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NDVA Committee Meeting

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[Recorded by Electronic Apparatus]

Thursday, December 6, 2001

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The Chair (Mr. David Pratt (Nepean—Carleton, Lib.)): I'd like to call members to the table so that we can get started, please. We do have a quorum now.

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I'm very pleased at this point to welcome our witnesses. With us are Colonel Allan Fenske, Colonel Dominic McAlea, and Jean Boisjoli.

Gentlemen, welcome to the Standing Committee on National Defence and Veterans Affairs. You've been kind enough to come here to give us a briefing on the new bill recently introduced into the House, Bill C-42, the Public Safety Act. I understand it is a bill that is going to be before the transport committee and the justice committee, but you have been kind enough to come in to provide us with a briefing on the sections of the bill that relate to national defence.

Gentlemen, I'm going to turn the floor over to you, and I'm sure members are going to have a fair number of questions once you have completed your statements.

Colonel Dominic McAlea (Deputy Legal Adviser (Military), National Defence and Canadian Forces, Department of National Defence): Thank you very much, Mr. Chairman and members of the committee. My name is Colonel Dominic McAlea. I'm the deputy legal adviser, military, from the Office of the DND and Canadian Forces Legal Advisor. With me is Mr. Jean Boisjoli, senior counsel, also from the Office of the Legal Adviser; and Colonel Allan Fenske, who is the deputy judge advocate general for human resources, from the Office of the Judge Advocate General. We're here to explain part 10 of Bill C-42.

Bill C-42 is a companion piece of legislation to Bill C-36 and what is now Bill C-44, which have been introduced in the House in light of the events flowing from September 11. The proposed amendments contained in the Public Safety Act will help the Government of Canada, as well as the Department of National Defence and the Canadian Forces, improve our ability to protect Canadians from terrorism and its effects, by providing them with the proper legal tools to do their job.

The first provision has to do with the definition of “emergency”. The provision found in clause 80 of the bill would modernize the definition of the term “emergency”, specifically by adding the words “armed conflict”, in order to reflect the new security environment we find ourselves in today.

What constitutes an emergency is defined differently in different pieces of federal legislation. In the National Defence Act, we need a clear reference to circumstances of armed conflict, short of formally declared war, because a number of important powers in the National Defence Act that put the Canadian Forces on a more operational footing to deal with terrorist threats are tied to the existence of an emergency.

The bill would also modernize the provision of the National Defence Act dealing with the placing of the Canadian Forces on active service. Specifically, it would recognize that action taken under the United Nations Charter can involve matters other than collective defence. It would also recognize the importance of the North American Aerospace Defence Command Agreement, or NORAD, as a cornerstone of continental and homeland defence.

In terms of the Reserve Military Judges Panel, these provisions would establish the Reserve Military Judges Panel in order to provide the Chief Military Judge with access to appropriately qualified reserve officers with prior experience as judges in the military justice system. By establishing this statutory mechanism for augmenting the military judiciary, it provides the military justice system with the flexibility needed to respond to sudden changes in the number of reservists on continuing full-time service, changes in operational tempo, or the mobilization of the reserves.

In addition to meeting the needs of the Canadian Forces in times of increased operational commitments, this provision would also prove beneficial when competing demands or conflicts severely limit the availability of military judges. Although the appointment of additional full-time judges is an option under the current scheme in the National Defence Act, it's not a practical response when addressing short-term or temporary increases in demand.

The proposed amendments to the National Defence Act in Bill C-42 also provide the authority to establish temporary military security zones to protect Canadian Forces and visiting forces personnel and equipment that are located off of defence establishments. Military security zones may also be established to protect property, places, and things the Canadian Forces have been directed to protect.

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This bill sets out clear limitations to which the minister will be subject in designating a military security zone. The creation of a military security zone in the opinion of the Minister of National Defence and on the recommendation of the Chief of the Defence Staff must be necessary for the protection of international relations, national defence, or security. Second, the purpose of the military security zone is to ensure the safety and security of a person or a thing within the zone. Third, the military security zone must not be larger than what is reasonably necessary to ensure the safety or security of the persons or things to be protected. Fourth, the designation of a military security zone cannot be valid for a period longer than one year unless it is renewed. These provisions clarify existing authorities and responsibilities that the federal government has to protect Canadians and Canadian interests.

The next provision has to do with job protection. The bill includes job protection measures for reservists in the event that the government compulsorily calls them out on continuing full-time service during an emergency such as an armed conflict. The provisions set out a framework within which the civilian employers of reservists would be required to reinstate them at the conclusion of a period of compulsory call-out. This amendment ensures that reservists do not have to choose between possibly losing their livelihoods and breaking the law that requires them to serve when called.

The next provision has to do with information technology protection. The departmental and Canadian Forces information technology systems and networks are vital to the command and control of the Canadian Forces. The provisions of this bill would enable the department and Canadian Forces to properly manage their information technology systems and networks by allowing them to ensure that the systems and networks are not used in a way harmful to defence interests, and to ensure that they are adequately protected from intrusion and attack. This is another important tool for the Canadian Forces. The ability to command and control the Canadian Forces and the ability to operate with key allies require that the Canadian Forces have the legal authority to protect their systems and networks.

The next provision has to do with aid to the civil power. The bill proposes amendments to the way in which military assistance is provided to a province under a request for aid to the civil power. Under the new provisions, provincial attorneys general would continue to make their requests directly to the Chief of the Defence Staff. However, in order to ensure that simultaneous or concurrent requests for military assistance are managed optimally, the Minister of National Defence would be authorized to provide directions to the Chief of the Defence Staff. This proposal recognizes the responsibility of the Minister of National Defence for national defence, and also requires the minister to consult with affected provinces.

Mr. Chairman, members of the committee, that concludes our overview of the provisions of the amendments to the National Defence Act. We're now ready to answer any questions you have with respect to part 10 of Bill C-42.

The Chair: Thank you very much, Colonel.

Mr. Anders, do you have any questions?

Mr. Rob Anders (Calgary West, Canadian Alliance): Yes. With regard to the job protection aspects of this particular bill, I'd like to ask you whether or not you feel...whether they be support staff or people who do something you might consider to be more than support—in depends on how you split hairs—I know aspects considered to be part of the Canadian Forces are unionized. Will this be increasing the number of unionized employees who come under National Defence in its general area, or not?

Colonel Allan Fenske (Deputy Judge Advocate General/Human Resources, Office of the Judge Advocate General, Department of National Defence): The bill isn't specific to this issue at all. What the bill attacks is the employment relationship between any civilian employer and a reservist after a reservist has been called out.

In terms of its potential relationship with a unionized agreement, the bill doesn't actually distinguish the types of employment arrangements that exist between reservists and civil employers, it covers the whole range. Its intent is to set a floor and set some principles of minimum treatment for reservists who are—and I do emphasize this—compulsorily called out—something we have not done in recent memory—and then wish to return to their jobs.

Mr. Rob Anders: Fair enough.

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With regard to the military security zones, I think they are actually the most fascinating aspect of this. Can you think of concerns that you might have with regard to these? As far as I understand it, a zone can be designated for a period of a year and can be renewed after that. Some people, certainly in the media, have expressed concern over the idea that this is going to be a wide swath with which the government will be able to declare certain areas under its purview, to do with them as it wishes. I'd like to see if you gentlemen have any concerns with regard to the potential abuse of these powers.

Col Dominic McAlea: The purpose of the military security zones is to allow the Canadian Forces to protect something or someone. The examples we most often cite are things like, for example, the USS Cole. If you will recall, it was the victim of a terrorist attack. A boat came up quietly alongside it and detonated a large explosive charge, doing significant damage.

This is a tool that we are seeking so that the Canadian Forces are better able to defend those things they are required to defend by law. It allows for defence by creating a buffer zone, if you will, and by controlling access to it. That's the way in which it's done.

I suggest that wide swaths would not be appropriate, because military security zones are limited geographically. That is to say, they may not be any larger than what is reasonably necessary to protect the thing we are meant to protect, or perhaps a person. Similarly, they're limited in terms of time. They must be made in order to protect international relations, national defence, or security. They have to be done on the recommendation of the Chief of the Defence Staff.

The Canadian Forces are focused on missions. For that reason, I suggest that the things that will be protected will not be wide, they will only be what is required for the actual mission.

Mr. Rob Anders: I have a question for you. Say, for example, Quebec was to vote to secede. Do you feel these measures would allow you to go in to police, patrol, etc., the power lines that come down from the hydro projects in northern Quebec that the Cree have threatened to disable in terms of Quebec secession, or in terms of the military stores resident within the province of Quebec? Do you feel this would give you the authority to act in those matters? Maybe it wouldn't give it to the Canadian Forces, but would it give the government the ability to order you to go after those installations even though they're not particularly military installations?

Col Dominic McAlea: I'm glad you asked that question, because it's a misperception with respect to what this does. The ability to project a military security zone doesn't actually give any authority to deploy the Canadian Forces at all. The existing authorities to deploy the Canadian Forces are found in other parts of the National Defence Act, and they have been with us for some time. The authority to assist provincial police forces or the authority to respond to provincial requests for aid to the civil power are things that have existed for some time. Military security zones are really neutral with respect to those.

Mr. Rob Anders: With regard to examples, you mentioned the USS Cole. Would other examples in Canadian history merit the government wanting to use you in this capacity or to have this type of power available to it? Are we dealing with one isolated incident, or do you actually have examples of other concerns that have happened in our history or things you potentially see as problems?

Col Dominic McAlea: Certainly, the USS Cole and the events of September 11 have been a lightning rod for our attention with respect to these things, but the nature of the operations of the Canadian Forces have been such that we need more flexibility. Once upon a time, we could do our job on our bases, but sometimes we have to leave those bases. When we do, the equipment and people we take with us need to enjoy the legal protections clearly set out with respect to our bases.

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We can spend a while going through potential scenarios with respect to things that could be protected. I'd be happy to do so, if you'd like. But the idea is that the events of September 11 caused us to focus on and examine the clarity with which we can invoke this kind of authority. This is why we're seeking greater clarity through Bill C-42.

The Chair: Thank you, Mr. Anders.


Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): First, I have to say that, personally, your presentation did not tell me anything new. It seems that you have merely incorporated extracts from the Act into your document. However, I understand that all three of you are lawyers. Therefore, I am mostly going to ask your legal opinion. As you can no doubt guess, I have several questions about military zones.

In the proposed section 260.1, right from the beginning, it states that we can: ensure the security of any person or any object, create a military security zone by designating all or part of a piece of land, a body of water,...”

In your opinion, can the definition of "land" be legally extended to, for example, an entire region such as the Island of Montreal, to an entire province such as Quebec or to an entire body of water such as the St. Lawrence River? Can the notion of “land”, which is not defined in the Act, cover everything I just listed? That is my first question.

On to my second question. In subsection (2) of the same section, we read:

    (2) A military security zone can only be created in relation to one of the following elements:

      a) defence establishments;

We can't argue with that. But could a military security zone also be created to protect:

      b) materials or goods under the authority of her Majesty in right of Canada located outside of defence establishment;

Under a legal interpretation, could one end up extending the military zone throughout Quebec because there are Canada Post mailboxes all over Quebec. Would it also be possible to expand it to cover all the areas around aboriginal reserves since these are under Her Majesty's authority? I need to have this defined more precisely than it currently is in the Act.

The provisions are described as follows:

    c) ships, aircraft or other objects under the authority of any foreign power legally present in Canada...

I understand that.

If, for example, George Bush comes to Kananaskis with a military escort to ensure his protection, does this mean that the Minister could now declare that area to be a military exclusion zone, a military protection zone and that everyone within a reasonable radius of about 10 kilometres of this area would be subject to the charges that are clearly described in the Act?

Those are my first three questions. I know that my time is limited. I know there will be a second and a third round of questions but I will have other questions bearing precisely on this part of the problem, which I will ask at that time. I hope you made note of my questions. I would like to have an answer, please.

Col Dominic McAlea: Thank you, Mr. Bachand.


If I understood you, you asked three questions as to whether or not places like an entire island could be designated, whether or not an item such as a boîte à lettres could be designated, and whether or not an international conference that George Bush and his retinue attended could be so designated. I'll attempt to answer, but you'll have to understand that there are constraints because we don't know all the facts.

The idea is that we have to identify what is to be protected. If we're talking about one person, it's very difficult to see how an entire island or an entire region could be designated a military security zone, because that would not satisfy the requirement that it be no larger than what is reasonably necessary to ensure the safety of the person or thing to be protected.

Similarly with respect to the second point, that being a boîte à lettres, or a letter box, I can't imagine how we would ever project a military security zone with respect to a Canada Post mailbox, because I don't see how that would trigger the requirement necessary to protect international relations, national defence, or security.

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Mr. Claude Bachand: I would like to clarify something, sir.


The Chair: Monsieur Bachand, just have the colonel finish his explanation, and then we can get to your other comment if any time is left.

Col Dominic McAlea: What I'd like you to understand is that these zones are designated lightly. They would only be designated if the Chief of the Defence Staff felt it was necessary. He would then go to the minister to seek the minister's authority. The minister would insist that the Chief of the Defence Staff show it was necessary, show that the area requested was reasonable, show this was relevant, show this was also necessary for international relations, national defence, and/or national security, and also show that the length of time for which the designation was in place was also reasonable. So my aim in going laboriously through this is to show that inanimate objects aren't likely to be designated.

With respect to the retinue of Mr. Bush and Mr. Bush himself, whether or not a security zone would be projected around him and his retinue would depend upon what the security assessment was. If our intelligence sources told us a very serious threat was planned against Mr. Bush and is retinue, it's quite possible a security zone would be projected around him. But if there were no such threat, the requirement of international relations, national security, and/or national defence wouldn't be met, and we would not seek, nor would we be allowed to have, a military security zone.


The Chair: Mr. Bachand.

Mr. Claude Bachand: You speak of a military security zone which would not be larger than would be reasonably necessary. Are you able to define what would be reasonably necessary? Do you not agree with me that it is up to the Minister, based on the recommendation of the Chief of the Defence Staff of the Canadian Forces, to determine what is reasonably necessary? Once the Minister has established this zone, to what extent can an ordinary citizen challenge what the Minister has decided? It is after all the Minister who decides what constitutes a reasonably necessary zone. A reasonably necessary zone could be quite large. It is not necessary that there be an attack. It is not simply a question of wanting to reach...


The Chair: Mr. Bachand, I would ask you to get right to your question, because you're well over your time right now.


Mr. Claude Bachand: Of course, Mr. Chairman. My question is therefore the following: In your opinion, what is reasonably large?


Col Dominic McAlea: It would depend upon the nature of the threat. If the nature of the threat were from some powerful state or from some non-state actor with great capability, the military security zone would be larger than if it were a minor threat. But the minister does make the designation, and he does it on the recommendation of the Chief of the Defence Staff.

I suggest that sizes will be self-limiting, because we don't have the resources to generate and project zones that are bigger than necessary. Similarly, the size of the zone in a designation will be reviewable by courts. A court will be able to look at a designation and render a decision as to whether or not it's reasonable. Of course, the minister is also politically accountable, so I would suggest at least three separate forces ensure that these zones are not going to be larger than what is reasonably necessary.

The Chair: Thank you, Colonel.

Mr. Price, for seven minutes.

Mr. David Price (Compton—Stanstead, Lib.): I'd like to thank you very much for being here today, because I think this is important. This is not a normal procedure, since this bill is a transport bill. But since it does affect certain areas of the National Defence Act, it's important for us, as the defence committee, to have a look at it and get comfortable with it, just in case we feel something should be added, moved around, etc. That's why we wanted to have a chance up front to get to talk to you about it.

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First of all, in terms of the items that have been added in this bill and the changes that have been made, where did they come from? Who decided that these items should be in the bill? Was it done directly through National Defence? I'm talking about the different items in....

Col Allan Fenske: Let me say simply that the department, in the wake of September 11, did do a very careful assessment of the adequacy of the legislative bases for security and the kinds of actions we anticipated we would have to take. Part of the concern is to ensure that the Canadian Forces are readily postured in order to respond to the kinds of threats we're seeing in the modern security environment. So it was the kind of assessment you would normally expect the department to do, this time done in the context of the events of September 11.

Mr. David Price: So they were definitely in the context of....

I'll go to a couple of things. In clause 80, the words “armed conflict” specifically are added to the definition of the term “emergency”. It says:

    “emergency” means an insurrection, riot, invasion....

You've then added the words “armed conflict” between that phrase and the words “or war”. I'm just wondering why you added “armed conflict”, because it seems to cover an awful lot already.

Col Allan Fenske: I'm glad you asked that question. Do you have the clause-by-clause form now?

Mr. David Price: Yes, I do have it.

Col Allan Fenske: Good, because we've basically set that out.

If you can imagine us looking at the events of September 11, our definition of “emergency”—and I would underline this—is a definition used for the purposes of the National Defence Act, and for the purposes of the National Defence Act only. I can take you through the seven places where it is used in the act, but the reason we have that definition is that it acts as a trigger for a number of human resource powers that we have. For example, you find the word “emergency” in the placing of the Canadian Forces on active service. In our regulations, you find the word “emergency” in relation to the minister's ability to call out the reserves, for example.

If you look at the continuum that we have in the definition, there's a gap. The current definition basically talks about war, yet if you look at the practices of states and the kinds of conflicts we've experienced in the modern security environment, you don't find formally declared war as something that occurs with any regularity at all. If you look at the World Trade Center, you have an attack, great damage, and no formally declared war. If you go to the definition, you then ask how you can use your human resource powers. What we're trying to do with that addition is ensure that, without a doubt, we have covered that point on the spectrum and do have access to those powers.

Mr. David Price: Okay, good. And if you do look at the rest, it also says “whether real or apprehended”—

Col Allan Fenske: That's right.

Mr. David Price: —so that does cover things.

On aid to the civil power, I'm wondering how it was done before, and what the minister's position was in the operation before. You're now adding the Minister of National Defence into it, as if he wasn't in the loop at all before. Am I misunderstanding that?

Col Dominic McAlea: No, you have it exactly right. The minister was not in the loop before, and this was what we saw as the problem. The minister is responsible for national defence matters, and we foresaw the situation in which there could be demands coming to the Chief of the Defence Staff simultaneously—that is to say, concurrently—for assistance. It was important that the minister not be left out of this loop, because there are political consequences to responding in ways that might be considered controversial.

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This is really designed to insert the minister where required. If concurrent requests for aid to the civil power are made and these requests are going to affect the ability of the Canadian Forces to do other things, or if they are going to have implications for national defence generally, then we, by this, want to recognize the role and responsibility of the Minister of National Defence, and we also want to require consultation with the affected attorneys general.

The Chair: Very briefly, Mr. Price.

Mr. David Price: The only thing about it is that he isn't definitely in the loop, there's just the possibility of him being there. Why would he not be definitely in the loop?

Col Dominic McAlea: I don't understand your question.

Mr. David Price: The way it sounds in your notes—“the Minister of National Defence would be authorized to provide directions”—he wasn't there before, but now he's there if need be. Or is it that he's automatically in the loop all the time now?

Col Dominic McAlea: He'll be in the loop all the time now.

The Chair: Thank you, Mr. Price.

Mr. Stoffer, for seven minutes.

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Thank you, gentlemen, for your presentation.

Gentlemen, in Bill C-42, clause 80 defines what an emergency is. It says, “means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended”. I'm a bit confused about what the word “apprehended” means in this particular clause.

Col Allan Fenske: The question addresses simply whether it's apparent or real. Sometimes you just don't know. Sometimes the indicia you're seeing tell you your best judgement is that it's coming, it's out there. For example, I could take out the word “real” and substitute “actual”, meaning you're seeing it happen. If you look at “apprehended”, you're seeing it about to happen.

Mr. Peter Stoffer: Gentlemen, many people outside the House of Commons, including various legal experts and civil right experts, for example, are very concerned about the fact that the particular bills that have been before us may or may not meet a constitutional challenge in front of the Supreme Court. Have you had the opportunity, or have you taken the opportunity, to take what you believe are the legal definitions in the act to an outside legal opinion to see if you are indeed correct?

Col Dominic McAlea: We've spoken extensively with our colleagues at the Department of Justice, and particularly at the charter section of the Department of Justice.

Mr. Peter Stoffer: I'm sorry, I meant outside the House of Commons.

Col Dominic McAlea: No, we have not.

Mr. Peter Stoffer: Would there be a reason why you wouldn't?

Col Allan Fenske: That's not something we would normally do. Depending on the subject matter, the law officers of the Crown are found in the Department of Justice and in the Office of the Judge Advocate General. They are responsible for the legal advice that is given, and that is the routine way in which it's done.

Mr. Peter Stoffer: That's understandable, but in these extraordinary times, with three pieces of legislation being admittedly rushed through the House very quickly—a lot of it in legalese—in all honesty, a lot of members of Parliament really don't have a full grasp of what it actually means in the long term. To satisfy the curiosity of Canadians, would it not have been prudent to have at least done that? I know it's not normal, but these are not normal bills, wouldn't you agree?

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Col Allan Fenske: Mr. Stoffer, we're here to explain how the bill works, and we can do that. In terms of whether or not the minister or the government might wish to go looking for other consultation mechanisms or outside advice, that's not something we can address today.

Mr. Peter Stoffer: Okay, very good.

You talked about what are considered to be reasonable limits. You've used that expression many times. Of course, the minister would be under so-called political pressure in terms of what is defined by that. But I look at this bill and I see that a situation like Burnt Church could technically have been turned into a so-called military exclusion zone.

When you look at Miramichi Bay, you could technically, under reasonable limits.... It says you want to protect a person or thing. If you want to stretch the argument, that thing could be a lobster, for example. In order to protect the lobster stocks, they used RCMP and coast guard officials before—and rather efficiently, as it was termed to us. Could this not mean such circumstances could be considered reasonable grounds to protect the entire Miramichi Bay and the industry in it?

Col Dominic McAlea: That's a good question, and you're quite right, this bill is guilty of being written in legalese. That's the nature of the beast, and sometimes it is laborious to go through it. But if you do go through it, you'll find that with respect to protecting lobster, that does not satisfy the requirement that international relations, national defence, or national security are in need of protection.

Before the minister designates any area, no matter how small or how large the military security zone, we have to jump through a whole bunch of hoops. I suggest that the lobster one wouldn't even come close.

Mr. Peter Stoffer: But, sir, isn't it reasonable to suspect that if, for example, workers in the IMP hangar in Halifax—IMP does military subcontracting work—went out on strike and the military required those components in order to do its job effectively.... Suppose the workers were blocking the access road. Of course, you can get a court injunction to limit the number of strikers, but with this bill, couldn't you effectively determine that the area is a military zone? In just a peripheral view, could that not be termed...the company could go to the Attorney General of the Nova Scotia, and the Attorney General could go to the Minister of Defence, say he needed help, and recommend the use of the act in order to do that. Could it not be used in that regard?

Col Dominic McAlea: First of all, the attorney general of a province may only seek the assistance of the Canadian Forces in aid of the municipal power if matters are beyond the capability of the province to deal with them. I would suggest we're talking about a very serious matter if an attorney general of a province is going to do so. Strikes occur all the time, and municipal or provincial authorities deal with them without any problem.

With respect to a military security zone, the Canadian Forces are supplied by many private-sector companies. The purpose of a military security zone is to protect Canadian Forces personnel and equipment, visiting forces personnel and equipment, and things the Canadian Forces have been directed to protect. I suggest that the example you've given me just doesn't satisfy the requirement.

The Chair: Mr. Stoffer, your time has unfortunately expired.

Mr. Anders, for five minutes.

Mr. Rob Anders: Thank you very much, Mr. Chairman. Just think, the sooner I start, the sooner you start up again. How does that sound?

I'd like to ask about clause 82, which talks about “any action undertaken by Canada under the United Nations Charter”. I'm wondering whether or not this document, previous to the amendments, made a specific mention of the United Nations Charter? That's just a general question.

Col Allan Fenske: The amendment is actually more of a technical amendment for clarity, to make it crystal clear that we're talking correctly about the legal basis. The section involved is the section used to place the Canadian Forces on active service. That can be done in a number of cases.

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The language as it exists today blends the United Nations Charter in with other instruments of—and I underline “other”—collective defence. The United Nations Charter today is clearly an instrument of individual and collective defence, so the first thing we were doing was ensuring that the special nature of the United Nations Charter is recognized.

The second thing this section does—since we were there—as my colleague Colonel McAlea said in his opening remarks, is to give some visibility to NORAD and to the NORAD Agreement. Beyond that, those are the only rationales for and the only effects of these changes.

Mr. Rob Anders: I'm going to try to clarify that. It was generically included in the definition before, but now it's specifically mentioned.

Col Allan Fenske: We've distinguished between the UN Charter and other agreements.

Mr. Rob Anders: Understood.

In proposed paragraph 260.1(2)(c), you talk about

    a vessel, aircraft or other thing under the control of a visiting force that is legally in Canada by virtue of the Visiting Forces Act or otherwise....

If General Suharto, for example, had visited Canada and had his motorcade or whatever included under the Visiting Forces Act, does that effectively mean that instead of having the RCMP policing that particular scenario, you would be the ones left holding the pepper spray if the government did indeed enact this and chose to define that as a military security zone?

Col Dominic McAlea: The Visiting Forces Act is a vehicle that allows Canada to discharge its international obligations with respect to the personnel and equipment of visiting forces. That act is most commonly invoked with respect to our NATO allies. If a NATO ship seeks permission to make a port call and the diplomatic clearance is given, it will come here pursuant to the Visiting Forces Act. This is the type of thing we're contemplating in proposed paragraph (c). We're usually talking about foreign militaries with which we cooperate, or with which we are allied. The big one in the first club is NATO, but Canada also assists many developing countries with military systems programs, so they would also be found on that list. So we're talking about allied military forces.

Mr. Rob Anders: Given the way you have carefully legally worded that, I would take it to mean that if he was visiting peaceably, he could be included under that definition.

Col Dominic McAlea: Yes, if we're talking about vessels, aircraft, or other things under the control of a visiting force. We're not talking about heads of state under this section.

Mr. Rob Anders: Understood.

Compensation is dealt with in clause 84, and in proposed paragraph 260.1(10) underneath that. It says:

    Any person who suffers loss, damage or injury by reason of the exercise of any of the powers conferred by this section shall be compensated from the Consolidated Revenue Fund.

When you say “compensated”, is there any definition of what that compensation is? Is that a fair market compensation? Who determines what compensation is? In other words, could there be compensation for pennies on the dollar, or is that a recognition of property rights as I would understand them to be, in that somebody is compensated at fair market value? How do you determine that?

Col Dominic McAlea: Fair market value is a very good way to describe it. Under section 257 of the National Defence Act, we currently have a similar provision with respect to damage that results from manoeuvres of the Canadian Forces. This is something we do to rapidly and efficiently settle claims. We did it in Germany all the time. Not having recourse to the courts, and in order to avoid the long litigation process, it's done in a way similar to how claims are settled rapidly and efficiently under workmen's compensation schemes.

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The Chair: Thank you, Mr. Anders.

Mr. Bachand, I understand you've given a portion of your time to—

Mr. Claude Bachand: No, I haven't given it to him. I'm asking you to give him the floor before me, but I'll be holding to my time also.

The Chair: Mr. Stoffer, I understand you're going to be leaving, so go ahead.

Mr. Peter Stoffer: Thank you, Mr. Chairman.

Sir, I just have one question. Correct me if I'm wrong, but I get the feeling that the Minister of Defence can designate any area in the country as a military security zone. I suspect that if the forces deem that he wants them to do it, they have to

    protect property, a place or a thing that the Canadian Forces have been directed to protect....

So the minister, himself or herself, can direct the military to go to a certain area of the country to designate it a military security zone. Nothing in this act takes that kind of power away. To me, that puts far too much power in the hands of the minister, and that's why I brought up the issue of Burnt Church or a plant that makes parts or anything else. If the minister wakes up in the morning and says he's going to make an area a military security zone, nothing in the act is stopping that.

Col Dominic McAlea: That's a very good question. I'm glad you asked it, because it does appear to be a source of some confusion.

The Canadian Forces are not deployed by virtue of the military security zone. You should think of the military security zone as just another tool in the tool kit of the Canadian Forces in maintaining security.

The Canadian Forces deploy either because they've been requested by a province, because a provincial police force has asked for assistance, or because another federal government agency or department has requested assistance, but these are all separate authorities currently existing in the National Defence Act. The military security zone comes into play once we get there and say it is our tool for achieving whatever mission it is that we've been given to do. For example, if we're talking about a nuclear generating plant, we could project a military security zone around a nuclear generating plant to prevent terrorists from getting into the plant.

You shouldn't think of the military security zone authority as a way of deploying the Canadian Forces. That's not how it happens. It's a tool the Canadian Forces can use once they are deployed, and deployed pursuant to all the traditional authorities.

Mr. Peter Stoffer: Thank you, Mr. Chairman.

The Chair: Mr. Bachand.


Mr. Claude Bachand: I have several questions I want to ask you about what you have just said.

First, there are two things. Assistance to civil authorities is given at the request of a province. I understand that. In certain situations which we have experienced in Quebec, whether it be an ice storm or the Oka crisis, the province asked the government for the army's help. That's one thing.

Now, the creation of a military security zone is something else. The Minister can establish such a zone upon the recommendation of the Chief of the Defence Staff, without consulting the province. Correct me if I am wrong. Can the Minister establish a military security zone by himself without consulting the province? I think the answer is "yes".


Col Dominic McAlea: Perhaps I didn't explain myself clearly enough in responding to Mr. Stoffer.

The military security zone should be considered just like, say, a truck or a helicopter of the Canadian Forces. It's a tool the Canadian Forces use to do their mission. It's not the basis upon which the Canadian Forces would deploy to a province. The Canadian Forces would or would not deploy to a province based upon existing authorities that have been in the National Defence Act for a long time. The minister would not create a zone and then send the Canadian Forces in. That would be like lying down on your bed before you placed it in your bedroom.

I don't know why I came up with that example, but....

• 1625

The Chair: Getting tired, Colonel?

Some hon. members: Oh, oh!

Col Dominic McAlea: You should not think of it as an enabling power for the Canadian Forces to deploy. It's an authority for the Canadian Forces to use once they get there. The mission comes first, followed by the tool of the military security zone.


Mr. Claude Bachand: You said earlier that you made a distinction between establishing a military security zone and the deployment of the Canadian Forces in that zone. If the Minister decides to establish a military security zone, there would have to be military personnel to ensure security in that zone. I would think that the army would have to be there.

While I have the microphone, I would like to ask you the fundamental question I have been asking myself. All three of you are lawyers. What would the Supreme Court say if a suit were brought before them to ask them if there is a violation of the Charter of Rights and Freedoms? All three of you are telling us that there would be no problem, that the test could be easily passed and that the Supreme Court of Canada would say that the bill does not weaken individual rights and freedoms, among other things, in the context of the establishment of military security zones.


Col Dominic McAlea: I'm not certain. Is that a question?

Mr. Claude Bachand: Yes, it's a question.

The Chair: Colonel, I think the question is whether or not the bill is constitutional.

Col Dominic McAlea: I can assure you we went to great pains to speak to our colleagues at the Department of Justice who specialize in constitutionality and compliance with the Charter of Rights. The product you see here is the product that resulted from those consultations.


Mr. Claude Bachand: Do you have legal opinions from the Department of Justice and, if yes, are they available to the members of this Committee?


Col Dominic McAlea: We don't have any control over the files of the Department of Justice, Monsieur Bachand.


Mr. Jean Boisjoli (Counsel, Office of the Legal Advisor of the Department of National Defence and the Canadian Forces): The legal advice is given to the Minister and the relationship is between the Minister and his counsels.

Mr. Claude Bachand: So, you cannot tell me if you are going to provide the legal opinion. We have to ask the Minister to do so.

Mr. Jean Boisjoli: That's correct.

Mr. Claude Bachand: Thank you.


The Chair: Thank you, Mr. Bachand.


Mr. O'Reilly.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much.


Thank you very much for attending, gentlemen. It's a strange request, because the bill currently before the House, Bill C-42, just came on to the Order Paper today, so it hasn't even been discussed in the House. It's unusual that we would have a briefing on something for which amendments haven't been proposed yet, and when the fine points of the bill haven't been discussed in the House.

In looking at some of the questions asked today, my first question would be whether or not you feel any amendments are glaring. Are you looking at anything, or should anything be proposed now that the bill has had some public exposure and certain points have been raised? That's the first question.

Col Dominic McAlea: At this stage, I understand Minister Collenette has expressed an openness to any suggestions, but we are clearly not at that stage yet.

Mr. John O'Reilly: I'll take the example of a military zone, because I know it's one of the contentious items. I always like to look at an example. The last time I was in Halifax, an American aircraft carrier was there. It's 28 stories high, with a 4.5-acre surface on it. It was in the outer harbour because of the depth of the harbour, so it was actually at anchor in an area where it created a tourist attraction. Actually, while I was there, I think someone was killed because they fell off it or whatever. But I remember looking at it and wondering how anyone would come into a harbour and be protected, because they created a floating tourist attraction just by being there. Of course, the USS Cole is an example of what happens when an allied nation goes into an area that doesn't have a secure military zone.

• 1630

When you're looking at this issue, how big would the military zone be? Would it be all of the harbour in this case, when that particular vessel is visiting? Is that how you imagine it? Or would a section be cordoned off around that ship to keep other vessels from coming near it? Is that a good example?

Col Dominic McAlea: Any example is a good one if you're asking a question.

The size of the zone will be a function of the nature of the threat. At any given time, if intelligence sources tell us we're expecting concerted attacks by capable groups, the zone would have to be larger. If it were in a benign environment, the zone might not have to be very large at all, but just big enough to allow, say, a patrol boat to intercept anyone coming up against the ship.

Mr. John O'Reilly: On the call-up of the reserves and their job protection, when we did the review of the reserves, one of the things reservists were afraid of was that call-up would restrict them from being hired, because an employer would know they could lose the person and would have to hire them back even if they were gone for a year. In my mind, that may restrict some small businesses from hiring reservists. If they have a choice between two equally talented people, they're probably going to take the person who isn't the reservist if they know they could lose the person on call-up and then have to give them their job back. Has any thought been given to that process?

Col Allan Fenske: That question is right on point, and it's one of the concerns that had to be factored in to how this portion of the bill was shaped.

You, sir, certainly will be aware that the experience that the department has had in terms of voluntary employer support for voluntary call-outs of reservists has actually been very good.

If you were to look at some of the other countries that have job protection legislation and have gone past—and this is the key point—the point of protection after a compulsory call-out, that's when they tend to get themselves into the problems of disincentives for employers. The theory behind the way in which this bill is positioning the department is that by confining the scheme to the cases in which reservists are compulsorily called out—something the government does not do lightly; it will be a very serious scenario when that occurs—we're expecting that employers will recognize that it's serious and something they need to support.

The other aspect is that as this bill develops during consultations, we will have to look at the various shapes and sizes of employers, at the employee-employer relationship, and at how we develop the definition of “employer”.

The Chair: Thank you, Mr. O'Reilly.

Mr. Anders.

Mr. Rob Anders: I have a question with regard to the authority to protect computer systems and networks from attack or manipulation. When I was visiting with some of my colleagues down at the NORAD facilities, for example, supposedly with the downing of the American plane in China, a number of hackers from the Chinese mainland attempted to infiltrate or tamper with NORAD websites.

• 1635

I respect that this was a fairly obvious attempt to threaten national security, and I think you therefore need to be able to do what you need to do to prevent that. However, I also wonder about domestic hackers, kids, people who promote viruses, those types of people. I'd like to get your thoughts on that particular aspect of domestic troublemaking, and how you see this bill applying to domestic troublemakers.

Mr. Jean Boisjoli: Whether it comes from abroad or from here, the threat remains the same. We've tried to draft this part of the legislation in a way that strikes a balance between the important need to protect our systems on the one hand, and the need to protect people's privacy rights on the other hand.

If I may just go through some of the sections relevant to this, a a written authorization is needed from the minister to designate persons by class or individually, for example, and they have to be specialized people who are performing duties related to the operation, maintenance, or protection of the DND/CF computer systems. It's limited to computer systems, so this is not about eavesdropping or wiretapping. That's another issue. The private communications have to be to the systems, through the systems, or from the systems.

Furthermore, before he authorizes these things, the minister has to make sure five conditions are met: that the interceptions are necessary for the protection of the computer systems and networks, as well as for the data they contain; that the information cannot be reasonably obtained otherwise; that the consent of the person cannot be obtained—and that seems rather obvious in those cases; that satisfactory measures are in place to ensure that only necessary information will be used or retained—the concept of minimization of information; and finally, that satisfactory measures are in place to protect the privacy of Canadians.

I might add that there is a review of this. The Commissioner of the CSE has been asked to be the reviewing body for this, and he will report annually to Parliament, through the minister. The Privacy Commissioner retains his review functions. So with respect to your concerns about kids, the question is not really one of going after kids, but one of dealing with threats wherever they come from.

Mr. Rob Anders: I had a follow-up to your talk about the Commissioner of the Communications Security Establishment. As I understand it, the Commissioner of the CSE will be able to review the activities of the department and the Canadian Forces to ensure their compliance with the law. What I'm wondering about is the jurisdiction over that. Is that a significant change in terms of the relationship between the CSE and the armed forces? Is the CSE assuming control over the forces in terms of communications and signals and those types of things.

Mr. Jean Boisjoli: No, not at all. Basically, the CSE commissioner is here because we looked at three options when we were drafting this. We felt we needed a review body, so we first thought we might go through the Privacy Commissioner. We then thought we might go through a separate GIC appointee, but we rejected that because we felt we didn't need to create further bureaucracy. And then we thought of the CSE commissioner and retained that option basically because he has the expertise and is already dealing with similar areas. Of course, Bill C-42 came after Bill C-36, so there had to be some form of congruency between Bill C-36 and Bill C-42, keeping in mind that this had to be adapted to the needs of the forces, as compared to the CSE.

The Chair: Thank you, Mr. Anders.

Mr. Provenzano.

• 1640

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Can it not be effectively argued that under the current provisions of the National Defence Act, which allow the Governor in Council or the minister to ask the Canadian Forces to perform a public service or to provide assistance with respect to any law enforcement matter, you could effectively create the same kind of security zone if that public service or the law enforcement matter for which assistance was requested dictated the necessity of such a zone? If that's the case, aren't we really just fine-tuning the legislation so that we're talking about something specifically valid, when that enabling power might already exist at this very moment?

Col Allan Fenske: I'm going to pick up two themes in that question, Mr. Provenzano, and my colleague is going to want to touch on it also.

The first point you make is that there is what I would call a front end to a security zone decision, in that the Canadian Forces have somehow been called into a function. You've used section 273.6 of the National Defence Act for public service duties. What I would say is that in terms of disaster relief, aid to civil power, and section 273.6 public service duties, these are the kinds of things for which there is always ongoing consultation when the Canadian Forces are deployed in respect of something like that. I think that was the first point.

The second point that you raise—or which I believe at least causes me to want to say something—is the idea that perhaps this authority exists already to a certain degree. Part of what is happening—and I'll let my friend finish this—is that we are elaborating on common-law authority that already exists. To that extent, your point is very well taken.

Dominic, did you want to add to that?

Col Dominic McAlea: Yes, thank you very much.

I adopt Colonel Fenske's comments entirely, and I'd also like to add that I agree with you. What we're talking about is something that is clarifying and codifying, not creating something new.

With our provision on military security zones, whereas there was confusion and lack of clarity in the past, we now have criteria that we can point to as the bases upon which these zones will be invoked. We have accountability, we have transparency, and we have a plan for compensation explicitly contemplated.

Mr. Carmen Provenzano: I have one other question. In reading the definition of “emergency”—and I think I know what your response is going to be, but I'd like to have it anyway—it says:

    means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended....

My questions arises from some of the questions that have been posed around the table. By whom is this emergency “apprehended”?

Col Allan Fenske: That's a good question. This is a definition contained in the National Defence Act. It's a definition that operates as a threshold for the exercise of certain powers under the National Defence Act. The question must then be who exercises those powers.

The short answer that I would provide you with is that if, for example—and let me take an example that hasn't been mentioned yet—there was a decision, because of an emergency, to prolong the currency of the terms of service of an individual who was in the military, that decision could be taken at several levels within the department if it's an individual instance. But if it has national implications, you can expect that the Chief of the Defence Staff, the minister, and perhaps even the government, will be involved.

• 1645

Mr. Carmen Provenzano: It is my understanding that in the final result, the context in which that would be used would be that of an apprehension by the minister, whether on recommendation or otherwise, is that not correct?

Col Allan Fenske: Remembering that ultimately the minister is responsible for the management and direction of the department and the Canadian Forces, the minister doesn't do everything. It will really depend on the context of the decision, and since we're dealing with the issue of an emergency, it's most likely that it will be elevated to the very highest levels.

The Chair: Mr. Provenzano, I'm going to have to cut you off. You're well over your time.

Mr. Bachand.


Mr. Claude Bachand: Mr. Chairman, I have three questions on the inadmissibility of claims for damages, losses and injuries. To your knowledge, are there similar provisions in other Canadian Acts which bar individuals, among others, from bringing suit for damages, losses or injuries which they have incurred during certain operations or certain situations?

Likewise, do you consider the fact that citizens are barred from bringing suit in court constitutes an infringement of the rights described in the Canadian Charter of Rights and Freedoms? What would happen to a citizen or a merchant who is in a military security zone, who incurs damages and who is not satisfied with the compensation given to him by the Treasury. What do we do with that individual? Do we just tell him that he has to forget initiating any legal action even if he is dissatisfied with the compensation?

In conclusion, Mr. Chairman, I would say, in my personal opinion, this type of bill would allow all sorts of infringements to the rights and freedoms of individuals. I also think that there is an enormous danger of a political loss of control. I also think that we are following the wrong path when we go this far in restricting individual rights and freedoms.

This is my personal opinion and I was determined that it appear in the record of these proceedings. I had to do it now.

I would appreciate it if you would answer my three questions.


Col Dominic McAlea: If I understand the thrust of the question, I understand it to be whether or not this proposal is contrary to the charter. I would suggest, Mr. Chairman, Mr. Bachand, that it is not. This is not an unusual provision at all. It has existed in the National Defence Act for decades with respect to compensation for damage suffered in the context of manoeuvres. But it also exists in many provincial schemes with respect to, say, workmen's compensation, which is designed to ensure speedy and efficient compensation to people without having to resort to the long litigious process. So whereas it certainly does represent a limitation on one aspect, I would suggest it represents a gaining of something on the other.

My colleague has pointed out quite rightly that the obligation to compensate is quite clear. In the text, it says, “shall be compensated”. We're talking about a very high standard here that doesn't exist in other areas, so what you see is, I think, a balance between a right to pursue for damages, and the need to efficiently and effectively compensate people for their losses. I don't think that goes against the charter. In fact, similar schemes are present throughout the country at both the federal and provincial levels.

The Chair: Thank you, Mr. Bachand.

Mr. Price.

Mr. David Price: On the “Reinstatement in Civil Employment” section, Colonel John Fraser's special committee that's going across the country has signed up quite a few companies willing to go into this plan. Are the rules in this project similar to what was asked of those companies? What will happen in this case? Will they stop recruiting such companies?

• 1650

Col Allan Fenske: Not at all. Part VII, “Reinstatement in Civil Employment”, is intended to complement the ongoing efforts at voluntary compliance by employers, which a number of indications suggest have been quite successful. In fact, I've heard a number of people say so.

I'll hone in again on what has to be the key point of this. We are talking about the point at which we put the reservists in the position of having to ask themselves if they will lose their livelihoods, if they should quit their jobs, or if they should obey this order. That's something the government doesn't do lightly, and I think the past fifty years show that successive governments would not take this step lightly.

The real issue here is a scheme that is out front where we can see it, and that, as you can see in part VII, will be the subject of consultation with organizations and the provinces later. But it's out front, positioned, and ready to go if we ever do get to that crisis.

Mr. David Price: I find it interesting that you've covered a lot of the spots in it, particularly if somebody is injured and so on. You have said it would have to be within ninety days after service. Maybe it's in here and I didn't see it, but if somebody comes back with diminished capacity—they get out of the hospital and still have a permanent disability of some kind—what happens in that case? Is the employer still obliged to hire?

Col Allan Fenske: I'm delighted that you should raise that. One of the things we were very careful to do was to cover a period of convalescence, number one. In the text of the bill, you will not find a principle that will deal with the disability issue that you're talking about. What we do have in the bill is provision for a number of exceptions. If you were to look back at the previous job protection legislation that Canada has used—in 1946, and again for Korea—you would find we have created exceptions for employers. The theory behind not putting that in the bill was to ensure that consultations would take place.

Mr. David Price: Thank you.

To describe that security zone, your security zone includes everything within it. Let's take an example. You used nuclear power stations before. If you're protecting that piece of equipment, that means you'd have a security perimeter around it in case there's a suspected terrorist attack. Would that also give you access to the interior of the station at that point, in that case?

Col Dominic McAlea: That would depend—

Mr. David Price: I know it's getting a little technical, but....

Col Dominic McAlea: The zone is a tool to control access. You would control access from either the perimeter or very shortly in from the perimeter. Unless it was due to some operational requirement, I couldn't see the forces being in the interior.

Mr. David Price: If it were a case of a person being protected in the interior, naturally they would be inside for that, because it's an item or a person that they could be protecting.

Col Dominic McAlea: That's correct. Obviously, if we set up a perimeter in that circumstance, we're protecting both people and things.

Mr. David Price: I just have one other short one. In clause 87, on computer systems and networks, it says interception of messages must be authorized in writing. A written authorization is required for each person, but is that person ever advised?

Mr. Jean Boisjoli: The authorization is given to the person or class of persons doing the interception, so it might not be a personal authorization, it might be for people working in that area. So, yes, of course they would know that.

Mr. David Price: No, what I meant wasn't the person receiving, but the person sending, the person you're looking in on.

Mr. Jean Boisjoli: No, there's no need for that.

Mr. David Price: Okay, thank you.

The Chair: Mr. Anders.

• 1655

Mr. Rob Anders: I wanted to follow up on Mr. Bachand's question with regard to provincial authorization. I share his view that the federal government is a creation of the provinces and a creature of the provinces. When it comes to the idea of Quebec being interfered with at the discretion of a minister—who is an appointee of the Prime Minister—with regard to issues related to the St. Lawrence Seaway, Montreal, or James Bay and the power lines, I also put Alberta in that context in terms of how I would feel if the premier of my province was being interfered with by a minister appointed by the Prime Minister when it comes to Alberta's waterways, Alberta's oil fields, or Alberta's pipelines. Therefore, I have to side with Mr. Bachand on this.

It's one thing to have established military installations as they exist in the country now, but if we're going to be giving the power to the minister to create military zones, I frankly don't think he should have the ability to do that without the agreement of the provinces. I'm issuing that as a thought of mine in terms of this whole thing, and as something for you gentlemen to walk away from this with. Nonetheless, that's a concern that has to be addressed.

When we give agreement or when these powers are granted, we really don't have any assurances that they won't be abused. For example, let me put the question to you this way: If the Minister of National Defence decides he wants to go in and declare a special military zone around an Alberta waterway, oil field, or pipeline, would he do so or would he be able to do so despite the wishes of the Premier of Alberta, as the bill is worded now?

Col Dominic McAlea: With respect to your first question in regard to assurances that the authority wouldn't be abused, I can assure you that these designations are subject to judicial review by courts of competent jurisdiction. If someone or some sort of body believes a designation is illegal, it could be put before an independent judge, who would rule upon its legality. That legality would involve assessments of reasonableness as set out in the section.

With respect to a waterway or pipeline, the scheme is that the zones are to be in relation to current defence establishments, personnel, and equipment of the Canadian Forces and visiting forces, and things “that the Canadian Forces have been directed to protect”. I can suggest to you, Mr. Anders, that it's unlikely the Canadian Forces would be directed to protect a pipeline unless some consultations had been held with the province, and unless a request had been made by the province involved.

Mr. Rob Anders: I have to admit that your discussion about being subject to judicial review rings rather hollow if that particular asset that's valuable to the people of Alberta is already occupied by federal troops, and especially in the case of Mr. Bachand, to whom I think this argument is even more pertinent, frankly, for the province of Quebec.

Col Dominic McAlea: I don't know how to explain this any more clearly, but the military zone vehicle is not the vehicle whereby the Canadian Forces would deploy anywhere. It's a tool used once they get there. They would be going pursuant to some other authority, and that is most usually by invitation—not always, but most usually. These are existing authorities that have nothing to do with military security zones.

Mr. Rob Anders: Okay, I'm going to ask you this: In your legal opinion, even though you don't think this is usually the case, could this legislation be used to send federal troops into either Quebec or Alberta? You're shaking your head.

• 1700

Col Dominic McAlea: It's just not the right vehicle. It's like putting your furniture on a lot before you build your house. It's the vehicle to facilitate matters once a decision is made, pursuant to a separate authority, to deploy troops.

The Chair: Thank you, Mr. Anders.

Mr. Provenzano.

Mr. Carmen Provenzano: First of all, gentlemen, thank you for your responses to my earlier questions. I have two, and possibly three questions as a follow-up. For my own understanding, I really do need some clarification on the question, “apprehended by whom?”, in regard to the question of an emergency that is real or apprehended.

You gave an answer, but what I would like to ask is a bottom-line question. Is it possible for anyone other than the minister to declare an emergency, whether it's on the basis of a real or apprehended situation?

Col Allan Fenske: That question requires me to give you a bit more detail than I have.

Mr. Carmen Provenzano: Is the answer yes?

Col Allan Fenske: No, the answer is both yes and no, because it varies depending on where the term “emergency” is used in the act.

Mr. Carmen Provenzano: I should ask my other question then.

Col Allan Fenske: Sure.

Mr. Carmen Provenzano: An apprehension is a subjective perception. It's very subjective. In your answer, could you indicate to me, sir, who would be making that subjective determination, and how?

Col Allan Fenske: I can assure you that such a decision is a government decision given in the context of an emergency, but if you were to look carefully at the way the act is structured, there are a couple of places where it doesn't actually say there must be a declaration. That's the point. And it has been that way since 1950.

I can tell you that there was no independent use of the term “emergency” during the Gulf War. It was a question that was very carefully looked at, and the decision on whether or not we were going to treat those powers as emergency powers was a government decision, and the fact of the matter was that those powers weren't used that way.

Let me just give you a couple of ways in which the definition is used, and that might help you to see what I mean.

Mr. Carmen Provenzano: Can I ask about one way and have you respond to it, sir?

Col Allan Fenske: Oh, sure.

Mr. Carmen Provenzano: What petrifies me somewhat is something that is not likely to occur—and I certainly wouldn't like it to be able to occur. In terms of the very seat of government, does anything in the legislation exempt or require, for example, any special procedures to be gone through if some minister felt Parliament Hill was to be declared a security zone because of some apprehension of invasion, war, or whatever?

Col Allan Fenske: There is absolutely no necessary connection between the definition of “emergency” as it is used in the National Defence Act, and military security zones. That's number one.

Mr. Carmen Provenzano: Could a minister declare this Hill a security zone? I need to know that.

Col Allan Fenske: I think my friend has been through that several times.


Col Dominic McAlea: If the Canadian Forces were directed to protect this area and were deployed to do so through a separate authority, then that would be one of the options available for use as a protective tool.

Mr. Carmen Provenzano: In that event, then, under the provisions of the legislation, you would be able to restrict access, to enforce complete control within the security zone, would you not?

• 1705

Col Dominic McAlea: Right, and if you will, we protect by restricting who gets in. Anyone who is authorized to get in can get in, and anyone we are told to let in is let in.

Mr. Carmen Provenzano: I guess I'm asking you if you see that we may have provisions here that may effectively have the potential, under a certain set of conditions, to obstruct the work of the government? Is that possible?

Col Dominic McAlea: I think it would be perverse if the creation of a security zone had the effect of obstructing the work of the government. That's not what's intended. It's intended to be projected to protect. If access were so tightly controlled as to affect the work of the government, that would have a counterproductive effect.

Mr. Carmen Provenzano: My questions are designed to prevent the perverse, nothing more than that. I'm concerned that there may be situations that require some special protocol. It may be that my example could occur. This Hill could become a security zone because of some subjective perception or apprehension that it needed to be one.

The Chair: Mr. Provenzano, in an effort to shed some light on this—although you're over your time—I would think the Parliament of Canada Act would have some application under the circumstances, and that the Speaker's authority would probably—

Mr. Carmen Provenzano: At such a crucial time, I'd hate to be in an argument over which legislation would govern.

The Chair: In any event, we'll get a quick comment, Colonel, and then we're going to go to Mr. Bachand.

Col Dominic McAlea: I had a quick consultation with my colleague, and he points out the obvious. As a tool of the government, we're not going to be employed in a way that is going to frustrate the government's business.

Mr. Carmen Provenzano: You're to be a tool of the minister. It's perverse—

Col Dominic McAlea: This is one of the reasons why members of the Canadian Forces take their orders from the Chief of the Defence Staff, and no one else.

The Chair: Thank you, Mr. Provenzano.

Mr. Bachand.


Mr. Claude Bachand: The Chief of the Defence Staff also takes his orders from the Minister of National Defence. If he takes his orders from the Minister of National Defence and then he passes those orders on to you... I have to admit this is what scares me a little bit about this bill. I am also speaking as someone who has had some experience with the War Measures Act. Many people say that you can't compare them but it seems to me that there is a danger of politically manipulating the army with the type of bill that is before us.

I will give you an example of a series of events which could happen. There could be an apprehended state of emergency, such as an insurrection or a riot, in Quebec, and the Minister could state that he is declaring that all of the territory of Quebec is a military security zone. I think that the Act allows him to do this without advising the Government of Quebec. At that point, the Minister would say that there are defence establishments and goods and properties belonging to Her Majesty in Quebec and that we must defend these assets. Many people are worried about that, as am I.

As far as I am concerned, there was a certain amount of political manipulation of the army when the War Measures Act was invoked. I think that, through this bill, we are setting up a new formula to try to proceed in the same manner. There are many people who are going to tell me that I am paranoid but it seems to me that the Minister has all the necessary instruments to do whatever he wants to do in the scenario I have just described. It is perhaps a hypothetical scenario but, in my opinion, it is a scenario that could occur.


The Chair: Mr. Bachand, I think we've actually covered this ground before, but I'm going to allow the colonel to respond.


Col Allan Fenske: Mr. Bachand, first, we must emphasize that the word "urgence" or "emergency" is used in seven places in the National Defence Act. This has absolutely nothing to do with military security zones. Here are some examples. First, in the event of an emergency, as provided for in the National Defence Act, we can create a special force. A special force is a force such as was used in Korea, where reservists were combined with regular forces personnel. If I am not mistaken, there were also some people from another element.

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Secondly, according to Section 26 of the Act, if you are enrolled as an irregular member of the forces, in the event of an emergency, we can keep you.

According to Section 30, if you have enrolled and you reach the end of your engagement period, you can leave the Forces. You can be released within two weeks. However, in the event of an emergency, we can keep you in the Armed Forces until the end of the emergency situation.

And it goes on, Mr. Bachand.

According to Section 31, the Canadian Forces can be called to active service in the event of an emergency. The effect of this is not to recall the forces into service. "On active service" means that there are certain things that human resources have to do.

Other than that, in the description of our offences, we find in several locations the definition of "emergency". Has an offence been committed during an emergency? In such a case, certain things take place.

Mr. Bachand, all this is found in the National Defence Act. The word "emergency" is not used in any other Section. That's it. There is no connection between a military security zone and emergencies.


The Chair: Thank you, Mr. Bachand.

Since I have no other questions on the Liberal side, Colonel, I have my own question that relates again to the issue of military security zones, and specifically to the words in the bill, “in the opinion of the Minister”. One of my colleagues, Irwin Cotler, has made some interesting comments with respect to the evidentiary standard that exists there. As it stands right now, the bar is fairly low. Can you tell me why, for instance, you would not have included wording to the effect of “in the opinion of the Minister, on reasonable and probable grounds”, in order to provide some justification, some evidence, for the establishment or designation of these military security zones?

Col Dominic McAlea: Certainly. With respect to the particular words “reasonable and probable grounds”, they are most often found in the criminal law context, and are used as a basis for the arrest of persons, the laying of charges, and the issuance of warrants for searching.

You quite rightly point out that the standard here is a subjective one, but I suggest that it's not problematic, because of all the safeguards that currently exist. It's reviewable judicially, and compensation shall be paid if persons suffer damage.

The tests found in the other proposed subsections, such as requiring the size to be only that which is reasonably necessary, are where the objective standards come in and where the decision can be measured against objective standards if the establishment of a zone is reviewed. Of course, the minister is politically accountable for his decisions, and I suggest that I don't need to explain to you the effect of that process.

The Chair: As I understand it, though, the judicial review is not automatic.

Col Dominic McAlea: No, it's not. For example, there may be a circumstance in which, because of the sensitivity, we may not want to even give public notice of the military security zone. That may have the effect of telling terrorists where to go next. And perhaps we haven't emphasized this enough, but the whole purpose of this section of the act is to help the Canadian Forces protect Canadians and to contribute to the international effort to fight terrorism. That's why we're here.

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The Chair: Thank you.

I have one other question with respect to proposed subsection 260.1(6) of that part of the bill, “Notice of designation”. Let's go through it:

    As soon as possible after making a designation, the Minister shall, by any means that the Minister considers appropriate in the circumstances, give notice of the designation to persons who, in his or her, opinion may be affected by the designation.

There is no specific time requirement. Again, it's fairly lax, it's fairly loose. Would you not agree, or do you think it might be appropriate to tighten that up from the standpoint of people who should know, so that they actually do know within a given period of time, in order to be able to protect their interests?

Col Dominic McAlea: Again, this is meant to be flexible. If you notice, it gives some flexibility with respect to the medium by which the notice is sent. For example, we would take a very constructionist approach and require the designation to be gazetted. The problem is that the average Canadian doesn't know how to get access to this, so we tried to create a flexible mechanism that would allow the notice to be given by the most appropriate means. It might be a local radio station, a local newspaper, etc.

The Chair: Thank you, Colonel.

Ms. Gallant, you're on for five minutes.

Ms. Cheryl Gallant (Renfrew—Nipissing—Pembroke, Canadian Alliance): Reading through the Reserve Military Judges Panel section, when finding recruits for the reserves, the thrust seems to be that attention is being paid to the military justice system. Rather than focusing on new recruits, we're already looking at judges. It seems incongruent with what our focus should be. Can you allay my concerns that this panel of judges could be doubling for something else?

Col Dominic McAlea: The panel of judges is what it appears to be. If we face increased operational tempo, or if we face increases in the numbers of reservists serving on a continuing, full-time basis, it's reasonable to foresee that the demands on the military justice system will also increase. So that we're not looking at delays with respect to trials and justice, we want an ability whereby we can call these judges up so that we can use them if we need them. If we don't need them, we won't use them.

Ms. Cheryl Gallant: How would these judges be appointed? Where will they come from? What will be the process in defining who the judges will be?

Col Dominic McAlea: They would all be officers of the reserve who had served previously as military judges. Rather than paying for a full-time judge, the idea is that we would get a judge just when we need him or her. Instead of paying full annual salaries when we don't need them, we pay them 1/251 of what an annual salary is for a judge, for every day that they sit.

Ms. Cheryl Gallant: So the panel will only be used under the circumstances of disciplinary action for reservists.

Col Dominic McAlea: That's correct.

Ms. Cheryl Gallant: Thank you.

Col Dominic McAlea: For Canadian Forces members.

The Chair: Anything further, Ms. Gallant?

Ms. Cheryl Gallant: No, thank you.

The Chair: Thank you.

Gentlemen, I'd like to thank you for your appearance today. We now have another item of business that we have to deal with. I know it has certainly been beneficial to me to be able to listen to your comments today. I would say that, judging from the comments I'm getting from members around the table, it has been very helpful to them. I hope you consider this perhaps as a bit of a dress rehearsal for your appearance at the next committee.

I am going to take the liberty of circulating the minutes of this meeting to the chairs of the justice and transport committees so that they know the sorts of questions that have been asked today. Perhaps that will help them in terms of saving some time and getting on to other issues.

Again, thank you very much for being here. We appreciate your comments.

Members of committee will have received some information with respect to possible travel by the committee in the next couple of months in relation to the study we're doing on operational readiness. A memo to that effect should have been circulated to members, relating to the fact-finding tour of the committee. I would like to open the discussion, if there is any, with any questions that members may have.

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Ms. Gallant.

Ms. Cheryl Gallant: Our senior critic asked me to pass along his concerns. We would like to be able to give unanimous consent, but before we can do so, we have to take care of the issue of the time allotment for speakers in questioning witnesses. A proposal had been put forth, and he'd like to see it dealt with first, before we start talking about financing trips.

The Chair: Well, Ms. Gallant, I have great difficulty linking the issue of questioning of witnesses by committee members with the issue of work the committee is intending to do in terms of fact-finding missions. Although I can appreciate Mr. Benoit's position in that regard, I don't think the two are at all linked. As a committee, we are responsible for investigating issues related to the Department of National Defence. That objective, that mandate that the committee has, has precedence over other considerations.

I would class the length of time that members of committee have with respect to questioning.... The questioning regime that we have here was agreed to by the committee's members some time ago. We have expressed a view at the committee table that we would have discussions related to the amount of time members have with respect to questions, but I find it very difficult to link those two issues. I've heard your comments, though.

Do you have any other comments with respect to this issue?

Ms. Cheryl Gallant: No. He would just like to see this cleared up before we start talking about the other thing. There seemed to have been agreement that we would go forth and—

The Chair: Well, in terms of what I heard, I'm not sure there was agreement. There was a willingness to discuss the issue, but certainly not agreement.

Mr. O'Reilly.

Mr. John O'Reilly: I think the issue is before the steering committee.

The Chair: I am reminded that the issue is before the steering committee, and we have another item properly before this committee at this point.

Do you have any further comments?

Ms. Cheryl Gallant: No.

The Chair: Thank you.

Mr. Price.

Mr. David Price: It's just a suggestion, Mr. Chair.

As I look here, first of all, we're talking about visiting Berlin. I stand to be corrected, but as far as I know right now, the seat of national defence for Germany is still in Bonn. The Germans want to move it to Berlin, but I don't believe they've moved it yet.

My suggestion would be that, if possible—I'd leave it in the hands of the researcher to verify this—we go from Brussels, to SHAPE—Supreme Headquarters Allied Powers in Europe—and then on to a location near Bonn to visit the Rapid Reaction Force. After that, we could go to France from there, and then over to England. One of the reasons for that suggestion is that the French defence establishment is much closer to ours.

The Chair: Thank you, Mr. Price.

Do you have any comments, Mr. Koerner?

Mr. Wolfgang Koerner (Committee Researcher): No, we're fine.

The Chair: Do we have a motion at this point, then, Mr. Price?

Mr. David Price: I am willing to move that, in relation to its study on the state of readiness of the Canadian Forces, the Standing Committee on National Defence and Veterans Affairs be authorized to travel to Brussels, SHAPE, the Rapid Reaction Force in Germany, Paris, and London, from February 18 to March 2, 2002, for a fact-finding mission on counter-terrorism; that necessary staff accompany the committee; and that the proposed budget in the amount of $208,332 be adopted for the committee's travel.

(Motion agreed to)

The Chair: Thank you, Mr. Price.

No further items of business are before the committee. With that, the meeting is adjourned.

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