Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for March 25, 2004
OTTAWA, Thursday, March 25, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts; Bill C-250, to amend the Criminal Code (hate propaganda); and Bill C-14, to amend the Criminal Code and other Acts, met this day at 10:55 a.m. to give consideration to the bills.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, as decided yesterday, we will proceed to clause-by-clause consideration of Bill C-16, dealing with the sex offender registry, followed by clause-by-clause consideration on Bill C-250.
We will then commence our study of Bill C-14, to amend the Criminal Code and other acts. Our witnesses for that bill will be the Minister of Justice and officials from the Department of Justice.
However, colleagues, prior to beginning our clause-by-clause consideration, I would like to respond briefly to Senator Cools' point that Mr. Robinson had misquoted her in his testimony. This is a point that Senator Cools raised last evening.
Senator Cools appears to object to a phrase in the transcript of Mr. Robinson's speech, which reads as follows:
First, you suggested that your race is an ``immutable characteristic'' — I believe those were your words — that sexual orientation is not necessarily an immutable characteristic and that you could have had in your life a relationship with a woman as well as a man, for example — in your words, that it is fluid.
A review of the transcript, colleagues, appears to show that, in fact, the word ``fluid'' to describe sexual orientation was attributed by Mr. Robinson to Senator Cools, when in fact she did not appear to use that word. I believe, Senator Cools, that was your point.
Senator Cools: It was a little more than that.
The Chairman: Also, there is no record of Senator Cools having referred to having a relationship with a man and/or a woman. Whether this is an error in the transcript or an error by Mr. Robinson could easily be addressed by a review of the videotape, which I would be happy to undertake, should Senator Cools so desire.
However, Mr. Robinson is here. I would suggest that the more expeditious way to deal with the matter is to call him as a witness to explain the problem that was raised last evening by Senator Cools with respect to the transcript.
Colleagues, would it be your wish to call Mr. Robinson back?
Some Hon. Senators: Agreed.
The Chairman: Agreed.
Senator Cools: Let the record show that I expressed no opinion.
The Honourable Svend Robinson, M.P.: Honourable senators, I will be brief. I appreciate the opportunity to clarify the comments that I made when I appeared as a witness on Bill C-250.
Let me say that Senator Cools is correct. Indeed, my comments could be construed as suggesting that she had stated that it was possible that, in the past, she could have had a relationship with a woman as well as a man. She is absolutely right. She did not state that.
She did not state that sexual orientation was ``fluid.'' That was my extrapolation from her words when she said, and I quote:
Sexual orientation, as far as I know, is not an immutable characteristic.
To be very clear, it is accurate to say that she did not say anything about fluidity. She made no reference whatsoever to her personal relationships. I very much regret that my words may have been construed to suggest that she did. I am pleased to be able to set the record straight on that.
Senator Cools is also absolutely correct in pointing out that, in her response to that statement, she said, and I quote: ``Not me, but some could.'' I was as surprised as Senator Cools when I reviewed the transcript and found that those words were not there.
I am not sure what the mechanism is in the Senate for correcting a transcript, but I want to say that Senator Cools is absolutely right that the transcript does not accurately reflect her full comments. It is obviously beyond my power to change that. I would certainly agree completely that the transcript should accurately reflect the comments that she made.
The Chairman: Thank you, Mr. Robinson. Senator Cools, we will have the clerk review the transcript.
Senator Cools: I want to thank Svend Robinson myself. Thank you very much.
The Chairman: We will have the clerk review the transcript, Senator Cools, and make the necessary corrections. Thank you, Mr. Robinson.
The Chairman: Is it agreed that we move to clause-by-clause consideration of Bill C-16, to amend the Criminal Code and to make consequential amendments to other acts?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the short title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 2 to 25 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Just a moment colleagues, I have a printing error here that I have to correct before we go any further.
Again, for clarity, shall clauses 2 to 25 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the short title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed, honourable senators, that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Is it agreed, honourable senators, that I report this bill at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Honourable senators, our next order of business is clause-by-clause consideration of Bill C-250.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-250, to amend the Criminal Code (hate propaganda)?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chairman: We should go to a vote, colleagues.
Senator Cools: Perhaps we should debate the question?
The Chairman: First, let us make sure that Senator St. Germain is a member of the committee. Have you been —
Senator St. Germain: I was supposed to have been.
The Chairman: I will check with the clerk. Do we have any record of Senator St. Germain?
Ms. Marcy Zlotnick, Clerk of the Committee: I do not have it here.
The Chairman: I would not stop you from speaking, Senator St. Germain, but for the purposes of voting, I want to know if you are a substitute member of the committee.
Ms. Zlotnick: No.
The Chairman: We have no record of that, but obviously, Senator St. Germain, we would offer you the courtesy of making any comment you wish.
Senator St. Germain: Thank you, Mr. Chairman. I had requested an inquiry by the library in respect of the interpretation and actual definition of ``sexual orientation'' and I had not received that.
I recognize, to be fair, that I am not a full-time member of this committee. I have to sit on two other committees. I had asked the library but I have not seen —
The Chairman: Senator St. Germain, may I just interrupt for a moment? Did senators receive the material from the Library of Parliament regarding the legal scope of sexual orientation?
Some Hon. Senators: Yes.
The Chairman: Did everyone on your side receive it, Senator Beaudoin?
Senator Beaudoin: As far as I know, yes.
Senator Cools: I received it and I actually read it. The problem with it is that it does not answer the questions that were put, which provoked —
The Chairman: Senator Cools, could we come back to that?
Senator Cools: That is what I am saying, so I do not know why he has not.
The Chairman: First, I will address Senator St. Germain's concern. It was distributed, Senator St. Germain.
Senator St. Germain: It was distributed, and because I am not a member of the committee, I did not receive it, even though I was the one who requested it? I would have liked to see it before we —
The Chairman: You would have received it per your request had you been on the mailing list. It certainly went to Senator Beaudoin and others.
Senator St. Germain: There was also a memo regarding additional witnesses that we received only yesterday. Whether it got tied up in the whip's operation or whether he had just received it when he passed it on to me, I am not aware. I should check with our whip's office, because the whip advised me last night that I would be a voting member of this committee today. I wanted that explanation from the library — that document — before we proceeded.
Senator Beaudoin: I informed my caucus on Wednesday — yesterday — that Bill C-250 would be studied. Yesterday's agenda stated clearly that clause-by-clause consideration would be on Bill C-16, and that is done, and on Bill C-250.
Perhaps I may explain this, in view of the fact that something has happened. I clearly said that I have no problem, as a jurist, in saying yes to that bill. Yesterday's discussion is clear on this. However, I am Deputy Chairman of the Legal Committee, so for the reason that we understand, I abstained yesterday, along with Senator Andreychuk, when we did clause-by-clause consideration.
I am the Deputy Chairman and I will do the same thing today. As a jurist, I do not see a problem with that. I represent my caucus and so I will abstain. I think that is the only solution.
The Chairman: I appreciate your comments for the record.
Senator Joyal, did you have something to add?
Senator Joyal: No, I just want the committee to proceed with the clause-by-clause consideration of this bill.
The Chairman: There is one issue. If Senator St. Germain wanted to move a motion to change the previous instructions of the committee, and if he were a bona fide member of the committee, that would have to be put to the vote. Would that be your intention, Senator St. Germain?
Senator St. Germain: It would be. Is there any way of checking? Could the clerk check with the whip's office? Or am I asking the impossible?
The Chairman: That could be done.
Senator St. Germain: If I had been advised, I would not have pursued this because I understand that you have to be a full member, Mr. Chairman. I was advised of this last night.
The Chairman: We can check that, Senator St. Germain — it is a fairly routine thing. Senator Cools, I saw you raise your hand. Was it your intention to raise that motion on behalf of Senator St. Germain in the event that he is not a member of this committee?
Senator Cools: No, I have no intention of moving any motions in this committee because I know the outcome. My own astuteness tells me it is not wise to do that. I wanted to respond, again, to Senator Beaudoin and speak to what happened last evening.
I note yet again, as we move into clause-by-clause consideration, that the decision last night was taken under unusual, if not peculiar, circumstances. It is the first time in the years that I have been here that the deputy chairman from the opposition party was more or less overruled on the strength of a private conversation that his deputy leader had with a senator. In this instance, it was Senator Joyal.
Senator Joyal: No, no, I am sorry. Point of order. We were in camera yesterday, and I do not want what happened in camera to be aired, including the mention of names. Senator Cools, with all respect, I am very deferential to your rights as a senator, but what happens in camera stays in camera.
Senator Cools: No, we can refer to the decisions.
Senator Joyal: I have no problem with the decisions —
Senator Cools: That is what I am talking about.
Senator Joyal: — we cannot say who intervened and what was said. There is a difference.
Senator Cools: It is not a problem. I can speak without naming any names. The purpose of in camera, by the way, is slightly different, but that is okay. That fact of the matter is that a decision was taken yesterday to go forward to a vote without what I would consider sufficient consultation with the opposition. I dread the thought that that could become a precedent. My understanding of a committee's proceedings is that the chairman should take his guidance in respect of the opposition from the opposition's representative on the committee at that time, that is, in our system, the deputy chairman. That is the process.
If the deputy chairman is attempting to say that he has members on his side who wish to call more witnesses, then his word should be given some credence. I do not think it is proper, or in order, that he should be overruled on the strength of a private conversation. I say this because I have sat in opposition and not many Liberals here have. I want you to know that if and when that happened when we were in opposition, the other side would certainly have heard about it. I think that we should look at the matter and canvass well. The chairman of this committee is the government's point person on the committee. The deputy chairman is the opposition's point person. I am not quarrelling with the outcome of the decision because I think it would have remained substantially the same. I am not quarrelling with that. I am quarrelling with the fact that the opinion of the opposition's representative, or the person from the other side, was slighted. I hope that I have made the point clearly.
The Chairman: I appreciate you making that point, Senator Cools. The only comment I would make on it is that my understanding is that the chairman, the deputy chairman and members of the committee, individually and collectively, take direction from the committee. If it was a committee decision to take a particular course of action, then the committee is bound by that, unless there is a decision to alter it. I appreciate your point about the confusion over the communication, but the committee did, by a majority, move a motion last evening that we proceed to clause-by-clause consideration.
Senator Cools: I agree, but that is the conclusion. I was talking about the process that led to the putting of that motion and the voting on it. There are two slightly different points. I think that the point is made. I wanted the record to show that I did not like it and I did not approve of it.
Another matter is that whenever I, or anyone, make inquiries about these committees and the list of witnesses and the decisions around witnesses, it is always a done deal, supposedly agreed upon by the steering committee. From what we saw last night, the decision to bring hearings to a close could not have been a decision of the steering committee. The decision about future witnesses could not have been a decision of the steering committee, because it did not seem to involve the deputy chairman of this committee, who is also a member of the steering committee.
I am never certain myself when the steering committee is taking decisions and when it is not. It seems to me, Mr. Chairman, it would be wise to move ahead on a rational basis, on a set of definite principles that we could all know and understand and perhaps participate in.
I would say, in closing, that many people want to be heard as witnesses, and it would have been a very small amount of trouble to have heard some of them. I think, frankly, we have not served our public's —
The Chairman: Thank you for your opinion on the latter matter. On the first matter, I would say the steering committee has certain responsibilities, but again, the steering committee, like the chairman, the deputy chairman and each member of the committee, is subject to the wishes of the committee as a whole. If it is the majority view of the committee that a particular course of action should be taken and that does not coincide with the views of the steering committee, the chairman, the deputy chairman or any other committee member, then so be it. That is what democracy and majority voting is all about.
Senator Cools: You could put it that way. If that is your view of the committee, then I would say to you, good luck.
The Chairman: Thank you.
Senator Beaudoin: The debate of yesterday is over. It was in camera. I thought about it. I said very clearly what I think. I am ready for the clause-by-clause consideration.
The Chairman: Thank you. Senators, is it the wish of the committee that we move to clause-by-clause consideration on Bill C-250?
Some Hon. Senators: Agreed.
Senator St. Germain: I am not sure that I am a member of the committee yet. Have we established that?
The Chairman: We have not. The whip's representative is right here. It is an important point.
Senator Cools: The outcome is known. One can be magnanimous.
The Chairman: The report we have from the whip's representative is that you are not a member of the committee.
Senator St. Germain: Okay, fine. I accept it. I will have to accept that, too.
The Chairman: Senator St. Germain has not been substituted as a member of the committee.
Senator St. Germain: Lucky day.
The Chairman: Is it agreed, honourable senators, that the committee move to clause-by-clause consideration on Bill C-250, to amend the Criminal Code (hate propaganda)?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
Senator Cools: On division. Record it as on division all the way through.
The Chairman: Okay. Shall clause 1 carry?
Some Hon. Senators: Agreed.
Senator Cools: On division.
The Chairman: Shall clause 2 carry?
Some Hon. Senators: Agreed.
Senator Cools: On division.
The Chairman: Shall the title carry?
Some Hon. Senators: Agreed.
Senator Cools: On division.
The Chairman: Is it agreed, honourable senators, that this bill be adopted without amendment?
Some Hon. Senators: Agreed.
Senator Cools: On division.
Senator Beaudoin: I think the proper term, having regard to what we said yesterday, is ``abstention.''
The Chairman: The record will show that on all matters pertaining to clause-by-clause consideration, Senator Beaudoin and Senator Buchanan abstained.
Is it agreed, honourable senators, that I report this bill at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: We will now commence our study of Bill C-14, to amend the Criminal Code and other acts. Minister Cotler is scheduled to appear before us today, but due to another engagement, he cannot arrive until approximately 12 o'clock. I propose to hear first from the department officials. When the minister arrives, I will offer him the opportunity to make a brief presentation, after which members will be free to put their questions to him.
Mr. Donald K. Piragoff, Acting Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch, Department of Justice Canada: Honourable senators, I will start off with some comments with respect to the amendments concerning the Criminal Code in Bill C-14, and Ms. d'Auray will discuss some of the amendments concerning the Financial Administration Act.
Bill C-14 proposes both substantive and technical amendments. In either case, the amendments are essentially —
Senator Joyal: A moment. It is easier for us to follow when we have the text. Now we have to listen and take notes.
The Chairman: I would ask you to go slowly, for the sake of the senators and also for the sake of the transcribers and the interpreters, because they do not have the text.
Mr. Piragoff: I would like to start our discussion with an amendment that received the most attention in the other place, concerning deadly traps. Law enforcement agencies and other organizations such as the International Association of Firefighters have reported for some time now an increase in the use of deadly traps by organized criminals to protect drug production operations, more commonly referred to as grow-ops, against law enforcement officers and rival gangs.
Examples that have been given include cut-away floors next to doors, weapons such as crossbows and shotguns that fire when a door is opened, and incendiary devices designed to destroy evidence of drug production activities. These activities are often concealed in residential neighbourhoods, therefore exposing first responders such as police and firefighters to greater risks when responding to emergency calls.
The increased use of deadly traps in such locations prompted us to re-examine the existing deadly traps offence in the Criminal Code to see if it could adequately respond to the new and increasingly sophisticated ways in which traps are being used today. Our examination revealed that the provision needed to be restructured in several respects.
The current Criminal Code offence provides for a maximum sentence of five years imprisonment for setting a trap that is likely to cause death or bodily harm to persons.
While the threat of five years' imprisonment may be sufficient to deter and punish the average person who might set a trap on his or her property — for example, to protect it against a trespasser — it would not be sufficient in cases where deadly traps are used to protect criminal operations such as marijuana grow-ops. Bill C-14, therefore, proposes to create a new offence, with tougher sentences of up to 10 years' imprisonment for any person who sets a trap in a place that is kept or used to commit another indictable offence.
If the trap that is set in such a location causes bodily harm to a person, it is proposed that a maximum sentence of 14 years' imprisonment be applicable, compared to the 10 years when a trap is set in any location. In cases where a trap causes a person's death, the maximum sentence of life imprisonment could be imposed, regardless of the type of location. The purpose of these amendments is to ensure that those who set traps in order to protect their criminal operations face severe sentences that reflect the seriousness of the harm caused.
There are a number of technical amendments in the bill as well. The majority of these amendments seek to eliminate certain legal uncertainties or linguistic discrepancies. I will not mention all of them, but I do want to mention a couple.
One such amendment would clarify the law with respect to the use of force on an aircraft in flight. A review of our domestic laws following the terrorist attacks of September 11, 2001, revealed that further clarity is needed in relation to the reasonable force that can be used on board an aircraft in flight outside Canadian airspace. The amendments proposed in this bill will specify in the Criminal Code the principles of the Tokyo convention, which allows any person on board an aircraft to use reasonable force to prevent the commission of certain criminal offences that could endanger the safety of the aircraft or people on board.
I want to stress that the rules that govern the use of force will not change under these amendments. The proposed amendments only build on existing legal principles in the Criminal Code.
Another proposed clarification in the bill is to ensure that the warrant provisions in the Criminal Code to search for and seize weapons explicitly set out the appropriate constitutional requirements for the granting of such a warrant. The necessity for this amendment comes from the July 2002 decision of the Ontario Court of Appeal in R v. Hurrell. The Ontario Court of Appeal ruled that the section must set out on its face that the police have reasonable grounds to believe that the weapons listed in the warrant are to be found at the locations to be searched.
The Ontario Court of Appeal originally gave the government six months to fix the problem with the provision. Leave has been granted to the Supreme Court of Canada, and the hearing has been rescheduled to the fall. We feel it would be preferable to amend the legislation as proposed in the bill.
Bill C-14 also contains a number of amendments concerning sentencing procedures, in particular, to ensure that the term ``conditional sentence'' is used consistently throughout the code. It also deals with certain technical issues concerning probation orders.
The other major proposal in the bill concerns the protection of computer systems from cyber attacks. Bill C-14 introduces an amendment that clarifies the proper use of technology to protect our computer networks and information systems. In particular, the amendment clarifies how technology that may intercept private communications can be used in a lawful manner. As well, the amendment would establish parameters for persons who may intercept private communications while managing their computer systems for quality control purposes.
One of the most effective computer system security measures available today is the use of an intrusion detection system, or as it is more commonly known, IDS. Among the key elements of an intrusion detection system are monitoring for anomalies, virus detection and maintaining the security and integrity of the computer system.
The use of an IDS to protect a computer system from such things as worms, viruses and other security concerns is an effective and reasonable solution. Most Canadians would think that people have the right to protect their property, and that this would be a reasonable measure recognized in law.
Nevertheless, we know that some of these measures that can be used to protect computer systems may actually intercept private communications. Where this happens, the question arises of whether or not an offence has occurred under our Criminal Code. The government feels that the amendments are necessary in order to clarify that the use of IDS and similar technologies is not criminal if they are used to protect and manage computer systems.
It should be noted that this amendment is similar to existing exemptions in the Criminal Code already in place to deal with the telecommunications industry.
The bill also provides that the measures apply both to the government sector and the private sector. With respect to the public sector, there are amendments made to the Financial Administration Act, and Madame d'Auray can explain those.
Senator Beaudoin: I always ask the same question when we are intruding into private lives. We have to do that, of course, for security reasons. It may be, to a certain extent, a violation of the right to privacy, but section 1 of the Charter says very clearly that no right is absolute, and that we may restrict a right if it is reasonable in a free and democratic society. It is up to the Department of Justice to get assurance on that point.
I understand that you had that in mind when the said bill was drafted.
Mr. Piragoff: Yes, senator. The bill was drafted with the Charter in mind.
I am glad you raised the issue of privacy, because this particular issue is not simply a question of balancing public safety or public security with privacy. It is also a question of balancing privacy with privacy. There is the privacy of a person's e-mail, but there is also the privacy of Canadians whose personal data are held in government data banks; and these measures will help to ensure that personal data about Canadians held by the government are kept safe and secure from hackers and from damaging viruses.
It is not simply a question of protection of computer systems versus privacy. It also concerns the privacy of Canadians in general whose personal information the government may be holding. It is to ensure their privacy is enhanced and protected from people who might try to hack into government data banks or private data banks — of Canadian corporations, for example.
Senator Beaudoin: In the other committee, we have the famous Bill C-7, which is very important. It is the son of Bill C-36. The Crown or the administration has the right to destroy some documentation that has been obtained. I agree completely with that. The problem arises, of course, when we communicate documentation to some other countries. Sometimes we may wonder, perhaps, are they also destroying those documents as we do after a certain number of days?
We are not so sure, but we cannot go further than that.
This seems to be quite different. It is another domain. I understand that you keep the information that you obtain, collect, see or receive. There is no real intrusion for eternity into the life of a person.
Mr. Piragoff: That is correct, senators. This provision was developed in consultation with the Privacy Commissioner. There is a specific clause in the bill that provides that any information collected as a result of the IDS, the intrusion detection system, can only be used or retained if it is essential to identify, isolate or prevent harm to the computer system, or if it is necessary, for example, for the purposes of a criminal investigation or prosecution. If none of those purposes exist, then there is an obligation to destroy or dispose of the information. There are obligations that restrict the ability to retain this information. That is reflected in the Financial Administration Act as well.
Senator Beaudoin: That answers my question.
Senator Baker: We recently discussed in this committee new legislation in response to corruption in financial institutions. We had an interesting discussion concerning the requirements for the issuing of search warrants.
One of the lawyers appearing before the committee, representing, I think, the Canadian Bar Association, was a gentleman who represented a Mr. Hurrell in R. v Hurrell that you referred to a moment ago. His position on behalf of the Canadian Bar Association was that we were passing legislation that would allow a warrant called a ``production order'' to be issued on the basis of reasonable grounds to suspect. He suggested that it would be great business for him because he would make some money in challenging this as being a violation of the Charter. He won his case before the Ontario Court of Appeal in the Hurrell case based on that same argument. I see now from your explanation that section 117 of the code is being changed to meet that requirement imposed by the Court of Appeal in saying that ``reasonable grounds to suspect'' is not sufficient to issue a warrant. You are changing it, I presume, to ``reasonable grounds to believe.'' Is that by a justice or a judge? I assume it is a justice as defined by section 2 of the code. Is this correct? Is this what you are doing? That is to say, you are modifying the Criminal Code to meet the judgement of the Court of Appeal of Ontario in the Hurrell case.
Mr. Piragoff: The issue in the Hurrell case was not on the question of whether the standard should be reasonable grounds to suspect or reasonable grounds to believe. The existing provision talks about ``reasonable grounds to believe.'' The concern, however, was that the statute only talked about reasonable grounds to believe that a person was in possession of a firearm that would be dangerous to the public safety or to other persons. It did not stipulate that the police, and the JP or judge who issued the warrant, also had to have reasonable grounds to believe that the weapon was on the premises of the individual. It had nothing to do with the standard of ``suspect'' versus ``belief''; it was more dealing with what you have to believe.
Senator Baker: Two people have to believe. One is the swearing officer. He must have reasonable grounds to suspect or to believe. Then the justice, in issuing the warrant, must also have reasonable grounds to suspect or believe. Which ``belief'' are we talking about? Is it the belief of the justice, who is issuing the warrant, or is it the belief of the police officer, the affiant of the information?
Mr. Piragoff: The way the provision is worded, it is the belief of the justice who issues the warrant; he or she must be satisfied by information on oath that there are reasonable grounds to believe. The police officer provides information to the justice to satisfy him or her.
Senator Baker: Is it to satisfy the court?
Mr. Piragoff: To satisfy the judge.
Senator Baker: Is it correct that the officer must have reasonable grounds to believe?
Mr. Piragoff: The officer has to convince the judge, so the judge must have the reasonable and probable grounds to believe. It is probably axiomatic that the police officer would not provide information to the judge unless the police officer also believed that.
Senator Baker: What you are saying is that the decision in the Hurrell case and the decision here to modify section 117 of the code does not have to do with reasonable grounds to believe or reasonable grounds to suspect, that particular question, but it has to do with whether or not the person whose property is being invaded under the warrant is actually in possession of the weapon specified in the warrant. Is that correct?
Mr. Piragoff: Senator, if you would like, I can ask my colleague, Ms. Besner, to indicate exactly what the court decision said because she is aware of the details.
Ms. Julie Besner, Counsel, Department of Justice Canada: If I could clarify a few points, the provision as it exists right now, and which was found to be unconstitutional by the Ontario Court of Appeal, was flawed in a couple of respects. It had to be made clear that the peace officer was swearing information under oath. That is one thing that had to be clarified, and that it is the peace officer's belief.
Senator Baker: A peace officer always swears under oath.
Ms. Besner: However, it was not so stated in the provision. That was therefore a flaw and the Ontario Attorney General was trying to have it read in, but the Ontario Court of Appeal disagreed. The provision had to state explicitly on its face that the information provided by the peace officer be made on oath, that the peace officer have reasonable grounds to believe that there are firearms at the location to be searched and that the justice be satisfied with that information for the warrant to be issued.
Senator Baker: The only change being made here, then, pertains to the justice. It says nothing about the affiant to the information that is submitted to the judge for processing into a warrant. Am I correct in that?
Ms. Besner: No, sir. I believe that the correction that is being made is to clarify that it is indeed the peace officer who has to have the reasonable grounds to believe that there are firearms at the location to be searched, and he or she has to satisfy the justice of that on oath.
Senator Baker: I am sorry that I have not looked at this before now, but in a straight reading by a reasonable person, this says:
Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe...
That is in the present bill, but the issuing justice is satisfied — and these are standard words — ``by information on oath that there are reasonable grounds to believe...'' Is it the justice who believes.
The justice cannot say, ``I am issuing a warrant because the officer has reasonable grounds to believe.'' The justice issues a warrant after considering the evidence. There is a process every justice must go through in issuing warrants. This specifics that the justice must have reasonable grounds do believe.
I do not see how it changes the decision that you just said the Court of Appeal made, which is that the affiant officer, in swearing the information, must have reasonable grounds to believe. This does not change that. This makes no reference at all to the swearing police officer. You might have a look at it and perhaps send a note back to the committee.
That is an important point because I have read the Hurrell case. The Court of Appeal of Ontario explicitly referred to the Supreme Court of Canada's records since 1985 in saying that you must have reasonable grounds to believe if the intrusion is such that you are in a person's house or on a person's property. A man's home is his castle. Therefore, there is a very firm requirement that there must be reasonable grounds to believe.
Mr. Piragoff: Yes.
Senator Baker: The Court of Appeal went through all of that in making their judgment.
I am sorry, Mr. Chairman, for speaking for so long on this. This is a minor but significant point. How do you determine what section of the Criminal Code you will change to meet the judgment of the Court of Appeal or the Supreme Court of Canada?
We have seen the Supreme Court of Canada strike down warrants that are issued in law firms, for example, under section 488 of the code. The Supreme Court has made a judgment saying, ``Here is what will apply until the law is changed.'' No legislation has come before either this standing Senate committee or the one of the House of Commons to change that.
All of a sudden, however, we have a decision by the Court of Appeal of Ontario the year before last. Then, you automatically change it, although leave was granted to appeal to the Supreme Court. You do not wait for the decision of the Supreme Court on this issue. You immediately change it. Obviously, the Department of Justice is agreeing with the Court of Appeal of Ontario and not waiting for that decision of the Supreme Court of Canada.
Do you have a system? Do you put all the names in a hat and pick out one and say, ``We will modify this one based on a judgment of the Court of Appeal noting that a certain law is unconstitutional?'' Is there a system whereby you make a judgment on which section of the Criminal Code should be changed because of a judgment or appeal to the Supreme Court of Canada?
Mr. Piragoff: This bill was initially introduced in Parliament last spring. At that time, there was an opportunity to rectify the law, which would render the necessity of taking an appeal to the Supreme Court of Canada moot. There was a decision taken that the Ontario Court of Appeal decision was right. There were some words missing from the provision. They were not the words, senator, that you have highlighted, concerning reasonable grounds to believe, because that is in the existing law. The fact that a judge has to make the decision is in the existing law.
Senator Baker: Not a judge now, a justice.
Mr. Piragoff: Yes. That is in the existing law. The one thing that was missing in the existing law was that there should also be a belief by the justice that the firearm was on the premises.
In other words, the justice had to believe that the firearm was on the premises before the police officer would have the authority to enter the premises. The police officer could not make the decision to enter the premises. The police officer had to have a justice make the decision that there were grounds to believe the firearm was on the premises.
The department put forward this amendment in this bill because it had the opportunity to avoid the necessity of expensive litigation before the Supreme Court of Canada, which has a very full docket. We were hoping that this provision would be adopted by Parliament before the Supreme Court had to deal with this matter.
Originally, this matter was scheduled for the spring. The court has now put it off until the fall. We are still hoping that Parliament will adopt this amendment, and therefore render the appeal to the Supreme Court moot. The Supreme Court can then deal with more important issues.
Senator Baker: Will you answer my question on this?
Mr. Piragoff: Is there a process? Yes, senator. We look at every decision of the Supreme Court of Canada that has Charter implications, specifically if the Supreme Court of Canada rules a provision to be unconstitutional. We then have to decide whether there are amendments that can be made to rectify the provision or whether a new scheme must be developed and put before Parliament so that Parliament can then engage in a dialogue with the court as to how it wishes to implement a public policy within the confines of the Charter.
Senator Baker: What about section 488 and the search warrants of law offices? It was struck down a couple of years ago.
Mr. Piragoff: Yes. The provision as worded was struck down. The Supreme Court of Canada, in that case, also gave detailed guidelines as to how to implement the decision. The department is presently working with the bar and the law societies to develop a legislative scheme that would implement the Supreme Court decision.
It has a significant effect on the extent to which the law societies would get involved in investigations. It is not an easy issue because it does involve resources on behalf of the law societies, for example.
The Chairman: The minister should be arriving shortly.
Senator Harb: Unless no one has further questions for the witnesses, I suggest you may want to prepare a pleasant surprise for the minister and do the clause-by-clause consideration of the bill.
The Chairman: We could put that to the committee.
Hon. Senators: Agreed.
Senator Harb: There we go.
Senator Baker: I want to say to the witness that the gentleman sitting beyond the official opposition, representing the department, Mr. Wong, did a magnificent job the other day in defending the indefensible.
The Chairman: We welcome our friend and colleague, the Honourable Irwin Cotler, Minister of Justice. Mr. Cotler will be making a brief presentation, followed by some questions from senators.
The Honourable Irwin Cotler, Minister of Justice and Attorney General of Canada: Thank you, honourable senators. I am delighted to once again come to this chamber.
Senator Smith: Such a fun place.
Mr. Cotler: I saw Speaker Dan Hays at a national prayer breakfast this morning, and I told him that I have great respect for this chamber and your application of sober second thought to what is done in the other House, for which I have some responsibility.
I understand that Mr. Piragoff has briefed you with respect to this proposed legislation, sometimes referred to in shorthand as the ``traps legislation.'' While that is a salient feature of the proposed legislation, I think it has to be seen as a kind of mini omnibus bill. Sometimes people say there are disparate provisions in an omnibus bill with a patchwork character, but I suggest there are two principles that underpin the amendments in this proposed legislation or mini omnibus package. The first is what might be called the protection of public safety, and the second is the protection of rights of persons. I will come back to this at the end of my remarks.
[Translation]
In addition to the proposed technical amendments, Bill C-14 proposes, as Mr. Piragoff explained to you this morning, some substantive criminal law amendments. One such proposed change to section 247 of the Criminal Code pertains to the offence of setting a trap that could result in a person's death. The use of so-called mortal traps further heightens concerns over marijuana growing operations.
[English]
The police and firefighters, the front-line workers, have found that more and more, these deadly traps are being set by organized crime groups to assist them in committing illegal activities.
[Translation]
The bill proposes stiffer penalties for persons attempting to set traps to protect a place or to commit an indictable offence. By proposing far tougher sanctions, the government intends to demonstrate that it is taking criminal activities associated with marijuana growing operations very seriously.
[English]
At the same time, we are in accord with the comments made by Senator Nolin, speaking with respect to this bill, when he said that the severe sanctions would not solve the entire problem.
[Translation]
However, the proposed changes to section 247 of the Criminal Code would ensure that the law makes provision for adequate penalties to address the new threat encountered by front-line workers upon entering a place in which a mortal trap has been set.
[English]
Another key proposal in Bill C-14 seeks to introduce an amendment to the Criminal Code that puts parameters on the use of technology to protect our computer networks and information systems. In particular, the amendment makes it clear that it is not illegal for persons to protect their computer systems through the use of intrusion detection systems. The amendment would also allow computer professionals to properly manage a computer system for quality control purposes. Intrusion detection activities include ensuring the flow of communications and maintaining the security and integrity of the computer systems and the data in those systems. In other words, computer management activities that protect the computer system from such things as worms, viruses and other security breaches are legitimate and normal activities. However, and this is the important point here, the amendment is necessary because there is a risk that private communications could be intercepted while performing these activities. In effect, we do not want to criminalize persons who legitimately protect their property using reasonable means, and at the same time, we want to ensure that the privacy of Canadians is protected. This is the kind of balancing approach that we envisage with respect to this amendment.
These amendments complement current Criminal Code exemptions for persons employed in the telecommunications industry, and to ensure that the government has the lawful authority to protect its systems, an amendment to the Financial Administration Act is also proposed.
In summary, while this mini omnibus bill may appear to contain a set of unrelated initiatives of a sometimes technical and housekeeping character, nonetheless they are each anchored in two principles, protection of public safety and protection of persons.
Let me close with some examples. The traps offence is intended to protect the public from the criminal conduct that the traps seek to insulate or cover up, such as grow-ops and their linkage with organized crime, but it is also intended to protect the lives of front-line workers who may be approaching such residential dwellings that have been booby- trapped to protect criminal activities. This proposed legislation is necessary because more of that kind of criminal conduct is taking place, and it is more and more necessary to protect the lives of these front-line workers.
As for the amendment concerning intrusion detection devices, as I mentioned, this is intended to protect the integrity of computer information systems against those who would seek to undermine them, but it is also intended to protect the privacy of the information that is caught up in the course of the protection of these information systems.
The third example here concerns a police officer entering a dwelling. It seeks to authorize entry to protect the public interest when somebody has a weapon that he or she may use in a manner that is dangerous to themselves or others. It also seeks to ensure that such a warrant-based entry is based on a reasonable and probable cause with respect to the evidentiary basis for that offence.
In the matter of the provisions regarding preliminary inquiry, again, they appear to be of a housekeeping nature, but they are intended to ensure fairness and efficiencies in the criminal justice system.
As a consequence of 9/11, we have in the legislation at this point a mandatory in-camera exclusion of certain kinds of information, such as the identity of an informant. Here, one might say, is an example of where we somewhat overreached in our legislation in the immediate aftermath of the 9/11 fallout. Interestingly, it has not really been picked up, but it is a correction that we need to introduce into the legislation. This does not mean that courts cannot exercise their inherent jurisdiction to have an in-camera proceeding where it would be appropriate or necessary to do so. What it means is that we will not necessarily have a mandatory in-camera proceeding where it might not be warranted, and where the public interest would be better served otherwise. This is an important amendment in the public interest that, at the same time, protects the national security. That is why I say this collage of mini-omnibus amendments is intended to protect public security and the safety of the community, and to protect the rights of persons.
Senator Kinsella: I have a general question for the minister. It is always good to see the minister.
Are you satisfied with the training and preparation of those who will be managing these kinds of data in terms of the standard that is set by the Charter of Rights and Freedoms?
Mr. Cotler: Those who know me, know that — I must make full disclosure — I happen to be one of those who are technically illiterate. I do not know how computers, e-mails and these information systems in fact work. If I could introduce a little levity into your proceedings, this is a story that has become legendary in my family.
When my son was close to 3 years old — he is now 17 — he seemed to have a kind of prescient understanding of how these things worked that I did not. He came to me one day and said, ``Daddy, can you help me fix the video?'' I said, ``I do not know how to fix the video,'' and he looked at me with that impish smile that has become his trademark and said, ``I know, daddy. All I am asking is that you pick me up because I cannot reach it.''
It would be presumptuous of me to answer a technical question of that kind, because I have now made full disclosure of the fact that I am technically challenged. I will ask Mr. Piragoff to respond.
Mr. Piragoff: Thank you, honourable senators. The provision has a number of safeguards to ensure that the persons who use intrusion detection systems, for example, are acting reasonably and necessarily in managing the quality of service. It spells out a number of factors that help define what is meant by quality of service and performance factors, such as responsiveness, capacity of the system, integrity and the availability of the system. There is also the provision that I had highlighted to Senator Beaudoin earlier today, that any information obtained as a result of the use of an intrusion detection system can only be retained or used if it is essential to identify, isolate or prevent harm to the computer system, or it is required for the purposes of criminal investigation or prosecution. There are guidelines and safeguards built into the bill to restrict its use.
Senator Kinsella: Those organizations have fairly large Internet systems. Say, in an organization with 5,000 or 10,000 computers throughout its system, the human resources branch or some branch of the organization apprehends that there is a lot of what they perceive to be private use or misuse of computer time. There is software available now that allows organizations to determine at any in time whether or not there is a certain level of misuse throughout their systems. Is there anything in the bill that envisages oversight of that, either authorizing it or impeding it?
Mr. Piragoff: In the private sector, employees' use of computers is governed to a large extent by employer-employee relationships. The employer may set certain service standards, certain rules, with respect to the use of computer systems, such as to what extent it can be used for personal purposes. Employees in the private sector may agree with their employer that in order to use the computer system, they have to comply with certain rules and regulations, including the ability of the employer to ensure that the equipment, which is the employer's property, is being used properly and for the purpose for which it has been given to the employees. Madame d'Auray is here and can speak to the measures that the Government of Canada uses to ensure the proper use of computer systems by employees.
Ms. Michelle d'Auray, Chief Information Officer, Treasury Board Secretariat: Honourable senators, with regard to the training of specialists who will be using these systems and technologies, the Treasury Board Secretariat will be setting some very clear guidelines. The people who will be monitoring and using these technologies will be specially security-screened and trained in their use. There will be strict guidelines in terms of the information that can or cannot be retained, and the measures and mechanisms through which they can do so. This, as Mr. Piragoff explained, is different from the measures that employers can take to monitor the equipment for either excessive personal use or behaviour that is not tolerated in a work environment.
This does not deal with those issues. Those are dealt with separately. This really is a means to protect the computer systems and the integrity of the networks from malicious attack.
Senator Kinsella: This is a kind of policy question. One of our colleagues has introduced a bill in the Senate dealing with spam. Is the government looking at that problem, and not only as an employer? I am sure that in your own office, your staff will report that there is a lot of material coming through your system that is all spam, and it takes a lot of time to get through it. Is the government itself looking at legislation in that area?
Mr. Cotler: Industry Canada is taking the lead in looking into that matter. We are looking here at the two aspects that have to do with the protection of the integrity of the information system, and, as we indicated, the protection of the right to privacy. In other words, the proposed legislation intends to make clear the lawful authority of the federal government to protect its information systems and data through intrusion detection measures.
The amendments are also intended to allow individuals to protect their computers from electronic communications that could harm their systems. As we said, the defence of monitoring activities is necessary to safeguard the integrity of the systems and to preserve the continuity of service.
Where private communications are intercepted for the purpose of and in the course of protecting a computer system against harm, they can only be used if they are essential in identifying, isolating or preventing harm to the computer systems, or as permitted by the Criminal Code. Your initial question, which relates to this, was with regard to ensuring that departments of the federal government apply this authority in a consistent manner and in compliance with both the Privacy Act and the Canadian Charter of Rights and Freedoms. As Ms. d'Auray has mentioned, the Treasury Board Secretariat is now preparing standards and guidelines in that regard.
I might add that the Privacy Commissioner has been consulted with respect to this set of amendments and provisions. Ms. Stoddart has an understanding of what is being done here with respect to privacy and has given her assent to it.
Senator Smith: I have one area of inquiry, and it may be more for your officials, given your admission of computer illiteracy. I am basically comfortable with the provisions in here, and I am pretty computer illiterate myself, although until very recently I managed a big law firm with over 1,500 systems in 7 cities.
Are you satisfied that the provisions in the code that relate to mischievous computer viruses, which can cost literally billions of dollars, and the penalties provided are adequate? The cost has been unimaginable in the last year alone.
Are you satisfied that the provisions deal with the current challenge?
Mr. Cotler: The provisions have been in the Criminal Code since the mid 1980s. There has been an appreciation of the seriousness of the problem, as evidenced by anti-virus products, firewalls and, now, dedicated intrusion detection systems to act as alarms to alert an operator to unusual activity on a computer system. However, the criminal law framework with respect to that seriousness is already in the Criminal Code.
Mr. Piragoff: There are provisions in the Criminal Code that were enacted in 1985, as the minister indicated, that deal with unauthorized access to computer systems, as well as mischief to data and unauthorized obstruction of or interference with the use of data or systems.
Senator Smith: Is it working?
Mr. Piragoff: The penalties are significant, the maximum being 10 years of incarceration. There have been some prosecutions in the country based on these provisions.
Mr. Cotler: Part of the raison d'être of this proposed legislation is to encompass the developments in technology and to ensure that the framework of the Criminal Code, which sometimes speaks in terms of telephones, is refined to take into account the most emergent technology. There is an old saying to the effect that while science races, the law lags. Once again, the scientists are beating the lawyers. This is an attempt to have the law catch up with the technology in this area.
Senator Smith: I was just looking for some assurance that, it having been drafted almost 20 years ago, you are comfortable that the provisions are still adequate. Have the Americans not been making changes to stiffen penalties?
Mr. Piragoff: Any problems with the law are not with respect to the definition of offences. It is more with regard to the police having both the legal and the technical capacity to investigate, particularly, systems that are countrywide or international. Those are the issues the department is reviewing to ensure that the legal powers of investigation are adequate. The department is undertaking a review with the Department of Industry and the Ministry of Public Safety and Emergency Preparedness.
Senator Jaffer: Welcome, minister. I was very pleased to hear you talk about the mandatory secret hearings, because as you know, the judges are not very happy about those either.
Would you please explain how you see that process working so that I understand it correctly? Are you talking about proposed section 18 on page 10, or are you talking about the next page? Which proposed sections are you referring to?
Mr. Cotler: We are referring to proposed section 18 in that regard. What is involved here is a repeal of section 37.21 of the Canada Evidence Act. You are correct that it is proposed section 18 and following in the bill.
Senator Jaffer: Would the same judge hear the matter, or will those things be worked out by the judiciary? Who sees the certificate? Will there be a mandatory hearing? How do you foresee the process working?
Mr. Cotler: There are two disparate issues here. This is dealing with the question of the mandatory nature of the hearing. We are, in effect, repealing the provision in the Canada Evidence Act that would have made that matter mandatory.
With regard to the appropriate judge to hear it, that is not part of this proposed legislation; that is dealt with elsewhere in the code.
Senator Jaffer: Do I understand correctly that currently, the judge can determine whether or not there should be a secret hearing?
Mr. Cotler: This amendment deals with a very particular aspect of the mandatory nature of a hearing. There is a larger issue involved here to which I think you are referring, Senator Jaffer. Parts of that may be taken up. I have referred section 4 of the Security of Information Act to the House of Commons Justice and Human Rights Committee for a review, because that goes into the whole issue of national security versus fundamental freedoms such as freedom of the press and the matter of disclosure. I suspect that some other parts of that will be taken up in the fall of 2004, when the mandatory three-year review of Bill C-36 takes place. That will allow us to engage in what I think is a necessary, comprehensive look at the anti-terrorism law after three years. We will have to ask ourselves what the law was intended to do.
Has it worked with respect to the purposes for which it was intended? Has there been any prejudicial fallout in the manner in which it may have singled out individuals for differential and discriminatory treatment? That is to address any apprehensions, for example, by representative visible minorities that the fallout from the legislation may have had unintended consequences and effects.
We have sought, in that regard, to maintain an ongoing discussion with focus groups of ethnic, racial and religious minorities to ask them about their understanding of the effectiveness and fairness in respect of which the act is applied. At the same time, we are asking our law enforcement officers the same sorts of questions, and they have gone through training to ensure that the act will be enforced and applied in an equitable manner, consistent with our responsibilities under the Charter.
As to the specifics here, with regard to the national security components and in-camera hearings and so on, we are making a specific amendment to reduce the mandatory nature of an in-camera hearing to allow judges to exercise their inherent discretion to order it, if it is deemed appropriate, but not to have to order it, as is now required under the Canada Evidence Act.
This is basically a corrective measure on something that we inadvertently overreached in the enactment of Bill C-36, by way of almost anticipating the review that is taking place, both with regard to section 4 of the Security of Information Act, formerly the Official Secrets Act, and the overall review in the fall. This is a kind of corrective along the way.
Senator Jaffer: I want to commend you for that. This will be important information for the minority groups.
I know you will not have this information now, but one of the commitments made to the minority groups was that there would be an advisory committee set up under Bill C-36. I have written many letters to your department and still have not found out if there is an advisory committee. I would very much appreciate it if you would send those details to our Chair. We do not have a separate Bill C-36 committee, so if you would do that, it would be helpful.
Mr. Cotler: I had sought, on my own, to meet with representatives of minority groups. For example, on Monday I will be meeting with representatives of the Canadian Arab Federation.
My whole approach with regard to the issue of Bill C-36 is in terms of human security legislation. On the one hand, anti-terrorism law and policy is intended to protect the security of a democracy and the fundamental rights of its inhabitants — rights to life, liberty and security of the person. We have a shared interest in this, whether we are members of a visible minority or not.
On the other hand, it is also intended to protect visible minorities from being singled out for differential and discriminatory treatment. Again, this is part of the notion of shared citizenship, so that we have a common commitment to this legislation as human security legislation, and common protection with respect to the enforcement and application of that legislation.
The worst thing would be if this legislation ends up dividing people, rather than it being understood as legislation that is to be reflective and representative of our shared commitment to human security in all its configurations.
Senator Joyal: Welcome, Mr. Minister. I cannot tell you how delighted I am that you are the Attorney General of Canada at a time when the review of Bill C-36 is underway.
What you have just outlined in relation to the act — and I see our colleague, Senator Kinsella, across the table — were issues that we raised at the special committee when we had to study the bill. We were very concerned that the bill went overboard because it was adopted at the worst possible time for having an objective and rational discussion, when people felt that they were under a threat. As you know, the general sentiment of the population at that time, given the horror of what happened, was that they were ready to yield on many aspects of privacy and the right to hold different opinions in a democracy. That is exactly what you just referred to.
I sincerely hope that we will have a very open process for the review of that legislation, considering that in all those types of legislation, there is always what I call ``a law of unintended consequence.'' The objective is sound. It receives overwhelming support, but in reality, when it is implemented, there are people who pay the price. I think Senator Jaffer has been the voice of the people who have been targeted.
We realize that as much as racism is an important aspect of our society, as you yourself said last weekend in Montreal, so too is what I call ``social discrimination.'' Groups in society that are seen as endangering the lives and freedom of others are singled out. I think it is an important preoccupation that all members of this committee share when we look into legislation. I commend you for beginning the process of review on this.
I hope it will not be rushed, because Bill C-36 was rushed. I remember very well that we were under a time limit — I think it was December 14 — to adopt that bill. Legitimate preoccupations were expressed about the extraordinary powers given to ministers, without judicial control, in terms of issuing certificates and so on. I am not imputing motives, but the reality is how the system works.
That is why, to come back to this bill, I am preoccupied by the fact that the Treasury Board will issue the guidelines. Treasury Board is an administrative unit of government. It is not the legal adviser of government. If the Treasury Board guidelines, as Ms. d'Auray has mentioned, are to be the guidelines for what is allowed under the Criminal Code, we must have be reasonably satisfied that those guidelines will meet the requirements of the Charter.
The old test is broader than just what is necessary and reasonable. The old test is very clear in terms of its compelling obligation to satisfy the three elements of any intrusion into privacy.
I would like to know what kind of involvement the Department of Justice will have in the drafting of the Treasury Board regulations to ensure that they satisfy the provisions of the Charter.
Mr. Cotler: I will respond to some of your overall commentary and concerns; and on the particularity of the role of Justice in Treasury Board guidelines, I will let Ms. d'Auray answer, although I may make a comment on that as well.
Your point about opening up the process of review is well taken. The work and the proceedings in the other House will show that when Bill C-36 was introduced on October 15, 2001, I rose in the House on October 16, 2001, and identified what I called nine major areas of civil libertarian concern.
The bill was then referred to the Justice and Human Rights Committee, on which I sat at the time, and we heard witness testimony from a variety of groups over the next six weeks. Some six initiatives that I and others proposed were adopted, which improved the bill.
At the same time, some other initiatives that were suggested, including some by me, were not adopted. My views on this are readily available from my own writings on it, including one particular article. Although I do not want to burden anyone with the responsibility of reading it, I will make reference to it. I wrote a piece that was published in the National Journal of Constitutional Law called, ``Terrorism and Human Rights: The Dilemmas of Democracies.''
Senator Joyal: I read it.
Mr. Cotler: This is something with which we are still living. We will have to find that appropriate balance between security and rights. I do not look at this as being about security versus rights, but rather as being about human security as an underpinning in terms of protecting the security of democracy and protecting human rights.
The review in November will have to take account of that. As you mentioned in respect of the Oakes test, which was further refined after the Dagenais test, any restriction on any Charter right, as you know, senator, better than I, must be reasonable, demonstrably justified and compatible with what a free and democratic society would do. I would add that the restriction must also be compatible with our international responsibilities. The application of international to domestic law, which you have looked into as a Senate committee, is another dynamic that we must factor into our work.
The Department of Justice has a responsibility as a trustee of legislation to ensure that every piece of legislation, policy and program regulation is passed through the Charter filter. We do that kind of pre-emptive, corrective work to ensure that legislation complies with the Charter of Rights and Freedoms. That is daily, ongoing work of the Department of Justice. Justice has the daily responsibility of ensuring compliance with the Charter of whatever is proposed for enactment. We, and I in particular, as Attorney General of Canada and legal adviser to the Crown, must take the responsibility seriously.
Ms. d'Auray: The guidelines are being drafted with the Department of Justice and in consultation with the Privacy Commissioner. The rules will be quite clear in respect of the legal provisions and obligations. There are also some constraints and limitations in the bill before your committee in terms of the purposes for which intrusion detection devices can be operated; and any retention of data is strictly limited to the purpose of providing information to lawful authorities or for a continuing investigation.
Senator Joyal: In what way will Parliament be informed of those draft rules? I understand we will have an opportunity to provide input into them.
Ms. d'Auray: The guidelines are set under the Financial Administration Act. They are not regulations, in that sense, but we would be pleased to share the draft with the committee.
Senator Joyal: My understanding of the act is that the regulations go through a screening process through the joint committee of both Houses. I believe that Senator Bryden is a member of that committee. They do not come under the heading of ``regulation,'' as you said, Mr. Minister, and the legislative test of the Charter is a preoccupation for me. As parliamentarians, we do not have the capacity to add ``circular or administrative'' notes through the parliamentary process. That is especially so for this committee, which has a keen interest in ensuring that the guidelines concerning privacy, which is an essential element of the Charter, are respected. If you could send those draft rules to this committee, it might decide on a procedure to follow in its examination of them. Perhaps the committee will hear the appropriate witnesses to be satisfied that the guidelines are sound and proof against a Charter test. May I have an answer on that?
Ms. d'Auray: I would be happy to share the draft guidelines with the committee for the purpose of information. As you indicated, Senator Joyal, they are not regulations in the sense of an approval process in the course of a regulatory framework or that flow from legislation. Certainly, I would be happy to send them to the clerk of the committee or to the Chair for information.
Senator Joyal: I have one last question. In 1999, the Standing Senate Committee on Defence and National Security made observations and recommendations on the need to review our approach to computer information relevant to security. When the Department of Justice drafted Bill C-14, did it take those recommendations into account?
Ms. d'Auray: Yes.
Mr. Piragoff: Ms. d'Auray can indicate that.
[Translation]
Ms. d'Auray: We have indeed taken the recommendations into consideration. The measures that we are proposing do not actually flow directly from the recommendations contained in the report, but rather from a series of recommendations formulated by the Auditor General concerning IT security within the Government of Canada. The measures are designed to protect systems and would have the need to protect our systems recognized in legislation. This is part of the reason why the Minister is tabling these proposals.
As the Minister also pointed out, the proposed measures take into account the need to protect data held by the Government of Canada on its citizens, given the rise of the number of system break-ins and viruses. As the committee noted, we have a responsibility to ensure the integrity of our network data with a view to protecting the privacy of citizens and the data held by the Canadian government on them.
Over the years, additional steps have been taken to strengthen the relationship with specialized agencies that assist and support the department's work. The process of hiring and training staff and efforts in the area of technology certification enable us to provide far more effective protective measures.
Senator Joyal: Is it not likely that the reaction to these measures will be favourable in the Auditor General's report which I believe is expected on the 30th? This report will examine the effectiveness of Canada's security systems and the overall response to the events of September 11.
Ms. d'Auray: I would not want to make any assumptions as to the report's findings per se, but I do know that the Auditor General's Office is slated to follow up on its initial report on IT security. This internal exercise is slated to get under way shortly. A very detailed report is to be released. To my knowledge, this area is not covered in the report that will be released next week.
Senator Joyal: Therefore, you already have an undertaking with the Auditor General to ensure the integrity of the system in terms of protecting and safeguarding the data held by the Canadian government on its citizens.
Ms. d'Auray: That is correct.
Senator Joyal: To ensure privacy as much as to safeguard against information falling into the hands of individuals who might use it to commit terrorists acts or other indictable offences?
Ms. d'Auray: We do not necessarily make assumptions as to how any information might subsequently be used, but the aim of these measures is to protect the integrity of the data.
The proposed legislation would allow us to disclose certain information to the proper authorities when such disclosure is likely to prevent this kind of act or criminal activity.
Senator Joyal: How much time has the Auditor General set aside to satisfy the aims of the study?
Ms. d'Auray: I cannot answer that question. It would be best if you contacted her office. We were formally notified by her office that the study would be undertaken shortly, but no date was mentioned.
[English]
Senator Joyal: If I may, I would like to just quickly return to Minister Cotler and his comment in relation to Bill C- 36. I would certainly wish to refer him to the important comments that the Chief Justice of Ontario, Mr. Justice McMurtry, made in December, about the aftermath of September 11 and the role of Parliament in the protection of citizens in relation to security under the Charter and the proportionality test.
Mr. Justice McMurtry made these comments when he spoke at the Canadian Club in Toronto, in early December. The substance of the comments is an important contribution of the point of view of the judiciary in relation to the Charter and security.
As parliamentarians, we should take an umbrella approach to the process of review of Bill C-36.
Mr. Cotler: Thank you, senator. I am aware of Chief Justice McMurtry's remarks. I have referred to them in my own public pronouncements, as well as in making reference to the proportionality test in relation to Bill C-36 and some of the minority-rights-related principles therein. I look forward to the review that will be taking place this November in that regard.
I am also aware that the Auditor General is apparently devoting a chapter of her forthcoming report to the issues of national security, although more in terms of looking at whether we are protecting the national security in that regard. We must always appreciate this relationship between security and rights.
I wish to thank the committee chairman for allowing me the opportunity to appear before you. This has been a good discussion, not only with regard to the important but sometimes perceived as housekeeping or technical amendments, but also, we looked at matters in terms of principle.
What appears to be a somewhat innocuous piece of uncontroversial proposed legislation — and it is for enactment purposes — does have some important dimensions to it. Those dimensions were explored and shared this morning. Thank you for that opportunity.
The Chairman: Minister, on behalf of the committee, I thank you and your officials for taking the time to be with us today and for sharing your understanding, concerns and information with the committee.
Colleagues, with your consent, we will move this bill to clause-by-clause consideration at our next meeting. Is that agreed?
Hon. Senators: Agreed.
The committee adjourned.