Mr. Chair and members of the committee, good afternoon. I am pleased to be here as part of the committee's discussion on matters related to Bill , the combating terrorism act.
Last week, the CSIS deputy director of operations, Mr. Michel Coulombe, gave comprehensive opening remarks to this committee on the subject. Given that they are on record and still valid, I will keep my opening remarks very brief.
As Mr. Coulombe stated before the committee, the service does not have a law enforcement mandate, so we would not directly have recourse to the provisions envisioned by this bill. That said, as a member of the broader national security community, we are certainly supportive of any additional tools that will help our law enforcement partners better confront terrorism. When Mr. Coulombe was here last week, he provided an overview of the current threat environment that Bill S-7 seeks to address. Mr. Chair, I would like to briefly summarize his main points for the committee.
The greatest threat to Canada and Canadian interests continues to be terrorism, particularly that emanating from Sunni Islamist extremism. While a large and diverse global movement, it is best represented globally by al Qaeda and its affiliate organizations. Recent events in North Africa and the Middle East have unfortunately provided new opportunities for these groups.
With respect to domestic threats to Canada, CSIS continues to investigate hundreds of persons involved in terrorism-related activity that threatens Canada and our allies, including Canadians who travel overseas to conflict zones, such as Somalia, the Afghanistan-Pakistan tribal areas, Syria, and Yemen, in order to participate in terrorist activities. That these individuals may return to Canada further radicalized and with combat training and experience, highlights the increasing nexus between the domestic and international threat environments.
During his opening remarks, Mr. Coulombe shared with this committee some conclusions from a recent CSIS study on radicalization in Canada. Of significance, the study did not uncover a predictable or linear pattern for radicalization. It did, however, identify common drivers of radicalization, including profound feelings of injustice toward western governments, societies, and ways of life, as well as a sense that the Muslim world is under attack and requires defending through the use of violent jihad.
Mr. Chair, I will end my statement here, and would be pleased to answer your questions.
Mr. Chair and members of the committee, I am pleased to be invited back to appear before this committee to continue the discussions on matters related to Bill , the combating terrorism act, and to have another opportunity to talk about the role and mandate of the Integrated Terrorism Assessment Centre, or as we call it, ITAC.
Mr. Chair, my opening remarks from the November 21 hearing of this committee are a matter of record. However, I would like to underline some points that I think are worth mentioning again.
ITAC was created in the wake of the events of 9/11 as an organization that would bridge some of the institutional gaps in the Government of Canada following a realization about the need for greater cooperation and information sharing. This sentiment was echoed in the United States, as mentioned in the 9/11 commission report.
Like CSIS, the Integrated Terrorism Assessment Centre—or ITAC—is not a law enforcement organization. I want to clarify that ITAC has no independent ability to collect intelligence. Unlike CSIS, we have no intelligence officers in the field.
The primary objective of ITAC is rather to provide comprehensive and timely terrorist threat assessments to all federal departments and organizations and to all other levels of government with security responsibilities.
Our workforce is made up of analysts seconded from across government, thereby representing a wide variety of skill sets and knowledge bases.
As such, ITAC threat assessments use intelligence and information from various sources and employ various methods. Turning to the threats themselves, I would simply reiterate that the most serious terrorist threat to Canada remains that of violent Islamist extremism. Specifically, al Qaeda and its affiliates continue to represent the greatest threat from this perspective. That said, it should be noted that violent extremist elements can be found in a multiplicity of ideologies, religions, or groups.
Mr. Chair, this concludes my remarks.
I see our time is up. We've been looking forward to hearing both of you today. All parties were anxious that we might not get to hear your testimony because of the votes, but thank you for coming and for having patience with us until we showed up.
We're going to suspend momentarily to allow you to exit and allow our other guests to come to the table, please.
We're going to continue meeting 63 of the Standing Committee on Public Safety and National Security, and our study of Bill .
On this panel we will hear testimony from the Canadian Bar Association, Paul Calarco, a member from the national criminal justice section, and Marilou Reeve, the staff lawyer. Welcome.
We have also Denis Barrette, a spokesperson for the International Civil Liberties Monitoring Group.
Our committee thanks this panel for agreeing to help us with our study on Bill . I understand that each group has a brief opening statement. We want to apologize for starting a little late. We will go right until 5:30 p.m., and then we will conclude today's meeting. We have had some votes in the House of Commons, and they've taken away from our committee time.
Without further ado, welcome. We will begin with the Canadian Bar Association, Marilou Reeve.
I'll provide a brief introduction.
Mr. Chair, and honourable members, good afternoon. Thank you, on behalf of the Canadian Bar Association, for the invitation to appear before the committee today.
The Canadian Bar Association is a national association representing approximately 37,000 jurists across Canada. Among the association's primary objectives are the seeking of improvement in the law and the administration of justice. It is with these objectives in mind that we address you today.
CBA's written submission, which you have all received, was prepared by members of the national criminal justice section. The section members are criminal law experts, including a balance of prosecutors and defence lawyers from across Canada.
I will now introduce our spokesperson, Mr. Paul Calarco.
Mr. Calarco brings a personal perspective to today's proceedings that encompasses his experience as both a defence lawyer and a prosecutor. He is a practising defence lawyer in Toronto, but has also served as a part-time assistant crown attorney for Ontario, as well as serving as a standing agent for the Attorney General of Canada for six years, prosecuting drug cases in both the provincial and superior courts.
Before I turn things over to Mr. Calarco, I will note that the CBA first commented on Canada's legislative response to terrorism in 2001. Since that time, the CBA has welcomed the opportunity to make submissions on various anti-terrorism initiatives and related topics.
Thank you for your attention.
I would like to thank the committee for the opportunity to present the views of the Canadian Bar Association on this very important legislation.
There is no question that the prevention of terrorist action is vital to preserving our society. This requires effective legislation, but also legislation that respects the traditions of our democracy. Unfortunately, this bill fails to achieve either goal.
I will first deal with the effectiveness of the proposals. I wish to make three points in regard to the amendments proposed to the Criminal Code.
First, investigative hearings have been used once, in relation to the Air India case. Although the constitutionality of the now-lapsed provisions were upheld, there is no evidence that these were effective in detecting, preventing, or assisting in the prosecution of terrorism. Nor from an analysis of the proposals can one expect them to have any positive effect.
Does anyone believe that a person who is uncooperative with investigative authorities and desires to protect those who would commit terrorist acts will suddenly become cooperative and reveal useful information in an investigative hearing before a judge? That is inherently unlikely. That person is likely to maintain silence or lie. Under either scenario, the investigation is not advanced.
Moreover, the subject of the investigative hearing is now fully aware of his or her status as a person of interest and can glean from the interrogation what the authorities may know about possible action. This person, if indeed disposed towards criminal acts, can then relate all this information to confederates and allow them to plan their actions anew so as to avoid detection.
Instead of ineffective legislation, what is needed to conduct effective counterterrorism investigations will be well-trained, properly funded investigators. The use of wiretaps, surveillance, informants, investigation, and other common police techniques are what stop intended crimes. This legislation does nothing of the sort.
Second, the creation of offences of leaving the country to commit terrorist acts or harbouring a person who has committed such an act simply duplicates already existing offences and provisions of the Criminal Code, such as conspiracy to commit an offence, attempting to commit an offence, being a party to an offence, or being an accessory after the fact. The legislation adds nothing to these provisions.
Third, the recognizance to prevent a terrorist offence is nothing other than a peace bond. Does anyone believe that a person bent on committing a terrible crime is going to be deterred by a provincial judge's order that he or she keep the peace on pain of losing the monetary value of the bond? That is illusory. This point was made clear by Mr. Coulombe, the CSIS representative who testified on November 21, 2012. He stated that criminal penalties will not deter those committed to terrorist acts. How much more so must this be in the case of the peace bond?
I would also state that the concept of investigative hearings is contrary to our traditions of not requiring a person to provide evidence against another, except in an open court where a party has the benefit of a fair and public hearing. This is not to be lightly tossed aside.
The standards employed in the legislation are low and would allow it to be used even though any information that could conceivably be gleaned is of little value, and the chance of obtaining information is speculative and based on suspicion of a single peace officer. This is too low a standard upon which to compromise our legal traditions.
As well, a comprehensive and independent mechanism for monitoring the use of such legislation must be in place if it is enacted. This legislation does make some effort to respect the open court principle as dealt with by Chief Justice Lutfy in Toronto Star Newspapers Ltd. v. Canada, and that is a positive development. However, the recommendations of prior committees of both the Commons and the Senate have not been acted upon fully. These should be re-studied.
My final opening comment is that steps must be taken to ensure that information withheld under the Security of Information Act could reasonably endanger security, international relations, or similar situations.
I stress that this is an objective standard. It must not be used as a screen through which any government, whatever may be its political disposition, can conceal information that it may find politically inconvenient for the public to know.
With this, I thank the members of the committee and would be pleased to answer any questions members may have.
Good afternoon. I am joined by Roch Tassé, coordinator at the ICLMG, an organization for which I am a spokesperson.
Thank you for having me. I will introduce myself. I am Denis Barrette, member of the Ligue des droits et libertés. I represent the International Civil Liberties Monitoring Group. Presentation-related documents in both languages have been distributed to you.
Certain provisions of Bill introduce a new offence for attempting to leave Canada in order to commit a terrorism offence, which is already forbidden and prohibited under sections 7, 21 and 24 of the Criminal Code.
We will mainly focus on the two provisions that were abandoned in 2007 owing to sunset clauses. I am talking about investigative hearings and preventive arrests used to physically and judicially monitor individuals. That's covered under sections 83.28 and 83.3 of the Criminal Code. In our opinion—and we have already said so before committees—those two provisions are dangerous and misleading.
Debate in Parliament on these issues must draw on a rational and enlightened review of the Anti-terrorism Act, which was rushed through Parliament following the events of September 2001. It must be reiterated that the two provisions discussed here rely on very broad definitions of terrorist activity and participation in a terrorist activity. They enable law-enforcement authorities to carry out preventive arrests and to compel individuals to testify for challenging authority and engaging in dissent, when such activities have nothing to do with what is normally considered to be terrorism.
Such a broad definition encourages the profiling of individuals labelled as “persons of interest”, on religious, political or ideological grounds. In its November 2005 report on Canada, the United Nations Human Rights Committee noted its serious concerns with respect to the excessively broad definition of terrorist activity in the Anti-terrorism Act. The committee stated the following:
||The State party should adopt a more precise definition of terrorist offences, so as to ensure that individuals will not be targeted on political, religious or ideological grounds, in connection with measures of prevention, investigation and detention.
Today, in 2012, what is the real objective need for these two provisions?
From the time of their introduction in 2001 until their repeal in 2007, the only time they were used was in relation to the unfortunate Air India case, and we know what a police and legal fiasco that turned into—including the needless use of investigative hearings.
Since 2007, police investigations have successfully dismantled terrorist conspiracies using neither of the provisions we are talking about today. Furthermore, since 2001—in other words, in the last 11 years—none of the investigations that resulted in charges or convictions required the use of these provisions—whether we're talking about the Khawaja affair, the Toronto 18 or the group of four in Ontario.
The first provision compels individuals to appear before a judge and testify when the judge has reasonable grounds to believe that the individual has information about a terrorist act that has been or will be committed. A refusal to co-operate may result in an arrest and a one-year imprisonment.
This provision introduces the notion of inquisitorial justice into Canada's criminal law. That changes the paradigm between the state, the police, the judiciary and citizens. We know that, in Canada, as in all common law countries, criminal law is founded on the adversarial system. That is not the case in France, for instance, where an inquisitorial process is used. Our concern is that this new concept could be introduced in the near future into other Criminal Code provisions and applied to other types of crimes. This means that, in the medium term, principles of fundamental justice—such as the presumption of innocence—could be affected.
We also believe that investigative hearings may bring the principle of judicial independence, and thereby, Canada's justice system itself, into disrepute.
With judicial investigative hearings, the entire concept of adversarial debate disappears. I invite you to carefully read the dissenting opinion of judges Fish and LeBel in the debate on section 83.28 of the Criminal Code. The two judges concluded their ruling as follows:
||The implementation of s. 83.28, which is the source of this perception that there is no separation of powers, could therefore lead to a loss of public confidence in Canada's justice system. The tension and fears resulting from the rise in terrorist activity do not justify such an alliance. It is important that the criminal law be enforced firmly and that the necessary investigative and punitive measures be taken, but this must be done in accordance with the fundamental values of our political system. The preservation of our courts' institutional independence belongs to those fundamental values.
Should this provision go into effect, it is to be expected that the Supreme Court will have to consider the constitutionality of section 83.28 again, especially, as noted by judges LeBel and Binnie, because it will give rise to much abuse and a number of irregularities.
Finally, we want to point out that, throughout these two provisions, the notion of suspicion as warranting retaliation against citizens is reinforced again.
With respect to the provision relating to the concern that a person might commit a terrorist act, it seems that legislators have forgotten the existence of subsection 810.01(1) of the Criminal Code, which states the following:
||A person who fears on reasonable grounds that another person will commit an offence under section 423.1, a criminal organization offence or a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.
That provision currently allows authorities to impose very onerous conditions on an individual suspected of participating in a terrorist activity.
In addition, the provision of Bill will also become an indirect way to collect and record information on innocent people under the Identification of Criminals Act, which specifically includes section 83.3 of the Criminal Code as grounds for fingerprinting.
I want to highlight a few specific problems. In the investigation on the mistreatment of Almalki, Elmaati and Nureddin, Judge Iacobucci wrote that the RCMP's lack of concern regarding the use of information obtained through torture was troubling. Once again, those who agree with information being obtained through torture, also agree with unreliable, suspicious and dangerous information.
We want to remind you of the need to establish some means of monitoring the activities of the state with respect to national security, as recommended by the Arar commission, in 2006. Six years later, we are still waiting. The absence of independent and effective mechanisms for national security can only increase the danger of applying these two provisions.
Finally, we want to highlight the fact that these provisions will become a worrisome tool of intimidation, even though they are not being directly enforced in the judicial system. For instance—and this is not a fictitious example—an officer of the RCMP or CSIS could very well tell an individual reluctant to answer the officer's questions that their failure to co-operate could result in them being detained and brought before a court. As occurred with McCarthyism, the fear of seeing one's reputation tarnished through such a process, being detained for 72 hours and then brought before a judge to answer questions masterminded by the police amounts to a powerful denunciation process.
And, when you're talking about denunciation through coercion, without the free and voluntary process imposed by our criminal law, you are also talking about unreliable, biased and false information. Every lawyer knows how unreliable reluctant witnesses can be. In addition, these provisions could be highly injurious, and their impact will not be trivial, even if the individuals concerned are not compelled to appear before a court of law. If the provisions are used, they will result in people being labelled, even though they have never been charged.
We know—since the Arar commission of inquiry and Judge Iacobucci's investigation—that a simple inquiry can lead to torture, and destroy the life, reputation, career and future of an innocent individual who has not even been charged. We know that these provisions could, as we see it, be abused. I am thinking here of the Air India case.
We believe that Canadians will be better served and protected under the usual provisions of the Criminal Code. Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. On the contrary, these powers open the door to a denial of justice and a greater probability that the reputation of innocent individuals—such as Maher Arar—will be tarnished.
Therefore, we call for a true rational analysis of these provisions. That is your responsibility as parliamentarians. On the one hand, these provisions are not necessary or even really useful. On the other hand, it is highly likely that they ultimately target innocent individuals, lead to violations of rights and freedoms and bring into disrepute the administration of justice. We have everything to gain by doing away with repressive measures that are unnecessary and everything to lose by adopting them.
Thank you to our witnesses for joining us today.
On the front page of the testimony you submitted, you noted that the CBA does not believe Bill would actually provide any new tools to combat terrorism offences. Certainly, that's not what we've heard from any single law enforcement agency or intelligence-gathering group that have been here. It's always interesting to me, as a new member of Parliament, to hear one whole group of witnesses involved in that business articulate how valuable something would be for them and another group not directly involved in the enforcement application or information-gathering application of the legislation completely suggest that it wouldn't be good for them.
I'll give you an opportunity to correct me if I've misread you here, but I see the act as being a tool in an integrated network of enforcement application and information-gathering and not as a solution in and of itself. I was reading into this that the comments that were made were looking at this act as the sole solution to combatting terrorism. Certainly, I can see how there might be a negative vein if you thought this were the only thing at all being used to deal with what all our other witnesses have said is one of the single biggest threats to Canadian safety and security today.
I think it was Mr. Calarco who noted there's no real evidence that investigative hearings have worked, but he then correctly pointed out that it has only been utilized once or twice. It would only stand to reason that we wouldn't have evidence that it's worked or not worked since it has only been utilized once or twice.
I'm not 100% sure I agree with the idea that anybody wouldn't believe that a person would fail to participate in these hearings and would simply lie, and in the same vein with the recognizance aspect, does anyone believe that anyone would be deterred by a recognizance. If we were to take that approach with this, we could ask exactly the same question of any aspect of the Criminal Code and any aspect of a judicial hearing. Why do we enter into recognizance with anybody? Why do we even have trials where we compel witnesses and subpoena people to attend. They could be as equally compelled to lie and not tell the truth and look out for their own personal interests, I think, in the judicial system.
I'm certain you must agree that provides a venue and an opportunity for people to address their side of the story, air in a public forum what their beliefs and experiences are, not simply as a venue to showcase or save their bacon. If we take that approach, then that casts a really dark shadow across our entire judicial system, not only in respect to this bill.
By way of Mr. Barrette's remarks that we need a rational and clear-headed approach to this, on the opposite side it would mean he's inferring that it was created by irrational and foggy-headed people. I'm not sure I would concur with that, either.
We heard a fair bit of testimony about the need for it in 2012, being that we are not prepared to wait for it to happen again and then say there's a need and that we should engage this again. We're working on a preventative system of information gathering in law enforcement, which I think is reasonable and responsible.
The one thing I really can agree with in your statement is that the powers that are circumscribed need to be accompanied equally by a rigorous and independent oversight. I would look to the judiciary to be that independent oversight. One thing we tend to focus a little too much on, as Mr. Calarco mentioned, is the single peace officer idea, which slightly undermines the complexity of information gathering and intelligence gathering. It would give Canadians the image that one police officer simply drives along in his car, pulls somebody over, and then engages in this judicial review application and recognizance issuance. There's a lot more complexity, obviously, to these investigations and information sharing that won't befall the authority of one lone police officer in Canada.
I'm really encouraged. Let's go back quickly to that equal and independent oversight that you talk about.
This bill requires prior consent of the Attorney General of Canada or the solicitor general of a province before they can move ahead. There have to be reasonable grounds, obviously; it's standard application in criminal law. The judge would have to be satisfied that reasonable attempts have been made to obtain the information by other means, for both future and past terrorism offences. The bill clarifies. It sets out maximum periods of detention.
In fact, many of the provisions laid out in this bill I see as a little more intense than the Criminal Code provisions for standard defences. I say that being a past member of the Royal Canadian Mounted Police and being familiar with the working operations of it.
The independent oversight that you're talking about is covered in great detail, in comparison with what we have with the standard Criminal Code. I'd like a comment on that aspect of it, because I think we've tried to meet that goal.
In relation to trying to achieve either goal with this bill, I would say that the investigative and enforcement arm brings evidence forward to a judicial panel and it then falls to counsel to ensure the success of these things. It's certainly not the law enforcement folks who are up there trying to draw out testimony from the witnesses to make sure that they're not lying or trying to save their bacon. If there's failure, this is all part of an integrated team setting, in which counsel has a duty and obligation to make sure they take the investigative and information gathering work that has been done and draw the information out in these investigative hearings for the benefit and safety of Canadians.
I'd ask you to comment on one or all of those things, or maybe Mr. Rafferty would like to.
I could make a number of comments in response to Mr. Leef. I'll try to do it quickly, Mr. Scott, so that I don't take up much of your time.
First of all, my purpose, from the Canadian Bar Association, is to analyze this legislation. We have tools. We have the Criminal Code. We have, for example, wiretap legislation. We have intelligence-sharing among police forces and between CSIS and other international agencies. In no way do we look at this bill as being the only tool or the total solution to what is unquestionably a great problem. To suggest that we looked at this bill as the only tool is simply not accurate.
Yes, investigative hearings were used once, but it should also be noted—and I believe it was Mr. Gilmour from the Department of Justice who gave evidence before you on November 19 following the minister—that the information the crown was trying to get in that case was never obtained from the person who was the subject of that proceeding. The crown got it from another source. In fact, three members of the Supreme Court said that the way the crown was using the provision was an abuse.
With respect to oversight, there has to be oversight, and we've suggested that. Perhaps something like the Security Intelligence Review Committee would be able to have that oversight, rather than simply have the Attorney General or a provincial attorney general report to their respective legislatures.
The standards set out in the proposed section, under proposed subparagraph 83.28(4)(b)(ii), are very low. For example, information concerning the offence, not substantive information, but information “that may reveal”, which can be quite speculative, the whereabouts of a person suspected by a peace officer, those are very low standards, and a very low standard can be used in a way that fundamentally differs from our traditions.
The Canadian Bar Association is very supportive of effective legislation. We do not believe this legislation is effective or that it adds anything new. That's what our position is.
I hope that assisted with some of Mr. Leef's comments.
Yes, and I will try to do so quickly.
Regarding the tools the member talked about, a distinction should be made between a useful tool and a necessary tool. Just because a tool is useful in the hands of a police officer, it does not mean that it is absolutely necessary. Many tools can be useful. Police officers could even monitor and enter homes. That could be useful. However, the first question we should ask ourselves, before even wondering whether a tool is consistent with rights and freedoms, is whether it is necessary.
When he testified before the Senate committee, Mr. Fadden, of CSIS—and this is on page 2:11 of the record of proceedings—said that these provisions “might be useful”.
Even though they might be useful, they are not necessary. We agree in saying that these are two extraordinary provisions that cannot be adopted simply because they might eventually be useful.
The issue of judicial independence should also be considered. The obligation to answer a question is not the only thing that matters. We should wonder who is asking the question. Forgive me for using this image, but in the case of judicial investigative hearings, the judge sort of becomes the police officer's ventriloquist. That is what this is about, and judicial independence is being threatened. In fact, the executive branch tells the judge to ask an individual questions, and we know how that has turned out.
As for oversight organizations, I will not share all the conclusions from phase 2 of the Arar commission, but Judge O'Connor consulted the biggest world experts regarding that. He conducted a lengthy study, but this oversight commission on national security has still not been established.
There are so many things I would like to say.
First is with respect to peace bonds. I guess you are a defence criminal lawyer, but I practised family law for 30 years, and I can tell you that peace bonds are very effective in our society. They protect very vulnerable people all the time. They deter violence against the people they're meant to deter violence against. To suggest that our system of peace bonds is ineffective and doesn't help anyone is really quite shocking to me.
I found your remarks very interesting, Monsieur Barrette, about whether it is useful or it is necessary, and I agree with you those are both valid questions.
However, we have been asking that question of many witnesses who have appeared before us. The answer we have been getting is that it is absolutely necessary because terrorism remains the greatest threat to Canada's national security, and it is a continuing and present threat.
I note that when, for example, Professor Martin Rudner testified on this bill before the Senate in April of this year, he noted that at this time various terrorist organizations see it necessary to reach out to get human resources for the struggle for the downfall of what they call the apostolic regimes, and to prepare in fact for the next stage, which is declaration of caliphate to be followed by the total confrontation with the infidels, which they see us and our society, in the main, as being.
They see themselves reaching out to citizens of western countries in particular, in part to gain passports to travel freely, in part to get knowledge and networks, and in part to get skills.
The kind of people that they target, and many witnesses have talked about the radicalization of our own Canadian youth, are young, single, physically fit people who have savvy in terms of science and technology, and a higher education. They reach out to them through the Internet, through charismatic leaders, through other information channels, perhaps through religious channels, and try to bring them over to commit to a jihadist theology.
We are told by many witnesses that we have this threat that is continuing and present.
As to your suggestion that somehow our judges might be turned into ventriloquists for law enforcement, I can say again, in my many years of practice at the bar, the judges I have ever appeared before resist ever being put in a position of doing so. In fact, that is one of the beauties of our system that we have judicial independence.
I would suggest that the opposition members are often in fact finding themselves in the position of telling us that we should never be fettering the independence of our judiciary because judicial discretion is what our system is built on.
I was pleased, Mr. Calarco, that you mentioned the 2004 reference on the Air India prosecution to the Supreme Court of Canada, and that you did acknowledge that the Supreme Court of Canada has found investigative hearings to be constitutional.
I will also note that in a companion case of the same year regarding the The Vancouver Sun, the Supreme Court held that there is a presumption that investigative hearings would be public. In this proposed bill before us, that is part of the bill, that those investigative hearings would be public, unless a judge, in his or her judicial discretion, determined that privacy would be needed. I am assuming that would be in cases where someone's safety is perhaps at risk.
In your submissions before us, you talk about the need for commensurate safeguards if we are bringing in extra powers. My colleague, Mr. Leef, talked about many of the safeguards that are built into this legislation under investigative hearings. In addition to those, there is always the right to retain counsel and have counsel appear at any stage of the proceedings. A person can refuse, of course, to answer a question or produce anything that is protected by Canadian law relating to non-disclosure of information or privilege.
Their testimony cannot be used against them—we had this dialogue with another witness—not just in other criminal proceedings, but also because in that 2004 case, the Supreme Court of Canada said it extended to administrative tribunals or to other such proceedings, immigration hearings, for instance.
We have federal and provincial attorneys general required to report annually on any use of these hearings. There is an additional requirement. If it's the AG of Canada or the federal Minister of Public Safety, they have to provide an opinion supported by reasons on whether these provisions should remain in force.
Would you agree with me that at least those safeguards I've outlined are important to have? I'm directing this question to Mr. Calarco.