Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 22 - Evidence
OTTAWA, Wednesday, February 20, 2002
The Standing Senate Committee on Foreign Affairs, to which was referred Bill C-35, to amend the Foreign Missions and International Organizations Act, met this day at 3:35 p.m. to give consideration to the bill.
Senator Peter A. Stollery (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I bring the meeting to order. I wish to welcome the Honourable Bill Graham and congratulate him on your behalf on his elevation to the foreign affairs portfolio.
With the minister are Mr. Keith Morrill and Paul Kennedy. Mr. Minister, please proceed.
The Honourable Bill Graham, Minister of Foreign Affairs: I have a few formal remarks to make in respect of introducing the bill. As you said, I am accompanied by Mr. Kennedy and Mr. Morrill, who will help with interpretation of specific technical issues if they arise.
It is a great honour to appear before you. This is my first appearance before a Parliamentary committee. It was kind of you to refer to my elevation, Mr. Chairman. I always assumed the term was reserved for those who came to the Senate. I am very happy and proud to be in my present position. For many years I have had the opportunity and honour to serve where you sit. It is interesting to be at this end of the table. I am sure we will have an interesting afternoon.
I look forward to working with your committee on this bill, in which I had the opportunity to be extensively engaged, as some honourable senators may know. As it appeared, this bill was brought before the Foreign Affairs and International Trade Committee when I was serving as Chair of that body.
[Translation]
We are living in an increasingly complex and interdependent world. International trade drives our economies. Financial and money markets are open around the clock.
Multilateralism remains the solution for many of the world's problems, whether it be overwhelming poverty, terrorism, transnational crime, a deteriorating environment or human and international security. Multilateralism has always been Canada's preferred tool. It is an integral part of our society and, in a way, I am proud to say that Canadians are almost past masters of the art.
It is within this multilateral context that we should review the proposed amendments in Bill C-35, to amend the Foreign Missions and International Organizations Act. For Canada to continue making a useful contribution internationally, we must ensure that we continue to play by the rules. The rules of international diplomacy have changed over the centuries. They are designed to promote bilateral and multilateral dialogue, and help representatives of governments defend and protect their country's interests, without fear of reprisals or persecution.
In an ideal world where all states respected the rule of law and where legal systems were similar to our own, we would be able to dispense with many of the privileges and immunities contained in the Vienna Convention. In the meantime, Canada has a choice: conform to the international regime of established privilege and immunity, or try unilaterally to change the regime through progressive refusal to extend the privileges and immunities at issue.
I believe that we have only one option. The overwhelming majority of states still support the current regime defined in the Vienna Convention. Choosing to no longer adhere to it would set us apart and put our own representatives at risk in countries where the rule of law is not respected.
[English]
The proposals in this bill will permit Canada to play our role in international multilateral diplomacy, as well as fulfil our obligations in hosting the upcoming G8 summit and future international events that are important for Canada. It will also permit us to continue to present Canada as a prime location for the establishment of the head offices of international governmental organizations. The bill will ensure that we are able to bring our international guests here so they can make a contribution to these meetings while being assured of their safety in Canada, just as we expect the same when we attend meetings overseas. Equally important, in accomplishing these significant goals the bill is respectful of the rights and freedoms that we enjoy and cherish as Canadians in a free and democratic society.
The proposals in the bill come at a time when it is imperative that Canada demonstrate leadership in the international arena on issues of major importance both to Canada and Canadians, such as the environment, international trade and human and national security.
This bill contains four main features, but fundamentally it is about one thing: ensuring that Canada has legislation in place to allow it to continue to play a lead role in world affairs and in multilateral fora. The first and core proposal of the bill will correct the existing legislative definition of ``international organization'' to include international organizations and meetings currently excluded due to the fact they are not established by treaty. The amendment will effectively allow the government to accord the same treatment to non-treaty based international organizations such as the G8 as it does to treaty based international organizations such as the United Nations or ICAO or other international organizations of that sort.
Senators, this is an important proposal, as it provides the government with the ability to deal by Order in Council with privileges and immunities and the legal status of international organizations and events or summits held under their auspices in Canada. It enables Canada to continue holding important international events that are integral to the conduct of Canada's international relations as well beneficial to Canada, economically and politically. The proposal is also a timing one, as it will authorize the government to grant privileges and immunities to the upcoming G8 summit in compliance with Canada's international obligations under the Convention on the Privileges and Immunities of the United Nations.
The second main proposal is found in clause 5 of the bill. The government's intent is to clarify in statute the RCMP's primary responsibility to ensure the security that enables the proper functioning of an international conference attended by persons who are granted privileges and immunities under the Foreign Missions and International Organizations Act and for which an order has been passed under the act. The RCMP takes the lead in providing security and close consultation and collaboration with municipal and provincial police at all levels. Respect for the rights of all persons is enshrined in the RCMP Act and is an integral part of the training of the members of the force. Bill C-35 in no way changes this. This proposal is not intended in any way to hinder peaceful protest. There are, of course, limits on the measures that can be used by police. These limits are found in the Criminal Code and in the Charter.
As you may be aware, clause 5 raised issues at the Standing Committee on Foreign Affairs and International Trade, which led the committee to request a government response to its concerns. That government response was tabled on February 8 in the House. I believe you have copies of that.
The Solicitor General provided his response well before the expiry of the 150 days allotted in order to place the report before the committee in a timely manner. Mr. Kennedy, an official from the Office of the Solicitor General, is with me at the table to answer your questions.
In the government response, the Solicitor General made it clear that the security proposal clarifies in statute the responsibility of the police to provide security to enable the proper functioning of international meetings. The government response also addresses concerns that the language of the provision is vague. I would like to assure you that the terms and language are appropriate and comply with the Charter.
It is the government's view that the RCMP's current authorities, policies and practices provide sufficient guidance in balancing security against Charter rights.
Finally, the government response indicates that the proposal is appropriately included in Bill C-35, given its intent to fulfil Canada's obligation to protect persons who have privileges and immunities under the Foreign Missions and International Organizations Act.
Honourable senators, in June 2002, Canada will be hosting the G8 summit in Alberta. In preparing for this event, we must take all necessary steps to protect our visiting world leaders and to ensure that this and future meetings can take place safely for foreign and Canadian participants, community members and potential protestors. This bill enables us to do that.
[Translation]
I would like to add some comments regarding the proposal contained in the bill, which specifies that when an order has been made regarding an international organization or meeting, this does not require the issuing of ministerial permits to allow entry to Canada of persons falling within the category of non-eligible persons listed in section 19 of the Immigration Act. The Minister of Citizenship and Immigration supports this proposal unreservedly.
When the Minister of Foreign Affairs plans to make an order regarding an international conference, he holds regular discussions with the Minister of Citizenship.
The fourth substantive amendment set out in this bill will allow the government to extend privileges and immunities to international inspectors who are visiting Canada temporarily for inspections under the Chemical Weapons Convention and the Agreement with the Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organization.
For example, the Chemical Weapons Convention, which was ratified by Canada in 1995, stipulates that the inspectors must have diplomatic immunities and privileges similar to those granted to diplomats under the Vienna Convention on Diplomatic Relations. The problem arises because currently neither the enabling legislation nor any other Canadian legal instrument makes it possible to extend such privileges and immunities to inspectors. As a temporary measure, lesser privileges and immunities are granted to inspectors by Order in Council.
This means that Canada could be criticized for not conforming fully to the treaty. Therefore, it is incumbent upon the government to correct this situation as soon as possible, which it proposes to do with this bill.
This afternoon, I informed you of what I believe to be the four most important aspects of the bill. Specialists are here today to talk to you about other technical amendments in the bill.
In conclusion, I urge the Committee to support the proposed legislation in order to ensure proper arrangements for major international conferences hosted by Canada, such as the upcoming G8 Summit. Bill C-35, An Act to amend the Foreign Missions and International Organization Act, will allow Canada to meet its international obligations, and promote its foreign policy objectives, without compromising the security and protection of Canadians.
[English]
The Chairman: Thank you, Minister Graham.
[Translation]
Senator Bolduc: I would like to congratulate you on your appointment as Minister of Foreign Affairs. I have had the opportunity to sit with you on a Canada-United States Inter-parliamentary Committee and I have always admired your vast knowledge of the problems we share with our neighbours to the South. I should also mention that Mr. Graham is already well known in the world of international relations because he is an expert in international law. Canada is indeed fortunate to have a man of his stature as head of this department.
I would like to raise a point concerning section 1(1) of the bill, which defines international organizations. The expression is now defined as follows, and I quote:
an intergovernmental organization, whether or not established by treaty, of which two or more states are members.
I do understand that this is where international relations are headed in today's world. Not only are there institutions established by treaty such as the International Civil Aviation Organization or the International Labour Organization, or all the other United Nations special agencies that have been holding informal meetings over the past 20 or 25 years. Things started with the G7, the G8, the G20, these being the better known meetings because they involved statesmen, presidents, prime ministers and in the case of the G20, finance ministers. However, there are many others. I would like to point out to the minister that this radically changes the very nature of the definition. Everyone understands treaties, but when we refer to some other structure, this means that informally constituted political organizations worldwide will enjoy immunities when, for example, meetings are held in Canada. This widens the definition considerably. I am not trying to say ``whether or not established by treaty''. This definition is broad. Could there be an intermediate formula, between a treaty and other known but informal situations? Could we approach this other than by stating ``whether or not established by treaty''?..
Mr. Graham: Thank you for your generous remarks. I think that it is always dangerous to be considered an expert. To answer your question, this point was raised with the House of Commons Foreign Affairs Committee. We were informed that the House and Senate Joint Procedures Committee had noted that only international organizations established by treaty were covered by the privileges and immunities granted under the Vienna Convention. Meetings such as the Quebec City Summit, for example, which is a well-established institution where the heads of state of the Americas meet every three years, have not been established by treaty. We have the G8 and there are other organizations. It takes a lot of time and work to establish an organization and secure a formal treaty. We had a gap in the system and the only way to address it was to include ``whether or not established by treaty.'' This does not mean that the government denies the intent and the possibilities of naming any institution as falling under the privileges granted by the legislation. It would extend exclusively to international institutions of which Canada is a member or for which Canada is hosting a meeting.
Senator Bolduc: Is there not a way to address this situation with a regulatory instrument or other instrument? With the definition being statutory, this means that we will have the interpretation that is given primarily by the government. At the worst, if someone were the victim of, say, a police action taken by another institution, that institution could state ``We are an international organization''. This bothers me.
Mr. Graham: It is regulatory power. Only institutions that have been named by Order in Council may benefit from this privilege. The government is obliged to specify the situation and name the appropriate organization by Order in Council. This power is used with great discretion.
[English]
Senator Stratton: Minister, I offer my congratulations to you as well. You put a refreshing face on a department that was run for years by a former Manitoban and a colleague of yours. It will be interesting to watch.
Mr. Graham: He is watching me, too.
Senator Bolduc: Yes, he is supervising, I understand.
Senator Stratton: I imagine you get comments from him regularly.
At any rate, I would like to address twelfth report of the Standing Committee on Foreign Affairs and International Trade. You have given us a brief written response.
The committee testimony raised serious concerns about the adequacy and interpretive clarity of the existing language in clause 5, notably in regard to the provisions regarding the primary responsibility of the RCMP for taking measures including the establishment of security perimeters that are appropriate and reasonable in the circumstances.
I know you have written this report, but could I hear from you as to how you have responded to those concerns raised in the Twelfth Report to the House?
Mr. Graham: It is appropriate to address those concerns directly.
The concerns arose, senator, because there was testimony by academics and others who came before the committee and said they believed the bill contained extensive enlargement of powers of the police. The committee was concerned by that testimony.
The testimony of the Solicitor General's department and other experts was that this was a codification of existing police powers. We had a debate between conflicting evidence of experts, which sometimes happens before committees. There were different views. Particularly when we have lawyers, there will be different opinions about statutes and how they are to be interpreted.
That is why the committee, as you point out, said it had concerns about this and asked the government to respond. The Solicitor General is to be complimented for submitting its report in a timely fashion for honourable senators to have an opportunity to consider it. The Solicitor General did not wait for the 150 days permitted by the legislation.
I have considered that response. Basically, it takes seriatim the objections raised before our committee at the House and says that this does not expand on the police powers, that the Charter will continue to prevail, that police, when they exercise any power — for example, controlling a demonstration or in any other way — always have a responsibility not only to protect international persons but also to guarantee the exercise of rights of Canadians that are provided for in the Charter and under the Canadian Constitution. The balance is maintained in the statute. That is the thrust of the Solicitor General's report to us. I accept the conclusions and analysis that the department has put into this concern.
Senator Stratton: The timing of the bill has been of interest to many people, including the media, because of events, of which we are all aware, that have taken place.
With respect to a bill such as this that involves security and police powers, how will you measure the effectiveness of what we are discussing today? Will you review it? Will you monitor on a regular basis? Do you report to Parliament? What do you do to measure effectiveness over time?
Mr. Graham: There is no specific measure in the proposed act. It is not like Bill C-36, which called for a parliamentary review in a certain period of time. Most of our legislation does not do that. However, it is certainly subject to the constant scrutiny of honourable senators and members of Parliament, as it is applied. If there are problems, I am sure they will be addressed either in the House of Commons or by the government. I do not foresee that as a problem. What is most important is that we clarify at this time how future events will be handled.
I was personally in Quebec City. I do not know if some honourable senators were there. I thought the police did a good job there. They collaborated well with the three levels of police, but I think everybody could use some clarity about the procedures that are to be used. That is what the bill tries to do.
Senator Stratton: That is exactly my concern. If we have an event such as Quebec City or that in Seattle where an extremely difficult situation arises, we, and the media, will be watching how not only the police but governments react to it. My concern is what if an event such as a Seattle or Quebec City should occur. Although Quebec City was, as you say, properly controlled, the optics on television show otherwise. The reaction is if someone is hurt or injured or, God forbid, killed, then you know what will happen.
My real concern is that there is no oversight or scrutiny of the effectiveness of the bill over time. Why would you not be open to reporting to Parliament, for example, on diplomatic immunities? We had that particular case of the unfortunate accident here in Ottawa. Why would we not have the opportunity to hear from you on an annual basis to report on such events?
If, for example, all hell does break loose, then for the sake of everybody, you would want to report and state to us in Parliament what went wrong, why it went wrong and how you will correct it.
Mr. Graham: It seems to me your question raises two distinct issues. One is the application of clause 5 and the police powers contained in terms of a meeting. The other is the issue of diplomatic immunity, such as the tragic accident that took place here in Ottawa. I will address them separately.
I will ask Mr. Kennedy to address the parliamentary or supervisory aspect. I will make a comment about the application of clause 5, as I understand it.
There are two things we are trying to ensure here. One is that internationally protected persons, when they come to Canada for a meeting, will be properly protected. Also, that the protections, when offered, are offered within a framework that respects the Canadian Constitution, the right of protest to take place and the right of citizens to carry on their lives. This is the balance which the bill seeks to achieve, and which I think we achieved in Quebec City.
You mentioned Seattle. The terrible events that took place in Genoa come to mind too, where death of people occurred. Because of the way our police are trained and operate, this is the type of thing that we, in Canada, have not had to face. I do not think we will have to face that because of our close police training and the framework within which they operate.
I think that they are respectful of the rights of citizens, and in the event that someone is injured, there remains the supervision of our courts. As you know, there was an action that took place in the Quebec courts after the Quebec Summit. In fact, the action was dismissed because the allegations made were found by the court not to be correct, but the action was taken. Canadians can always bring an action in the courts to bring the police to account if they have exceeded their powers or authorities.
As for parliamentary supervision or direct governmental supervision, I turn to Mr. Kennedy.
Mr. Paul E. Kennedy, Senior Assistant Deputy Solicitor General, Policing and Security Branch, Department of the Solicitor General du Canada: Dealing with the issue, the report clearly indicates there is no actual change in terms of police powers. We are trying to clarify one item in terms of access or egress. In terms of the reference to another Seattle kind of event, we have had Windsor and Quebec City since then, and others throughout the world. In Canada there are fairly extensive checks and balances in terms of any individual who feels that his or her rights have been abused. With reference to the RCMP, clearly you can make a complaint to the Public Complaints Commission against the RCMP. The same procedures exist in every province for every police force. They are all there.
There has been a reference to the fact you can have civil and criminal charges. People can charge a police officer with a criminal offence in a civil suit if they feel they have been assaulted or abused. People, in fact, use that option. Within the force itself, there are internal discipline procedures, in terms of policy guides and conduct, where individuals can be disciplined. There is very elaborate structure here, which in a democracy is well developed and put in place and allows people to address these issues.
For the RCMP, once a complaint is issued, the full apparatus can go into action. Vis-à-vis the APEC inquiry, that went on quite extensively. It shows an extensive oversight review and follow-up of any concerns about how these things actually play out. Obviously, ministers attend before their colleagues in Oral Questions. They also attend before a variety of committees of Parliament each year, in terms of Main Estimates and the like, where these issues come up. I believe the rules state that committees, on their own initiative, can invite ministers to attend and account for whatever they want as well. We have tremendous scope in terms of existing lines of accountability, both in law, in court, and oversight mechanisms that have been put in place, plus your own capabilities.
Mr. Graham: On the other issue where diplomatic immunity is abused by someone drunk-driving, my predecessor, Mr. Manley, made it very clear when that incident occurred that violations of the terms under which diplomats are accorded their privileges will not be tolerated, and their privileges will be revoked in the event they conduct themselves in a way that violates Canadian law. We have a very strict policy in the department to do that. I intend to follow that procedure. I am accountable in the House to answer questions in respect of that and I am accountable before the committees. I am happy to appear before this committee on any occasion. I hope I will have another occasion to appear before you. If you have concerns about the application of that, I will respond to them.
Senator Stratton: I am curious, now the Prime Minister is out of Russia, what is happening with the particular case of that diplomat. What is the status?
Mr. Graham: They are proceeding with the trial.
Mr. Keith Morrill, Deputy Director of the Criminal Law, Privileges and Immunities Section, Legal Bureau, Department of Foreign Affairs and International Trade: We had expected that the trial would proceed last week and this week. However, for administrative reasons relating to Russian law, it was put off for a month. It is scheduled to begin on March 12 in the courts in Moscow.
Senator Stratton: Have you full confidence that, in that system, justice will indeed be done?
Mr. Morrill: It will be a decision of the courts. We have every indication that the Russian prosecutors are taking the matter very seriously. They have made great efforts to gather the appropriate material in order to obtain a prosecution. In this case, yes, we have confidence that they will approach the case in an appropriate manner.
Senator Stratton: How long will it take the trial to conclude? Do you have any idea?
Mr. Morrill: I am not certain. I understand it is expected to take two weeks.
Senator Stratton: Lastly, you would not, minister, entertain an amendment whereby Parliament, which should have scrutiny, receives reports once a year with respect to this, at least for the first five years?
Mr. Graham: I hate to use the slippery slope argument, but Parliament passes a lot of laws, which are all subject to the scrutiny of Parliament at all times. I am there in the House. That is the political process.
Senator Stratton: Is your answer no?
Mr. Graham: At the moment, I would be hesitant to do that.
The Chairman: I remind members that at five o'clock we have Mr. Borovoy from the Canadian Civil Liberties Association.
Senator Corbin: Mr. Minister, I also wish to congratulate you.
I would like to talk about the right of protest. I am not young any more, but I must say that I have a lot of sympathy for a younger generation that does not agree with government policy or world body policy, whether it be the WTO, the IMF or the World Bank. They are concerned with the way things are evolving in poorer nations.
I am not going to talk about people with spiked baseball bats, but legitimate process. I think that police measures that are meant to safeguard the progress of conferences and protection of people are the result of police judgment. I find them in many cases to be excessive. One thing I do not understand is how elements that come here not to engage in proper civil protest but to commit acts of violence are allowed to come into the country in the first place when a lot of these elements are well known. I am getting the impression that the government is not listening anymore and does not want to listen. This is a fundamental concern of mine. I attempt to keep myself abreast of what is going on at all of these more important meetings around the world. If the younger generation cannot get its message across to people without being intimidated by 10-foot barbed wire fences and what have you, how will you get down to their level and listen to them?
There is a dichotomy here between protection of VIPs and a lack of understanding of the concerns of the world youth today and of the poorer nations. There is a large gap there. It bothers me and it bothers many people. Many people are mad right across the world. They do not intend to pick up spiked baseball bats, but they want their voices to be heard and they want governments to respond. How will you handle that, as a minister, in the context of this type of legislation and terrorism legislation et cetera?
Mr. Graham: You have put your finger on an extraordinarily important issue in modern society. Much of what I will tell you is founded on my own personal experience in Quebec. Many of my own constituents — some of them not necessarily younger, some my own age — were outside protesting, in particular, environmentalists and others who were very concerned about certain issues. I am of the view that people have the complete right to protest and their voices must be heard. I totally agree.
At the Quebec City summit, the government made an extraordinary effort, both prior to the summit and during it, to hear the voices of citizens. We had an extensive outreach program that went to young people and engaged Aboriginal groups and many NGOs. I had the privilege of chairing a series of meetings with ministers and NGOs. At the actual summit itself, I chaired a meeting where we had 75 international and Canadian NGOs around a table with 18 ministers from the Americas. They had never been subjected to this process before. They were asked questions, just as you are asking me questions, such as, ``What will you do about this and that?'' Some of those people were young and there were representatives from churches. This was a broad-based group. That is one model that I should like to try to continue to ensure that, whenever possible when we have international organizations, we have some representation so that they have an opportunity to listen to what we call civil society. That is very important.
I am not sure that is possible at something like the G8, however, because of the nature of the leaders being there. That certainly worked in Quebec City and I would like to examine being able to do that. That is what we are trying to do in Canada. By the way, the then President of Argentina — and, it is unfortunate because that regime has since changed — had promised that when Argentina hosted the Summit of the Americas, the same efforts would be made there. Canada has been a leader in this. However, it is difficult. The solution for Quebec City of establishing a perimeter seemed to enable representations to be made and activities to be carried on within the perimeter without threatening the security of the visitors while at the same time permitting access to the summit. That is more like a police problem. I will ask Mr. Kennedy to address that dimension.
Mr. Kennedy: There is actually a subtext to your question. One deals with those individuals who come to these functions, as you have indicated, with malice of foresight and want to wreak havoc as opposed to expressing lawful protest and dissent. There is extensive interagency cooperation, for example, among the RCMP, the intelligence service, Citizenship and Immigration Canada, Canada Customs and so on. At least at our borders, if there are individuals who have engaged in violence and other protests — and, there seems to be a caravan that runs around the world for these things — and if they can be identified at the point of entry, they are refused admission to Canada. They are checked to see if they are carrying items that would be unlawful. Clearly, those things have happened in the past. Part of the effort with respect to the Summit of the Americas was that kind of inter-agency cooperation that stopped a fair number of people coming across the border and had these items removed. We are democracy and we want to preserve democracy. You want to have the kind of protest that you have indicated, but one that does not have the violence component attached to it. That actually does occur.
With reference to the means that are actually deployed, each of the sites at which we attend are not carbon copies. They are different expressions. Windsor was much more modest in terms of the kind of actions required to provide safety and security for visiting dignitaries. Quebec had one model; presumably, Kananaskis and others will have other models. Each of these is driven by a case, bearing in mind the overriding requirement to have the ability to have those rights expressed. Yet, it is a fine balance. Each one is case specific as to how it is carried out and done.
Senator Andreychuk: Minister, I add my congratulations on your appointment. You are getting good support from this side of the table because we have had the opportunity to work with you and we hope that we can continue to work with you in this same spirit.
Mr. Graham: I will take advantage of it while it lasts.
Senator Andreychuk: I am sure it will last.
I am looking forward to working with you in this position because I know, from previous conversations and meetings that we have had, about your support for the department and the need to consider the support that must be given, both to the development of career officers within the department and their wages relative to other career opportunities. This area has been sadly neglected and I am looking for great things from you regarding paying attention to doing what is necessary for the department. I think that is the start of good diplomacy. I want to underscore that.
Mr. Graham: Are you planning a return to the diplomatic core?
Senator Andreychuk: No. I am free and clear to say it now. I think I speak with some authority with respect to how necessary that area is.
Perhaps because of some of my past experience, I wish to go back on the two areas that have been touched on by my colleagues on this side. The definition of ``international organization'' is so broad and the fact that it will be governed and controlled by Governor in Council identification of the organization does not give me as much comfort as it does to you. While I think the government will start treating this definition cautiously at the start, it is a very broad definition for any type of meetings that we may plan, intergovernmentally, any kind of association that we may have and any embryonic organizations that are arising. It is not that we should not have this kind of activity. In fact, we should encourage more dialogue bilaterally, regionally and multilaterally. However, if we afford the people within those organizations to come to Canada with full diplomatic immunity — which is what I understand to be the case, subject to a few minor provisions — we will be drawing on a pool of people in all of these new areas that are bubbling up who are not the traditional diplomats. They will be under cover of diplomatic immunity. Are we therefore prepared to understand who this cadre of people will be that will be coming under this extended international organization? Obviously G8 is not the kind of organization I foresee, but I would want more assurance than some scrutiny of a regulation that will identify the organization.
In what kinds of practical ways will you ensure that professional and top level persons will get diplomatic immunity as opposed to those on the other side who may not understand their full obligations when they come into the diplomatic sphere? I am not worried about ministers per se. That is one question that troubles me.
I understand why we have to go beyond treaty based, but I think that opening the floodgates and saying that we will control it by Governor in Council is not quite the way to go. I had hoped you would have given some thought to the level of organization in order to give us some comfort level on that.
Every time we have a conference like APEC or Quebec City, there is natural tension for ministers like yourself and the Prime Minister. On one hand, you want to have the best ever G8 or APEC. To do that, you must have the best participation. Some of our colleagues are not on the same wavelength as us with regard to democracy and good governance.
We really wanted Indonesia to attend APEC. It was important to have a full APEC, which meant that we had to have Indonesia here. Some countries set certain security requirements in order to come. That puts inordinate pressure on our government to alleviate their fears about their security. That tension will be exacerbated by the fact that we are now going to open conferences beyond the traditional organizations that have attended.
In the Indonesia situation, there were enough people, both within Parliament and outside Parliament, who said that we should not yield to the demands of Indonesia, that we should not change our right to free speech because of its demands to never have to face a Canadian who may say something Indonesians do not like to hear. We were trying to strike a balance there.
Surely we will exacerbate the tension that the government will feel. How will you deal with those things operationally?
Mr. Graham: On the first issue of traditional organizations, it does say ``intergovernmental organizations.'' It is clear that we cannot issue an Order in Council to cover any group of people with diplomatic immunity. It is intergovernmental organizations.
Senator Andreychuk: They number in the thousands.
Mr. Graham: Yes, there are many but, as I said in my introductory comments, we are living in an extremely complex and interdependent world that requires a whole new set of skills and organizations.
I believe that you are familiar with the Arctic Council, which has Aboriginal representatives on what was hitherto exclusively reserved unto governments. This is a good thing. You would probably agree that in managing today's international affairs we are into a new world, very different than the static idea of the nation state as the only actor worthy of recognition. There are church groups and many international organizations that influence the outcome of international relations and we must be flexible enough to include them in the negotiating process that enables Canada to participate fully in that world.
I do not think this will be a problem. It will be intergovernmental organizations that are covered by the statute. This is not a slippery slope that will expand to organizations that should not be there. I do not disagree with you that one of the issues we must face as a government and a country is that sometimes you engage in negotiations with people who do not share your values and standards or who criticize organizations that have been here in the past.
You will recall that at the time of the Francophonie and APEC meetings there were criticisms of some of the participants. As a society we must strike a balance between having a dialogue with people we do not like, in order to achieve our goals of making a better world, and not hosting some of these organizations. These are the types of things we are learning about as we go. We learned a lot from APEC, as we have from all the meetings we have held. I think we have a good track record, not only on the police powers aspect but also on the political dimension of handling them.
Mr. Morrill: On a more technical level, it is true that we are changing the definition of ``international organization'' in the statute. It is perhaps useful to recall the definition that currently exists. Currently, ``international organization'' means any intergovernmental organization of which two or more states are members. When that definition was passed, which is quite similar to, although a little broader than the definition in previous acts, it was not the view of the drafters of the statute that excluded non-treaty based organizations. I can say that with some certainty because in 1988 an order was passed under the previous statute, the Privileges and Immunities (International Organizations) Act, for the 1988 G7 summit in Toronto. Someone actually applied to the court to try to exclude Mrs. Thatcher and the court said that she had immunity.
As Minister Graham has said, the Senate and House of Commons Standing Joint Committee for the Scrutiny of Regulations decided in the mid-1990s, based on its interpretation of the general understanding at international law of what an intergovernmental organization was, that it could only apply to a treaty organization.
At that time there could have been a debate on whether bodies like the Organization for Security and Cooperation in Europe, OSCE, are in fact organizations. My view has always been that they are. However, obviously, if I disagree with the joint committee, the joint committee is right. Certainly if such a body can come to that conclusion, a Canadian judge can also come to that conclusion. It was important to clarify the issue.
I would not say that this change in definition will come to reflect a major change in practice. It is designed to ensure that we can respond to the new sorts of organizations, such as the OSCE or the G8, and, in my understanding, it does not reflect a change in policy so much as a necessary response to the considered views of the Standing Joint Committee for the Scrutiny of Regulations.
We do not pass such orders lightly. They are important documents that can impact on the rights of Canadians, and that is taken very seriously. There are a number of meetings held on a very regular basis for which no orders are passed. Orders could be passed, but the analysis is they are not necessary.
Speaking with my underpaid foreign affairs bureaucrat hat on, when we can avoid the trouble of passing such an order, we are very happy to do so. We are not hoping to open the floodgates and pass orders for everyone. We pass them rarely. Only one or two a year are passed.
Senator Andreychuk: I would like a written answer to the following question: To what extent can the countries and the officials who come from other countries for these meetings bring their own arms and their own security forces? I would like an update on that. What arms, equipment and security personnel can they bring into Canada?
Mr. Graham: That is a very good question. We will provide the committee with an answer.
Senator Graham: I do not know how many times I have to congratulate Uncle Bill on his appointment. I am especially delighted that he will now have sufficient staff to be able to book, in advance, his own accommodations at the various international conferences that we have attended in the past, where he would generally arrange to arrive before me and take the room that had been allotted to me. I am sure that he will have much grander surroundings than formerly.
Mr. Graham: It is the only way I could get a suite.
Senator Graham: Senator Andreychuk has prompted Mr. Morrill to ask for a raise. She also prompted me to ask a question relating to APEC, not necessarily the specific problem raised by Indonesia at the time, but to ask generally, if Bill C-35 had been the law of the land in 1997, how would the APEC Summit have been handled in respect to security any differently than it was in 1997?
Mr. Graham: I will let Mr. Kennedy address that from a more experienced perspective. Just considering the face of it, international meetings require extensive collaboration between various police forces to make them work. For the APEC Summit in Vancouver, clearly there were forces in addition to the RCMP. One point that is clear from this proposed legislation is that the RCMP has the lead role in the responsibility for organizing such events. You may wish to correct me, Mr. Kennedy, but there might be some small difference. I believe that they were accorded the lead role by the municipal authorities, but this removes any sort of argument. That is one dimension.
I would hope we gained experience from APEC and that the police and all of us have learned about police practices to help us avoid problems such as those that arose at APEC. Mr. Kennedy mentioned both Windsor and Quebec City where the kinds of problems that occurred in Vancouver were avoided. However, life is a continuing, living experience and we are always learning something new.
Mr. Kennedy: Certainly, we have indicated to you that clause 5 does not change the common law powers. We are not talking about an enhancement of powers. The police today would have had the same powers as in 1997. You are actually talking about how the powers are discharged and how the particular challenge before you is executed.
The minister is quite correct when he says that there is an issue of lessons learned. Consider the particular dynamic that happened at APEC, and then right after that at Seattle. Compare the handling of APEC to the handling of Seattle, and you will note that the Canadian experience was certainly better than the American experience.
The meeting in Windsor of the foreign ministers from the Organization of American States went better, and, of course, comparatively speaking, the summit in Quebec City went quite well. There was an interim report issued by Mr. Justice Hughes in respect of APEC and we are awaiting the final report. However, the Commissioner of the RCMP clearly indicated that he accepted all the recommendations in terms of how the RCMP would carry out its particular duties. Justice Hughes also indicated that in his experience, by the time he had done that analysis, the police had changed their practices organizationally in respect of how they would respond to those particular events. He indicated that they had already acted on lessons learned.
The phenomena of the protest that you talked about is one that broke upon the world scene right around the time of APEC, but more importantly it continued after that in Seattle, Washington, Genoa, et cetera. You can go right around the globe and realize just how it took off. Our comparison is between APEC, Windsor and Quebec City, which stands in marked contrast to the success, or lack of success, that other jurisdictions have had.
Clearly, the Commissioner has indicated that RCMP has changed its practices. There were organizational problems at the time and those have been changed. That is why it has been more successful compared to our international colleagues.
Senator Graham: If clause 5 gives primary responsibility to the RCMP, how does it affect other police agencies?
Mr. Kennedy: That question came up. The reality of these events is that there is inter-jurisdictional cooperation between the RCMP and the other forces of local jurisdiction. In Quebec City there were four police forces involved in discharging those duties: the Sûreté du Québec, Quebec City police, Sainte-Foy police and the RCMP. At each of these sites, it is a collaborative effort between all of those police forces. That will, in fact, continue. The RCMP already had prime responsibility to protect internationally protected people, and that flowed from the provisions under the Security Offences Act. That was there and that did not affect how we have been discharging our duties.
Since that came up as a concern, we are saying that prime responsibility does not mean sole responsibility. To address the concerns of those who thought ``sole'' meant occupying the entire field, we borrowed the same language from the Security Offences Act that gives the RCMP prime responsibility for attacks against internationally protected people or threats arising on the security of Canada. That same language was imported in clause 5 into proposed paragraph 10.1(4) in the new section. It is a collaborative effort. You cannot do it alone. The RCMP cannot do it alone. We have a federal obligation by treaty under the UN Conventions and we have it in domestic legislation. That has just been reflected here.
The Chairman: I will have to bring this to a close shortly.
Senator Graham: My question can be answered with a yes or a no. In Quebec City, there were four police agencies including the RCMP. Under clause 5 of this bill, the RCMP would have prime responsibility. In respect of how a situation should be handled where there is a difference of opinion between police agencies, would the RCMP have the final say?
Mr. Kennedy: The RCMP always had the final say in respect of protection of internationally protected people, IPP. At these sites, there are zones. The inner zone is the IPP and that is the primary responsibility for which the RCMP has the lead. The other areas or zones that extend out from the site would reflect dialogue with the other police jurisdictions.
Senator Austin: Minister Graham, congratulations on your appointment. You have given great inspiration to law students who aspire to careers in international affairs.
I want to pursue the issue of foreign security personnel and ask you to add to your briefing to this committee the specific designation of legislative authority for those people to enter Canada. I presume that you intend to give them diplomatic immunity if their principles — the people they are protecting — have diplomatic immunity.
I am wondering about situations such as the one in London some years ago, when security people in the Iranian embassy fired on protestors who were demonstrating in front of it. I do not imagine that would happen, but what if a foreign security person actually injured someone or caused a death? Would he or she have diplomatic protection? Would he or she leave? Would you cover that in a letter?
The Chairman: I think it was the Libyan embassy.
Senator Austin: No, it was the Iraqi embassy.
Mr. Graham: We can respond in a letter. My understanding of the system is that when a delegation comes to an international meeting organized in Canada, that delegation will submit a list of people who are coming and will be granted these privileges and immunities. Canada is always free to refuse them to anybody on the list. We will have our own ability to consider the suitability of the people on the list with respect to getting diplomatic immunities. This sort of temporary grant that is envisaged in this bill is different from the normal situation when someone takes up residence in Ottawa as an ordinary diplomat who might commit, as you suggested, a breach of Canadian law.
Senator Austin: In international practice, the President of the United States travels with his own security, including in China. With respect to our discussion, taking Kananaskis as a hypothetical case, would armed U.S. security agents have diplomatic immunity? Would anything they might do be diplomatically protected, and could they leave Canada without any action and go back to the United States? It is that model of problem I am asking you to advise us about in writing.
The second issue is the word ``reasonable,'' in clause 5, proposed section 10.1(2), the perimeter issue, ``in a manner that is reasonable in the circumstances.'' I imagine that, because you have introduced that word, it is necessary in terms of Charter compliance. Therefore, I imagine it is justiciable. In other words, you can Order in Council an area and someone can ask a court to determine whether it is reasonable.
Mr. Graham: The same discussion took place before the House of Commons committee, as I recall. My understanding is the act is subject to the usual review by the Federal Court as to whether any exercise of any powers under it is beyond the capacity of the government in the circumstances. Therefore, they would be subject to court review, perhaps either prior to or subsequent to if something occurred.
Regarding foreign police or foreign agents in Canada, my understanding of the practice is they are sworn in as Canadian constables. They are not given diplomatic immunity, but they are then acting as police officers would in the exercise of their duties in Canada and would be subject to the usual constraints of Canadian law in the way they carry out their duties. If they abuse those duties, they would be subject to the same authority of a court as a Canadian would be.
Senator Austin: Could we prevent their removal from Canada if they committed an offence in Canada?
Mr. Graham: If a police officer in Canada does something crazy, he can be arrested for it, and these people are in the same position. They are not diplomats.
The Chairman: Thank you, minister, on behalf of the members of the committee, for taking this time. It has been very interesting. The questions and answers were useful to the committee.
Mr. Graham: Thank you, senators. I look forward to my next appearance before you.
The Chairman: Honourable senators, I welcome Mr. Alan Borovoy.
Mr. Borovoy, I call on you to make some remarks about Bill C-35. The committee would be very grateful.
Mr. Alan Borovoy, General Counsel, Canadian Civil Liberties Association: The Canadian Civil Liberties Association's interest in this bill is confined to the issue of providing security for intergovernmental conferences. We will not address the other provisions. We will deal exclusively with this one.
Bill C-35 seems to have been whisked through the House of Commons while most of us interested in these matters were somewhat distracted by Bill C-36. As a matter of fact, as we reviewed the record, it seemed that there were only two non-governmental witnesses, and they were there by special invitation, as far as we can tell. There may be other things we have not been able to pick up in the record, but we were not notified about any hearings in the House, so we are here. It has long been the view of the Canadian Civil Liberties Association that the upper chamber in our system can be particularly helpful when there has not been adequate debate before the House of Commons.
Addressing the merits of this bill, the key section, from our point of view, is the one that empowers the RCMP to take what the bill calls ``appropriate measures ... to the extent and in a manner that is reasonable in the circumstances.'' Nowhere does the bill attempt to provide guidance as to how this terminology is to be interpreted. Nowhere does the bill attempt to spell out all of the various interests that must be accommodated. We are left with simply ``what is reasonable in the circumstances.''
It is interesting to note that the behaviour of an inspector from the RCMP became an issue before the Hughes inquiry into what went on at APEC. The inspector was involved in the decision to remove some of the protest signs that were on display at the APEC conference. When he was questioned about this at the House inquiry, he said that his mind was on what was reasonable under the circumstances. In short, he was using the very terminology that this bill uses, yet it appears that the Hughes inquiry took a rather dim view of the way he interpreted those words in the context of the APEC situation.
In our view, this bill is defective not only for its failure to provide specific, substantive criteria but also for the amount of power it reposes in the RCMP. The decision to limit access to areas that are normally accessible involves more than security considerations. There are many other interests to be factored into the equation here: The interests of home owners, whose homes might be affected; the interests of businesses, of workers and of sightseers, and the interests of protestors and demonstrators, whose interests must also be taken into consideration.
Except for exigent circumstances, it is our view that it is not a proper function for the police in a democracy to adjudicate among these competing interests. The role of the police, in our view, is to enforce the decisions that are made by the appropriate authorities and not to make the decisions themselves.
Decisions of the RCMP in this context are very likely to be perceived as being motivated by an interest in easing the burdens of its job, of its responsibilities. As sympathetic as anyone might be to that interest, and even to the more important security interests, that must be balanced against other interests. I will use one interest as an example: the interests of protestors. I will talk about what I conceive to be the legitimate interests of protestors. In saying this, I am not including the desire to break the law, even non-violently, for these purposes as being among their legitimate interests.
It is our view that the legitimate interests of the protestors include trying to create an atmosphere of political tension and censure for those whose activities they are protesting. That means getting as close as they can get to the action. From far away, you cannot generate that atmosphere of political tension, which is a legitimate interest of lawful protestors.
You have a situation in which the protestors are interested in getting as close as they can to the action. It will often be perceived by RCMP officers to be in their interests to get the protestors as far away as possible because that eases their job of regulating traffic and of providing security. It is a lot easier when the people who are having conflict are further away. One wants to get close; the other wants them further away.
A friend of mine once put it very nicely. He said that in a democracy, no one should be the umpire of his own ball game. Therefore, it is our view that how far and how close is not a decision that should be made by the RCMP or any other police force. Except in exigent circumstances, it should not be their role.
In the first instance, we believe this should be a political decision. A cabinet minister should decide what the perimeter will be and how close protestors can be. A cabinet minister should seek the advice of the RCMP and the advice of any other relevant police force and then try to adjudicate whatever conflicts there might be. That is only in the first instance. Should it be a political decision, even there, political decisions or ministerial decisions are likely to be subject to the perception that their interpretations of the statutory criteria were influenced more by what is popular than by what is right. Therefore, the ministerial decision should, in turn, be subject to judicial approval.
I note that in most cases, for intergovernmental conferences, we usually have months of advance notice that they are going to occur. Although it is not likely, there must be an exemption for exigent circumstances. In the greatest number of cases, there is an opportunity for notice. Let the minister then determine what the balance should be, make it public, and then go to court and listen to whatever parties have representations to make, including those of the RCMP and the police.
In our view, that is the proper way to adjudicate the very difficult issue of determining what the perimeters should be and how far, if at all, it is appropriate to limit the access of people in this country to areas that are otherwise accessible.
The bill should contain specific substantive criteria as it does not now, and it should provide that the decisions be made for bodies other than the police. The police should be asked about their views, but they should not be the ones making the decision. All of this, Mr. Chairman, is, as always, respectfully submitted.
The Chairman: Thank you, Mr. Borovoy.
Senator Andreychuk: Mr. Borovoy, if I get your point, you are saying that the powers given to the police to be exercised in a manner that is reasonable in the circumstances is one that is broader than they need and one that should be politically made as opposed to decided by the police.
Since you have a good grasp of the law, I am underestimating your ability, but I did not want to put you in a difficult position.
Most times the police are caught in a situation. In the Criminal Code, there are all kinds of places where the police exercise their reasonableness. There is the exigent situation, the crisis situation, the emergency situation. Courts do not interfere and second-guess the police, because it is a man or woman's duty at that point to make a decision and to exercise it reasonably, given a certain ballpark.
I get your point here. Many of these decisions are long-term issues that should not be given to police to speculate upon. How do we run a conference peacefully? Do we put up a two-block perimeter, or three? That is not good security practice. This is going into more than security issues. Am I correct in that?
Mr. Borovoy: Yes. That is the kind of decision that is much different from, ``Are you going to arrest that guy who has just done something that you think is wrong?'' That decision is made under exigent circumstances. There are lots of opportunities, in the greatest number of cases. We are not talking about making an arrest in a situation where you have to make a split-second decision. We are talking about limiting the access of the public to areas that are normally open to the public. That concerns many rights and interests, not only security interests, important as they are.
Senator Andreychuk: The minister seemed to indicate that the Charter of Rights and Freedoms would apply, and that gave him comfort. If we unduly limit freedom of expression, the courts could intrude because of the Charter. In my reading, and perhaps I am wrong, the courts almost administratively decide whether the police comply with what the law is rather than do a full judicial assessment. Would you agree with me, or do you believe the courts would have a full opportunity to put in their decisions and opinions about what is a fair perimeter, for example, as opposed to simply deeming whether the police exercised judgement without bias?
Mr. Borovoy: The problem with the minister's reply is that it did not adequately address the realities of what occurs at these conferences. The police set out a perimeter. There is nothing in the bill of which I am aware that requires anyone to give the public advance notice as to what that perimeter is and exactly how the rights of various people will be affected by the decision. In a great number of cases, there will not be enough information with which to go to court until after the conference is over. That the best you can hope for. This would be called a retroactive vindication of our rights. Since there is enough opportunity to do it in the greatest number of cases, we are calling for a requirement of advance notice because it is a required part of the procedure to seek court approval first when you know in advance you are about to violate rights people otherwise enjoy. You know you are going to be doing that, so get judicial permission in advance to whatever extent it is practicable to do so.
Senator Graham: Welcome, Mr. Borovoy. Your comments are most interesting.
Would you agree that the host state is responsible for the protection of visiting official representatives of another country?
Mr. Borovoy: Yes.
Senator Graham: You said that one should not umpire one's own ball game. By that, you are suggesting that there are two competing teams, to use that analogy? Are the competing teams the protestors and the police or the protestors and the APEC representatives or the G8 representatives?
Mr. Borovoy: One side of the competing interests, if I can suggest seeing it this way, is the interests of those whose job it is to provide security. They will have an interest in keeping the protestors as far away as possible because it makes their jobs easier. Most people in the world try to make it easier for themselves to perform their jobs. That is an understandable human trait. On the other hand, we have the interests of the protestors to get as close as they can to the action, to the targets of their protest, to generate that atmosphere of political tension. Those are the competing interests. I am suggesting, then, that it is not appropriate to ask one of those interests to adjudicate the dispute.
Senator Graham: You said, and you repeated yourself, that the job of the protestors is to create political tension and in order to do that they have to get as close as possible to the action. Is that right?
Mr. Borovoy: Yes.
Senator Graham: You also said earlier that it was not the proper function of police to adjudicate what action should be taken.
Mr. Borovoy: It is not the proper function of police to adjudicate the rights of citizens, that is, how far citizens in our country should have access to areas otherwise accessible to the public in situations that are not exigent, where we have lots of time to figure it out.
Senator Graham: It seems to me that you are walking a pretty tight line here, with all due respect.
Mr. Borovoy: That does not make it an incorrect line.
Senator Graham: No. In the event of an emergency when the protestors got too close, suppose the RCMP, as the lead agency, or whatever police agencies were on the scene, decided to take some action because someone had a gun or someone had pulled a gun. It seems to me that, according to your representations, you are suggesting that they would have to, in that split moment, think back and ask, ``Am I operating under the proper guidelines as provided by the minister or by the government?''
I respect our police forces and I respect the RCMP. We are very proud of their record in this country. You may agree or disagree with what happened at APEC. It seems to me that many lessons have been learned from APEC, and I am sure the RCMP would be the first to say that. Having said that, and having learned those lessons, surely we must have confidence in our national police force to be able to make the right decision or give them the authority to make the right decision when split-second judgments are required.
Mr. Borovoy: Where split-second judgments are required, I am not quarrelling with that. That is why I said ``except for exigent circumstances.'' At the scene, the RCMP and whatever other police forces might be involved may have to make split-second judgments.
I am talking about the setting of the perimeters in advance. The minister would go to the RCMP and consult them. What are your security needs? How can you best do the job? Then we can balance that against the competing interests and formulate the plan for limiting citizen access to those areas.
Should anything arise at the scene, of course the police will have to make split-second judgments, as they always have. That is not what we are addressing. We are addressing the decision to set out those perimeters. Where ought they to be? How ought they to balance the competing interests involved?
Senator Graham: With the greatest respect, I am happier if you were not using the words ``competing interests.''
The Chairman: The subject has given it a certain amount of interest.
Senator Stratton: Did you ever find out why you were not notified when the bill passed through the other place and you did not get an opportunity to appear?
Mr. Borovoy: The answer to that is no. I did not know enough to ask the question at the appropriate time.
Senator Stratton: When you say the appropriate authorities should make the decision, you say it should not be the RCMP. The first word I wrote down was: ``Who?'' You went on to say it should be a political decision, a cabinet minister decision, subject to judicial approval. I think of the complications in working that through because you are into the courts before you start, and I can envision the possibility of injunctions being filed.
I am not disagreeing with you with respect to the cabinet minister, although a minister would be loath to make a decision because whatever he or she does will be wrong if something happens. Cabinet ministers are not particularly amenable to that. What if cabinet minister were responsible for negotiating? Why not, instead of confrontation, bring the two parties together and seek a proposal that would lead to, in the end, negotiations as to where the fence or security barrier will be? That way you will at least have afforded both sides of the opportunity to have their say.
Mr. Borovoy: Senator, that is what I think a wise minister would do under the scheme we are proposing. A wise minister might well call the parties in and try to conciliate their differences and propose a plan for a perimeter on the basis of those consultations. That is what astute people who wield political power often do. I think it would be perfectly sensible for a minister to do that.
However, I want to make it clear that the decision in the first instance should be made by someone who has to answer politically for the decision. Then it should be subject to judicial approval. This is not that foreign a notion in our legal system. It is actually akin to requesting injunctions under some circumstances where the courts listen to the evidence and attempt to accommodate the competing interests as best they can. It is quite analogous to that.
Senator Stratton: I worry about an evolving role of the courts. They are virtually in every aspect of our lives. I like to avoid that where possible.
Mr. Borovoy: I suppose I am not as prejudiced as you are.
Senator Stratton: That may be. I believe in less power to the courts.
You also mentioned retroactive vindication of rights. That intrigued me. Once the problem has surfaced, what choices or what rights do you have after that?
Mr. Borovoy: What rights should you have had?
Senator Stratton: That is exactly my point. I raised the issue with the minister whether there should be parliamentary oversight on the bill, and should he not have to report to us in Parliament on an annual basis as to the very nature of how the bill is operating. That way we would have a chance to examine what has transpired so that if there were this so-called ``retroactive vindication of rights,'' Parliament would be involved directly instead of having to go through the courts. We could have a say and hear what the minister has to say.
Mr. Borovoy: What you should appreciate, senator, is that the retroactive vindication of rights to which I referred is a breakdown of a fair system. It is not the way a fair system should operate. We should have a fair system for resolving or adjudicating those rights before events happen to minimize the risk of rights being infringed.
I am just trying to remember what your other point was.
Senator Stratton: It was parliamentary oversight, where the minister reports to Parliament.
Mr. Borovoy: Where the police are concerned, we have been proposing on a number of occasions — and now we are talking about the RCMP — that there ought to be an ongoing audit system, much like the kind of role that the Security Intelligence Review Committee, SIRC, plays with respect to CSIS. That ought to exist for normal law enforcement, as it does for national security. From that you could get the kind of accountability you are seeking.
Senator Corbin: Mr. Borovoy, I thank you for your presentation. You have addressed some of the concerns I have expressed earlier to the minister — in a more pointed fashion, of course. We should be grateful for an organization like yours, and to have you as their spokesman in instances like this. You are clear and precise.
Mr. Borovoy: I am going to nominate you for our board of directors.
Senator Corbin: There may be a conflict of interest there.
Your suggestion that a minister get involved at an early stage may present problems in itself. Ministers have staff and advisers, and ministers usually delegate matters to them before deciding what they will do. On the matter of reasonableness, what criteria should the court you are talking about use in an instance of this nature?
Mr. Borovoy: I am not sure I could spell them out exhaustively right now, but I can give you a couple of examples. They might consider, as they have to, the provision of adequate security for intergovernmental conferences. They should also be trying to secure, as much as possible, the effective rights of protestors and demonstrators, which means allowing them to approach as close as possible to the action, consistent with the security requirements. The criteria might be set out somewhat in that way.
They might also consider the ability of property owners to enjoy their normal property rights as much as possible. Those are some of the potential criteria that I think an improved bill might contain.
Senator Corbin: Another thing that bothers me — and most of the officials have left with the minister — is that among police tactics of protest control is the pre-emptive strike. I am alluding particularly to the meeting that took place here in Ottawa last fall. They look for the very first opportunity, the first sign of possible aggressive action, to immediately rush these people, put them in a patty wagon and get them off to jail. You then have a situation like the one you were a talking about — a post factum examination of the facts. I have seen that occur because I tend to observe what happens at these important international meetings.
That is part of the breach of civil rights that you are talking about specifically and generally. The very presence of barriers and police armed to the teeth, dogs and riot squads waiting a few feet back is sufficient to intimidate the legitimate right of protest. In other words, I think there is overkill in many situations, and I am concerned because there is a growing generation coming up that in a few years will become involved.
They are protesting to send out the signal that they want a better world. They do not agree with the way in which the politicians in Ottawa are dealing with the world's problems. Of course, if they cannot access the ears and the eyes of these people who are meeting, then the whole protest is a waste of time. Our police forces seem to want it to look that way. The police take their marching orders from politicians. There is no doubt about that. However, I do not agree with many of the things that our governments and the international agencies are doing right now. I tend to be more on the side of young people on a number of these issues, and I do not like the way they are being treated.
The Chairman: Thank you for your observation, Senator Corbin.
Senator Bolduc: The primary role of the police is to protect the people who are meeting. That is their primary role. It is possible that they tend to secure the situation more than expected, but, first and foremost, they have to protect the ministers and the other people involved in these conferences.
I watched the proceedings at Quebec City very closely because I come from there. On television we saw people fighting at the barricades, but the reality is that a number of ministers left and had a second meeting in the upper part of the city. However, the meeting in the downtown area attracted the protestors and many ministers went outside to meet with them. That has been referred to by the ministers before. That is exactly what happened, except for a few professional protestors from the U.S, most of whom were trying to disrupt the whole meeting.
You have exposed us to a good theory, but somehow I have difficulty with it. The situation likens itself to the Minister of Finance dealing with the ministers in the budgeting process. The ministers ask for more, and the Minister of Finance gives a little less than he could give. This situation is similar. How much security and how much power are required? Perhaps we could be more precise than ``in a manner that is reasonable under the circumstances.'' There could be consideration of security for private property or public property such as parks. In the final analysis, there would be a judgment of the circumstances.
We do not have to go to the courts when the fire is there. Before it was decided what and how to protect the areas in Quebec City, I am sure that was discussed with the mayor of the city. Quebec is a tourist destination so many people from outside the area had to take care. That is not easy to do.
I agree with you in principle, but in reality I do not know if we can do much about it. That is a simple reflection.
Mr. Borovoy: If I can put this to you, senator, in many situations where there have been court injunctions, whether in a labour dispute or the picketing of abortion clinics — I like to be even-handed with my examples — in any of these situations we do not tell the police to decide what the rights of the protestors will be. Rather, protestors go to court and petition the court to decide how close they can come and how many can be at a gate. That is not a decision that we give to the police. The role of the police is to enforce that court judgment. Therefore, we are not proposing some abstract theoretical doctrine; rather, we are talking about applying the very kind of ground rules that we use everywhere else in society to this situation.
Senator Bolduc: Do not forget another aspect. In the case of Quebec City, the government decided it would pay compensation. It was known that some owners of property and businesses around the conference area would be hit — and they were hit. The government was ready for the situation and agreed to pay compensation. That is one aspect.
The second aspect is that I have been on the management side of management relation problems in the Province of Quebec, and I have seen a great deal. In some cases, it was not possible for me to enter my office because union members were gathered out front — thousands of people who came from all over the place. I saw 300,000 people outside their workplace for 15 days, and I can tell you, sir, that no one could get into their government offices. That occurred at the beginning of the 1960s. We decided to have the police force deal with those social problems. They are doing better now than they did in the 1960s.
Mr. Borovoy: As a closing shot, let me suggest that if you do nothing else, put in a requirement that advance notice must be published of what the perimeters are to be.
Senator Bolduc: If you do that, people on the other side will become twice as strong. If they have 5,000 people, then there will be 10,000 the next time.
The Chairman: I have a question. You used the inspector and the signs in Vancouver as the example for your point. As I understand it, the inspector decided whether the signs were legitimate.
You used that as an example of the police making a decision whether they really do not have the authorization, although that is not really the correct concept. You say that it should be a political decision beforehand as to what the police could do in the circumstances of the sign. I believe that is what you said.
Mr. Borovoy: No, I was using that example as an example of what happens if there is nothing more in the legislation than you have now, which is take measures that are reasonable in the circumstances. That RCMP inspector said that when he was involved in the decision to remove the signs, he was guided by what he thought was reasonable under the circumstances. Those were his words. He was using the same criteria, and you see where it got him.
The Chairman: I accept that as your example. I understand it. I agree with Senator Corbin. One of his observations was that behind all of this is always a minister's decision. I am looking at clause 10. Are we not basically discussing clause 10?
Mr. Borovoy: Yes.
The Chairman: It talks about the Solicitor General and the Governor in Council. It strikes me that behind all of this, when a decision is made to have an international conference, the government ministers decide a range of things. I suppose the policing of this conference becomes the responsibility of the Solicitor General in conjunction with his provincial and municipal colleagues, not meaning municipal and provincial policemen, but the local town council, I suppose, and the provincial Solicitor General in each province. It seems to me that this decision is a political decision.
I recall reading about that inspector and the signs, but I did not follow it very closely. Perhaps I am wrong, but I find it difficult to understand how you could politically decide the details of these signs. Suppose at 8 o'clock one morning people put up signs in a provocative manner. I do not want to put words in your mouth or exaggerate your position, but it seems to me that it is easy in this kind of thing to get into micromanagement of the police and what decisions they may make in a changing environment. People demonstrating feel very strongly about the issues. I do not quite see how you get around the fact that the police on the spot will have to make continuing decisions because of a continually changing environment.
Mr. Borovoy: Suppose we consider it this way: The setting of the perimeters should be a political decision subject to judicial approval. The management of the exercise, once the perimeters are set, is traditionally a police function. You are talking about the situation changing, but that is what the police do all the time. However, the initial setting of the perimeters ought not to be a police decision. Incidentally, the whole scheme of this legislation, if I read it correctly, is for the police to set the perimeters, not the politicians. All the politicians would do under this bill is say, ``We are having a conference, and we want you guys to provide protection for it.'' They just throw the rest of it to the police. We are suggesting that there are some additional difficult conflicts to adjudicate that are not simply police matters.
The Chairman: It has been a very interesting discussion. I thank you, Mr. Borovoy, for taking the time to address the committee on Bill C-35. While you are here, and while I have people still here, I did want to tell everyone that the planned day of hearings on the Ukraine have been changed from March 11 to March 18.
Senator Corbin: What about the meeting of March 6 with Amnesty International?
The Chairman: That meeting may have to be postponed a week.
The committee adjourned.