchange that took place at the House of Commons
committee. That is why I am asking you. That is why I wish to
pursue it for a moment.
Ms McLellan: As I understand it, your question is a more
general concern in terms of a misunderstanding on the part of an
individual minister in the application of a provision after
enactment. I return to the point that, from my own point of view, I
believe the legislation to be clear. If there were areas where you
do not think it is clear, I would certainly seek your guidance in
terms of how we can clarify this. The review process is there,
obviously. In fact, I return to the point that you do not have to
wait three years to review any of these provisions. The legislation
speaks to a review within three years. If you felt that any minister
was not operating appropriately under the scope of a power given
to him or to her, you could commence a review at any time within
the three years. You do not have to wait for three years.
I take your point that it will be important for all of us to
understand the intent, the import and the scope of these
Senator Kelleher: When you were here last week, you and I
engaged in a discussion about the relationship, if any, betweenBill C-11, the immigration bill; and Bill C-36.
I expressed a concern to you that there could be gaps between
them arising from the fact that Bill C-11 had been drafted in the
spring, long before the terrorist attack of September 11.
Furthermore, your new bill did not in any way contain any
provisions, save one technical provision, dealing with refugees
and immigration. You were kind enough to invite us to let you
and your ministry people know if we had any thoughts in that
To fully assess the effectiveness of Bill C-36 to determine if
any gaps did exist, it would have been helpful if we had been able
to hear from your colleague, the Minister of Citizenship and
Immigration. We could have asked her about these alleged gaps
and what is being done to close them.
I am advised that not once, but several times we asked your
colleague to appear before our committee and she refused. I will
not go into it and I do not expect you to make a comment on that.
It belies your remarks when we discussed the review mechanism
in the sunset law. At that time, you said, not to forget that there is
nothing to stop the House or the Senate from having a minister
appear before them. We tried that and she flatly refused.
Frankly, as a former minister, I am quite disturbed by that sort
of conduct, particularly in this case, where this entire question is
front and centre with the people of Canada and with our
newspapers. This leaves the committee and me in a dilemma. We
wanted to discuss things with you, but it would have been most
helpful if we could have heard from the minister beforehand.
Having said that, I am quite prepared to suggest to you, in her
absence, some of the concerns and gaps that I see.
Ms McLellan: Certainly, senator. I would appreciate that, if
you think that is appropriate. I will ensure not only that my
colleague understands your concerns but also that the Committee
on National Security hears of your concerns, whether you want to
put them in the report or provide them to me here today. I can
assure you that this is an issue that the National Security
Committee will take up on an ongoing basis as we review the
application of legislation, new and otherwise. We all know the
concerns, as does my colleague, the Minister of Citizenship and
Immigration, around some of the issues to which you refer.
If you wish to provide me with those concerns today, I will
willingly take them up. I will not only ensure that Minister Caplan
receives them but also that the National Security Committee is
made aware of them as well.
Senator Kelleher: I wish to be cooperative with our chairman.
I am mindful that many people wish to ask you questions. You are
in much demand today. Unfortunately, I have quite a list. I am
wondering what might be the best way to do this.
I am very concerned that during this period we do not appear to
be doing much to stop possible terrorists coming into Canada
under the guise of refugee status. We appear to have a backlog of
over 20,000 individuals who are currently subject to a deportation
order. I am mindful, being a former minister in charge of CSIS,
how far behind CSIS is in their security checks. I am fearful that
what we have in place now will not always reach the concerns
that we are expressing. I do not like to say this, but the reality is
that it appears tha the United States is not very happy about our
efforts in that area. Approximately 85 per cent of our trade is with
the United States. If we do not do something about that issue,
there will be an impact on trade.
I can do this either way. I know your thought would be to put
this information in a letter to save time.
The Chairman: The minister has undertaken to take whatever
thoughts you have to the National Security Committee as well as
to the other minister.
We can talk about how we could deal with this as well in our
report. Perhaps you could get a specific answer on your most
urgent question. We could then make very sure that your other
concerns are placed in front of the proper members of the
Senator Kelleher: Madam Chairman, that is difficult. First,
why are we not detaining all refugee claimants who arrive without
proper documentation until their identity has been clearly
In conjunction with that question, and it addresses directly a
part of the bill, why are we allowing only 72 hours after a claim is
made to establish that a claimant is a potential threat to Canada,
after which time the individual is free to make a refugee claim
and begin a process which is likely to take years to complete?
Having been associated with CSIS for several years, I know it
is not possible to do the security checks that are required. These
people come from countries where there is not even a system that
can be checked. I am not trying to be critical of CSIS here. I am
very worried that once people claim refugee status, we are into
years of waiting. My concerns lie along these lines.
If we could, perhaps, get these questions in our report, then I
would be happy because I think the report will be going to the
minister or the committee.
The Chairman: Absolutely.
Senator Kelleher: The minister has kindly indicated her
interest. I also appreciate the fact that she will have some
discussion with her colleagues in cabinet.
Ms McLellan: It is inappropriate for me to speak on behalf of
my colleague, the Minister for Citizenship and Immigration.
Let me just say that I think that the question that you have
raised is an important one. It is one that I have every reason to
believe the National Security Committee will take up and address
in its ongoing review of the application of the laws of this country
as they relate to immigration, both existing and anticipated.
If you can provide me with those questions, senator, then I will
promise not only to take them to the committee, I will undertake
to get you written responses to them. You can then take it from
there in terms of how you would like to proceed.
Senator Kelleher: I appreciate your helpfulness.
The Chairman: Understanding your concerns about this,
Senator Kelleher, I do wish to thank you. I am sure the committee
will accommodate this issue as we get into working on our report.
Senator Bacon: Obviously, some fears are more justified than
others. I feel some concerns are important and deserve our
attention. During the committee hearings, several people
underlined the problems that might arise with the interpretation
given to the terrorist definition we have in the bill. The Canadian
Bar association was telling us that an illegal strike that could
disturb social peace in the country could be considered a terrorist
For instance, the public transportation strike or the truckers
strike which we have already experienced. The problem in our
society is that there are several illegal strikes which could
jeopardize what I would call the country's economic security. Will
these illegal demonstrations be subjected to harsher sanctions
following the adoption of C-36? Are we to understand from your
comments that such an illegal strike would not be subjected to
Ms McLellan: Yes, that is what I am telling you. You are quite
right to identify the fact that there might be an illegal strike. In
fact, we are all aware of illegal strikes where people take to the
streets and where there may even be some property damage. That
is not what is dealt with under the definition of terrorist activity.
We have certainly tried to ensure that that kind of activity, even
though illegal, would not be dealt with as terrorist activity. It is
not something that utilizes terror or is done for the purpose of
terror. However, I do know that there has been some considerable
discussion around this subject.
Has Professor Monahan appeared before your committee?
Senator Murray: No, not on this bill.
Ms McLellan: He appeared before the House committee. For
example, he suggested that one could improve this definition by
removing the word "lawful", thereby clarifying our intention that
the example that you have just provided would not be caught by
If you were to make a suggestion along that line, or perhaps
some other suggestions for clarification, then I would be very
interested in them. In reflecting on this, while we believe the
intent is clear, if we could provide greater comfort to those who
might be concerned as to whether they would be unwittingly
swept up in this, there may be things we can do. Perhaps it could
be something as simple as removing the word "lawful" in front of
"advocacy, protest, dissent, or stoppage of work." The point you
raise is important.
Senator Bacon: The development of the terrorist list is another
concern. I understand this is the Solicitor General's responsibility
not the Justice Minister's, but I have read in the SIRC 1999-2000
report, that some individuals would not be granted a refugee
status because they were qualified as terrorists. After the
investigation by the review committee, it was concluded that such
was not the case. They were not terrorists.
It is interesting to see that you are very open-minded regarding
the disclosure prohibition certificate. I feel this could be
particularly important for a person who would need to access this
information for his or her defence after being put on the terrorist
list. This review mechanism would be available only for the
certificate that prohibits the disclosure of information related to
Could someone be qualified as a terrorist and have no access to
the information that qualifies him or her as a terrorist?
Ms McLellan: You are talking about that list which designates
organizations as being terrorist. Organizations or individuals can
be listed. They can only be listed after a process that involves
direct political accountability on the part of the Solicitor General
and on the part of the Governor in Council. Those lists are also
made public. There is an opportunity, obviously, for one to make
application to be removed from that list.
There is the opportunity for review, and there are obligations on
the Solicitor General when one seeks a review of one's listing
through that designation.
As I take your question, you are then relating that and the
information on which the Solicitor General would operate to my
ability to issue a certificate under a certain clause. Mr. Mosley
thinks that you are probably referring to clause 83.05(6)(b) on
page 18, where the Solicitor General would:
...provide the applicant with a statement summarizing the
information available to the judge so as to enable the
applicant to be reasonably informed of the reasons for the
decision, without disclosing any information the disclosure
of which would, in the judge's opinion, injure national
security or endanger the safety of any person.
Mr. Mosley tells me that it has been part of the law since 1992.
Senator Bacon: What if the wrong person gets on the list?
How does he get himself removed from the list? Perhaps, he does
not know the reason. The reasons are not given.
Ms McLellan: There is a process by which this person or
organization can contest the listing.
Senator Bacon: A warrant could be issued indicating that this
person is a terrorist, without telling the supposed terrorist the
reasons why he or she is considered a terrorist.
Ms McLellan: Mr. Mosley will explain further the workings
of this clause.
Mr. Richard G. Mosley, Assistant Deputy Minister,
Criminal Law Policy and Community Justice, Department of
Justice: The procedure, as contemplated in Bill C-36, allows for a
group or an individual placed on the list to be questioned initially
through the Solicitor General or subsequently through a judicial
I believe that the object of your question is the information that
is made available to that person. That information could be
limited and provided by way of a summary. That is similar to the
procedure that has been used in the immigration context in
relation to what is called the 40.1 procedure, in which a person is
deemed to be inadmissible to Canada by reason of being engaged
in terrorism. That has been in our law since about 1992 and was
upheld by the Supreme Court of Canada as a reasonable approach
to dealing with very sensitive information, providing a summary
is given to the person who is attempting to challenge or contest
the executive's decision. That essentially is the procedure that is
incorporated into the listing mechanism in this bill.
Senator Bacon: You refer to the certificate issued by the
Solicitor General, is that correct?
Mr. Mosley: The Solicitor General would make a recommen
dation on the basis of reasonable grounds to believe that the entity
is engaged in terrorism or supporting terrorism. That then goes to
the Governor in Council who must make a determination as to
whether or not the person or entity is engaged in these activities.
That can be challenged directly to the Solicitor General by noting
that a mistake has been made and the entity should be taken off
the list. If the entity is not satisfied with that decision, the entity
can then go to the federal court for a review.
The issue that you have identified goes to the question of the
information that is made available to them. The information,
under the bill, as in the immigration context, is controlled to the
extent that the court will look at it and make a decision as to what
should be made available to the applicant, by way of a summary,
in order to avoid injuring national security.
They may advance any evidence that they may wish to bring
before the court. There are no restrictions on that.
Senator Beaudoin: As you said the other day, that this is not a
piece of emergency legislation. There is no declaration of
emergency, and there is no use of the notwithstanding clause. I am
very glad to see that.
My only concerns are on clause 103, clause 104 andclause 273.65. My guess is that the rule of law is implied there.
The basic principle of our democracy is the Charter of Rights and
the rule of law. In my opinion, the access to the court is included
in the rule of law.
I do not object to increasing the power of the Attorney General.
I do not object to increasing the power of the Minister of National
Defence because, after all, there is a question of security involved
The use of the certificates, perhaps it is just a question of
drafting, seems to block the way of access to the courts. If this is
so, it means that an ordinary citizen is precluded from having
access to the court.
Again, I do not object to giving more powers to the executive.
It is necessary in cases such as that. I agree. However, if it has the
effect of precluding the access to the federal court, this is going
very far. That is my issue.
Ms McLellan: Senator Beaudoin, you started with a reference
to clause 273.65, which deals with the security establishment.
Last time I was here, we had a discussion around that clause.Clause 273.65 deals with the obtaining of foreign intelligence and
the basis on which the minister would exercise his discretion.
Keep in mind that that relates to a foreign target, and any
interception of private communications involving a Canadian
would require judicial oversight, meaning seeking a warrant.
Senator Beaudoin: If it is on the international scene, or a
foreign target, there is no access to the court. Is that correct?
Ms McLellan: If the target is a foreign entity or individual, the
minister, under clause 273.65 may authorize the interception of
private communications. However, the target is foreign. If the
target is a Canadian, then you must apply and get a warrant, as
you do at present. Is that correct, Mr. Mosley.
Mr. Mosley: That is correct.
Senator Beaudoin: Is that true even for the international
Senator Lynch-Staunton: If a Canadian is living abroad, does
he still get that protection?
Mr. Mosley: No.
Senator Lynch-Staunton: It is only for those resident in
Mr. Mosley: The Charter protects anyone resident in Canada.
Senator Beaudoin: If it is internal, the access to the court is
respected, as it should be, of course, because it is part of the rule
of law. When it is at the international level, there is no such
protection if a certificate is issued. Is that the case?
Mr. Mosley: It is not the certificate that would provide for that;
it is the minister's authorization under clause 273.65.
Senator Beaudoin: Is the access to the court blocked?
Mr. Mosley: It is not blocked, however, the minister's
authorization is a substitute for the judicial authorization that
would be the norm if the interception were to be taking place in
Senator Beaudoin: Why is there a difference between internal
and external? The principle of law is the same.
Mr. Mosley: It is not necessarily the same, if I may, with
respect. It was recognized by the late Chief Justice Dickson in
Hunter v. Southam in 1984 that the standard of judicial
authorization for the interception of communications may not
always be required. That is the practice that has been followed in
Canada since the Communications Security Establishment began
operations in 1946 and it is practised in the four other countries
that are similarly products of the Anglo-American common law
tradition. These countries are the UK, the United States, Australia
and New Zealand. They do not require judicial warrants for
Where there is a Canadian connection, for example if the target
is foreign but the call has been received in Canada or is coming
from Canada, does it require a judicial authorization?
In our view, it quite clearly does not. That is not necessary to
meet the standard under section 8 of the Charter of protection
against unreasonable search and seizure in these very limited
Senator Beaudoin: This is at the external level.
Mr. Mosley: Yes.
Ms McLellan: That is correct.
Senator Beaudoin: Perhaps it is a question of drafting. It is not
clear. That is my concern. The rule of law is on both sides.
Senator Finestone: Minister, you have a considerable task
before you; I am sure you will come out doing well. However, we
do have questions. I am not allowed to ask you questions about
72-hour retention and how you can do that with refugees, as I
think it is very unrealistic. However, I will ask you about the
amendments to the Access to Information Act and the Privacy
Act, as well as the Personal Information Protection and
All three have exactly the same wording on the prohibition. I
am concerned about the implication of the statutory instruments.
If you will not gazette it, nobody will know what you are thinking
anyway, and one does not know what one does not know. That
was one point.
Second, I believe that we must start resisting the growing
pressure to permit increased invasion of our privacy and measures
that would erode our fundamental rights and freedoms. I do not
think that that is a soft view. There are very many areas of our
privacy life that are being invaded daily, which have absolutely
nothing to do with the issue of terrorism. It is important that we
make that clarification. To what degree is it proportional? To what
degree have we the right to suspend the question of access to
information and the question of Canadians' privacy rights under
I agree with you that collective security and personal privacy
are important. I am not talking about the secrecy of informational
documents, but the entire question of my right to privacy. Where
do you draw the line? I suggest that you review that area and take
a look at what was said by the two commissioners who appeared
here. I will not quote them. They were quite articulate and
I do believe it is subject for a serious review. You would not
want to have entrapment against the entire question of
Ms McLellan: Senator Finestone, is your question directed
specifically to the power given in this legislation to the Attorney
General to issue a certificate, thereby preventing the disclosure of
information under the access or privacy legislation, or is it a more
general concern in terms of the review of privacy legislation?
Senator Finestone: In the United Kingdom and the United
States, the certificates are revocable. In Canada, it would seem the
certificates are almost non-revocable. That creates an impression
that you are going beyond the fray.
Ms McLellan: You raise an important point and one raised by
Mr. Reid and Mr. Radwanski, which is why I said in my
prepared comments to the committee that I would be very open to
looking at the prospect of some form of review mechanism.
We have reviewed the laws of every other major jurisdiction to
which we wish to compare ourselves. Although there are
interesting - dare I say almost unusual - mechanisms in
some countries, I do think it is fair to say that every country has
some form of review mechanism as it relates to the Attorney
General or an equivalent officer making or issuing this certificate.
In some cases, the review cannot override the decision of the
Attorney General; it is simply for advice and recommendation.
I would say in response that I would be interested in your
approach to this. My comments, I hope, flag for you the fact that
we should look at some kind of review mechanism of the issuing
of the certificate by the Attorney General.
Senator Finestone: I would agree with that. Senator Bacon has
given you several options, first and foremost being the use of
SIRC to carry out that particular responsibility. Senator Kinsella
has discussed the oversight by parliamentary committee. No one
has dictated an answer to you. We have given you options.
Ms McLellan: One option that we could look at, as well, is
judicial review by the federal court.
Senator Finestone: That would be wonderful.
Senator Andreychuk: Thank you, minister, particularly for the
comments about privacy and access. It is reassuring that you are
willing to look at advice and recommendations.
I would like to touch upon two areas. One is the list. Once a
person who has immigrated to Canada is on a list of the RCMP or CSIS, it is very difficult to have their name cleared and to
reinstitute themselves into society. I would say that would be true
of all Canadians.
Would it not be preferable that there be a SIRC-like review
mechanism on the minister, on SIRC and on the RCMP when
these lists are being compiled? While not disclosing the contents
to the public, SIRC has done a valuable job of reviewing the inner
workings and has produced reports that indicate clearly that some
people should not have been on those lists. It is a salutary effect
on the machinery. Is there not a need to have that? I leave that for
you to comment.
My second point is, while the Minister of Immigration is not
here and you cannot speak for immigration, you are in charge of
the administration of justice. I am concerned that it will fall into
disrepute if we have a very strong terrorist-activity definition in
the bill. We are being asked this week to pass Bill C-11, which
allows the bureaucratic machinery to recommend to the Minister
of Immigration a definition of terrorism that can begazetted in
regulations. The definition could then be amended without further
reference to gazetting.
It makes the administration of justice fall into disrepute if we
have a terrorism definition that is different at port for refugees and
immigrants, from the one for the rest of us - permanent
nationals, permanent residents and Canadians.
If the terrorism we are trying to unearth is the one that we want
to stop at our borders, surely Bill C-11 should have some links to
Bill C-36. Otherwise, people will quickly be uncertain and
worried and will question our system. I believe that those two
bills must be tied together in a meaningful way through the
Minister of Justice.
Ms McLellan: We have had discussions with officials in the
Department of Immigration. My officials have had discussions
with the minister's officials in relation to this point. The most I
can say this evening is that this is also a matter, along with
Senator Kelleher's concerns, that I will take up with the Minister
of Immigration. I certainly understand and appreciate the point
you have made and the concern that has been voiced.
Senator Andreychuk: Could the list be subject to a SIRC-type
Ms McLellan: I am less convinced that that is the right
mechanism. The prospect exists for a review by the federal court.
Senator Andreychuk: That would happen after the reputation
Ms McLellan: Not only can a person exercise that right, but
also in the legislation, there is a review every two years on an
ongoing basis by the Solicitor General.
I believe that the process here is one that speaks to a high
degree of political accountability. These are serious issues and I
take your point. No one would ever be placed on a list lightly. In
fact, if you look at the legislation, it speaks to the fact that the
Solicitor General be satisfied that there are reasonable grounds to
believe certain things.
No one would list an organization or an individual lightly.
However, there are mechanisms of review set out in the
legislation. There is the ultimate political accountability of any
Solicitor General who would recommend to the Governor in
Council and there is the ultimate political accountability of the
Governor in Council, if one were to put someone on that list and
it became apparent that there were no reasonable grounds to be
In some of these areas that is the ultimate for me. Political
accountability is key, is important and it provides restraint on the
exercise of decision making, as it should.
Having said that, I understand the concern.
Senator Fraser: One very quick observation and one quick
question. I note that the review every two years will be conducted
on the basis of information provided by the same people who put
the person on the list in the first place. It might be worth
considering an outside review of that in the quality of that
My question has to do with a different certificate from the
human rights and access to information certificates. This is the
certificate mentioned on page 87 of my version of the bill.Clause 38.13(1) states:
The Attorney General of Canada may at any time
personally issue a certificate that prohibits the disclosure of
information in connection with a proceeding.
Does that trump the right accused to have a summary of the
evidence being brought against him or her? Does the person on
the list have the right to a summary of the information?
Ms McLellan: My advisers tell me that the court could review
that. Is that correct, Mr. Mosley?
Mr. Mosley: The court could make any order that it deemed
necessary to ensure fairness, which could include staying the
proceedings against the accused.
Senator Fraser: A court could do this of its own accord. It
would not require appeals and long, drawn-out procedures that
would keep the accused detained. The judge could do that
immediately. Defence counsel could stand up and request an
order. Is that correct?
Ms McLellan: Mr. Piragoff suggests that we look atclause 38.14 in respect of protection of right to a fair trial, which
The person presiding at a criminal proceeding may make
any order that he or she considers appropriate in the
circumstances to protect the right of the accused to a fair
Senator Fraser: Clause 38.14 continues:
- as long as that order complies with the terms of anyorder ... any judgment made on appeal from, or review of,
the order, or any certificate issued under section 38.13.
Mr. Donald Piragoff, Assistant Senior General Counsel,
Criminal Law Policy Section, Department of Justice: That
means the information is not made available to the court, and the
court then makes any order consistent with not having that
information. It basically means that the judge could decide to
dismiss the proceedings if the information is not made available
to the accused and if in his or her opinion the accused could not
get a fair trial. If the situation is such that the accused is asserting
the existence of a certain fact and wants documents to prove the
fact, however, the Attorney General says that he or she cannot
provide those documents because they are too highly sensitive,
then the Attorney General issues a certificate. In that instance the
judge could, for the purposes of that trial, assume that the certain
fact that the accused maintains is correct.
Thus, the accused gets the benefit. It comes down to the judge
controlling his or her own proceedings. It is his or her courtroom
and it is his or her trial. If the judge does not make a decision that
the other side considers to be fair under the charter then, of
course, that can be appealed. The judge's decision to not make an
order can be appealed to a court of appeal, if that judge did not
make an order to protect the accused.
Senator Fraser: I hope that section of the proceedings receives
Senator Kinsella: Minister, in my reflection on the subject
matter of the bill, it seems that, while the case is being made,
there is no derogation from the Charter rights. There seems to be
an acceptance, or at least there is a little bit of an encroachment,
therefore, special measures are designed. This is not emergency
legislation. When we look at emergency legislation, we see a
number of mechanisms to safeguard and limit the time, et cetera.
It seems to me, mutatis mutandis, that this kind of legislation,
which is unusual, requires all the more reason to ensure that
whatever safeguard we can design in this new world, we should
bring all our creativity to it. We should think outside the box.
The term "review" is used. I heard the term used quite often in
our hearings. In the bill, there is one kind of review provided
for - the review after three years of the operation of the act. The
term "review, " which is quite equivocal as we have heard it used
here, is sometimes employed by people in discussion before us, in
the sense of oversight or the monitoring of the exercise of powers
under this bill.
I am interested in whether we would have the creativity to
come up with the kind of oversight mechanism or monitoring
mechanism, that kind of review, either conducted by a panel of
retired or sitting judges, or by a parliamentary commission, as an
extra safeguard in the exercise of these unusual powers from day
one. I wonder whether, as an idea, your officials have thrown
around this model or different models of oversight of which this
committee has been seized?
Ms McLellan: If you look, in relation to the exercise of
powers, for example, by CSIS and the RCMP, there are oversight
bodies now. You have mentioned SIRC. SIRC will take up any
enhanced obligations as a body of oversight as it relates to CSIS
in this more concerted effort to root out and prevent terrorist
I suppose, as well, one has a public complaints commission that
deals with the RCMP. It is not oversight in the same way
obviously. There you have a mechanism that permits individuals
who feel that the RCMP has abused their power to make
complaint to the Public Complaints Commission and they will
review the nature of that complaint and reach a conclusion. That
conclusion is obviously made public.
I am not inclined to support some new oversight body. I believe
there are oversight mechanisms now in existence that respond to
our investigative agencies. There is the ultimate oversight in most
cases, which is the court, and I honestly believe that in many
situations there is no better or more effective oversight than when
it is reviewed by a federal court in certain circumstances, or
whether it is the ultimate review, as Senator Beaudoin has so
eloquently commented, of the Supreme Court of Canada in terms
of whether the balance that we believe we have struck here is the
right one. There is much oversight available in terms of the
operation of this legislation.
I have commented on the fact that I would be open to your
recommendations involving increased oversight around the
issuance of any certificate by myself. I would be disinclined to
create new mechanisms as opposed to making sure that the
mechanisms we have are functional and doing their job.
Senator Kinsella: As you said earlier this afternoon, you
would see that there is nothing stopping Parliament, either House,
from commencing an inquiry, if one were to blend those two, a
special committee of Parliament of either House.
Ms McLellan: That you could do within clause 145(1). It is
within three years after the bill receives Royal Assent that a
comprehensive review of the provisions shall be undertaken.
If you are anticipating an ongoing review, then I go back to my
point that we have ongoing oversight mechanisms that have
proved effective, be that SIRC, be that the courts. Therefore,I would be disinclined to think about the creation of a new
oversight mechanism that is separate and apart from those that
exist - the courts, plus the Parliament of Canada.
I take your point, Senator Kelleher, and I apologize for that, but
I believe in most cases, when a minister is asked to come, we
come, and we answer your questions as honestly, openly and
fulsomely as we can.
The Chairman: I wish to thank the minister. She has been
extremely generous with her time. I know that she cannot stay.
However, her officials have agreed to stay to answer further
Minister McLellan, thank you very much, and we will certainly
ensure that you receive a copy of our report.
Ms McLellan: Let me thank all senators. I know you have
worked very hard under short time constraints. This is important
work. We all want to get the balance right. We all want to ensure
that we are doing that which is right for Canadians and for the
world in terms of fighting terrorism. I wish to thank you again for
taking up this challenge so seriously. I will be back when the
legislation comes to the Senate after passage in the House.
The Chairman: Honourable senators, if it is your wish, our
trusted officials will stay for a period of time to deal with other
questions. I do have three questions here from those members
who have been loyal attendees of this committee, however, are
not members of the committee. I mention Senator Prud'homme,
Senator Joyal and Senator Wilson.
Senator Prud'homme: Very briefly, I would like to ask the
officials if they could explain to me, as they would to ordinaryCanadians, in simple words, the exact meaning of the definition
of terrorism under article 83.01(1)(b)(i), where it says:
An act or omission in or outside Canada that is committed.
Explain to me in simple words what is meant by:
In whole or in part for a political, religious, or ideological
purpose, objective or cause.
What does this definition mean exactly? How many people
does it apply to? How far do we go with this? We are two living
witnesses around this table of the War Measures Act. After some
agonizing moments, I wanted to vote against it but after some
brief explanations which they said were very clear, I finally did
my parliamentary duty and I voted for the adoption of the act. I
realized later on that what they had told me to make me vote in
favour of the bill was quite far from the truth.
My second question deals with the famous list. As you know,
we have had the honour recently to appoint the second honorary
Canadian citizen, Mr. Mandela. A few years ago, Mr. Mandela's
organisation would certainly have been on the list, and I imagine
very high on the list. This is where I am concerned, because I can
think of other causes. I am upset by the definition. What
distinction should be made between legitimate liberation move ments, and there are some like that, and purely terrorist
I can tell you one has to be really bright to see the distinction
and I am going to listen to you very carefully.
Mr. Mosley: The words "in whole or in part" are there in
English and in the French version simply to convey the sense that
the motivation may be mixed - it may not be entirely political; it
may not entirely be religious or ideological.
It is important, in our view, to have a clause distinguishing the
motivation of persons who engage in terrorism from those who
engage in criminal activity purely for material gain. This
conclusion was also reached in the U.K., and we freely
acknowledge that we have drawn heavily on the United Kingdom
model. They studied this issue at some length. They had the time,
because they were in the process of reconsidering what had been
temporary measures initially adopted in the U.K. and maintained
over 20 years relating to terrorism. They appointed a royal
commission that looked at the issue and made recommendations
to the government under Lord Lloyd. His report was that it is not
at all clear that modern terrorism, particularly that outside the
scope of what they had been accustomed to dealing with in the
United Kingdom and Northern Ireland, was motivated strictly for
political reasons, ergo the references to religious and ideological
purpose, objective or cause.
Clearly the entire clause is intended, as have I noted already, to
distinguish this from other forms of criminal activity. The act or
omission must be committed for this purpose or to achieve this
objective or to further the cause within the context of those terms.
Mr. Piragoff: To answer the second half of the question about
groups that might be involved in a war of national liberation, for
example, the bill explicitly provides an exclusion for armed
conflict that is in accordance with customary international law or
conventional international law. At the end of the definition, it
says, "but for greater certainty, does not include an act or
omission as committed during an armed conflict and that is in
accordance with customary international law or conventional
international law." Clearly, the charter of the United Nations
recognizes that people have the right to struggle for independence
and that that might at times involve armed conflict. Where that
occurs and where that is in accordance with international law, and
when that is recognized by international law, then it is not a
terrorist activity. This bill protects the rights of people to engage
in armed conflict for purposes that are recognized under
Mr. Stanley Cohen, Senior General Counsel, Human Rights
Law Section, Department of Justice: Honourable senators, the
words on the religious, political or ideological purpose are
actually words of limitation. They are not meant to criminalize or
single out people on the basis of their religion, their political
beliefs or their ideologies; rather, they must be read against the
rest of the clause in terms of the intention to intimidate the public
or a segment of the public. Also, they must be read against the
consequences that are supposed to be intended, that is, causing
death or serious bodily injury, endangering a life, causing a
serious risk to the health or safety of the public. Those words
should not be viewed as singling out any individual or group on
the basis of their beliefs.
There have been questions put in the course of hearings in the
other place with respect to this placing perhaps an extra duty upon
the prosecution. In a sense, it can be regarded as a protection for
people who might be accused under this legislation, in that they
would need to show this religious, political or ideological purpose
and the other intentional aspects that are involved here. That is
about as far as I go with that.
Senator Joyal: My question is in relation to the right balance
that must be maintained in the provision of the bill, especially in
relation to the power that is given to the Minister of National
Defence to authorize wiretapping in relation to Canadians and
outside calls. The definition at page 119, clause 273.61, says that
"foreign intelligence" means
information or intelligence about the capabilities, intentions
or activities of a foreign individual, state, organization or
terrorist group, as they relate to international affairs...
- In other words, international affairs is everything. It could not
be broader than that -
...defence or security.
In other words, there is no doubt that the opening is there for
international affairs. It seems to me that it is a very broad
perspective. It is not related in any way to terrorist activity as
such. Essentially, if I personally call anyone abroad and talk about
international affairs, I am susceptible to having the Minister of
National Defence issue an authorization.
That being said, I am concerned that the mechanism of
protecting Canadians under this heading is given to the
Commissioner of the Communications Security Establishment as
mentioned in clause 273.65(8), and the Commissioner reports
annually to the minister. In other words, the monitor of the use of
that exceptional power that is as wide as one can imagine is the
minister himself. He is monitoring himself, according to what the
Commissioner of the Communications Security Establishment
might give him as a report. There are supposed to be two
conditions before issuing that authorization as provided inclause 273.65(2).
Since we want a balance there, and since the minister has
repeated it many times in her presentation, both in the opening
and in the conclusion, would there not be a better way of
maintaining the capacity without stretching it to its extreme limit?
Would it not be better for the Commissioner to report to the
Solicitor General or to the Prime Minister, so that if the Minister
of National Defence is, as one says commonly, pushing the pedal
too close to the floor, or pushing the cork too deep in the bottle, at
least there is a mechanism to maintain the balance? That clause
seems to be rather too broad and lacking the kind of oversight
mechanism that would be needed to maintain the balance.
I am not saying that the Commissioner should not be there. The
Commissioner is a good agent, but give him the mandate to report
to someone else other than the minister himself.
Mr. Mosley: Madam Chair, with all due respect, the
honourable senator's question touches on matters of policy and
machinery of government that I do not believe officials are
well-suited to answer. One thing I can say with regard to this
concern is that proposed subsection 273.63(3), dealing with the
annual report, says:
The Commissioner shall, within 90 days, after the end of
each fiscal year, submit an Annual Report to the Minister on
the Commissioner's activities and findings, and the Minister
shall cause a copy of the report to be laid before each House
of Parliament on any of the first 15 days on which that
House is sitting after the Minister receives the report.
That does address, to some extent, the concern the honourable
Another important provision, found immediately above that in
proposed subsection 273.63(2)(c), requires the commissioner to
inform the minister and the Attorney General of Canada of any
activity of the establishment that the commissioner believes may
not be in compliance with the law.
Senator Joyal: How should this paragraph be read in
conjunction with paragraph (8)? When the commissioner reports
to Parliament, we know that the report contains no sensitive
information, which is part of the decision parliamentarians take on
the oversight mechanism. However, when the commissioner
reports to the Prime Minister, the content of the report could be
much broader. When there is report on the use that the Minister of
National Defence makes of his or her extraordinary power in
regard to that, there must be a balance between the two. That is a
very important decision. It involves the right of privacy of
Canadians. That is fundamental in terms of the protection we
must give to Canadians. They must know that there is,
somewhere, someone who is concerned about the balanced use of
those extraordinary powers, taking into account that the scope of
the foreign intelligence is so broad.
I understand that you cannot answer because these are matters
of policy; I just wish to bring that to your attention. It is a very
important element with regard to the kinds of protections that
should be given to individual Canadians at the same time as
maintaining an intelligence capacity involving communications
Mr. Mosley: I would simply note that the requirement to
review and report under proposed section 273.65(8) must be read
in conjunction with that annual report requirement in 273.63(3).
Thus, the review by the commissioner of the exercise by CSE of
the authorization granted by the minister must form, albeit in very
carefully chosen terms, part of the commissioner's annual report
that must be tabled in both Houses of Parliament.
Senator Wilson: I support those who believe that the definition
of terrorism is far too broad. That should be revisited. Every act
of civil disobedience has an element of unlawfulness about it.
Those acts may be very illegal, but they may not be terrorist. That
is not clear in the bill.
Support for wars of liberation was raised. There are currently
35 conflicts in the world, most of them wars of liberation. Who
defines that? When I was talking to the former primate of the
Anglican Church of Canada about this, he said he would love to
see the RCMP file on him because he was very active in
interventions in South Africa during the apartheid regime. What
are wars of liberation? Is the Sri Lankan conflict a war of
liberation, or the Sudan conflict? Hardly any of those conflicts
conform to international law. They are all outside international
law, but we must deal with them. That entire definition is far too
broad and not particularized enough.
Second, the matter of names on the list worries me a great deal.
The minister has assured us that no name will be put on the list
lightly. She has assured us of that. However, the bill does not say
that. I am not confident in that.
My understanding is that CSIS will take the names to the
cabinet. I am not sure that there is any oversight in that. How do
we get at it, other than through the courts, which most people
My major objection is that it would appear that the onus is on
the individual to prove innocence. I thought the bill was meant to
protect Canadians, rather than putting them under suspicion.
That should be looked at far more seriously than it has been to
Mr. Piragoff: The minister indicated that she has undertaken a
review of the definition, specifically with respect to whether it
could be interpreted too broadly. She indicated that the intent was
not to have a broad definition or to include within the ambit of the
definition protest activity that we would consider to be legitimate
but that might cross the line and involve criminal conduct. She
said that that would not automatically be terrorist activity. Many
protests do cross the line and involve minor property damage or
even some minor assaults.
The minister indicated that one option she is looking at is the
deletion of the adjective "lawful" before the phrase "advocacy,
protest, dissent or stoppage of work," so that one would not
distinguish between whether the advocacy, protest, dissent or
stoppage of work was lawful or unlawful. What counts is whether
that activity goes beyond legitimate protest that might involve
some criminal activity, such as breaking windows, to the level of
terrorist activity. That is the intent of the minister and the
government. The minister indicated that we would review the
language to ensure that that intent is clear.
I believe that the minister and the honourable senator share the
same intent. It is a question of the language, which may need to
be tightened up. The drafters will have to look at that again.
Senator Wilson: I did hear the minister's statement. I am just
adding my voice in support of a more stringent review of the
Mr. Piragoff: On the question with respect to international law,
at times international law may not be clear. If international law is
not clear, the Parliament of Canada unfortunately cannot make it
clear. International law is developed by the community of nations,
of which Canada is only one part. We can only try to influence
other nations to change that international law.
Part of international law, especially customary international
law, is also based on the customary practice of states or the
position that many states may take with respect to a particular
issue. With respect to the apartheid issue, an overwhelming
number of states held a particular position with respect to conduct
in the former South Africa. In fact, not only did a number of
states hold a position, they also adopted a convention contrary to
apartheid. The conflict in that country had a particular interna
Mr. Mosley: I would address the honourable senator's last
point about whether the existing process requires a reverse onus
on the part of an applicant to get off the list. The language in
clause 83.05 is quite clear that there is no reverse onus, as we
understand that term in the law. The person does not have to
To get one's name off the list, all an individual has to do is to
write to the Solicitor General and say, "My name is on the list.
Would you reconsider whether it should be on there?" The
individual may set out why his or her name does not belong on
the list, but there is no obligation on the person to prove anything.
If the individual is not happy with the decision, he or she can then
apply to the Federal Court. Again, the individual does not have to
prove anything. All the person has to do is to say, "I am on this
list. The Solicitor General has declined to recommend that I
should be taken off the list. Will you review this?"
The obligation is then on the court to conduct an expedited
review and to determine whether it was reasonable for the person
or the entity, the organization as named, to be on the list. The
applicant need not prove anything, only question whether it was
reasonable to be on the list.
Senator Wilson: By then, the reputation of the entity will have
been put in question. I do not understand that. What is the
possibility of a review of the judicial decision? What does the
person do if the court says, "Yes, you are on it"?
Mr. Mosley: If there is a material change in circumstance, the
individual can apply for a further review by the Solicitor General
and the court.
Senator Wilson: There is no possibility of a parliamentary
review or someone calling them to account?
Mr. Mosley: Not in this, no.
Senator Wilson: That is my problem with it.
Senator Jaffer: Perhaps I am confused. If someone's name is
on the list, would one consider them to be a threat to our security?
Mr. Mosley: If they are on the list, the cabinet, the Governor in
Council of Canada, has determined that there are reasonable
grounds to believe that this person has carried out, attempted to
carry out, participated in or facilitated a terrorist activity or is
acting on behalf of, at the direction of or in association with an
entity referred to in the paragraph 8. That is an inescapable
Senator Jaffer: Please consider something that is bothering me
then, not with this bill but with the Immigration Act. A landed
immigrant can be blocked by any of three implications - war
crime, substantial crime, or threat to security; the individual is out
with no appeal.
I have a great problem with that. I accept that there is a review.
My colleagues who are familiar with immigration may tell me I
am wrong. I have really been struggling with this over the
weekend. Who will review the list that names that landed
immigrant? I would like you to look at that.
Senator Andreychuk spoke about something that is of great
concern to me, and that is the definition of terrorism. I just wish
to re-emphasize that.
Finally, do you know whether racial profiling is taking place at
this time in our country?
Mr. Mosley: I do not know whether there is racial profiling
here. I believe the question was put to the Commissioner of the RCMP, who indicated that it is not carried out by his force. I do
not recall whether the question was put directly to Mr. Elcock in
relation to CSIS. I do not know what answer he may have given
to that question.
I can tell you that there has been considerable discussion about
this point, more so perhaps in the literature surrounding theU.S. legislation than with respect to this bill. The issue has come
up repeatedly in that context in Washington, as to whether those
bills contributed to the use of racial profiling.
Senator Fraser: List of terrorists - headline - question:
Would it not be more appropriate at the very outset of the passage
dealing with the list of terrorists, where we talk about facilitating,
to require that at least in the case of individuals - organizations
being a separate matter and I understand - that they must
knowingly have facilitated a terrorist activity?
Mr. Piragoff: The offence of facilitating requires "knowingly."
Senator Fraser: This is not the offence, though. This is the list
of terrorists, if I may.
Mr. Mosley: We will take that point away with us and discuss
it with the minister.
Senator Finestone: In their presentation, charitable organiz
ations expressed a concern about intention or knowledge. It is
possible there is neither on the part of the contributor nor on the
part of the institution. I would ask you to look at the last
paragraph at page 3 of the presentation of Patrick Johnson. It
would be helpful if we looked at charities, charity costs and
charity councils. They are very concerned.
Mr. Mosley: We will look at that.
The Chairman: I wish to thank the witnesses for their help.