Proceedings of the Special Senate Committee on Bill C-36 (formerly the Subject Matter of Bill C-36)
Issue 9 - Evidence (Morning Sitting)
EVIDENCE
OTTAWA, Thursday, December 6, 2001
The Special Senate Committee on Bill C-36, to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism, met this day at 8:04 a.m. to give consideration to the bill.
Senator Joyce Fairbairn (Chairman) in the Chair.[English]
The Chairman: Honourable senators, the committee will continue its hearings on Bill C-36. The special committee was created at the request of the government, initially to provide an advance instruction or suggestion to the government on our concerns and possible recommendations for changes to the bill. That unanimous report was presented to the other place several weeks ago, some of our recommended amendments to the bill were made, and the bill is now before us again.
This morning we are pleased to have witnesses from the Canadian Arab Federation, Dr. John Asfour and Ms Amina Sherazee.
Dr. Asfour, please proceed.
Dr. John Asfour, President, Canadian Arab Federation: Honourable senators, thank you for accommodating us. We are pleased that you understand the urgency of our appeal, and we are hopeful that our contribution will benefit all Canadians.
I will ask Ms Sherazee to speak to the issues, after which I will comment.
Ms Amina Sherazee, Legal Counsel, Canadian Arab Federation: Honourable senators, thank you for this opportunity to appear before you to make our comments today.
The Canadian Arab Federation submits that Bill C-36 significantly erodes constitutional rights and protections such that its provisions and measures are indefensible. The Canadian Arab Federation believes that this government's efforts to pass such blatantly unconstitutional legislation under the guise of fighting terrorism in the name of national security will not be lost upon the people and the judiciary of Canada.
Our assertion was recently confirmed by the Superior Court of Justice of Ontario in the decision of the Government of France v. Ouzghar. This was a decision dealing with alleged acts of terrorism in which the court pointedly rejected the premise that such measures can bury our Constitutional rights. The court unequivocally stated and I quote:
While I appreciate that recent world events have brought the existence of terrorism to the forefront of most people's thoughts, I would hope that the vast majority of reasonably informed, right-thinking members of our community would agree that, notwithstanding those events, every citizen of this country is still entitled to their basic constitutional rights and freedoms... Whatever reasonable concerns may arise from recent world events, they cannot legitimately be used as a justification for legal shortcuts that impinge on constitutionally protected rights.
We maintain that this bill contains significant shortcuts.
Notwithstanding the amendments, the Canadian Arab Federation still opposes major elements of Bill C-36. Specifically, we state that Bill C-36, as drafted, is severely overbroad and catches such activities as consumer and market boycotts, anti-globalization protests and general dissent as terrorist acts, which is wholly inappropriate and constitutionally offensive and unjustifiable in a bill to address terrorism.
Bill C-36 contains unacceptable offences that do not require any knowledge for an accused to be guilty of facilitating a terrorist activity. Bill C-36 contains unacceptable preventative arrest without warrant or charge for 72 hours and without any stop on any revolving door on the 72 hours, so as to artificially extend the 72 hours perpetually.
Bill C-36 still contains unacceptable investigative hearings and extermination of the rights to remain silent, the right against self-incrimination, as well as arbitrary arrest. Bill C-36 contains provisions for secret trial mechanisms and procedures for the seizure and forfeiture of property, and charge, conviction and sentence without ever seeing the evidence or case against the person accused.
Bill C-36 has no real sunset clause. As such, permanent legislation of this nature is completely offensive to constitutional guarantees.
Finally, the review and reporting procedures in the bill do not envisage qualitative review and reports, and are thus meaningless and wholly inadequate.
For these reasons, the Muslim and Arab communities in Canada view Bill C-36, in essence, and its global application uses, as a historically unacceptable, racial and religious wedge and an excuse to extinguish the civil liberties of all Canadians. We strongly oppose the misuse of race and religion to hyperventilate an atmosphere of fear, paranoia and mistrust at the expense of and in the name of the Muslim and Arab communities, with the effect of general deprivation of all civil liberties.
For those reasons, the Canadian Arab Federation strongly urges the implementation of the following recommendations. First, we recommend a tightening of the definitions of "terrorist," "terrorist activities" and "terrorist groups." This relates to the concern of what is the core of terrorism, namely, the threat or use of violence and arms by an armed group or individual against an unarmed group or individual for political, racial, religious, social or economic reasons, including state terrorism. We recommend that any reference to any labour, free speech dissent activity or enterprise, as well as the criticism and boycott of financial and other markets and/or businesses, be removed from the definition of terrorist group, terrorist activity or act.
Specifically, the Canadian Arab Federation recommends that the Senate delete the term "economic security" from the proposed section 83.01(1)(b)(i)(B). We further recommend that all of the proposed section 83.01(1)(b)(i)(E) be removed from the definition; and that the exemption of state terrorism be deleted from the definition.
We also recommend that full mens rea and knowledge and intent be required as any other criminal offence as the constituent element required proven before criminal guilt may be pronounced.
We recommend that preventative arrest be removed from Bill C-36, as such arrest powers are most likely to be abused for the simple reason that Canadians, as any other people, are human beings and err and act on racially intolerant impulses, in particular in the criminal justice system where Royal Commission inquiries have concluded, as well as the Supreme Court of Canada, that systemic racism exists in Canada from the individual level through to Canadian institutions. If these preventative arrests must be implemented, they ought to be separated from the Criminal Code and put into the Emergencies Act where parliamentary committee supervision, report and monitoring ensure the absence of abuse.
We also recommend that, upon arrest, all the rights guaranteed under the Charter be respected, including but not restricted to the right against arbitrary arrest, the right to remain silent, the right against self-incrimination, the right not to have property seized nor forfeited without prior judicial conviction or judgment, the right to a fair and open trial, the right to make full answer and defence, and the right to know the case against you. As such, we recommend that investigative hearings be removed from Bill C-36.
We recommend the elimination of secret trials and secret trial mechanisms and procedures and the requirement that trials adhere to current and normal criminal procedure of adequate disclosure to know the case against you and be allowed to make full answer and defence. While there is a need to protect the identity and source of informants and witnesses, and sometimes to protect their identity, such provisions are currently available and exercised within the context of general criminal proceedings, and terrorism and terrorist acts should be processed in no different fashion. In any event there should be no seizure or forfeiture of property, or secret trials without prior judicial determination by way of conviction or judgment.
Considering the broad and pervasive powers of Bill C-36, we require a real sunset clause, not a renewable clause as is set out in the proposed section 83.32. This clause should apply to the bill in its entirety. If this proposed legislation, rather than coming under the Emergencies Act, is to be a criminal law of general application, the clause should require an expiry date before the next federal election to ensure public and democratic accountability.
We recommend that the review and reporting mechanisms ought to require qualitative and substantive reports and reviews by a superior court judge sitting in a forum akin to a public inquiry or a Royal Commission to ensure independent and judicial reporting and scrutiny, thereby ensuring public and constitutional accountability.
Finally, and despite the assurances of the Minister of Justice that Bill C-36 conforms to the Charter, whatever form it takes, we recommend that it be referred to the Supreme Court of Canada to determine its constitutionality.
In conclusion, the Canadian Arab Federation submits that we cannot help but conclude that Bill C-36, taken together with Bill C-35 and Bill C-42, is an attempt by this government to stifle the current evolution of human rights culture among the general population, as was witnessed at the APEC summit in Vancouver, and the anti-FTA protests in Quebec City and elsewhere in the world, including Seattle and Genoa.
We are here to remind you that the laws of this country, up to and including the Charter, have developed to support this human rights culture and to mitigate against the excesses of the state powers to repress and suppress this culture by the excessive use of military and police force, which we also saw in Vancouver and Quebec City.
The legislative agenda before this Parliament also makes it clear that this government is manipulatively and opportunistically pursuing a globalization and militarization agenda in the name of security, and that this could entail the use of law and abuse of legislative power in order to push it forward. If you choose to do so, you will be doing a disservice to the people of Canada, to the office you hold, and to the Constitution you have sworn to uphold.
If this bill is passed as it currently stands, it will seriously contribute to the erosion of a free and democratic society. Therefore, in the words of the Ouzghar decision, we implore honourable senators to maintain your reasonable and right thinking, and incorporate our recommendations. We strongly counsel caution and careful drafting.
Dr. Asfour: I would like to add to the comments made by Ms Sherazee that members of the Arab and Muslim community see themselves in a bind here. Most of these people have come from countries where they have experienced dictatorship,suppression, repression and poverty. They have come to Canada and, all of a sudden, they are finding that there are measures here which remind them of their past and the anguish and pain in which they lived.
I can tell you that, for the first time, Arabs and Muslims in this country are afraid because they do not know what the 72-hour preventative arrest will include. They do not know what will happen in those 72 hours and how and why they must testify, and why they cannot remain silent. When people are afraid, governments and officials must re-evaluate their actions and their policies.
We cannot have a country that makes people frightened. It is in the your hands to see that this kind of thing will never happen. Canadians have fought long and hard. Our history is long, and I am proud to say that we are known all around the world for our freedom, our tolerance and our ability to live next to each other with all our differences.
This passport is most valuable as a civil protection. I do not talk about it religiously, because religious people have their own books to value, but this is the one that I value. As a Canadian, I am very proud to go all over the world and go to South Africa and see Mandela and say, "We are free, just like you." We have contributed to the freedom of the world.
I am a proud Canadian. I see that a certain segment of our society is threatened. How is it threatened? Canadians tolerate each other, and our tolerance is threatened. A man at work is pointed out because he is a Muslim or an Arab. He cannot report this to the police. A woman in the street with a head scarf is a target. That head scarf has made her a target of comments of intolerance, prejudice and racism.
In Montreal, where I live, two days after September 11, because of intolerance, a doctor was almost strangled with her own head scarf in the elevator at the Royal Victoria Hospital.
If you transfer a power to a police body that is anywhere between 70,000 to 100,000 strong across the country, you are giving them a prescription for abuse. A lot of things can happen in 72 hours. If one individual is abused and his or her civil liberties are taken away, then all our civil liberties are in jeopardy.
Honourable senators, I will give you three fictitious names to ponder: Jean Pierre LeClerc, Scott Ferguson, and Mohammed Mohutabir. I ask you to guess who will be arrested and investigated under this bill? Who has been harassed since September 11?
Rightly or wrongly, due to a certain association with trouble spots in the world, the focus and the light is on Muslims and Arabs. Tomorrow, it could on Jean Pierre LeClerc and Scott Ferguson.
The Senate is the house of reflection. You represent the intelligence, the wisdom, the bright light, the incredible ability to reason and the incredible ability to reflect and subsequently see what is good for our country and our people. It is ironic that we go all over the world to liberate other people, to teach them what freedom, tolerance and human rights are. Now we are introducing bills to take away our civil liberty, our human rights, our freedom and our ability to tolerate each other.
Why do we have to be affected? Why do we have to be influenced by what others are doing? Why do we have to answer to the drums of others? Why do we have to rush such a bill and give the justice minister a Christmas gift to put under her Christmas tree? I hope you will prevent this. Legislation such as is proposed by Bill C-36, Bill C-42 and Bill C-35 should not be found under anyone's Christmas tree.
In the end, it is up to you. This is the final day. Do not make it the beginning of a dark history in our country. You are responsible for Canadians. You are responsible for the house you represent. You are responsible to uphold the laws and, Constitution, and the Charter of Rights, especially, of this country. In the end, you are responsible for your conscience and for what you believe in.
I hope that when you go to sleep tonight you will tell yourself, "I will sleep comfortably because I have made the right decision," either to amend this bill or defeat it. The House of Lords in the United Kingdom defeated a similar bill. Do not be swept away by emotions.
I do not know why the justice minister wants this bill so fast. Countries are not built in two months or three days. Certainly, our lives have changed, but have they changed so drastically as to erode civil liberties? The national anthem reads, "O Canada! glorious and free..." I do not know - will Canada be free after this?
Senator Lynch-Staunton: It is not my role to defend the government's legislation, but I must say that your interpretation of it is somewhat harsh, and I think unfair. I know the sensitivities that have led you to express the harsh opinions that you have and the anxieties that you hold.
However, there is one aspect of your brief, which does trouble me. It is represented in both the written brief that we received yesterday and in your presentation today, which is the summary of the brief, and it is that you are convinced that the Muslim and Arab communities are being directly targeted by this bill. You state, "Bill C-36 is an unacceptable racial and religious wedge against civil liberties of all Canadians." You go on to state that it has a Muslim and Arab focus and that the CAF finds it totally unacceptable and refuses to accept that the Muslim and Arab communities will now have their turn at being a target of injustice. I want you to show me where in this bill these two communities are being singled out.
Ms Sherazee: I would turn your attention to the proposed section 83.14(4). Under that provision, in determining whether an accused is participating or contributing to any activity, the court can consider the use of a name, word, symbol or other representation of identities. It does not take a genius to figure out that we demonstrate our identities, our cultures and our religions through the use of words, symbols, language and practices. If I am engaged in a practice that is religious and perfectly reasonable within my religion, it is a traditional practice, and a terrorist organization -
Senator Lynch-Staunton: Excuse me. Could you indicate again to which clause you are referring?
Ms Sherazee: Yes, it is the proposed section 83.14(4).
Senator Lynch-Staunton: I do not see it there.
Senator Joyal: It might be in the old bill.
Senator Fraser: I am not saying that what you say is not in the bill somewhere, but it is not 83.14(4).
Ms Sherazee: I am sorry, I am looking at the old bill.
In any event, the provision to which I refer allows the government to use such factors in considering this.
We must be cautious when we give such blanket permission for the interpretation of particular religious symbols. That will taint and stigmatize an entire community and prevent it from participating in that religion. It will also target it. This is what I mean by how the bill can create a stigmatization effect that will have long-term implications for a culture and a community.
It is not uncommon for women in the Muslim community who have worn the hijab to consider whether they should continue to wear the hijab or remain home for fear of being harassed and abused.
There is no recourse for this. If one is called a name walking down the street, there is no real legal recourse for that. It has the effect of instilling fear. It has the effect of differential treatment. It is racism. If you have legislation that allows the court to use these things, then there will be a detrimental effect in the long run.
History teaches us that whenever there is a time of war and there is a particular enemy abroad, there is also an enemy within. This happened during World War II when the Japanese were interned. This happened during World War I. We do not want to see this happening now. There is currently a war on terrorism and it is taking place in the Middle East, so the Middle Eastern community is being targeted.
I will leave statistics and particular racial incidents for Dr. Asfour to comment on, but I would caution you to not ignore that reality.
The Chairman: This is the proposed section 83.18(4) in the bill as amended, and it can be found at page 29.
Senator Lynch-Staunton: Again, I am sure we could think of other groups who have symbols, names and words. The exclusivity that you are attributing to this bill has yet to be proven, though it is quite obvious that, because the last terrorist attack has been attributed to a certain community, those identified with it are naturally more apprehensive than others.
I would not want you to leave the impression that, because members of your community, as others, are harassed on the street or in their offices, that has anything to do with Bill C-36 or even that Bill C-36 can correct it. That is a societal problem. That is an ongoing problem of prejudice and racism.
Also, remember that when the terrible Japanese and Italian internments took place, and the harassment of Ukrainians during the First World War and after, there was no Charter in place in Canada. In 1980, when nearly 500 people were arrested, there was no Charter to protect them. Now there is a Charter to protect them. It protects all Canadians and non-Canadians who are in Canada. Our Charter extends that far. I do not think you should ignore that in your presentation.
I suppose you would argue that this bill is not Charter-proof and that the excesses that you claim could be committed by the police will be committed anyway, whatever the Charter says.
I know where you are coming from. I see what happens in the United States where who knows how many hundreds have been arrested and are under detention.
Ms Sherazee: The figure is 2,000.
Senator Lynch-Staunton: The figure varies, but it is too many, that's for sure. You are very anxious that this not happen here and you fear that it might happen with the passage of this bill. There are preventive arrests and investigative hearings that are not part of our Canadian traditions, but this is in response to an ongoing terrible event that was climaxed on September 11.
While I am the first one to challenge that the bill is Charter-proof, as the Justice Department claims, I also feel that no matter how bad or good the bill is, it applies to every terrorist, whether known or suspected, and is not aimed particularly at one or two communities.
Dr. Asfour: We are saying that we have no problem in combatting terrorism. We want it fought as much as the next individual. We are saying that we do have the mechanism to do that in place. We already have the laws on the books to deal with whatever problems arise. We have CSIS; we have the courts; we have the power to take anyone in. Why enlarge this power and make it so thin and so broad and give it to so many people who, for one reason or another, may misinterpret it and abuse it? This is all we are saying.
We are also saying also that, so far, the Canadian Muslim Council has documented 130 cases of harassment, abuse, brutality and arrest. Those are cases that are reported to their site, and those cases have been reported. However, for every one case reported, there may be five or ten which are not reported.
At this point, no other group is being targeted. No group other than the Muslim and Arab groups has been harassed.
Senator Fraser: Ms Sherazee, you said, as has a number of other witnesses, something that some of my colleagues and I believe to be incorrect. You said that, under this proposed act, someone could be found guilty of facilitation even if that person did not know he or she was facilitating a terrorist activity. It is true that one could have applied that interpretation to the first version of the bill. This committee drew public attention to that in its report on its pre-study. The present version of the bill has been corrected to ensure that one must have been facilitating knowingly. One cannot be swept up because one did not know that the person being given a helping hand to was a terrorist. For example, to be on the list of entities, you must have knowingly carried out or participated in or facilitated a terrorist activity. The proposed section 83.18 states, "Every one who knowingly participates in or contributes to..."; 83.19, "Every one who knowingly facilitates..."; 83.21 states: "Every person who knowingly instructs..."; 83.22 states, "Every person who knowingly instructs..."; and 83.23 states, "Every one who knowingly harbours or conceals...".
What you do not have to know is which specific terrorist act you may have facilitated. To illustrate: If I give Senator Bryden the materials with which to make a bomb and an instruction sheet on how to make and place bombs, but I do not know exactly where - and I tell him that I think it is probably a good idea that he should place some bombs - but maybe on Parliament Hill, but I do not know exactly where or when he will place the bomb, I can still be found guilty of facilitation because, obviously, I would know I would be facilitating something, even if I did not know precisely where or when the bomb would be planted. Forgive me, Senator Bryden.
That is a crucial distinction that Canadians, in general, including those who may be watching this on television, need to be made aware of. If you have found, in the present version of the bill, any other instance where, through inadvertence, you did not have to knowingly facilitate an action, please draw it to our attention.
Ms Sherazee: I draw your attention to the new clause 83.14(1)(a) and (b), which states that a person need not have any knowledge to lose his money or property. I printed this off the Internet, so I do not have the same page numbers as you have.
The Chairman: The reference is on page 25, senators.
Ms Sherazee: It is 83.19.
Senator Fraser: The proposed section 83.14(8), on page 27, states that if you took reasonable care to ensure that your property would be properly and lawfully used, you are off the hook.
Ms Sherazee: "Reasonable care" is different from "intent," and from "knowledge."
I disagree with your interpretation of the proposed section 83.19(1). Of course, if we have disagreements, then understandably the public will also have disagreements about this. That proposed subsection specifically states that you have to know. It does require knowledge. Then, however, the proposed subsection 83.19(2) contradicts that and states, "...whether or not..." you know."
Senator Fraser: That is the point I was trying to make.
Ms Sherazee: The crux of this is activity, or whether there has been a facilitation. We think that it cancels the two out. You can still, without knowledge, without intent, without an activity, be found liable.
Senator Fraser: I do not agree with you for the reasons that I just stated, nor, I must tell you, does the Minister of Justice or the commons committee that voted in this amendment. Should a disagreement arise in court, judges go to the parliamentary proceedings sometimes to clarify the intent of the law, if the language is confusing.
Senator Joyal: I am not so sure about that.
Senator Jaffer: As-salam Alaikum. The events of September 11 inflicted a terrible blow on the North American continent, including all Canadians. We all know that some Muslims died on that terrible day as well. For the Muslim and Arab communities, September 11 has continued. People write to me daily about the harassment that they are already suffering at the hands of police. Every time I receive a letter, I send it to the authorities, and they immediately consider the allegations.
How can we work together? What would assure the community that the tolerance that Canadians have always shown will continue? What do you think needs to happen?
Dr. Asfour: First, we must strike out preventive arrest. We must also stop the police from phone-tapping and from computer-tapping. We do have the laws. Currently, the police can arrest anyone. It dawned on me the other day that we are securing security for the future. It is just like saying to Canadians, "You all have to buy artificial legs, because 10 years from now, you will lose a leg."
This country is still safe; we have not had any problems. We have not had any disasters. I hope to God that we never do. This is not a fertile land for violence. Why do we have to give the police the power to arrest on suspicion? How do I guarantee that once this bill is enacted, someone will not come to me and say, "John, you said on Parliament Hill that this is the beginning of a police state. You are under arrest because you are fear mongering."
Simply because we are asking for human rights, people think that we are fear mongers; but we are not. It is a reality. Whether this bill targets the Muslims and Arabs or others, it is a reality. Please, I cannot impress upon you enough that, if a community feels terrorized and frightened, we should pay attention to that community, to their feelings and to their aspirations.
Senator Jaffer: Dr. Asfour, perhaps I was not clear, and I apologize for that. We have listened carefully to your comments on the bill and we will endeavour to remember your words. However, I am asking you, specifically because you are a leader in the community, what would help to ease the anxiety in the community? What kind of general steps, forgetting this bill, would help the community?
Dr. Asfour: We need pure consultation. The community needs to be consulted about what is happening to it, about how to protect itself, and about where to go when someone is harassed. Many people do not have the mechanism or the knowledge to report their harassment. Many people do not have the means to ask for a lawyer's help. Incidents are not reported to us or to you clearly and adequately and as soon as they should be reported. We need assistance in all of this. We need consultation. We need to know who is being targeted; and targeted people should be able to seek help, legal advice, and have the means to do that. Under the Constitution, they should have their "day in the sun."
Ms Sherazee: When you pass legislation, you send a message to the public. Citizens look to the government to give instructions on how to conduct themselves. If you pass Bill C-36 in its current form, you are sending a message to the law enforcement and the intelligence agencies, as well as the general public, that it is okay to racially profile and it is okay to target, because it is all being done in the name of security, and that this great threat justifies whatever measures we take.
We are saying that law is a good way to send a message of tolerance to a people. The way that its minorities are treated is what will determine how tolerant Canada will be, particularly in a time of crisis.
In addition to that, there needs to be appropriate consultation. This legislation is being rushed through.We had to scramble to appear before you today. Many communities and organizations that have not even had an opportunity to read this bill will be detrimentally impacted.
We are asking you to take the time to deliberate. This is a very important measure. Terrorism is a grave threat. The review of this bill needs to be done properly.
Dr. Asfour: If a review committee is set up, we would love to be a part of that.
Senator Beaudoin: You raised a point regarding the proposed section 83.19 on page 29. Obviously this is the kind of problem that may be raised in court. In the first subsection the word "knowingly" is used; and in the second subsection it is stated:
For the purposes of this Part, a terrorist activity is facilitated whether or not
(a) the facilitator knows that a particular terrorist activity is facilitated;
Reference was made to the fact that the Supreme Court may refer to our debate. I would hope that they do that, but there is no certainty that they will. This is why we suggested, in our report on the subject matter of the bill, which was unanimously adopted, that we have certain protection in respect of these additional powers. That protection for us would take the form of the appointment of an officer of Parliament to monitor, and a sunset clause. We hope that the bill will be amended to include those measures.
Obviously, when you give additional power, there is a risk that that power will be challenged before the courts. There is the risk, of course, if the bill is permanent, as this one is, that the court will be somewhat more severe than if it were an emergency measure. That is why we suggested these two amendments to this bill. We are doing something, but we have to respect our own Constitution. This is a very important bill.
I do not know if that answers your question, Ms Sherazee, on "terrorist activity." There is some doubt left by that paragraph.
Ms Sherazee: The proposed section 83.32, is not a real sunset clause because it can be extended by resolution, not by Parliamentary debate or process. That is completely bypassed as are constitutional, democratic safeguards and supremacy. We would really caution you in regard to passing it the way it is.
The Chairman: On the question of resolution, we have dealt with this in a number of situations in the past. This is a process where there is debate. It is a process that is available to either house for committee study. In the past, on occasion, we have dealt with resolutions in joint committees. There is a parliamentary process that does surround the resolution that requires not only decision but also permits hearings and debate.
Senator Andreychuk: Are you saying that there is a targeting or a profiling in the bill, or are you saying that your concern relates to how the act will be administered? Do you have some concerns that the targeting will occur in the administration of the act by those who will exercise the power across this land? That administration may involve many people at many times. Inevitably, there will be, either through honest belief or otherwise, an excess of the power. Is that one of your submissions?
In the detention period of 72 hours, would it alleviate your fear if there were some sort of double-check or other scrutiny? It would now be done, according to the bill, in the confines and privacy of those who are entitled to do the investigation. If that investigative process had some double-check on it, would it alleviate your fears?
Ms Sherazee: It is true that the application and the enforcement of a law are just as important as the proclamation of a law.
The problems exist at both ends in regard to Bill C-36. The problem with the law is that it is vague and overly broad. The very core of the legislation, which is the definition of terrorist activity, will exacerbate the conditions that Arabs and Muslims are feeling, as well as other racialized groups. It will also create a climate in which the enforcement mechanisms, which are currently used, and the discriminatory results will be reinforced.
We are saying that the legislation itself will give the tools to the enforcement officials to enforce it in a manner that will be overly broad and that will have racist consequences.
As to whether there should be an additional check and balance in terms of the investigative hearings, we would support any measure that would introduce such an additional check and balance.
The review mechanisms that are currently in the bill fall short of giving us substantive and qualitative information. It is not sufficient for the Solicitor General or the Attorney General to provide statistics on the number of preventative arrests or investigative hearings. We need to understand what those statistics mean. The people who are in the best position to be able to do that are not solicitors general and attorneys general, but the people who have intimate interaction with the legislation. We believe that is the judiciary, and that is an independent body. Those should be a part of the review mechanism.
Senator Joyal: Dr. Asfour and Ms Sherazee, your brief raises many pointed legal issues in reference to the Charter. You refer to case law where the courts have pronounced on some of the freedoms that you maintain have been infringed upon in the bill. Is it your intention, if the bill were to pass as is, to make a court challenge, either you as a federation or in conjunction with other interested groups in Canada?
I would refer to your definition, for instance, of terrorist activities that could include lawful activities in a free and democratic society, the absolute liability that you say is contrary to both common law and Charter interpretation and the rights entrenched in section 8 of the Charter. It seems to me that this is almost a pre-feasibility study of a court challenge. Is it your intention to consider that in the near future?
Dr. Asfour: We are not in the business of having a government draft laws so that a federation such as ours can go to court to challenge it. Our mandate is to provide Arabs and Muslims in this country with their rights and duties, to talk to them, to teach them, and to show them what a Canadian has and does not have.
Obviously, you see that there are not only many loopholes, but holes, in this bill. Simply, the bill was rushed. I understand that 500 lawyers of Her Majesty worked on it day and night and everyone from every department came in and lumped in every last bit of what they wanted to put into it. The Justice Minister came down to the Justice Committee and, before hearing what the committee had to say about their findings, she introduced two amendments. They were what I would call "surgical" amendments. That was it. They closed the debate on it in Parliament. The Senate is given only four days to debate such a humungous piece of work and you must report simply so that someone can have a nice Christmas. I am sorry, this is a country here; this is not a Christmas gift.
Of course, if this bill is passed, the law will be challenged. We are not the only ones who see it as such. Yes, senator, we will challenge it, but we should not have to. It is not our business to challenge the government. The government should look after its own citizens. The Justice Minister should listen to the people. She went on national TV and said, "I listened to the people." I do not know what people she is listening to.
We do not have to challenge this bill, senator. We do not have to go to court, waste money and effort and create animosity among Canadians. We do not have to challenge the police when they abuse power. We do not have to challenge judges. We do not have the facilities to employ lawyers and go to court day in and day out to challenge a law. As I see it, this is unnatural in our Canadian landscape. Please, heed what we are saying and do not allow this bill to turn our country into a police state.
The Chairman: Thank you very much, Dr. Asfour and Ms Sherazee. We are pleased that you were able to come today. You have given us a vivid description of your views on the bill. They will certainly be studied by our committee members who, as you see yourself, were very interested in what you had to say. We thank you for coming. We wish you well.
Dr. Asfour: Thank you for accommodating us. We really appreciate this.
Senator Lynch-Staunton: Madam Chair, can you tell us what Monday will bring as far as our schedule goes?
The Chairman: The plan, Senator Lynch-Staunton, is that we will meet as a committee at ten o'clock on Monday and begin our clause-by-clause review of the bill. We will continue that as long as necessary. We are cognizant of the reality that a budget will be released on Monday. Some of our senators may have some role to play after it is released. However, our concern will be the clause-by-clause analysis of the bill and any amendments that may be forthcoming.
To facilitate the work of the committee, I would suggest that any amendment by any senator be in writing and in both languages.
We also may wish to consider some of the questions that were raised in our hearings that are outside the clauses of the bill and upon which we might make reasoned and brief observations. We can perhaps work together on that, Senator Lynch-Staunton.
The Senate will be meeting at eight o'clock on Monday evening. It is my hope that we will be able to complete our work and present our report to the Senate that night.
Honourable senators, our next group of witnesses is now before us. We will hear from Mr. Trudell, Chair, Canadian Council of Criminal Defence Lawyers. From the Canadian Civil Liberties Association we have Mr. Borovoy. From the Federation of Law Societies of Canada, we have Mr. Royal, who is a board member for Alberta and the Northwest Territories. As well, we have Ms Corrick, who is from the Law Society of Upper Canada.
Welcome all. We are pleased you could be here with us today. As you have seen, we have many senators who ask many questions and we try to accommodate each of them. It all depends on how loyal we are to each other by posing brief and succinct questions and whether we receive compressed but full answers from our witnesses.
With that caution, I would ask those of you who wish to give brief opening statements to please proceed.
Mr. William M. Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Honourable senators, on behalf of the Canadian Council of Criminal Defence Lawyers, it is an honour to be here. We are grateful.
Prior to today's appearance I submitted a letter to the committee. In my opening statement I would like to go over it, after which I will have some brief comments.
The letter states:
Dear Senators:
You have now been asked to approve perhaps the most important piece of legislation in our lifetime, Bill C-36, the Anti-Terrorism Act.
Never before has the nation's hopes for your guidance and trust in your wisdom been more acute. Never before has the necessity for scrutiny not rubber stamping been so vital to the Canada we are and the Canada we may become.
We have placed an enormous amount of trust in our elected leaders, assuming that they know more than we do, or they would not request the powers in this Bill. We want to reject any suspicions that they are being bullied by American anecdote or law and order propaganda whispered by the powerful.
Many citizens, members of the Bar, journalists, academics, and elected and appointed representatives of Government have expressed concerns about the sweeping nature of the Anti-Terrorism legislation and its companions still to come.
These voices are not extremist and deserve to be heard. Indeed, Minister McLellan has a reputation for being firm but fair and open to consultation on changes to legislative proposals and has so acted here. But her mandate is different from yours. She in effect is the Chief Law Enforcement Officer in this country. You are the Nation's gatekeepers of the protection of individual liberty. You must examine this Bill closer to the ground, measure its impact and attempt to mitigate its negative potential.
There are many problems with this Bill. Perhaps, its complexity is a central one. It must be cross-referenced and read in conjunction with other legislation and international obligations. Even then it is difficult to understand.
But some provisions are clear. The unique powers it grants to Ministers and officials to issue certificates and restrict disclosure pulls shades down on open government.
The extraordinary and chilling powers it grants in relation to preventative arrests, investigative hearings, and compelling testimony are unknown in this country, and untested in their need and effect.
Mistakes will be made. Individuals will be targeted, arrested, perhaps then released. In the meantime their families will be the source of speculation in their communities, their children the objects of derision in the schools. The damage will be irreparable.
These extraordinary times seem to have resulted in extraordinary measures. They also call for extraordinary vigilance.
The Canadian Council of Criminal Defence Lawyers asks you Honourable Senators to consider carefully the proposed amendments that you will hear this week. Nevertheless, there is one key amendment that we feel is absolutely necessary.
Despite certain revisions from its original draft in providing for a yearly parliamentary report regarding the preventive arrest & investigative hearings provisions and a 3-year review, there is no real accountability in this Bill.
If those responsible decided that it is not in the public interest to report, they won't. Review provisions without teeth are historically meaningless. They do not happen.
This legislation requires an independent ombudsman, not to interfere but to oversee.
A retired Justice of the Supreme Court of Canada or Provincial Appellate Court should be named as an overseer and given the tools to do so effectively.
All preventative arrests, investigative hearings, their results, all Ministerial certificates issued, and the reasons therefore, must be reported to this "Overseer" annually.
This Ombudsman could hear Ministerial requests for the nondisclosure to Parliament of matters set out in the annual review report provisions. In this way meaningful independent accountability would be effected.
The main problems with this legislation are the sections which authorize operations in the dark. With this simple provision, Canadians perhaps could achieve a second level of security. Someone will be watching the State.
Ombudsman offices are key features of democracies. They oversee conflicts of interest and the workings of Ministries. In this way, while trusting in our elected representatives, we insure checks and balances along the way.We urge the Senate to do no less with Bill C-36. In the rush to proclaim new measures of security, in these dark times, we should ensure a glimmer of light.
We have today provided to the members of the Senate a brief setting out certain concerns with other clauses that I hope you have an opportunity to consider.
Last night while coming to Ottawa, I heard reports of the Auditor General who oversees government spending. It struck me that that is about money. When we are talking about privacy and our individual rights, how can we say that an auditor, an ombudsman is not important?
It is our respectful submission to you that we are not in any way trying to interfere with the proper provisions of this proposed legislation. This is a special committee and this is a special bill.
I also could not help but hear rumours in the press, et cetera, that were unkind to this committee. Those rumours indicated that it was all over, all that was left now was a package and a bow. I do not believe that; nor does our council.
I would ask you to consider: What is wrong with having someone oversee this measure? The Senate's proposal on its first review of this bill was that an independent parliamentary overseer be appointed. It was rejected. I do not know why.
What would be wrong with having someone there, an overseer, an auditor, to ensure that we have real accountability?
Mr. Alan Borovoy, General Counsel, Canadian Civil Liberties Association: Honourable senators, we in the Canadian Civil Liberties Association have long believed that one of the most vital roles the Senate can play in our system is to improve and enhance the processes of Parliament. This is very much needed in relation to Bill C-36.
At the heart of the matter is the unresolved dilemma, if you like, of whether this bill is an emergency measure or whether it is designed to create new, normal powers. The problem is that, in a way, the government has given us the worst of both worlds. The way this bill has been rushed through the House is characteristic of an emergency; but, except for two provisions, these measures will linger indefinitely. That makes it look as if it was designed to create new, normal measures. This is a quandary that must be overcome.
Therefore, we would suggest that, to whatever extent this committee approves clauses of the bill, those clauses ought to be subjected to a much shorter sunset clause, that is, a year. I submit that nothing would be lost in the government's campaign against terrorism. They could have their bill immediately and proceed to enforce it. However, to whatever extent they want any of these measures to linger, they would be effectively required to introduce them in manageable segments throughout the year so that there could be proper public and parliamentary debate. This bill is so full of complex features and it has been pushed through so fast that there has hardly been an opportunity for any of us to digest its implications. We would suggest that, by doing it this way, we would be approaching it properly. Let them proceed, but ensure that in a year's time any provision will lapse. In the meantime, if the desire is that any of these measures should be more permanent, we will have a proper debate at the time and we will be competent to conduct a proper debate.
I would like to spend the few remaining moments that I have to indicate that, with all the rush, the bill still, even with its amendments, contains serious flaws. I want to outline a couple of them.
I would go back to the controversial definition. In response to the criticism that the way the definition currently stands, it would bar Canadian citizens from supporting insurrectionary activities against repressive regimes abroad, the minister points to the exemption at the end and refers to the armed conflicts conducted in accordance with international law. She invokes a UN protocol that would give some sort of protection to insurrections against colonial domination, alien occupation and racist regimes. These do not exhaust the range of repressive regimes in this world.
Suppose, for example, there had been an insurrection against the former Soviet Union, or, currently, against Red China or Saddam Hussein. These regimes are home grown tyrannies. They are neither colonial, nor alien. Insofar as racism is concerned, these regimes are prepared to abuse their citizens without regard to race.
As long as any insurrection against such regimes is not deliberately targeting innocent civilians for serious violence, why should it be unlawful for Canadians to support them? In this connection, I will distribute in a moment a possible draft amendment to the definition that would incorporate some of this. I am not wedded to the terms, but it will give you some idea of how we might accomplish this objective, which I gather from what the government says they favour. It is just that they have not accomplished it.
The other part of the definition concerns the removal of the word "unlawful." This, we are invited to consider, will protect some of the civil disobedience that falls short of what most of us think of as terrorist activity.
Consider again the recent nurses' strike in the Province of Alberta which, since it was conducted against a government bill, would satisfy the requirement of a political purpose. It represented a serious disruption, or it could have represented a serious disruption, to an essential service, a hospital service. It could have caused serious risk to the health of a segment of the public. Was it then intentional? Does it satisfy that requirement? Since it might be said that the nurses knowingly took the risk to their patients, such intent might be attributed to them. I am not insisting definitively that this is the way that a court would ultimately interpret the section or a jury might ultimately rule on the facts, I am simply suggesting it is reasonably arguable. There is just no earthly reason why the legitimate fight against terrorism requires running the risk. In short, the proposed subparagraph (E) should be removed. Nothing would be lost.
I have one other illustration to show how little attention has been paid to these details. I have seen no discussion of one particular clause of the bill except my own. In case you do not read my remarks, I will share my views with you.
A clause in the bill states that individuals, as well as organizations, can wind up on the list. This would mean that it would be unlawful for the rest of us to deal with the property of such individuals. We could not buy their homes, their cars or even their clothes. We could not rent from them.
It is one thing to treat an organization in this way. Its institutional life is limited. However, individuals lead ordinary lives. There must be something repugnant about transforming a person into a legal pariah without ever having convicted such a person of any unlawful conduct. How necessary is this to the fight against terrorism? I would consider that almost inevitably, any individual who is under consideration to be put on the list is likely, already, to be under intense surveillance, thereby enhancing the opportunity to intercept any unlawful behaviour.
Finally, we endorse what Mr. Trudell said about independent oversight. I notice in this connection that Professor Marty Friedland suggested that the Security Intelligence Review Committee be given this function. It has the experience, and it has the machinery. However, we ought to agree on the principle of a proper system of accountability.
I return to the original suggestion that, to whatever extent you are inclined to accept any of the current provisions of the bill, you subject them to a very short sunset clause so that, if the government wants these provisions to linger, we will have, at long last, a proper parliamentary and public debate.
All of which is, as always, respectfully submitted.
Mr. Peter Royal, Q.C., Board Member for Alberta and Northwest Territories, Federation of Law Societies of Canada: I appear here this morning on behalf of the regulators of the legal profession, the 13 constituent provincial law societies. Nunavut advised yesterday that they are supportive of our brief. I speak on behalf of the 81,000 lawyers in this country. I will be speaking on behalf of the federation and dealing with the affairs of the bars that that are provincially mandated to self-govern the affairs of our respective organizations in the public interest.
We are pleased to be able to appear before you here this morning and for the opportunity to file with you our written brief, which I know you have received and which, I will assume, you have all read. We are mindful of the large number of organizations that have asked to appear, and we are sensitive to the time constraints under which the committee is operating. Having said that, however, the voice of the legal profession in this forum is an important one, I suggest, given the potential breadth of this legislation.
Our perspective as legislated overseers of our profession is distinct from that, for example, of the Canadian Bar Association which presented the Commons committee studying the bill with an impressive written brief, supplemented by their helpful oral submissions made by Simon Potter and his colleagues. Different, too, is our perspective from that of the Canadian Council of Criminal Defence Lawyers, represented by Mr. Trudell, and the Canadian Civil Liberties Association, represented by Mr. Borovoy.
Our submissions will deal with unique concerns that we have with respect to this proposed legislation.
However, having said that, we join with others who have expressed significant reservations about many aspects of this bill. Our focus will be on the core values of our profession and on the ethical obligations of our members. It is said that the Law Societies, the Barreau du Québec and the Chambre are the gatekeepers of the profession, and that is so. We regulate admission; we compel our members to carry mandatory, professional liability insurance; we require the maintenance of an assurance fund to reimburse clients where misappropriation has occurred; we provide continuing legal education programs; and we are responsible for ensuring the ongoing competence of our members and that, where appropriate and warranted, disciplinary sanctions are imposed upon them.
The special and specific concerns that we bring before your committee are those shared by all of our respective law societies. We speak to the issue with unanimity and with one voice. That should give the committee members who know, I suspect, a thing or two about lawyers, given there are several distinguished members of our profession amongst you here this morning, some real cause for concern, and that is that 81,000 members of our profession have agreed so quickly on so much. This is indicative of the significance that we, in the legal profession, attach to this extraordinary bill.
Honourable senators, we have the task of advising our members on a daily basis about their clearly competing and conflicting responsibilities that will arise under this legislation. We have the task of ensuring, as far as possible, the continued maintenance of an independent bar, which is something that is clearly in the public interest.
This leads us into the identification of some fundamental principles that shape us, as a free and democratic society. The right to counsel, independent of the state, one who is fearless and who has undivided loyalty to his or her client, is an undisputed principle of fundamental justice, and one that is enshrined within the Canadian charter. We suggest that this bill seriously compromises this right. This bill creates unwarranted barriers between solicitor and client, and it mandates that lawyers must routinely breach their professional obligations toward those clients.
Two clauses of Bill C-36 will subject lawyers to the risk of criminal prosecution for fulfilling their professional obligations in advising and representing anyone subject to the proposed provisions contained in the bill. The proposed section 83.03 makes it an offence, punishable by up to 10 years in prison, for making financial or other related services available, knowing that the services will be used by or benefit a terrorist group. "Other related services" is not defined in this bill. The bill will further make it an offence to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of the group to facilitate or carry out terrorist activity. I refer to the proposed subsection 83.18(3) which states:
Participating in or contributing to an activity of a terrorist group includes
(b) providing... a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;
A court may consider the fact that a person received a benefit from a terrorist group in determining whether the person participated in or contributed to any terrorist activity. The penalty for this offence is also up to 10 years in prison.
It cannot be denied, I suggest, that lawyers who represent individuals or groups subject to the provisions of the legislation, provide a skill or an expertise for the benefit of a terrorist group. In addition, a lawyer's retainer may be considered a benefit received from a terrorist group. Lawyers could be prosecuted for participating in or contributing to the activity of a terrorist group and be imprisoned again for up to 10 years. These are not, I suggest, fanciful, imaginary or far-fetched scenarios. I suggest that our members have legitimately expressed these concerns in respect of such potential liability.
There is no exemption from these provisions for lawyers who act lawfully by the giving of legal advice and by providing representation to accused or suspected persons. There does not seem to be a bona fide reason for this, given that lawyers, like everyone else, are subject to the regular Criminal Code provisions that deal with criminal conduct, such as aiding and abetting, counselling, being an accessory after the fact, attempts and conspiracy; all criminal offences that prohibit lawyers from assisting clients to commit crimes.
Canadian lawyers are courageous and they honour the principle that every person has the right to counsel. To expect lawyers to risk criminal prosecution is, we would suggest, asking too much of our profession. The requirement that the provincial Attorney General, must first consent to such a prosecution is not a sufficient safeguard, in our respectful submission.
Other features of this bill that will adversely affect the right to counsel, include the amendments to the code, making it an offence to knowingly deal, directly or indirectly, in any property owned by, controlled by, or on behalf of, a terrorist group. Entering into or facilitating any transaction in respect of such property and providing financial or other related services in respect of such property, will also be an offence. This provision will make it an offence for lawyers acting for people or groups subject to the bill to accept retainers from their clients for professional services. This is the so-called "freezing of property" provision found in the legislation.
Furthermore, the bill provides for forfeiture orders of property owned or controlled by a terrorist group. Lawyers' retainers held in their trust accounts could well be ordered forfeited, pursuant to these provisions. Unlike the general forfeiture provisions that we find in the Criminal Code, no substantive offence need first be proven beyond a reasonable doubt. Indeed, there may be no charge ever brought for the respondent, owner or possessor to answer. The requisite onus is the civil standard - proof on a balance of probabilities. Unlike the new Proceeds of Crime (Money Laundering) Act, money received by lawyers for professional fees, for disbursements, or for the posting of bail has not been exempted from these provisions of Bill C-36.
The combined effects of this legislation will make it difficult, if not impossible, for someone subject to the provisions of the bill to retain legal counsel, rendering their right to the counsel of their choice to losery, I suggest.
However, it is not only barriers to the retention of counsel that this legislation creates that are of concern for us, for, even if counsel is retained, that counsel will necessarily lack the independence necessary to the maintenance of a proper solicitor-client relationship. A number of provisions in the bill violate the requirement that solicitors hold in confidence information received from their clients. Bill C-36 will routinely require lawyers to disclose confidential solicitor-client information to the state, thereby conscripting them against their clients and making it impossible for them to act as independent legal advisers with undivided loyalty.
The proposed section 83.1 in Bill C-36 will require everyone to disclose forthwith to both the RCMP and CSIS, the existence of property in their possession or control that they know is owned, or controlled by, or on behalf of a terrorist group, information about a transaction or a proposed transaction, in respect of such property. Lawyers who hold money in their trust accounts on behalf of entities listed by the government as terrorist groups, for example, will be forced to become witnesses against their clients and immediately disclose the existence of such trust funds to both RCMP and to CSIS. Failure to do so will subject lawyers to fines of up to $100,000 or 10 years in prison.
Furthermore, amendments to the Proceeds of Crime (Money Laundering) Act will expand the nature of transactions that lawyers will be required to report to FINTRAC, including financial transactions that lawyers have reasonable grounds to suspect are related to a terrorist activity financing offence. The act will prohibit lawyers from telling their own clients, with the intent to prejudice a criminal investigation, that they have made such a report, whether or not such an investigation has begun. In essence, the act will compel lawyers, on pain of imprisonment, to breach the fundamental principles underlying the solicitor-clientrelationship and to not inform their clients that the relationship has been breached. The FLSC, the Law Society of British Columbia and, laterally, the Law Society of Alberta, have recently challenged the constitutionality of section 5 of the regulations of the Proceeds of Crime (Money Laundering) Act. This section requires that lawyers make reports about their clients, without advising those clients, principally on the basis that it compels lawyers to gather and provide evidence against their clients on behalf of the state. I noticed that Minister McLellan alluded to this when she appeared before your committee a day or two ago.
On November 20, 2001, the British Columbia Supreme Court issued an interlocutory order exempting lawyers from the application of section 5 of the regulations pending a full hearing of the case. In making the order, the Honourable Madam Justice Allan described section 5 of the regulations as the authorization of, and I quote: "... an unprecedented intrusion into the traditional solicitor-client relationship." Bill C-36, honourable senators, will expand this intrusion.
This proposed legislation, as noted by Professor Irwin Cotler, M.P., McGill University, is not so much Charter proof, as Minister McLellan asserts, as it is Charter bound.
I will speak to the point about conscripting lawyers against their clients in investigative hearings. Much has been said about that. Bill C-36 will compel individuals who police believe have information about terrorism offences that have been committed, or will be committed, or information about the whereabouts of a suspected terrorist to appear before a judge to answer questions and/or to produce anything in their possession or control to the presiding judge. Witnesses will find themselves impaled on what the late Professor Wigmore referred to so eloquently as the "three horns of the triceratops." What should I do here? Should I disclose and cause harm to others or myself? Should I commit perjury? Should I refuse to answer questions, thereby resulting in my detention?
These hearings not only represent a disturbing departure from the fundamental right of a citizen to remain silent during the investigation of a suspected offence, a right recognized by the Supreme Court as a principle of fundamental justice enshrined within section 7 of the Charter, but they also amount to judicially supervised interrogations of witnesses or suspects, positioning the judiciary much closer to the investigatory process than ever before.
The bill is silent with respect to sanctions that may be imposed for a witness who refuses to appear, refuses to answer questions or to produce things in their possession and/or control. Presumably, broad contempt powers would be available to the court for the offending witness.
Will lawyers be required to appear before a judge to answer questions about their clients? Information covered by solicitor-client privilege is protected from disclosure during an investigative hearing, but confidential solicitor-client communications are not. Again, lawyers could be conscripted against their clients.
Our colleagues from Ontario, from the Law Society of Upper Canada, feel so strongly about investigative hearings and the entire topic of preventative arrest - a topic that we have not touched upon in our submission because it is outside the ambit of our concern as regulators - that they urge that these proposed sections in the bill ought to be removed from the bill in its entirety.
Two final provisions on the question of solicitor-client confidentiality ought to be mentioned. The bill will permit the search of a lawyer's office, pursuant to a warrant per the proposed section 83.3. This is not extraordinary. However, the bill is altogether silent on the process for determining a claim of solicitor-client privilege. Criminal Code provisions setting out procedures for determining the issue of solicitor-client privilege have been struck down recently by superior courts of appeal in several provinces. The issue is scheduled to be heard in the next week or two by the Supreme Court of Canada in a number of companion cases such as R. v. Lavallee, R. v. Fink, a case from Ontario which is rather aptly named, and White et al v. the Attorney General of Canada. The absence of any mention of the confidential nature of information that may be seized in lawyers' offices or the topic of solicitor-client privilege, sends the wrong message to law enforcement officials. There is reason to be concerned that material seized from a law office during such a search may not be sufficiently protected from disclosure to the state pending a judicial determination on the issue of privilege.
Finally, amendments to the National Defence Act, contained within Bill C-36 will allow the Minister of National Defence to authorize the interception of private communications between a foreign person and a Canadian citizen. This is a significant change, we suggest. No judicial authorization is required at all. The power is vested solely in the minister. Until now, the Communications Security Establishment, the body that actually conducts the surveillance, was only permitted to target foreign communications. This power could well be used to intercept or could result in interception of confidential solicitor-client communications on the authority of the Minister of National Defence alone.
Bill C-36, honourable senators, expands state powers in significant and disturbing ways. Many of them will deny Canadians the right to independent counsel, and they will intrude on the confidentiality of the lawyer-client relationship. The bill weaves these extraordinary powers into the fabric of our criminal and other laws making them part of our legal landscape.
The added danger in this is that these exceptional measures and powers will become the norm. What will the government do the next time the country faces a terrorist crisis? It will ratchet up the already extraordinary measures in place. Powers, once granted law enforcement agencies, are rarely withdrawn.
The further danger is the leakage of these extraordinary measures into the rest of the criminal justice system. We do not have to look too far to find recent examples of this. At the recent conference on Bill C-36 held at the University of Toronto, Professor Oren Gross of Tel Aviv University noted the curtailment to the right of silence in the United Kingdom as an example of this kind of leakage.
In 1988, the British government enacted The Police and Criminal Evidence (Northern Ireland) Order in response to a series of serious terrorist attacks. The order limits the right to silence to suspects accused in a police investigation and at any subsequent trial. The government said at the time that these measures were proclaimed that they were essential to combat terrorism in Northern Ireland. Unfortunately, the language of the order was not confined to terrorist acts, but limited the right to silence of all criminal suspects and accused in Northern Ireland.
Six years later, the British Parliament enacted similar legislation that applies to the entire United Kingdom. There is no reason to believe that a similar situation cannot happen here in Canada. Someone who knows something about a terrorist will be compelled to answer questions before a judge now. Why not someone who knows something about a sex offender or an armed robber? This is a slippery slope indeed.
Bill C-36, as noted by my good friend Mr. Borovoy, is really an emergency piece of legislation disguised as an ordinary statute. A five-year sunset clause on some of its provisions that can be renewed for a further five years with a simple majority vote in both Houses of Parliament will not prevent these extraordinary state powers from becoming part of our normal legal process.
The aim of Bill C-36 is to provide greater security for Canadians but greater security at what cost? In our view, Bill C-36 comes at too high a cost, one that Canadians ought not to be willing to pay.
As legislators, ladies and gentlemen, you should be very concerned about moving ahead so quickly with such radical legislation - legislation which, when passed, will have a significant, long-term and adverse effect upon our legal system.
There has been little public input, no meaningful public or parliamentary debate, and no consultation with concerned stakeholders. These failings are of grave concern to the regulators of the legal profession in Canada, and we urge the committee to take under serious advisement the specific recommendations contained within our written brief.
It is unfortunate that some have characterized our position as wanting to be above the law. Our concern is to ensure that citizens of Canada continue to enjoy their right to retain and be represented by independent counsel. We urge the committee to look closely at the seven recommendations that we urge upon you found within paragraphs 17, 24, 28, 32, 37, 43, and 46 of our brief.
We would be pleased to answer any questions senators may have.
Senator Beaudoin: I was most impressed, Mr. Borovoy, by your suggestion that we adapt a sunset clause to meet the circumstances. Obviously, the choice was made by the government to select a bill that is permanent and not to declare an emergency, as was possible. It was a choice.
We must now comply with it. The fact is that those additional powers will be challenged to a certain extent in the courts. All of the lawyers who have appeared before our committee have raised points that they will challenge. Some sections will be particularly debatable. This is why there is reference to a sunset clause, which is one way to deal with the problem.
You suggested that we have a shorter sunset clause, and that we each point should be debated. I would like to know more about your idea. I am converted, in the sense that I believe that we should have a sunset clause, but there are many possibilities of how that should be worded.
Mr. Borovoy: Senator, I always like to address the converted.
This is how it would work. To whatever extent you are inclined to approve the bill in its current form, we suggest you subject those proposed sections, all of them, to a one-year sunset clause. That would effectively mean that, if the government wanted to have any of those measures linger longer in the law, they would be required to reintroduce those measures in manageable segments. Within that year, there could be proper parliamentary and public debate.
Senator Beaudoin: They have already said that they accept the principle of a sunset clause, or the equivalent, in relation to two points. That means that, for all the others, they are against a sunset clause. Are you suggesting that 95 per cent of the act should be the subject of a new debate in one year?
Mr. Borovoy: That is why we have said that the one vital role for the Senate in these matters is to improve the processes in Parliament. I suggest the way to do that is for a senatorial initiative to subject the rest of the bill, all of the bill that you are approving, to a much shorter sunset clause. If the government wants those sections to become permanent, they would be effectively forced during the year to reintroduce those sections. Then we could have a proper debate on them in manageable segments at a time.
Senator Beaudoin: One year is not very long, and you are referring to 95 per cent of the bill.
Mr. Borovoy: I suggest that one year is much longer than six weeks. That is what we are talking about at the moment. It has been six weeks since the bill was first introduced. That is all the time that there has been to deal with more than 130 pages filled with complex new proposed sections, many of which have never really come to public discussion in all this time. We suggest that a year would give much more opportunity for that. In the meantime, nothing would be lost to the government because the bill could be passed. They could just proceed, but it would be pressured, if it wants to reintroduce any of those sections, to introduce them in manageable ways so that there could be a proper debate. We are suggesting that the Senate's role would be one of ensuring the integrity of the parliamentary processes.
Senator Beaudoin: I cannot agree more that that is a role of the Senate. This is a legislative house and we are here to improve legislation. That is what we do. The press ignores the fact that we do that in our committee work. In my opinion - and I may be prejudiced, of course - we are doing a very good job in that field.
I will give this more thought, but I am somewhat surprised by your suggestion. In my opinion, the government has already made a choice. Except for two points, they want this act to be permanent. At the outset I asked the Minister of Justice if this act would be permanent and she said, "Yes." I asked, "Is this bill subject to a notwithstanding clause?" She responded, "No." I agree with that. That is a good thing. It means that, if, in practice, this act is challenged, then it could be challenged in respect of a number of sections, especially the very legalistic sections.
Your proposition is interesting, but I have some difficulty understanding how it would work in practice. It is easy to identify all of the sections within a year. However, they will want to keep the act in force and they cannot challenge all of its provisions at the same time.
Mr. Borovoy: There would be no need for that. As I say, the act would be intact. Once you approve it, they can go ahead.
Senator Beaudoin: That is clear.
Mr. Borovoy: At that point, they would have a year to decide which of those measures - and it may be all of them - they want to be permanent. The difference is the increased pressure to reintroduce manageable segments and allow for betterparliamentary and public debate. I am not suggesting that this is Utopian or perfection. I am simply suggesting that this would be considerably less bad than what we have now.
Senator Bryden: A great deal could be asked of this panel and we do not have much time. I will try to ask questions that are illustrative of my concerns. I will go backwards in relation to how the presentations were given.
Mr. Royal, in speaking for the Federation of Law Societies of Canada, indicated that he was speaking for 81,000 lawyers. As they said during the American revolution, 40 million Frenchmen cannot be wrong. I assume 81,000 lawyers cannot be wrong either. However, this committee has heard from a significant number of lawyers. If one analyzed those presentations, one would find that the lawyers not only do not make the same points, in many instances, they disagree with each other. Within this room, there are a significant number of lawyers. If you represent most of the lawyers in Canada, I presume you included my associations which are the Canadian Bar Association and the New Brunswick Law Society, and I certainly was not consulted on this matter and I certainly do not agree with most of the things you say in your brief. As Senator Tkachuk would say, I want the 500 people who are watching on camera to realize that you may be speaking for associations who represent different people, but I do not believe it is fair to say that you are representing the views of 81,000 lawyers.
Senator Tkachuk: As long as you let everyone know you are a Liberal, too, Senator Bryden.
Senator Bryden: I thought they all knew.
I would ask you to address one point in relation to all the issues you have raised, and that is the position taken by the minister before this committee yesterday or the day before. She said that no one, including lawyers, is above the law, and that we expect everyone to obey the law. I find it difficult to accept the assertion being made by the Federation of Law Societies of Canada that, in providing legal counsel to someone charged with terrorist activity, they could be charged with something like facilitation. That argument simply cannot be sustained and I it is one I cannot speak strongly enough against. The bill has been carefully drafted to ensure that it criminalizes only those who knowingly deal in profit and provide financial assistance.
Another significant concern is that there may be some fundamental misunderstanding of our ordinary law in the proposed section which deals with the requirement for warrants for wiretaps and the concern with the Minister of Defence. It is my understanding that the way our law works is that the requirement relates to a warrant to tap the phones of the target. You do not need a warrant, then, to be able to listen to the conversation of someone who calls the target or who the target calls.
The courts in Canada have no jurisdiction to target or to issue warrants for foreign targets. We have no jurisdiction to do that. No court would do that. Yet the establishment that is doing the listening is prohibited from targeting Canadians. The only targets that they are dealing with are foreign targets. Therefore, your argument that you can get a warrant to target the people that the Canadian security establishment would be listening to is, as I understand our law, just plain wrong.
By the way, as an example of lawyers who do not agree, Professor Monahan was here yesterday and he does not agree that we need a generalized sunset clause.
In any event, to say that you sunset the entire act in one year, Mr. Borovoy, means that to a large extent we might as well not pass it and perhaps that is your point. The planning of the terrorist activity that occurred on September 11 took years in the development and planning of it. To have been able to prevent it by the provisions in this bill, if they would have helped, would have taken months and years to do. There would be no opportunity to implement any of the valid provisions of this proposed act within a year if you are saying that it must all be done within 12 months. It would take a significant period of time for there to be any function.
Finally, Mr. Trudell, perhaps you would address the issue of an independent ombudsman. Once again, a number of witnesses we questioned expressed a number of difficulties with this ongoing role of some sort of super agency. The Privacy Commissioner categorically objected to having another agency overseeing what he does. SIRC does the same thing as the RCMP advisory board.
Another issue is that much of what may be poorly done or abused under this bill will arise in the provinces where much of the police activity will be conducted. What is the constitutional position of a federal ombudsman somehow being able to take over that jurisdiction? There are some provisions in relation to the Emergencies Act, but that is for a short period of time, and that was a negotiated deal. It was agreed to in advance.
Mr. Royal: I will try to be as brief as the senator, Madam Chairman. I did not mean to suggest, and I do not think the committee inferred from my remarks, that 81,000 lawyers ever speak with one voice on any topic, ever. What I am speaking of are the 14 constituent organizations that are umbrella organizations. All are speaking with one voice as regulators of the profession and benchers of the various law societies.
Honourable senators should know that our brief went out to each of those organizations and they have each adopted the comments that are contained within the brief. That is what I meant by my remark. I do not want you to misinterpret that, and I do not think you did.
On the questions that you put to me specifically, I will deal first with the question that is raised in respect of the proposed section 83.18. Is it possible that a lawyer conducting his or her proper professional duties could be caught by the offence provisions found within 83.18? I ask you to make note of these new subsections and then I will give you a possible scenario in which a lawyer could be targeted for prosecution.
The proposed subsections 83.18(1), 83.18(3), 83.13(3)(b), in particular, and 83.18 (4)(c) are the provisions you must keep in mind when I present you with the scenario which I suggest is neither fanciful nor imaginary. Let's assume that I represent a group within Canada, members of whom from time to time are engaged in armed struggle with respect to a foreign government in a foreign territory. They would be a terrorist group, I suggest. I provide them with my skill or expertise as a lawyer, whether an immigration or criminal lawyer, securing release on bail, providing advice and so forth. I arrange for members to be lawfully freed in Canada as part of my professional obligation. The directions and instructions for me to act come from a group abroad. They instruct me to act on behalf of the group to secure the release of these people. There is no exemption in this proposed legislation for a lawyer acting lawfully, giving legal advice and representation.
When I provide legal advice to this group who are making propaganda or raising money, I am aiding or abetting under the Criminal Code a person who is clearly facilitating a terrorist activity. I have potential liability. I do not think that is fanciful, Senator Bryden. I can tell you, and I am not in a position to name the lawyer, that we received just such an inquiry from a senior lawyer. It was a real concern expressed by a senior and capable lawyer who is well known to me.
Senator Bryden: There is cross-reference to the legal representation that is provided for in the Criminal Code where property has been frozen or seized to permit a variation of the freezing or seizure in order to allow for living expenses or even to have your fees paid.
Mr. Royal: That is a different issue.
Senator Bryden: The same type of exemption applies I cannot enter into a debate, although I wish I could. You are interpreting those proposed sections in such a way as to miss the overriding provisions that apply to the situation where people knowingly facilitate and so on.
Mr. Royal: We need consultation because it is impossible for you and I to have this kind of debate in this setting.
However, if what you say is the case, why do we not have a special provision in the bill providing an exemption for lawyers carrying on their proper professional activities? Why would we be concerned about putting that in the bill so it is clear?
Senator Bryden: Why do we not put in a reference that the Charter of Rights and Freedoms applies? There are certain things people, particularly lawyers, are presumed to know. One of them is the law.
Mr. Royal: All I am saying, senator, is that we have received inquiries from our members who are concerned. It is not clear in the bill. As this bill is so compendious, all-encompassing and broad, as Mr. Borovoy said, it is being thrust upon us in six weeks and our members have concerns.
The second area of inquiry you had is with respect to wiretapping. What you are talking about is one-party consent; that is, where you can tap with one party's consent. I appreciate what you are saying about the court not having jurisdiction to issue an authorization for a target abroad. The response may be that you simply cannot do it and you should not leave it up to a single minister to do it on his or her fiat, in my respectful submission.
Senator Bryden: Are you saying that, although we can target Canadian citizens with a warrant, to audit their conversations, we should not be entitled to audit the conversations on a worldwide basis?
Mr. Royal: My discomfort is leaving it up to a single minister, without review power.
Senator Bryden: Who would you leave it up to? The courts cannot do it because they have no jurisdiction.
Mr. Royal: I am not sure that actually follows. You could give the court jurisdiction, if you wanted to. Why could you not?
Senator Bryden: What would you do, make the judge a persona designata or something?
Mr. Royal: If you look at this legislation, you will see that there are broad provisions with respect to extraterritoriality. Section 7 of the code is significantly amended to allow this extraterritorial reach of this legislation. Presumable you could encompass it within that legislation.
The Chairman: I will have to intervene here and draw attention to the clock. This is debate, and it is good debate, but Senator Bryden has asked questions of Mr. Borovoy, as well as Mr. Trudell, and we want to hear their response. I also have three other senators who are eager to ask questions.
Mr. Borovoy: To pick up on that last exchange, nothing would prevent the Parliament of Canada from conferring the jurisdiction on the courts to issue warrants for conversations between here and elsewhere. There is nothing to limit that.
To respond to the question that you asked me, senator, I would say that it simply does not follow that, if you enact the bill and then subject it to a one-year sunset clause, you may as well not enact it at all. That does not follow. You would have the bill immediately. The government and all police forces could then act on it. If there were any problem about some of these provisions requiring re-enactment or anything of that kind, it would be easy enough to provide for that right now, just as the bill already does with respect to the five-year sunset on preventive detentions and investigative hearings. It provides for the possibility that there may be some damage to investigations that carry on longer. That is easy enough to deal with. In that way, nothing would be lost in the government's fight against terrorism.
What would be gained is the possibility, at long last, of a proper parliamentary and public debate with respect to any sections of this act that are designed to linger indefinitely.
Mr. Trudell: The ombudsman that we are suggesting would oversee. What you have in the proposed section 83.31 is annual report provisions that provide that the Attorney General of Canada and the attorney general of every province must file a report. It is not enough to say, "We cannot do anything about it because all these investigative hearings and preventive arrests will happen in the province." The proposed section 83.31, the new annual report provisions, calls upon a report from not only the Attorney General of Canada but also the attorneys general of the provinces.
The problem with the annual report, the problem with the sunset clause and the problem with the three-year review is that they all have off-ramps.
This is how I will answer your question, senator: The proposed section 83.31(4) sets out a limitation. It states:
The annual report shall not contain any information the disclosure of which would(a) compromise or hinder an ongoing investigation...
(b) endanger the life or safety of any person;
(c) prejudice a legal proceeding; or
(d) otherwise be contrary to the public interest.
We are putting a lot of trust in someone who says, "Look, if we give you the information it is contrary to the public interest." We say this: Give it to the ombudsman so that we will have meaningful reporting to the ombudsman. The annual report is absolutely meaningless because the minister can stand up and say, "If you only knew what I knew. I cannot give it to you because it might be contrary to the public interest." It might, which is more relevant, if there is a real threat, endanger a prosecution. However, someone needs to know that.
It is not a constitutional problem at all, with respect, because the annual provision calls for a report by not only the federal government but also the provinces. All we want is someone to be the gatherer of all these extraordinary powers and provisions and then report annually.
Senator Bryden: When he gets the reports from the provincial attorneys general, what does he do with them?
Mr. Trudell: He reports annually to the House.
Senator Bryden: Which house?
Mr. Trudell: The House of Commons.
Senator Bryden: We do have separation of powers in this country.
Mr. Trudell: It does not matter whether I am a police officer with the RCMP, a member of the Ottawa Police Service, an OPP officer in Ontario or an officer in British Columbia. That is what this is about. I am acting on the basis of preventive arrest under the Criminal Code, a federal statute. It is not subdivided. It is a federal statute.
Senator Bryden: Why do the police not then report directly to the Attorney General of Canada?
Mr. Trudell: Do you mean now?
Senator Bryden: Under this bill. Why is it separate? Why does it go to the provincial attorneys general? Their report, presumably, will be tabled in their legislature.
Mr. Trudell: Senator Bryden, the provincial attorneys general have to give consent in terms of some of the provisions and some of the rights.
I respectfully submit that a report, perhaps, should go to a province but, as it states in the proposed section 83.31, the attorney general of the province should then be reporting to the ombudsman. There is a call here for the attorney general of the province to report after gathering the information, on an annual basis, about when these extraordinary powers are used. There it is. What will they do with it?
I say make it clear. They give it to the ombudsman and the ombudsman will report to Parliament. There is nothing wrong with that.
Senator Bryden: You are assuming they will do that. You cannot compel them to do that.
Mr. Trudell: It means that there will be another pair of eyes. That is all I am saying to you. There will be abuses.
Senator Jaffer: Mr. Borovoy, the last time you were in front of us we were talking about democratic rights. At my request you have drafted a document so that we would have something in front of us. I very much thank you for that. I know you have put in a lot of work into this draft, which is something we should be doing. Thank you for your assistance.
In this document you mention a regime outside Canada with a system of government that is not based on freely given consent. How would you address the issue of one-party states?
Mr. Borovoy: To whatever extent the citizens of that country do not have an alternative, I would suggest that their consent is not freely given.
Senator Tkachuk: I wish to touch on your intriguing proposal about the one-year sunset clause. Frankly, I am of the view that we may not need this bill at all.
I am a supporter of increased funding for defence, CSIS and other related areas where government can really make efforts to prevent terrorism, but I do not see any evidence that any Canadian citizens are terrorists. This is a problem of foreign organizations coming into North America, and in this particular case, to New York. Some enter surreptitiously, and many of them have illegal passports or student visas, and they are able to commit a terrorist act such as bombing the trade towers.
Let us get back to Senator Bryden's point. You are all in the legal profession, and I am not, but are there not plenty of provisions in the Criminal Code and in the current justice system, such that, if we made some changes to the refugee policy, it would allow us to fight terrorism without this bill?
Mr. Borovoy: Senator Tkachuk, that may be the case, but I do not need to resolve that problem in order to make the recommendations that I have made.
I am saying, even assuming that the bill is warranted, that some such powers ought to be adopted. Even on that assumption, nothing would be lost to the government's plans, because it could act immediately; it would have the bill it wants. However, by sun-setting it, that effectively forces the government, if it wants any of those sections to endure for a longer period, to reintroduce those sections during the year. If the government does that in a piecemeal fashion - manageable segments at a time - then at least we would have the protection of a proper public and parliamentary debate, because the process would be slowed down. In the meantime, they would have their bill.
Senator Tkachuk: Let me put it another way: What provisions in the bill, assuming my first supposition is correct that there is no evidence that Canadian citizens are terrorists, make it easier to find terrorists than we can find them now, using the existing provisions in the Criminal Code?
Mr. Trudell: Senator Tkachuk, it seems that the preventive arrest and investigative hearing form an investigative tool that the government has said they need to investigate and eliminate the threat of terrorism. This bill is based on trust. You might be right that we do not need it and that the Criminal Code is already empowered to do this, but this bill is based upon trust that we are living in extraordinary times. Our position is: Trust, but verify.
Senator Tkachuk: I am with you. If we were living in extraordinary times, there could be short-term war measure provisions; or there could be a short-term, three-year bill under emergency powers. However, this is forever.
Mr. Trudell: That is why Mr. Borovoy's point is correct, and that is why, if you read the sunset provision, you will understand that it is not a sunset provision. Someone will introduce a resolution that says we need to continue it, and it will last for another five years. The sunset clause covers only the extraordinary powers of preventive arrest and investigative hearings.
Senator Tkachuk: I agree with you.
[Translation]
Senator Poulin: I much appreciated what you said. I was surprised, though, to hear you say that the act - I will use your own words - "has been thrust upon lawyers."
We all agree that present circumstances are extraordinary. Much to our surprise, the events of September 11 have shocked us all, both collectively and individually. Were it not for those events, we would not be sitting here today discussing Bill C-36. It is also a fact, even more serious, that terrorist acts are being committed as we speak in different areas of the world. Canada is not immune from the dreadful reality of terrorism and its consequences. Families and individuals as well as commerce and international relations are affected, and Canadians do not feel as secure.
Since the beginning of our study of Bill C-36, I have received many calls urging us to vote on Bill C-36 and asking us to be more demanding on security legislation. During committee hearings on Bill C-36, several witnesses said that it strikes a balance between security needs and individual rights and freedoms. During the preceding study made by the Senate committee, some 40 witnesses were heard and more than 80 witnessed appeared before the House committee. Let us not forget that some forty other witnesses were heard when the bill was referred to the Special Senate Committee on Bill C-36.
I am always very surprised when told that the Senate does not consult Canadians. It has been more than ten years since the Senate last did a pre-study under the Standing Order. We have speeded up our work, even under extraordinary circumstances, because we do not know what the future holds for us. We are however aware of our long tradition of human rights.
[English]
We are thrusting this legislation on lawyers. Mr. Royal, will you comment on my surprise at this?
Mr. Royal: I am pleased to do so, Senator Poulin. You will forgive me for responding in English.
The tragic incidents of September 11, with which we are so familiar, elicited the response of a bill on October 15 out of the air, so to speak. As far as I am aware, there was no consultation before the bill was presented to the House, no consultation with the bar or with any stakeholders or interested groups. There was no invitation to provide input to the drafting of the bill. We were presented with this mammoth, 145-page, 170-provision bill.
We had to come up to speed very quickly. We tried to appear before the Commons committee, but we did not put our request in on time. There is a rush to judgment. There is a rush to pass this bill. It will have significant, potential, long-term deleterious effects on practicing lawyers. It breaches a long-standing tradition that I am to hold in confidence information that I receive from my client in our professional relationship.
Those sorts of things are important to the bar, and we must be careful that, although we need to respond quickly, we do not need to do, and we ought not to do, long-term damage to the lawyer-client relationship.
Senator Poulin: I share with you your concerns about the implementation of the bill, and I think that is shared by everyone who has either appeared before us as a witness or who sat as a member of the committee in both Houses. Do you not believe, though, that the tools of review and the tools of reporting that are being given will ensure the concerns that you have will be addressed?
Mr. Royal: No, I will echo the remarks of Mr. Trudell. I do not think that the rather shallow reporting provisions will give us any real assurance.
Mr. Borovoy: A mechanistic report on numbers does not give you a proper evaluation of what is going on. To have a proper evaluation, it should come not from a minister, a Solicitor General or an Attorney General, who has political interests in making the system look good. I do not mean to impugn anyone's integrity, but that is the perception the public is bound to have. It should come from an independent source.
You heard many witnesses. Please understand that those witnesses did not have an opportunity to collaborate with each other. One did not know what the other was going to say; yet, very often, they repeated what was said. Numbers of provisions of this bill were never addressed in any of these sessions and that is because it just could not be done with this kind of process.
Senator Poulin: I have to admit that I was personally reassured when the heads of the agencies who report to the different ministers reassured us that the reports would not only be quantitative, but would also be qualitative. I think everyone is taking this very seriously.
Mr. Borovoy: The bill only requires that it be quantities, so that is all that the public will get.
Mr. Trudell: In the material we placed before you, we have given you examples of what certain government ministers or agents could say. They could say, "We cannot report this to you now because of these escape clauses." That is our concern.
The Chairman: TThank you very much for taking the time to come here today. Obviously, this could go on endlessly, but we have had a good discussion and I very much appreciate the time you have given to it.
Today is the day, colleagues, that we are mark the anniversary of the 1989 massacre of 14 young women at L'École Polytechnique in Montreal. In 1991, Parliament established that December 6 would be a national day of remembrance. Throughout the Senate at 11:00 a.m., we will pause for one moment in all of our committees and workplaces to remember that very sad day.
We will now hear from our third and final witness this morning in these hearings of the Special Committee of the Senate on the subject matter of Bill C-36.
We have with us now the Information Commissioner of Canada, the Honourable John Reid. He is accompanied by Mr. Alan Leadbeater, Deputy Information Commissioner of Canada, Mr. Dan Dupuis, Director General of Investigations and Reviews, Office of the Information Commissioner, and Mr. Daniel Brunet, General Counsel for the commission.
Mr. Reid, thank you very much for coming. I know you have been out of the country. It is a pleasure to have you here today. You were here for our pre-study, and we are glad to have you back again.
Mr. John M. Reid, Information Commissioner of Canada: Madam Chair, I am grateful for the opportunity.
My purpose is to express concerns about amendments to the bill that have been made since the pre-study by this honourable Senate committee. I take the Minister of Justice at her word that certain of these amendments were intended to minimize the effect of a proposed section 38.13 certificate on the right of Canadians to an independent investigation by my office. However, the wording of the amendments, in my view, does not accomplish what the minister intended.
As now worded, clauses 43 and 87 of Bill C-36 give the Attorney General of Canada more power to undermine the independence and effectiveness of my office than was the case with the original wording of Bill C-36. In particular, the new amendments give the Attorney General the power to bring to a halt the entirety of an investigation, even if only a very small portion of the investigation relates to information covered by a proposed section 38.13 certificate.
Let me take you through how the amendments work to accomplish this unprecedented result. First, under the amended version of proposed section 38.13 of the Canada Evidence Act, the Attorney General is authorized to issue a certificate prohibiting disclosure of information in connection with "a proceeding," which includes an investigation of a complaint by the Information Commissioner after an order is made "that would result in the disclosure of the information." In the absence of qualifying words such as "disclosure to the public or a member of the public," it would be open to the Attorney General to issue a certificate under proposed section 38.13 to resist an order for the production of records made by the Information Commissioner during an investigation.
The minister and her officials insist that it is not the intention of proposed section 38.13 to enable a certificate to be issued in response to an order from the commissioner for the production of records to him, and not for disclosure to the public or anymember of the public. In her evidence before the House of Commons Committee on Justice and Human Rights, onNovember 20, 2001, the minister testified that "the certificate could only be issued after judicial review of an access or privacy request." Yet, in three cases currently before the Federal Court, the Attorney General is resisting the provision of this type of information to the commissioner. In these cases, she is arguing that compliance with an order to the commissioner for production of records to him constitutes "a disclosure" for the purposes of sections 37 and 38 of the Canada Evidence Act.
It is vital, in these circumstances, for proposed section 38.13(1) of the Canada Evidence Act to be further amended to make it clear, in line 27, page 91, that the certificate may be only issued after an order or decision that would result in the disclosure "to the public or a member of the public" of information to be subject to the certificate has been made.
I consider it vital to secure this amendment because of the effect a certificate will have, under the amendments, on the role of the Information Commissioner by virtue of the proposal to amend the Access to Information Act by adding section 69.1.
The proposed section 69.1 has been amended in a most troubling way since Bill C-36 was subject to pre-study by this committee. It now provides that, where a certificate is issued before or after a complaint to the Information Commissioner is made, all proceedings relating to that complaint are, in effect, discontinued.
As some senators may know, access requesters normally do not request access to a specified record. Rather, they normally request access to records on a particular subject, for example, the efficiency of Canada's gun registry, or the replacement by National Defence of Sea King helicopters, or Health Canada's response to the anthrax scare. Some records relating to the subject of a request may be denied based on one or more of the exemptions set out in the Access to Information Act; if so, requesters have the right to complain to the Information Commissioner to obtain an independent investigation into whether or not secrecy is justified.
It may transpire that, during the investigation, a portion of the withheld information may be the subject of a certificate under proposed section 38.13 of the Canada Evidence Act. Under the current wording of proposed section 69.1 of the Access to Information Act, the investigation of all aspects of the complaint, including refusals to disclose information not covered by a proposed section 38.13 certificate, would be discontinued. Clearly, this is an unnecessarily broad interference with the right of Canadians to an independent review of decisions by government to refuse access to records. As I said, this troubling result is one that the minister professes not to intend.
The clearest evidence that this is a mistake, requiring correction, is found by comparing proposed section 69.1(2)(a) of the Access to Information Act with proposed section 70.1(2)(a) of the Privacy Act. Senators will find that in attachment one that we have provided for you.
In the Privacy Act provision, the term "information" rather than "complaint" is used. The Privacy Commissioner's investigation will only be discontinued, after a certificate is issued, insofar as it relates to the "information" covered by the certificate. On the other hand, the entirety of the Information Commissioner's investigation into a "complaint" will be discontinued. This error of drafting results in the abrogation of a right of Canadian citizens that the Federal Court of Canada has called quasi-constitutional. It is important that this error be corrected.
There is an even more fundamental concern with the proposed section 69.1 of the Access to Information Act. There is no reason why a certificate under proposed section 38.13 of the Canada Evidence Act should be allowed to have any effect on the investigatory role of either the Information Commissioner or the Privacy Commissioner. Neither of them has the power to disclose or order the disclosure of information that is covered by a proposed section 38.13 certificate. That is why I have recommended the following.
First, proposed section 69.1(1) of the Access to Information Act should be amended to suspend only the portions of the act that relate to judicial review and which, hence, could result in disclosure of the material covered by a certificate used under proposed section 38.13 of the Canada Evidence Act. Second, proposed section 69.1(2) should be amended so as to avoid any discontinuance of the commissioner's investigations. Senators will see that in attachment two. A similar amendment should be made to proposed section 70.1 of the Privacy Act.
There can be only one reason to limit these officers of Parliament - the Information and Privacy Commissioners - to carrying out their watchdog roles with respect to denials of access to information. Since it is not because there is a possibility that disclosure might result - neither commissioner has the power to release information or to order it released - it must be to muzzle them in their independent reporting function to the Senate, the House of Commons and the people of Canada.
If these proposed sections - 69.1 of the Access to Information Act and 70.1 of the Privacy Act - are not further amended, as previously described, there will be no possibility in cases where proposed section 38.13 certificates are issued for the Information and Privacy Commissioners to make recommendations to government about excesses of secrecy by means of certificates, nor to report to complainants and Parliament as to any excesses there may be in the use of certificates by the Attorney General.
As I said in my letter to this committee on November 28, 2001, the power proposed in sections 69.1 of the Access to Information Act and 70.1 of the Privacy Act is a power to silence watchdog officers of Parliament that this minister may not have intended and may not use but which stands ripe for abuse for years to come.
In closing, may I say a word concerning clause 43 of the bill, wherein the Canada Evidence Act is amended by adding proposed section 38.13(1) to create an opportunity to seek, from a judge of the Federal Court of Appeal, an order varying or cancelling a proposed section 38.13 certificate. If this is the quid for the quo of cutting off independent review under the Access to Information Act, it is woefully inadequate. The review permitted under the proposed section 38.131 of the Canada Evidence Act, at paragraphs (8), (9 )and (10), and you can see that in an attachment three, that review would be so limited as to be fruitless for any objector and it would be demeaning to the reviewing judge. The reviewing judge's sole role would be to review the information for the purpose of deciding whether or not it relates to, first, information disclosed in confidence from or in relation to a foreign entity; second, national defence; or third, security.
That means that virtually all information held by CSIS, CSE, DND, DFAIT, C&I, the RCMP, or most other departments, would easily meet the relating test in one or more of these categories. This is a form of judicial review that cannot assess the sensitivity of the information and is so stacked in favour of the Attorney General that it is not mere hyperbole to describe it as window dressing. This type of review does not subject the decisions of the Attorney General to issue certificates under proposed new section 38.13 to any meaningful accountability.
Honourable senators will recall that after my previous experience before this committee I provided a chart indicating the form of independent review of secrecy certificates provided in the legislation of our principal allies, the U.S.A., the United Kingdom, Australia and New Zealand. Perhaps that chart helped persuade members of this committee to recommend that the bill be amended to offer judicial review of a proposed section 38.13 certificate.
I wish to point out that the relating-test type of judicial review provided in amended Bill-C36 does not resemble in any way the forms of judicial review contained in the legislation of our allies. What the minister has proposed falls far short of what these other countries are willing to provide to their citizens by way of independent review. Even those of us who support strong anti-terrorism measures have every right to expect no less here in Canada.
Senator Murray: Mr. Reid, when the Privacy Commissioner, Mr. Radwanski, was here the other day, he was almost lyrical in his praise of the amendments that had been accepted by the minister and the House of Commons to those proposed sections of the bill that are of particular interest to him. One would think that this was biggest advance for privacy since the invention of Venetian blinds. I agree with him to the extent that the minister gave him more than he asked for. Not only do the amendments restore the role of his office and his role in the process, they also did what he did not ask, which was to restore a process of judicial appeal. He was very happy and I share his view of that.
Is it that you disagree with his perspective and his views on that matter or that you have, in your role, been treated differently and less advantageously, if I can put it that way, by the House of Commons in these amendments?
Mr. Reid: If you look back at his original testimony, at the same time as mine, we both agreed that the best situation would be not to touch either the Privacy Act or the Access to Information Act. The way those acts operate, they provide more than full protection for that which the government wishes to protect. That is particularly true when it comes to national defence, national security and information received from a foreign entity. These are well covered in both acts now.
The minister and the government felt it necessary to amend the bill so as to provide an absolute guarantee that certain information could be protected from disclosure. That is the certificate and the way it applies. Even accepting for the moment that the need for that guarantee has been demonstrated, there is no need to go as far as this bill does in order to secure such a guarantee.
My view is that guarantee can be achieved without interfering in any way with the investigatory process of either the Privacy Commissioner or the Information Commissioner. We are both lawfully bound to keep secret anything that the government wants to be kept secret. We cannot order any information disclosed. We can only recommend additional disclosure if we believe that the net of secrecy has been cast too widely.
The minister has clearly indicated that there is no fear of disclosure during the commissioners' investigations. She has given no reason why a certificate should intrude in any way into those investigations. That is why I proposed amendment number 2.
Second, as I said in my remarks, there is a difference in treatment in terms of the investigations by the Privacy Commissioner and by the Access to Information Commissioner. In the case of the Privacy Commissioner, when a certificate is issued, it applies only to the information covered by the certificate. That means that he can continue his investigation, but he cannot see that narrow amount of information.
In the case of the Information Commissioner, when a certificate is issued, it applies to the complaint; that is, it causes the investigation to cease and to stop.
There is a tremendous difference in the way each office is treated.
Senator Murray: As I recall Mr. Radwanski's testimony, he emphasized that this would take place after an order had been made, in his case. In your case, it is before an order had been made; is that correct?
Mr. Reid: That is correct. Once the order comes, the investigation ceases. When an order comes in the case of his investigation, the information is eliminated but the investigation continues.
Senator Murray: Which of the amendments would solve that problem for you?
Mr. Reid: That is attachment two.
Senator Bryden: On this point, Minister McLellan said that if an order for disclosure in relation to your act was made, and if the order dealt totally or in part with information that fell within those limited categories, then she would issue a certificate. She said that the Access to Information Commissioner could continue with all other aspects of investigation without being affected.
Mr. Reid: That is not what the legislation says. That applies to the Privacy Commissioner; it does not apply to the Information Commissioner's investigations.
Mr. Alan Leadbeater, Deputy Information Commissioner, Office of the Information Commissioner of Canada: Honourable senators, if you look at attachment one, page 1 is the provision relating to the Access to Information Act. Subparagraph (2)(a) says that once a certificate is issued "all proceedings under this Act in respect of the complaint$are discontinued."
If you look at the corresponding section, which is the next page of attachment one, with respect to the Privacy Act, the same paragraph, 2(a), says that where a certificate is issued "all proceedings under this Act in respect to that information... are discontinued."
Senator Bryden: I am aware of that.
The Chairman: Senators, it is eleven o'clock. Let us pause for a moment of silence, in remembrance of the massacre of 14 women at L'École Polytechnique in Montreal in 1989.
[Moment of silence observed.]
Senator Bryden: I do not have the exact quote in front of me but the minister certainly indicated that, read as a whole, the impact of the complaint reference and the information reference in the privacy bill are intended to be the same. You argue that it does not say that, but that is the case. It is a personal decision by the minister. Her power in this particular provision cannot be delegated. The minister alone can do this.
If this is a drafting error - and she did not say that - and if it were not possible to correct that drafting error in this process, a omnibus bill could introduce the correction. We deal with such bills on a regular basis. I do not know whether the minister would make that sort of commitment.
Senator Murray: That is the purpose of clause-by-clause consideration.
Senator Bryden: I wanted to raise that. Clearly that was the impression. I do not think anyone disagrees. The intent of the minister is that the position of your office would be the same as that of the Privacy Commissioner.
Mr. Reid: That is why I have referred to it as an "error in drafting," senator. One would hope it would be possible to have that error corrected before the bill becomes law.
Senator Fraser: I start, with some trepidation, by pointing out for the record a small error in Senator Murray's remarks. The Privacy Act provisions include provision for certificates that are issued before a complaint is filed with the Privacy Commissioner. As I understand the testimony given here on several occasions now by the various ministers and officials, it means that, if a certificate has been issued in relation to some other court proceeding, the minister will not pre-empt a citizen's right before the citizen has taken any action. It is all there on page 133 of the bill.
Mr. Reid, I am distressed by your dismissal of judicial review as window dressing and, as I read the bill, I also find it puzzling. In particular, I think it is worth focusing on the judge's ability to vary the terms of the certificate because from that flows, it seems to me, an assurance that the complaint will not be stopped in its tracks. Your fears should be assuaged by that. What would be the point of varying the terms of the certificate if the certificate could, in fact, just stop everything? Either you uphold the certificate or you do not uphold the certificate, but there is no point in varying it.
If you vary it, surely the point is to ensure that, in all respects, the prohibition on disclosure and on other related matters will be kept as narrow as possible to relate to the protection of national defence and national security or to information that has been obtained in confidence from a foreign state. I believe all states consider that such material should be kept confidential.
That strikes me as the only possible reason one would allow a judge to vary the terms of the certificate.
Mr. Reid: The judge can only vary it in relationship to the way the information is referenced. The test that is provided is a very low-level test. It simply has to "relate to."
Almost every document in the Department of External Affairs includes the phrase, "relates to." Every document in the Department of National Defence includes the phrase, "relates to." That is a very low-level test.
Senator Fraser: I can think of many documents that do not contain that phrase.
Mr. Reid: You would be surprised at what "relates to" means in judicial terms. The barest connection means it "relates to." That is the interpretation. If in fact it "relates to," the judge will have little power to vary the certificate.
Senator Fraser: The judge has, in this bill, the power to vary the certificate.
Mr. Reid: He has the power but that power is limited by the term "relates to." If you wanted to give him a power to change the certificate that would be useful and meaningful, you would change the test from "relates to" to having a higher standard. There are other words that could be used there.
Senator Fraser: The judge determines what "relates to" means and I suspect that you and I will not, here, settle our disagreement about what this paragraph means. I, at any rate, find it a substantial protection.
Senator Beaudoin: From the beginning, I suggested that access to the courts be included. Finally, I won my case on that. I understand your preoccupation. I am one of those people who is in favour of recognizing the difference between executive, legislative and judicial functions.
I am in favour of access to the courts because our judicial system has a long tradition of independence. It is the only branch of the state that is entirely impartial, in a sense. The legislative and executive branches are not always impartial. Politics plays a role, so they should not be involved at the judicial level.
In my opinion, the Supreme Court deals with constitutional law very well in that they do not invade the legislative and the executive fields. I am inclined to agree with what is there. However, I recognize that it is the opinion of some people that sometimes they go too far in their interpretation of the Charter of Rights and Freedoms. I disagree strongly. They are doing their job. Their job is to be sure that there is democracy under the law and the Charter.
Therefore, I am glad that there has been such an amendment.
Mr. Leadbeater: We are not aware of any judicial review test, which is currently available to Canadians under other legislation, which is this low. This test is lower than any tests available to our allies in reviewing certificates.
The minister told us that that she was concerned about the sensitivity of information.The court is not entitled to assess the sensitivity of the information. The court cannot determine if the minister is overusing the certificate. The role of the court is simply to say whether the information relates to national defence.
That test is a lower-level test than that used for any judicial review in the country. We take the position that the test is stacked in favour of the Attorney General. Their initial fear was of a misguided judge. That is why they had to have this certificate, and they have put in this form of judicial review because it, in effect, allows them to satisfy themselves that they will always win those cases.
Surely the minister will never certify information that does not relate to national defence, but will it always be of sufficient sensitivity that it requires complete prohibition? That is the issue at which the court will not be able to look.
Senator Beaudoin: When there is a question of interpretation, the judge is in the best position to rule whether it is legal or illegal, whether it is constitutional or unconstitutional. This is our system. I consider it to be the basis of our democracy. If the courts go too far, then we should debate that in Parliament. During the Depression, a debate was held in the United States when Roosevelt made a certain appointment to the Supreme Court. That has not happened in Canada.
Those who drafted our Charter of Rights which was enshrined in the Constitution did a magnificent job in dealing with 450 cases in 15 years. I am inclined to defend the courts on this. In difficult times, such as now, I think the courts have an extremely useful function.
Mr. Leadbeater: We agree. We simply say that they should be allowed to perform their normal role. Do not give them a reduced role.
Mr. Reid: It is also interesting that there is no appeal from the decision, which is unusual.
Senator Beaudoin: I believe that the right of appeal is part of the rule of law. Unless we have good reasons to curtail that right of appeal, it should always be available. I have always stood firm in that belief.
Mr. Reid: In this particular provision, there is no appeal.
Senator Beaudoin: At least, I won in the first instance.
Mr. Reid: I salute you on that. You have been much more successful than I have been.
[Translation]
You say you are not comfortable with the proposed amendment because a decision could be rendered by a Federal Court of Appeal judge. You find the amendment inadequate. I would like to read to you what the Justice Minister said before our committee in relation to your concern, and I quote:
[English]
The Minister of Justice said:
...Information Commissioner Reid objects to what he considers a weak review mechanism. A decision of the government to amend Bill C-36 to include a Federal Court review was made in response to a Senate recommendation and in response to concerns raised by a number of stakeholders. The Federal Court of Appeal has been given broad powers including the power to quash or vary a certificate if information does not fall within the limited categories set out in Bill C-36.
The Information Commissioner has suggested that other jurisdictions have greater review powers than those set out in the bill. However, Bill C-36 clearly provides a more than adequate review mechanism. Let me briefly inform you about some of the other countries to which we compare ourselves regularly.
For example, the courts in Australia and New Zealand do not have the power to quash. They only have the power to refer the matter back to the appropriate minister with a recommendation that the minister give further consideration to the issue. That is it. The minister can ignore that recommendation at that time and proceed with the certificate banning the information. In the United States, the courts have the power to quash the certificate, and the review mechanism is based on a class test very similar to the one proposed in Bill C-36.
In conclusion, having reviewed the Information Commissioner's representations, we do not believe that further amendments are required to adequately protect his important role.
[Translation]
When I heard the Justice Minister say this, I tried to remember the intent of the Access to Information Act, when it was enacted. This Act supports your agency, Commissioner. Its purpose is to increase transparency in the management of public funds. The intent of Bill C-36 is to ensure that all Canadians have the means to prevent acts leading to terrorism.
We have heard several witnesses praise the balance struck between security - we know this supposes necessarily some degree of confidentiality - and conformity to existing laws within your agency and the Charter of Rights and Freedoms. A witness was saying that we should use regular means to achieve this end. We all agree that we live in extraordinary times. Do you not find that there is nonetheless an equilibrium between the Access to Information Act and the urgent need to increase security measures in order to prevent such tragedies?
[English]
Mr. Reid: The minister and I disagree on what the courts in Australia and in New Zealand can do. They do have the same power to vary, rescind or quash a certificate. The review bodies in the United States and in the United Kingdom have the same powers. If you look at the judicial and administrative reviews provided in the United States, the United Kingdom, Australia and New Zealand, you will see that they provide that the court can have a full review of the records and discuss the merits of secrecy.
Where a review relates to a class-based reason for security, as opposed to an injury-based test, the classes are extensively defined in their legislation. They are not defined in our legislation. Ours is a much looser kind of system and the test is much lower.
To go to your point concerning the impact of the legislation on the Access to Information Act, basically the bill removes, in theory and in practice, significant amounts of information that have been traditionally made available to Canadians under the act - information that would not be considered, in my judgment, secret. It goes far beyond the provisions in the Access to Information Act under which no secret has ever come out in the 18 years from the Department of Defence, from the Department of Foreign Affairs, from CSIS, or from the RCMP. This is a significant move to take information out of the normal course of circulation in Canada.
Is it justified under the terms and conditions in which we live today? I think not, at this stage, because it has not been proven. I am fearful that, once these provisions are in the law, they will not be subject to review. They will basically stay there because it is always easier for governments to take away informational rights than it is to give informational rights.
Senator Tkachuk: I am asking for information regarding government advertising in the Department of National Defence. Currently, I can obtain that information if I go through the proper procedures, and I have asked for such information. Walk me through the process to demonstrate what the government can do to prevent me from obtaining that information. From what you said, I understand that they can prevent me from accessing that information.
Mr. Leadbeater: The procedure is as follows: First, your request is received by the department. They may be prepared to give you some information, and exemptions may be applied to other information. For example, they may exempt some of the contract rates they have been charged by an advertiser. That would come under one of the exemptions of the act.
However, there may also be one contract in that group that the minister feels is sensitive in respect of national defence and to that applies a certificate. The certificate may have been applied before we received the complaint, if, for example, there is a related proceeding; or it may be, we contend under the provision, applied as soon as we ask to see the record. Once you complain to us about being denied information, our first step is to go to the minister to ask for the record. Normally, we receive all the records, and we make a judgment about the appropriateness. However, in response to our request to see the document, the minister may put on the section 38.13 certificate, which is exactly what she has done in a case that we are already investigating against the Department of National Defence.
Under the provisions of the bill that is before you, our investigation must come to a halt at the moment the certificate is issued. That applies even though part of the information that was denied to you was not under the certificate at all, but under one of the other exemption provisions of the act.
We cannot continue to look at that other information; and we cannot continue to look at any portion of the complaint, because of the wording, which you have seen in attachment 1, such that all proceedings in respect of the complaint are discontinued.
Our view is that, in years to come, when that comes forward for judicial interpretation, the minister's view of what she intended will not be as persuasive to the court as the words Parliament included in the legislation. It is the intent of Parliament that the courts will consider. When they use different words in two identical provisions, that means something to courts, as you know.
Our investigation of your request for that information would come to a halt, even though the certificate would cover only one small portion of the information.
Senator Tkachuk: What can I do, as a citizen, at that point? Can I go to court to get this information, or could you go to court and ask the court to deem the certificate to be ridiculous?
Mr. Leadbeater: No, the act provides that only the party can go to court. We could not go to court. However, you could go to court and you would pay your own shot. When it gets to court, the court has only one test to apply: Does the information subject to the certificate relate to national defence? It does not apply the test: Is it injurious to national defence? Iis it sensitive? Was it provided by a third country? What does it relate to? If it does not "relate to," the certificate will, be quashed.
Our suggestion is that the government will always win that one. The government will not put a certificate on a piece of information that does not at least arise to the test of "relate to." However, the contract itself could be no more than a contract that is embarrassing to the minister.
Senator Tkachuk: That is right. Our job is to ensure that citizens do not always have to go to court and to make it as easy as possible for people. We all know that governments love to keep the venetian blinds closed, as we all know, including this government. We should be doing everything we can to provide that it is not injurious to national security.
You are saying now, that this was just a drafting error.
Mr. Reid: Based on what the minister has said publicly, that she did not intend it, therefore it is a drafting error.
Mr. Leadbeater: If you look at attachment 2, you will see the wording that we would like to see in that clause. The underlined portions would be the additional words.
Senator Tkachuk: I believe you are referring to the phrase:
Provisions of this Act respecting review by the Federal Court -
and then:
- before the Federal Court pursuant to section 41 or 42...
Mr. Leadbeater: The words, "In respect of the information," not the complaint, are important.
Senator Tkachuk: How would that then change my application?
Mr. Leadbeater: You would receive an independent review from our office in respect of the appropriateness of the certificate. We would, at the end of the day, report to you that we either did not think it was an appropriate certificate or we did think it was appropriate. We could not tell you what the information is, but we would report to you. Then, we would say, if you consent, that we would go to court on your behalf and challenge this.
Senator Tkachuk: That would be better than me going to court.
Mr. Leadbeater: That is our normal process. If we recommend to a minister that a document be disclosed, and if the minister refuses, then we offer to go to court on behalf of the individual. In 99.9 per cent of the cases, we are successful in convincing the minister to follow the recommendation without going to court. However, in those cases where that does not happen, we will go to court. If we end up in court under this proposed legislation, the minister, even with these provisions, would be able to prevent the court from releasing the document. Then, at least Canadians, including parliamentarians, will have had an independent review of the merits.
The other route in the bill is to go before a judge of the Federal Court of Appeal, where you will not get a review of the merits. You will receive only a review of the "relates to" test.
Senator Bryden: You, or whoever is giving you legal advice, may be misinterpreting the proposed section 38.13(1). You seem to say that the problems only concern "relates to." It states:
38.13(1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act...
One basis on which the minister can issue a certificate is if it is in relation to a foreign entity or in confidence from a foreign entity. That is one test. She can also issue a certificate "for the purpose of protecting national defence or national security..." It does not say "relating to" national defence.
The test in relation to Senator Tkachuk's example is not whether the information relates to defence. The minister's certificate is there for the purpose of protecting national defence.
Mr. Leadbeater: I would refer you to attachment 3, the proposed section 38.131, subparagraphs (8), (9) and (10). That can be found at page 93 of the bill.
We looked at those paragraphs and asked ourselves why it was that the judge could not assess the purpose for the certificate. The minister must issue a certificate for the purpose of protecting national defence, national security and so forth, as you have read. When it comes to the judge's ability to vary that, the judge cannot assess whether the minister properly assessed her role. He can only assess whether the information relates to those classes.
In a normal case of review, a judge would make the decision that the minister is only supposed to issue a certificate for the purpose of protecting national defence, but that is not so in this instance.
Senator Bryden: With all due respect, that is precisely my point. The minister is only allowed to issue a certificate in very limited circumstances, only if it relates to information received from a foreign entity in confidence, to protect that confidence, or in relation to a foreign entity. She can do that. She cannot issue a certificate simply because the foreign entity is not a pleasant place or any of that. Her power is restricted.
The other restriction is for the purpose of protecting national defence or national security.
When you get to the section that gives the right of appeal, then the court would be restricted, of course, to analyzing whether the minister had properly exercised her authority under this act to issue the certificate within those three circumstances. One relates to a foreign entity; the second is to protect a confidence; and the third is to protect national security and defence. The judge is in a position to decide the merits of the case - as is always done - on the competing evidence. Was she doing this to protect national defence or not? If the answer is yes, the certificate continues. If the answer is no, then it is wiped out.
To go one other step, the certificate can be varied if only half of the information relates to protecting defence or the other criteria.
Senator Tkachuk: It does not say "protecting." It says "in relation." Clause 38.131(8) states "in relation to, a foreign entity..."
Senator Bryden: That is what it states. A judge can determine that some of the information is subject to the certificate. That is the only determination the judge can make.
Senator Tkachuk: It could relates to national defence or security. I say she can do it on any grounds.
Senator Bryden: She can only do it on the basis of the empowering section of the statute. The empowering section will be section 38.131. Her certificate must relate to that section. You described that section as very "weak" or "wimpy."
Mr. Reid: I believe I used the term, "window dressing."
Senator Bryden: I hope it is a non-venetian blind window dressing. The judge will analyze whether the certificate is valid. To be valid, the information must relate to a foreign entity or a confidence, or the certificate must be is issued for the purpose of protecting national defence and security.
That is the point. I believe we have here, at most, a dispute over the interpretation of the various provisions and how the courts will interpret them.
Mr. Leadbeater: Senator, you have explained very well that the normal form of judicial review of a decision taken by a member of the executive is a review for legality. You can also have a de novo review on the merits where the courts will substitute their judgment. That is a decision Parliament makes when it sets up a piece of legislation.
You are arguing that a de novo review for legality is implicit here. If that is the case, why use these words? Why remove the judicial review? There is a privative clause here. There is no judicial review under the normal section 18 of the Federal Court Act, which is the review for legality. They put in this type of review which is, "relating to." Parliament does not do that with respect to any other decision of the executive.
Senator Bryden: This is a very restrictive power given to a member of the executive. Therefore, the court will review the exercise of that very restrictive power in terms of the implementing section. That is my opinion. The court may do something else.
You are perhaps overly concerned that it will not give a person a fair shake. I put it to you that it is likely to be the minister who will not get a fair shake, because the clause is so restrictive in its implementation.
Senator Fraser: This is supplementary to Senator Tkachuk's question.
As I was listening to Mr. Leadbeater walk us through the process, somewhere in there I heard him say that, in order to appeal a certificate, the citizen will have to pay his or her own shot in court. I do not see how that necessarily follows.
A certificate will only be issued after an order for the disclosure of the information.
You say that the Minister of Justice currently interprets your orders to receive information from the government as disclosure. That means the certificate must be issued after you have issued that order. That makes you a party to the proceeding, and the parties to a proceeding may apply to the Federal Court of Appeal for an order varying or cancelling the certificate. Why could your office not pay the legal costs? Why does poor Joe Citizen have to pay?
Mr. Leadbeater: The tribunal issuing the order is not a party to the proceedings. We are the tribunal that issues the order.
Senator Fraser: You are the party to the proceeding in terms of dealing with the government.
Mr. Leadbeater: If the certificate is issued in a criminal proceeding, the criminal court cannot go to the court and try to have it appealed. It must be one of the parties before the court.. That is similar to our process. We are the court issuing the order. The parties before us are the complainant and the government institution. We are the tribunal considering the complaint. We clearly do not fall within the term "party to the proceeding." We conduct the proceeding.
Mr. Reid: In our legislation we are given the powers of a superior court of record. Clearly, we cannot be a party to anything we are adjudicating.
Senator Joyal: You cannot be judge and party at the same time.
Senator Fraser: I would not have thought you were acting as judges; but I will live with that answer.
Senator Joyal: I want to come back to the interpretation of the scope of the review. When the minister is empowered to issue a certificate, as you have stated, the objective is to protect confidentiality of information coming from foreign sources or that has been passed on to Canada under the seal of confidentiality. That is rather easy to determine. If it comes from France, Great Britain or Northern Ireland, whatever, we would just indicate the name of the country on the information and that would be it. Alternatively, the document could be marked that it has a seal of confidentiality. This element is easier to understand.
The problem stems from the protection of national defence and national security. That is a broad subject. We can deem that anything that pertains to national defence is for the security of the country. We can deem that anything that pertains to health protection, for instance, in the case of anthrax or a biological weapon, could be deemed to relate to national security because we should not provide information on how many vaccines we have because that would show our weaknesses to a terrorist group. In other words, the concept of protection is wide. There is no easy determination as in the first category.
The test that is provided for under the proposed section 38.131(8), "in relation to," is a test of the mere classification of the issue. Is this classified as defence or national security? That is essentially a classification test.
If you use the term "protection," then a reasonableness test is applied. To me, the variation between the interpretation of those two terms is this: If you only have to determine the classification, the heading of the paper is sufficient to indicate that the information comes from DND or Health Canada and so forth. The judge would only need to determine if the matter relates to the class of subject. Under the proposed section 38.13(1) it would be a matter of protection. There is an element of appreciation that this information is aimed to protect. The judge can apply the test. He must measure if the information in front of him is really of such a nature that it protects the defence, or maintains the defence of Canada.
As I understand your presentation and the discussion that has taken place amongst ourselves this morning, you would be happy if we had an element of protection in this proposed section 38.131(8) of the bill which reads:
If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or security...
If you sustain your interpretation of the certificate that the minister is empowered to issue, it contains the reasonableness test. Just a reproduction of the same definition would be sufficient to convey your point. Am I right or wrong?
Mr. Leadbeater: You have expressed it very well, Senator Joyal. You may recall, when we first appeared, we drew your attention to sections 13 and 15 of the current legislation. Section 13 is a class test that you call a categorizing test for information received in confidence from foreign governments. Section 15 is the injury-based test for information about national defence and so forth. We encouraged the government to approach this by reference to these sections of the act. A minister may certify that information meets either section 13 or 15 of our act. That is the way all the allies do it.
What you come to with your wording is almost the same point. You reintroduce the issue of an injury test into those portions of national defence and nation security that are now contained in section 15 of our legislation. That very well expresses our concern about the ability of the court to assess the sensitivity of the information, which, after all, is what the minister is concerned about, the sensitivity of the information. If there is to be an independent review of that, a court or body must be able to look at that sensitivity.
The strange wording of the proposed subsections 38.131(8), (9) and (10) appears to be a legislative effort to restrict the judge from looking at those sensitivity issues. The addition of words such as those you mentioned, would help reintroduce those concepts into the legislation.
Senator Joyal: Is there a provision in the Federal Court Act that would help to assuage your fear by being able to appeal to the general review power of the court to maintain the capacity of the court to review the element that we feel is missing in the proposed subsection (8)?
Mr. Daniel Brunet, General Counsel, Office of the Information Commissioner of Canada: Honourable senators, review is subject to section 18 of the Federal Court Act. What you have in this bill is a total departure from the general review by the judiciary of these types of decisions. It is a departure from the point of view of the admissibility of evidence. It is a departure from the test that the court is bound to apply. It is a very restrictive test. As we said before, no other jurisdiction is applying a test like this in regard to a certificate.
Yes, you can alleviate all these concerns by making these certificates subject to review by the Federal Court under section 18 of the Federal Court Act.
Mr. Leadbeater: This bill specifically removes that possibility.
Mr. Brunet: Let us go back to the general review proceedings under the Federal Court Act where you have a review by the trial division and it is subject to appeal. If there is any error of law, it can be subject to federal appeal and review by the Supreme Court of Canada. That would satisfy the concern of the Information Commissioner, and hopefully all Canadian citizens.
Senator Furey: Mr. Reid, I wanted to revisit your concern with respect to the proposed section 69.1, in particular paragraph (2)(a). I feel I have some understanding of what your interpretation of that is in that it shuts down the whole process. I am trying to reconcile that with Minister McLellan's statement before this committee on Tuesday. She said:
The effect of the certificate would be to stop the right of access to that information. That is, where there is a complaint before the commissioner, the complaint is discontinued only with respect to the certified information. The commissioner does not lose the ability to continue his investigation with respect to other matters...
You are telling us that is not what the bill provides.
Mr. Reid: It is precise and accurate as it applies to the Privacy Act.
Senator Furey: Is there some way we can reconcile the difference in terms of the issuance or the bringing forward of a new complaint, less the prohibited information?
Mr. Reid: The easy answer is to simply change the word "complaint" for the word "information." That would solve the problem.
Senator Furey: That is a very complicated process at this stage.
Mr. Reid: I understand that. The problem is that if you ask for the information again, you will still run into the certificate.
Senator Furey: If a new complaint is initiated, less the prohibited information, that could be acted upon.
Mr. Reid: You do not know what the prohibited information is.
Mr. Leadbeater: I think I understand the point the senator is making. Could a person reapply to the government for a narrow band of information, that is, ask for the information except for what is covered by the certificate? He could get another denial on portions of it, and make another complaint to us, which we would then begin to investigate with respect to that particular information. Assuming that one year had not elapsed from the date of the request because the requester has one year only to complain to us, there probably could be a convoluted mechanism whereby someone could go back to reopen their request, pay their money again and get their information.
It would be enormously convoluted and complicated, especially if we were to come to a circumstance in which it was relevant to us to determine the merits of that complaint, to see the withheld information under the certificate.
Senator Furey: That process, even though convoluted, would not be prohibited by the language of this particular amendment; is that correct?
Mr. Leadbeater: Unless in the second investigation, we felt it relevant to require the production of that certified information, in which case we would be back to square one.
Senator Joyal: If there are cases that involve the application of this section, will those be reported in your annual report to Parliament so that we can check on how this provision has been used?
Mr. Leadbeater: The odd part about the current wording of the proposed section 69.1 is that it renders us functus with respect to any complaint, which means we cannot report to the complainant, to Parliament or to the government and make recommendations, even preliminary ones, at the stage of the investigation where it has come to a halt. Our legal advice is that we would not have our reporting powers under this provision because we are rendered functus. Once that happens, you have no power to do the reporting.
Senator Fraser: The bill says the certificate will be published in the Canada Gazette.
Senator Joyal: That will not assist us to know what happened to the certificate. If we, eventually, study the implementation of this act, it will certainly be helpful to know whether a certificate was issued in any instance and if the court upheld that certificate. If we do not have that information, then I do not know how we can monitor that power.
The Chairman: Perhaps the Senate should consider how, if this bill is passed, we can institute our own reviews People forget that we have that capacity, and we are not bound by a three-year review.
I want to thank you Mr. Reid and all of you for coming here today. These are important issues. Yours was a challenging presentation, and we thank you for it.
The committee adjourned.