Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 19 - Evidence
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-24, to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other acts, met this day at 10:55 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, before we go to clause-by-clause consideration of the bill, we will hear from Mr. Zigayer, from the Department of Justice.
[Translation]
Mr. Michael E.N. Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice: Honourable Senators, in response to a question raised yesterday by Senator Joyal inquiring as to whether there was any difference between the English and French versions of section 25.1(8)(a), I consulted our expert in legislative drafting as well as the person who drafted the French version of the bill. Here is the answer I was given.
Generally speaking, the expression "contrôle d'application" is used in federal laws as the French equivalent of "enforcement." It appears in dozens of federal laws and refers to legislative constraints such as criminal proceedings. The expression is often used in combination with "application" as the English equivalent of "administration and enforcement."
Take, for example, section 34 of the Canada Customs and Revenue Agency Act which reads as follows:
[English]
The Board may not direct the commissioner or any other person on the administration and enforcement of the program legislation.
[Translation]
The French version of section 34 reads as follows:
Le conseil ne peut donner aux commissaires ou à toute autre personne des instructions relatives à l'application ou au contrôle d'application de la législation fiscale et douanière.
In subsection 13(3) of the Canadian Food Inspection Agency Act, the word "enforcement" is rendered in French by "contrôle d'application." Furthermore, in subsection 29(1) of the Competition Act, the expression "enforcement of this act" is rendered in French by "le contrôle d'application de la présente loi."
In conclusion, the use of the expression "contrôle d'application d'une telle loi" in subsection 25.1(8) a) of the Criminal Code, as amended by clause 2 of Bill C-24, is entirely appropriate as an equivalent of "the enforcement of an act of Parliament." I trust that answers the question raised yesterday.
[English]
The Chairman: Are there any questions?
Senator Fraser: As this committee has continued its work, I was struck by the realization that the methods of drafting our bilingual laws are changing. I appreciate that you have persuaded us that this is habitual, traditional language in Canadian law, but Senator Rivest, who knows better than I, says it is not very good French.
Do you happen to know, Mr. Zigayer, as we go through the process of fixing up our laws to be bijural - that is, in the true sense instead of the French being translated English - whether we are finding more euphonious phrases for expressions such as "contrôle d'application," or did you, as researchers, go that far?
Mr. Zigayer: In my personal experience as one of the instructors in the drafting of this bill, the set-up is that you work with both drafters at the same time. They use flat screens and they sit on one side of the table. You have your own screens and you watch them work. The French is being written at the same time as the English is being written. It is not a translation of one to the other; it is a formulation that respects the rules. They work side by side.
Senator Fraser: Do you stand back behind them and say, "What we want to do here is this"?
Mr. Zigayer: I used to do that, but now I have my own screen on the other side of the table. If I had a question with regard to a particular word or phrase, they might do a word or a phrase search in the existing statutes. With this particular phrase, they found 145 similar usages in federal law.
Senator Fraser: So there is a precedent that the courts will understand. Can we improve upon our language as we go?
Mr. Zigayer: We want to do that. You are talking about making a law more accessible and more easily understood. That is something we have been working on over the last few years. For example, you will see less Latin used in our legislation. This is a continuing process. When an opportunity arises to amend a statute, we try to improve it. An example of that in Bill C-24 is what we are proposing to do with regard to the list of offences for which you can obtain a wiretap authorization. It used to be that section 183 of the Criminal Code listed, one after the other, all the offences. If you amended one in the middle, then you had to re-enact the whole provision. Henceforth - that is, if you pass this legislation as drafted - we have broken it down into chunks so that Criminal Code provisions are in chunk A, chunk B would contain another statute, and so on.
Senator Fraser: Is that rather than the code being one indigestible lump?
Mr. Zigayer: Yes. We want to reduce that burden in the future. It is an example of modernization and using new techniques. We are not perfect yet.
Senator Fraser: You can add a phrase that brings a little more understanding.
Mr. Zigayer: We are bringing it back to the office.
[Translation]
Senator Beaudoin: Like Senator Fraser, I too am prepared to go along with your suggestion. However, I maintain that just because the same expression is used fourteen times does not mean that it is a good expression. I fully agree with Senator Fraser's claim that this does not prove its worth as an expression. Nevertheless, based on your explanations, it would seem to be an appropriate use of the expression. It was Senator Joyal, not me, who brought this up, but I am prepared to live with it.
Senator Nolin: After listening to Mr. Zigayer's explanation, I think the committee would be interested in seeing how the drafters go about their work. We could hold a meeting with Justice Department officials to see how both official versions of our laws are drafted. This would certainly answer many of our recurring questions about the appropriateness and quality of the language used in both official versions. Organizing such a meeting would, in my view, be a timely initiative.
[English]
The Chairman: If this committee were ever unofficially invited to see the process in actual operation, we would all be delighted to attend.
Mr. Zigayer: If you would like to propose that a statute be drafted, something could be arranged. I do not think we could invite you to sit in on the actual drafting of a bill, but if you have a proposal to amend, say, one clause, then I anticipate that you could attend and watch them try to do that.
The Chairman: That is another question entirely. You are talking about a mock-up.
Mr. Zigayer: I am referring to the time up to the point when the bill is tabled.
The Chairman: Our Library of Parliament assistant has offered to give us a demonstration after Christmas. We may see the process in operation. It certainly sounds fascinating.
Honourable senators, are there any further questions?
Senator Cools: My apologies to the witness for being late. Unfortunately, I went to the East Block first, where we usually hold our meetings.
I did not quite hear the bulk of the exchange with Senator Fraser, but I should like to add a comment or two in respect of the little bit that I did hear, which was about the last two sentences. My remark relates to what people frequently refer to, as did the witness, as the modernization of language. When modernizing language, one must be careful and cautious not to change, at the same time, the fundamentals of the law. We live in an era when the principles behind the law are no longer widely known or understood. I have listened to Mr. Zigayer and to the previous witnesses on the drafting of those provisions that they call the designation provisions. I have taken note of the due consideration and diligence that was expressed, but if, in drafting anything as difficult as criminal law, we stay with the age old concepts that were widely known and widely understood by all the practitioners and by all the members, I cannot help but think that we would be on far firmer ground. For example, perhaps some of these provisions should have been drafted using the old term contra pacem domini regis. Our Latin scholars will know what that means. It means "against the peace of our lord the king," which is the basis of the criminal law. Every crime is an offence against the person of the king. If we stay with our ancient, tested and true common law and rule of law background, I think we would be on firmer ground. The concept of contra pacem domini regis goes with the concept of peace, order and good government, which has been the anchor of British Constitutions throughout the world.
I caution the department, in its desire to be popular, that quite often fundamental principles are lost. This becomes very clear when one reads the judgments on these cases and as the judgments are tested before the courts. My reading of the Campbell and Shirose case shows a profound misunderstanding of the law of the prerogative in respect of protecting the public against violence, disorder and crime. I put that to you because there has been a lot of pressure on departments, ministers and drafters to speak in "common language" and in "plain language." We must be careful because we may lose sight of some fundamental principles.
[Translation]
Senator Joyal: Is the French equivalent of this expression found elsewhere in the Criminal Code? You mention in your briefing notes that it is used in several federal laws.
Mr. Zigayer: Unfortunately, my colleague did not provide me with that information. We could always find out and get back to you.
Senator Joyal: I would like you to do that. If the expression appears in the Criminal Code, then the concept has already been given a legal interpretation. This bill amends the Criminal Code. To my mind, this definition, which I consider appropriate, nonetheless has special implications. The bill grants police officers extraordinary powers. We cannot run the risk of extending these special powers to anything other than offences covered under federal laws. We cannot extend these to activities tied to the overall enforcement of the objectives of the act.
[English]
Mr. Zigayer: I have a cell phone and I can try to contact my colleagues now. It will not take more than a few minutes.
The Chairman: We will wait for you to do that.
Senator Fraser: Do we have the Criminal Code here?
The Chairman: Yes, we do.
[Translation]
Mr. Zigayer: To answer Senator Joyal's question, I checked with one of my colleagues in the Legislation Section and he informs me that nowhere else is this expression used in the Criminal Code.
[English]
The Chairman: Thank you very much. Is there further discussion on this matter?
Senator Joyal: I do not want to delay the work of the committee this morning on this, Madam Chair, because I know we have an agenda to deal with this morning. I read the examples in the briefing note we have on the table. I will review some of the examples with our expert after the meeting this morning. I recognize that one has to read the whole section, given the kind of offences that are contemplated, to measure the impact of this. If this were already in the code, I would be content but, since it is not, I would like to satisfy myself that the way it is used in the statutes and the kind of offences that are stated in those statutes confirm the limited interpretation that can be applied to it. That is what we must have in mind. It is only in the execution of the offences that those powers should be used. We all agree around the table that this would be the objective of the section, and we want to ensure that this is how the courts would interpret it.
Senator Andreychuk: I believe the witness wanted to confirm if that particular French phrase is used elsewhere in the Criminal Code. However, I want to know where the English phrase is used. Was it used anywhere else in the Criminal Code, and if so, what was the French equivalent? Are we to assume the English phrase was also not used anywhere in the Criminal Code? The inference is that it is found nowhere else in the Criminal Code.
Mr. Zigayer: It happens from time to time that we introduce a new concept into the Criminal Code. The expression "DNA data bank" has been in our legislation for only a few years. From time to time, we come up with new expressions to create new provisions and new organizations. It seems to be frequently used in other statutes. It may not have been used in the Criminal Code before because we used other means to achieve the same objective.
Both senators have raised an interesting question, and it is one I will take back to my colleagues. Perhaps my colleague will provide me with the complete list of statutes, or at least a percentage, say, 50 per cent. It was a long list, and you may have to examine whether the French and the English say the same thing.
I will also ask the other question, namely: Was the English used in the Criminal Code previously and not translated in the same fashion?
Senator Beaudoin: "Enforcement" is often used in the Criminal Code.
The Chairman: Enforcement is what this is all about.
[Translation]
Senator Nolin: This morning, our attention is focussed on the expression "contrôle d'application de la loi." In addition to finding a reference to it in the briefing note we received this morning, it also appears in the proposed new section 25.1(2), the provision that spells out the principle sought. Without question, Senator Joyal has raised an important question which we should examine further.
[English]
Senator Cools: Today or in the future?
Senator Nolin: It is up to us to decide.
Senator Joyal: I would suggest third reading. However, I do not want to interrupt Senator Nolin.
[Translation]
Between this morning's proceedings and the debate on third reading, we will have time to gather additional information and if we need to intervene or raise a particular point on third reading, we will do so.
I had no intention of asking that we defer this morning's agenda as long as we are not satisfied with the explanations we received.
Senator Nolin: That was also the purpose of Senator Joyal's question.
[English]
The Chairman: Is it agreed that the committee move to clause-by-clause consideration of Bill C-24, to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other acts?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
I will divide this at clause 47. From there on, the bill deals with consequential amendments.
Shall clauses 1 to 46(1) carry?
Hon. Senators: Agreed.
The Chairman: Clause 46(1) is at the bottom of page 45. Consequential amendments begin at that point.
Senator Joyal: Madam Chair, I would like the vote to be called separately on clause 2, which starts at page 3 and continues to page 9. I would prefer that we have a separate call of vote on the amendments to section 25.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 3 to 46(1) carry?
Senator Joyal: I am sorry, but I am having difficulty following the procedure this morning.
The Chairman: Clause 2 is the one that you wanted us to separate. We just agreed to that.
Senator Joyal: That is the one I wanted to formally take a stand on.
The Chairman: All right. Does clause 2 carry on division?
Senator Joyal: Yes. I should like to represent my formal abstention on that one.
The Chairman: Clause 2 carries, on division.
The Chairman: Shall clauses 3 to 46.1 carry?
Some Hon. Senators: Agreed.
Senator Beaudoin: May I make an observation on clause 11?
The Chairman: In that case, shall clauses 3 to 10 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 11 carry?
Senator Beaudoin: I was intending to move an amendment to that clause, but after the testimony of Ms Viau yesterday, I am satisfied that clause 11 may be left as it is. This is an observation, I am not moving an amendment.
Senator Nolin: Madam Chair, should we make any observations we may have now, or should we wait until later?
The Chairman: I would like you to wait until the end.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 12 to 46.1 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 47 to 83 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that this bill be reported without amendment?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that I report this bill at the next sitting of the Senate with observations or without observations?
Some Hon. Senators: With observations.
Senator Cools: You cannot report until we have agreed on our observations. We may have differing views of what those observations should be.
Senator Andreychuk: One observation must state that there is a serious concern about scrutiny issues. Another should include the fact that we are extending substantial powers to the police which have not been tried in other instances. I am very concerned that we are allowing the police to go beyond what was normally accepted practice in criminal law. Police are professionals who are trained to respect the rule of law. The mark of any democracy is demonstrated by police staying within the rule of law and recognizing that they are not above the law. When we start giving them unusual powers to break the law, albeit for some justifiable reasons, and granting them immunity when they do that, as we are proposing to do with this bill, we are entering unchartered waters in that we are moving away from our democratic system under which everyone is accountable. The checks and balances of these extraordinary powers are somewhat limited.
Civilian oversight is difficult at the best of times. A civilian does not have the same training as a trained policeman who must constantly make judgment calls. Civilian information has already been filtered. They tend not to get the full picture; rather, they only get what the authorities want them to know. Therefore, I am not sure that the oversight is adequate. Furthermore, I am not sure whether giving the police the power to make emergency declarations is absolutely necessary. While there will be a review mechanism in place, I find these proposed provisions troublesome.
We are in a most unusual position now in that we will soon be dealing with Bill C-36 and with Bill C-42, which concerns public safety.
Cumulatively, this will make be a dramatic difference to the procedures followed by police officers and those of us who may be the subject of investigations. I say "us" because I do not differentiate between myself and other Canadian citizens. Therefore, I think we should note some caution.
The government continues its piecemeal approach in trying to solve particular problems. We may have oversold the importance of individual problems, but I do not think we have given the public an opportunity to understand what these provisions will do to the fabric of criminal justice, the protections that we have built into our laws that we have worked so very hard to achieve.
Ours is a young and fragile criminal system. We are now showing signs of going in the opposite direction to where we have been headed. I would hope that someone in government has given thought to the cumulative effect of this and what it will do to our criminal justice system and the safety and protections that we have so consciously built in to it and which we now seem to be eroding piece by piece. I am not sure that there will be sufficient oversight, nor am I sure that the trends are absolutely valid.
I believe it is very important that this committee start taking on the task of reviewing the legislation that we pass with some hesitation. We should build in some review mechanisms.
Clause 46.1 of this bill provides for a review of the legislation within three years. That clause states:
Within three years after this section comes into force, a review of sections 25.1 to 25.4 of the Criminal Code and their operation shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.
I would suggest that we take on that task before the three years so that we are in a position to start our analysis when that time frame has expired. We may build up some expertise of analysis in the course of our review, and that may result in a cumulative observation about the process of criminal law and where we are headed.
[Translation]
Senator Rivest: I share committee members' concerns about the provisions in this bill that grant new powers to law enforcement officers. Senator Joyal and other colleagues have raised some valid arguments as to the need for civil controls. However, it is not clear who should exercise these controls: Parliament or another body?
I will support the bill, as will most of my colleagues, because no doubt there is need for legislation like this. However, I would like to say one thing. The members of this committee study important pieces of draft legislation, notably bills on the youth criminal justice system and organized crime. The Minister of Justice assumes a certain amount of risk in each bill in so far as rights and freedoms are concerned. Obviously, I am disturbed by the highly judicial approach taken in the proposed youth criminal justice system bill because prior to Bill C-7, society's young offenders were a social problem. After that, they became a legal problem. However, I am straying from the subject at hand.
Not that I am being highly critical, but I am concerned about the attitude of the Justice Minister, particularly as she is a member of a government that cannot deny the legacy of Pierre Elliott Trudeau. The former Prime Minister's greatest legacy is without question his concern for social issues and rights and freedoms. It bears remembering that when he served as Justice Minister, Mr. Trudeau would never have bowed to public opinion on such fundamental questions. Had that been the case, he would certainly never have passed the omnibus legislation that paved the way for the Charter of Rights and Freedoms. I am not criticizing the Justice Minister, but just recently she has brought in a series of bills that should give us cause for some concern.
Bill C-24 is purported to be a bill on organized crime, whereas in point of fact, it is not. It was merely presented to the public as such. The bill is very broad in scope and grants an extraordinary amount of power to the police. It challenges the legacy of Mr. Trudeau and the values that are shared by Canadian society as a whole. It is often the role of parliamentarians and, in particular, the role of the Senate. There is really no need to send us some unexpected releases defending these bills.
I get the feeling that some partisan constraints are being imposed, and these issues have absolutely nothing partisan about them. If ever these bills are passed without amendment, the Senate will, in my view, have been remiss in its duty. A number of amendments could have been moved to Bill C-24. There is absolutely nothing political about this, but in my view, the Senate is missing a golden opportunity afforded these bills to give this institution a higher profile. Safeguarding fundamental rights and freedoms is the raison d'être of the Senate. I am merely making a statement, not casting aspersions on anyone in particular. However, this matter does give rise to some concerns.
[English]
The Chairman: Senator Rivest, I must tell you that I do not believe it would be proper for this committee to include in our observations on the bill anything about Mr. Trudeau or other bills that are not currently before this committee. I suspect that what you are really doing is adding to Senator Andreychuk's point about the cumulative effect of some of the bills that are coming from the Department of Justice.
[Translation]
Senator Nolin: I am not interested in repeating what my colleagues have said. We will express our concerns when the bill is debated on third reading.
It is important to note Ms Viau's testimony to the effect that this legislation must be passed without amendment, given that provincial and federal authorities have taken steps to control police activity. Ms Viau stressed the fact that she was reassured to see the provinces institute such control mechanisms.
We may not state it formally, but we will surely mention in passing that this bill was brought in in response to public pressure. As Senator Rivest mentioned in private, this is a tabloid bill. We responded to public pressure from certain Quebec tabloids, which will remain nameless at this time, but which we surely recognize themselves.
This bill is much more than an attempt to deal with organized crime. Take, for example, the proposed new section 25.1 which makes no mention whatsoever of organized crime, but rather refers to competent law enforcement authorities.
It is important to point out that mechanisms have been put in place to control police activity a posteriori. Once the bill is adopted we will need to monitor closely how the courts rule on this matter.
Section 25 will be reviewed in three years' time. Therefore, through the control mechanisms, it will be critical to monitor how the police enforce the law and exercise their new powers.
[English]
Senator Joyal: I would like to restrict my observations to the bill and, in particular, I would refer to the proposed section 25.1(2), which deals with the notion of public interest. The notion of public interest is so vague that, to me, it raises important constitutional issues on the basis of previous decisions of the Supreme Court.
The other preoccupation I have is with the proposed section 25.1(3), which allows that the competent authority designate a groups of public officers. That is a designation across the board. That seems to me to be beyond what would have been previously acceptable. I say that on the basis of previous experience with the drugs legislation, and particularly in light of the testimony we heard from Mr. St-Laurent yesterday.
My other preoccupation relates to the proposed section 25.3, which deals with civilian control. Contrary to what we have heard from Ms Viau, and what she wrote less than six months ago, civilian control over police authority is not a question that has been dealt with satisfactorily. I will not repeat what she wrote, but there are police forces that are under no control. The Comité de Surveillance in Quebec has a lifespan of four years, and the remainder of the surveillance is left to the police policing the police.
Moreover, there is no code of practice in that proposed section that would frame that power. Witnesses have expressed the hope that one will be forthcoming. However, it seems that each will be autonomous because of the principle of the division of power and so forth. The bill contains no obligation to adopt a code of practice under the proper authority - either that of the Solicitor General of Canada or of the Attorney General of any province.
It is on that basis that I have great reservations about this proposed section 25. I would ask that my abstention be noted.
Those are the observations I would like to make on the record.
Senator Fraser: I have listened with much respect to the comments from our colleagues on the other side. The comments from Senator Andreychuk and Senator Rivest, in particular, are precisely in the spirit of what the Senate is supposed to do, which is to think about the broader and deeper implications of what we are doing. Like some others around this table, I have had the privilege and challenge of working on all three pieces of legislation that are under discussion here, and I have been impressed by the degree to which the government and the drafters of the legislation have tried to reconcile the requirements of meeting new criminal challenges with the need to preserve Canadians' rights and liberties.
I agree, however, that we are marching into new territory, in many ways, and I would like to suggest that our observations should include a very strongly phrased recommendation that in three years the Senate make it a priority to do a thorough study of what we will then know - which will not be everything, but we will know something - about how this bill has worked in practice at both the federal and provincial levels. Very often parliamentary reviews get swept aside in the pressure of the business of the day. This is an absolutely classic example of what we have a Senate for, if we have it for anything at all.
Senator Cools: I would like to make a few points. Some will be directed to the observations I want in the report; some will go to the situation as a whole; and some will be directed to the bill in particular. We have allowed far too little time for our study of this bill. This bill deals with a difficult and substantial subject matter, and I believe that a bill of such enormity should receive more of our time and attention.
In regard to the general situation, my agreement to many of the clauses in this bill came slowly, guardedly and reluctantly, but I did give my agreement. However, I want the observations in our report to spell out clearly that, even though some honourable senators agreed to report the bill without amendment, we did so with uneasiness. That should signal that these matters of concern must be looked at in the near future.
I would like to make another point. Our policemen across this country are frequently placed in very difficult situations. I do not know if we can include that comment in our report. I think it is unfortunate that the debate has focussed on whether police are above the law. Even in court cases, and certainly in some of the debate here, proceeding within that framework is inappropriate. The debate should always be based on the question of what prerogative powers should ever be extended, to which peace officers, under what circumstances, and under what conditions, in those very exceptional situations where exceptional powers are needed to deal with limited and narrow circumstances. I have read too much about anti-social behaviour and deviance to think otherwise.
Perhaps, in the future, the committee should conduct an in-depth study some of these issues. I do not think the Department of Justice, under the rough and tumble and the crush of daily administration and the pressing out of legislation, will ever be able to direct its mind to these kinds of questions. It is in these questions that the combination of law and politics comes together. Anyone who reads some of these judgments quickly begins to see that there are whole sections of our law that are no longer understood, even by the judges. If they were, why would terms like "public interest" be so prevalent? That is a vague term. Why would terms like "the state" be used so much in every judgment? I put that to you for your consideration, honourable senators.
I hope this will be taken back to the minister, not via the report but via members of the committee. The minister has been placing too many bills, too quickly, before us. I would also ask that the minister, in the future, in dealing with senators be not quite so dismissive of the role of senators, and be a bit less supercilious. That would help us all.
Senator Fraser, be careful, because I may change my mind now. You are winning. I voted with you. The issues here are major. We are treading on thin ice to continue on the course we are on, that is, where one judgment is made and then there is recourse to Parliament and a law is passed. I am not a lawyer, but I can go through this bill and show you where the so-called challenges will be. I may be whistling in the wind, but this is a serious matter. There must be a way to balance the rights and dignity of the accused in this country with their right to due process, without unnecessarily imperilling our police officers.
Honourable senators, I was clear about what I wanted to see in the report, and I recognize that some of you sort of winced when I suggested that a message be sent to the minister.
The Chairman: Senator Cools, you can be absolutely sure the minister will get a transcript of this meeting.
Senator Pearson: I wanted to speak in support of Senator Fraser's comment. Before I do so, I think we should all celebrate the fact that we are sitting in this room and not in the United States dealing with the bill that they are dealing with about the setting up of closed military courts where they can execute those outside of the United States but not American citizens. Our problems cannot compare to that.
However, to reinforce what Senator Fraser said, if the bill is passed, we should urge the Department of Justice to keep adequate statistics in preparation for our review. We should be prepared well in advance, and I think we will need the assistance of the Department of Justice to do that. My concern, like many others, relates to the question of oversight, checks and balances, and so on.
Senator Beaudoin: Is the review expected to take place within two years?
Senator Fraser: I believe it is three.
The Chairman: Yes, within three years.
Senator Beaudoin: It is within three years, but only as it relates to clause 2.
The Chairman: Yes, in respect of the amendment to section 25.
Senator Beaudoin: If necessary, we should not hesitate to take up that mandate, because in three years from now we do not know what the situation will be.
This bill contains new infractions. Obviously, we must retain the equilibrium between the additional powers that will be created and the preservation of our basic rights and freedoms. I would summarize by saying that it is a question of equilibrium. That is the end of my remark.
Senator Andreychuk: We say that we do not want the police to be above or below the law. However, when the police search for tools to do their job and the court points decides that they have gone beyond their right to acquire those legitimate tools, there is a natural tendency to ask for more tools. In this bill we go into that area where we have said it is dangerous to give police these powers because it is a violation of people's rights. If we give them these tools, which were previously unlawful, there will be a tendency to stretch that to the extent where more unlawful activity will become lawful. Is this a proper line to draw today?
We must be careful in assessing whether the police are being precluded from doing their job because of a lack of good policing principles and resources and everything else that goes into a proper justice system, rather than because of their restricted powers. It is too easy to ask for extension of powers.
Senator Fraser: Further to Senator Pearson's point about the data, the bill does require the annual compilation of a lot of information. I suggest that the chairman write to the minister to formally request that those reports be transmitted automatically to this committee every year. I am not quite sure, on my reading of the bill, how they that information will be distributed.
The Chairman: It may well be that we would need a vote to do this in the house, Senator Cools.
Senator Cools: Yes, for any such instruction.
Senator Fraser: It is a request.
Senator Cools: Who knows the difference between a request and an instruction? If the committee wants the minister to do something, it must be decided by a vote, and the authority is given to you in that way. It could be a vote of this committee or a vote of the chamber; otherwise, it is just a letter from an individual.
The Chairman: Thank you, Senator Cools. I can certainly send a letter from an individual.
Senator Cools: Senator Fraser wants to put that in the form of a motion.
Senator Fraser: I am not moving a motion, chairman.
Senator Cools: Then the issue is dropped.
The Chairman: Thank you. At this point, we have quite a long and complicated list of observations. In order that we can present our report to the Senate prior to the Christmas break, would the committee allow the steering committee to go through the report, make sure that all your concerns are dealt with, and edit the final draft? Is it agreed?
Hon. Senators: Agreed.
The Chairman: Thank you very much. Honourable senators, is it agreed that I report this bill, with observations, at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
The committee adjourned.