SECU Committee Meeting

     Good afternoon, everyone. This is meeting number 65 of the Standing Committee on Public Safety and National Security, on Monday, December 10, 2012.

    Today our committee is giving clause-by-clause consideration to Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

    To assist us in our deliberations this afternoon, joining us from the Department of Justice, we have Mr. Donald Piragoff, senior assistant deputy minister of the policy sector, and Mr. Glenn Gilmour, counsel for the criminal law policy section.

    We thank you for being here today. You were here earlier and helped us as we deliberated on this bill, so it's good to have you back.

    I will also mention to the committee that if we are able to finish this a little bit early, I would like to move to committee business to discuss the Swedish parliamentary group that's coming through in February, so we can put some arrangements together.

    As stated, we're here to go through clause-by-clause consideration of Bill S-7. If you have your amendments.... We thank all the parties that have brought forward amendments, and you have them before you, hopefully, so you can keep track. I intend to move into that right away.

     Because we always wait on clause 1, the title, until the end—we will do that at the end—we will move to clause 2. There were no amendments brought forward on clause 2.

    (Clauses 2 to 6 inclusive agreed to)

    The Chair: We have a new clause that's been added in an amendment, clause 6.1, in amendment NDP-1.

    Mr. Garrison, it's in your name.

     Mr. Scott?

    It will be moved by Mr. Scott.

    All right. Mr. Scott moves that amendment.

    Thank you, Mr. Chair.

    Everybody will notice that we have a fair number of suggested amendments. I'm cognizant of our time; I'm not here to waste our time. I assume that colleagues on the government side have had a look at them. If any of the amendments are congenial, they'll know already. If they're not, then I really don't want to be spending too much time.

    What I did want to say is that for this particular one, it may look at first glance like it's possibly beyond the scope, but we have to keep in mind that this bill has effectively three interacting principles or purposes. One is the kind of criminal law repressive purpose, which is to actually deal with crime. The second is the right-to-protection side that the government itself has been emphasizing, making sure that the crime fighting doesn't overly intrude into rights protection. The third is the transparency, accounting, and reporting piece.

     I think all three of them stand sufficiently on their own such that they can be called co-purposes. It's for this reason that we're moving this amendment. We're hoping that it's viewed to be within the scope of the bill for the following reason. In the Senate, the director of CSIS drew particular attention to the fact that no protocols exist for the kind of cooperation that would be needed by relevant agencies in order to give effect to the leaving-the-country offences. He made it clear that it was going to have to happen.

     Testimony before us also indicated this. So this is a suggestion to make sure that at least before the clauses go into effect, a protocol for collaboration is entered into by the relevant agencies, and SIRC—which is the only relevant review agency we can find for this kind of purpose—endorses it, in which case the making-the-offence provisions would enter into force. That's the purpose.

    Thank you very much, Mr. Scott.

    I am told by the Table that this one has been deemed inadmissible, as it is beyond the scope of the bill.

     I will allow you to move those, but we also have to be very cautious that we don't go into debate on the reasons. To move the clause, or to move the amendment.... What you did there was fairly succinct and it was properly done, but just be aware that if it is admissible, or even if it is challenged, then we will move into debate on the motion.

    My ruling on this is that it is inadmissible because it goes beyond the scope of the bill. That, then, is done with. It's finished.

     No amendments have been brought forward on clause 7.

    (Clauses 7 and 8 agreed to)

    (On clause 9)

    The Chair: We have amendment NDP-2.

    Go ahead, Mr. Scott.

     I'm looking at my notes here.

    This one and the next one coming up are simply amendments on the offences that deal with harbouring, where the current language refers to the likelihood that somebody will carry out a terrorist act. Our view, bolstered by some of the testimony and submissions from, for example, the Canadian Bar Association, is that there is far too lax a standard of mens rea in this context, and that it would be much more in keeping with our traditions and would avoid some of the dangers of an overly lax standard to replace that with “intends to”. That's why this is here.

    Ms. Findlay.

    Thank you, Mr. Chair.

    The proposed amendment, we feel, would be problematic. Essentially, how does one prove knowledge of what another person intends? It would be very difficult, if not impossible, to prove. However, proving that someone knows that another is likely to do something can be based not only on what the other person says but on other objective evidence as well, including the comments of others about what the person is likely to do. Proof can be derived, therefore, from a broad range of sources.

    Moreover, the harbouring and concealing offence addresses a situation in which the harbouring or concealing is done not for the purpose of enabling a person to escape, but for the purpose of enabling the person to facilitate or carry out any terrorist activity.

    We feel this proposed amendment would have the effect of further narrowing the ambit of the offence, which already has a very narrow and precise focus. The further narrowing is not warranted, given the purpose element of the offence. Therefore, we will not be supporting it.

    Is there any other debate?

     Mr. Scott.

    I understand the points being made. I think I can go along with them to a certain point, but I think it is important to remember that proving intent throughout the criminal law in general can also make use of physical activity and all kinds of other signs. You don't have to prove intent by literally getting inside somebody's head, whether you're the first person or the third person.

    We actually believe that some of the same evidence that Ms. Findlay is talking about, which you would want to have in, would still be available, but you would still have to show an intentional state of mind and not simply likelihood. That's all.

     Are we ready for the question?

    Some hon. members: Call the question.

    (Amendment negatived [See Minutes of Proceedings])

    (Clause 9 agreed to)

    (On clause 10)

    The Chair: Mr. Scott, on amendment NDP-3.

    NDP amendment 3 goes back to a conversation we had in committee when it was noted that excluding evidence obtained through an investigative hearing from use in criminal proceedings against the person giving that evidence should be, according to one argument, expanded to include extradition or deportation hearings, because this was something the Supreme Court, in its only case on investigative hearings, effectively read into the previous version.

    I think that's all that's really going on here. I don't see how, for example, this can be outside the scope of the bill, simply because I think the government side has said this is implicit. We're saying it should be explicit for reasons of certainty and caution, and effective criminal law should be as clear as possible.

    I'm happy enough that the government has indicated they think this would be there anyway. I'd just much prefer that it be explicit.

    Thank you very much.

    The Table, the legislative help we have here, has ruled that this is inadmissible because it goes beyond the scope of the bill.

    Did you want to respond to that as well, Ms. Findlay?

    No.

    All right. That is inadmissible.

    We're on amendment NDP-4.

    Mr. Chair, if you'd permit me just to refer to these in generalities, we could actually get rid of all four of the ones coming up on the same theme of legal aid. There is—

    They have something else in common, too, Mr. Scott. I'm just warning you right now.

     Yes.

    This is a proposal to add a right to legal aid such that if it's not available provincially, the Attorney General would have to provide it in the case of investigative hearings. The reason is that we're talking about witnesses for whom there may be absolutely no suspicion of guilt or anything of that sort. They're being hauled into a process within the criminal context that involves a lot of pain, suffering, and jeopardy.

    We think it's incumbent upon the state to actually be paying for the legal services. If that's what they want to do, haul citizens in, it should not be something that citizens should have to pay for. The provision also contains the right to counsel, so the idea of the right to counsel is important, and yet it's not important enough, in the wording of this, to make sure that somebody who can't afford it actually has counsel.

    The reason for this is that we think the right to counsel is important—it's there—but on an equality basis this is even more important. Plus, we really feel that anybody who's not actually under suspicion and is brought in for an investigative hearing really should not have to pay the costs of their legal representation.

    Thank you very much, Mr. Scott.

    The legislative clerk has also brought this one forward and has flagged it as being inadmissible. It provides for measures that would infringe on the financial initiative of the crown by imposing a charge on the public treasury, which is always inadmissible.

    Next is NDP-5.

    Did you speak to all of the ones here?

    Almost.

    I wanted to indicate, regarding NDP-5, that I would perhaps urge the clerk and the chair to reconsider in light of the Speaker's ruling on Bill C-377 last week. It was very clear that the Speaker ruled that the Canada Revenue Agency had the capacity, in the existing system, to take on added burden and added cost when it came to that bill.

    The rationale is exactly the same here. We already have provision in the Criminal Code for exactly the kind of legal assistance we're talking about. Section 684 already has the Attorney General covering costs.

    So it is a line item. It already exists in the estimates. All we're doing is adding a burden to something that already exists. That's the pure rationale of the Speaker.

    I honestly don't believe this one would require royal recommendation if we took seriously the Speaker's ruling last week.

    Philippe.

    I'd like to add something, if I may.

    There are two issues. One is the royal recommendation, per se. We looked at it as a team, and we felt it would require royal recommendation.

    The other problem is that it's an “S” bill, coming from the Senate. The Senate cannot spend any public money. All public money spent has to be spent from the House of Commons, which would be a “C” bill of any kind. That's the second problem.

    Mr. Craig Scott: Wow.

    Thank you very much.

    So that is deemed inadmissible.

    Next is NDP-6: good news, Mr. Scott, in NDP-6.

    Well, it would have been good news, except that the reason just given by the legislative clerk does require me to go on record and say that for the purposes of democratic and parliamentary reform under any government, whether it's this one or a future one, that's a deeply problematic situation that we find ourselves in, being bound in the House of Commons by where the bill starts in terms of the whole question of the relationship to the purse.

    I think I see a lot of semi-nodding heads here, that this might be looked at in the future.

    Thank you.

    Was that in relation to NDP-6?

    Yes. And you can rule it out of order.

    Voices: Oh, oh!

    Actually—thank you for your introduction to it—NDP-6 is in order.

    But it requires a royal recommendation.

    No, not 6.

    Oh, sorry.

    I love NDP-6, but let's have....

    The Chair: Ms. Findlay.

    Mr. Craig Scott: Yes, Ms. Findlay.

    I think NDP-7 and NDP-8 are more in line with NDP-4 and NDP-5.

    Mr. Craig Scott: Yes, that's what I meant.

    Ms. Kerry-Lynne D. Findlay: Now we're dealing with NDP-6, which is a different matter.

    This proposed amendment would seek to alter the second branch of the grounds by which a peace officer may lay an information before a provincial court judge in applying for recognizance with conditions, such that it would require that the peace officer suspects, on reasonable grounds, that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary not just to prevent the carrying out of a terrorist activity but to prevent the carrying out of a terrorist activity by that person.

    In our view, the proposed amendment would be inconsistent with the policy intent of the recognizance with conditions as presented in the bill, given the grave nature of the harm posed by the threat of terrorist activity. The recognizance with conditions in its present form would provide the potential for a recognizance with conditions to be imposed to disrupt the nascent phase of a terrorist activity, even where the person who would be subject to the recognizance with conditions is not necessarily the person carrying out a terrorist activity.

    The proposed amendment would seek to restrict the application of this measure. Because that is inconsistent with the policy intent underpinning the provision, we are opposed to it.

     Thank you very much, Ms. Findlay.

    Mr. Scott.

    Very briefly, I did want to say that on this one I very much thought it was an amendment that would probably be resisted because it was adding unnecessary clarity to the section—

    Voices: Oh, oh!

    Mr. Craig Scott: —and I must admit it now causes me greater concern that this provision does clearly apply to somebody who can be put under recognizance with respect to terrorist activity that is not their own terrorist activity. It's important that this is on the record. We know now what this is intended to mean; I didn't understand what it was intended to mean.

    Thank you, Mr. Scott.

    Are we ready for the question on amendment NDP-6?

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: On amendment NDP-7—

    Here I'll stop. I've already had my say about the Senate, so for amendments 7 and 8, you can do what you will.

    All right.

    Amendment NDP-7 is inadmissible as it provides for measures that would infringe on the financial initiative of the crown by imposing a charge on the public treasury—it's the royal recommendation—so that is inadmissible.

    On amendment NDP-8, it's the same deal. Amendment NDP-8 is inadmissible as it needs a royal recommendation. I deem that inadmissible.

    (Clause 10 agreed to)

    (On clause 11)

    The Chair: Amendment NDP-9 on clause 11, Mr. Scott.

    Effectively, for this one and the one that I believe is right after it—

    The Chair: You're right.

    Mr. Craig Scott: I had them grouped differently before we came in, and this is the problem.

     We had extensive questioning and a fair bit of testimony, and there was testimony in the Senate, especially from the director of CSIS, on the connection between the new leaving-the-country offences and exit control, exit information: do we know who's leaving? And then exit control is premised on exit information.

    I won't go into any detail other than to say that we spent some time asking different witnesses about this issue. I believe the record will show that a number of different approaches are being considered by the government, including possibly changing the passenger information system to make it an earlier-in-time system.

     Our concern, frankly, is that we may be semi-sleepwalking towards an exit surveillance system that hasn't been presented as part of what is needed to implement the leaving-the-country provisions, so we simply wanted to make sure that the reporting had this in mind, and that the whole idea of exit information and exit control doesn't slip under the radar at the stage of the accountability around this bill. That is the reason it's there.

    Thank you very much, Mr. Scott.

    Ms. Findlay.

    Thank you, Mr. Chair.

    I understand what Mr. Scott's—

    Wait—was that amendment NDP-9?

    Ms. Kerry-Lynne D. Findlay: Yes.

    The Chair: That one is deemed inadmissible as it goes beyond the scope of the bill.

    Thank you. I apologize.

    And I had so much to say.

    Voices: Oh, oh!

    We have amendment NDP-10.

    Ditto and ditto.

    Ditto, ditto, and ditto, yes. It is deemed inadmissible as it goes beyond the scope of the bill.

    Moving down to clause 11, there have been no amendments brought forward for clause 11.

    (Clause 11 agreed to)

    (On clause 12)

    The Chair: On clause 12, we have a number of amendments.

    Amendment NDP-11, Mr. Scott.

    Basically, amendment NDP-11 does two things, because there is a second amendment that follows if this one gets voted down. The first thing it does is specify that if there is only going to be one committee doing this study, it has to be a committee that the House of Commons has voted to create, either its own House of Commons committee or a joint committee. By definition, any joint committee would also need to have the Senate on it.

    With the way the current provision is written, and then with the follow-on provision that refers to “The committee”, it seems fairly clear to me that it's possible we could have this review done only by the Senate, and it would then knock on as being “The committee”. I honestly think, given the subject matter and the concern we've expressed from the beginning—which is that this particular bill started in the Senate—that we really want the House of Commons to have a say in the committee that ends up doing this. That's in the middle of this.

     All that the rest of this is doing is just being more specific about provisions that have to be reviewed, including the fact that we're very keen to make sure that the interaction of the leaving-the-country offences and the resurrected investigative hearings and recognizance provisions is looked at, so we can see whether or not investigative hearings and recognizance are being used in tandem with the leaving-the-country offences. We had a fair bit of testimony along those lines. I'm not saying it would be illicit if that were to happen, from a legal perspective, but we wouldn't want to see it too much. I think there needs to be transparency. That's why it's there.

     Ms. Findlay.

    Thank you, Mr. Chair.

    There are two aspects to this amendment. The first one might be called interaction. The utility of the investigative hearing and the recognizance-with-conditions provisions is not necessarily linked to the leaving Canada offences, and thus requiring this additional information to be included in the annual report, in our view, is not necessary.

    The investigative hearing, for example, was invoked in the past in respect of the Air India trial, and at that time there were no leaving Canada offences as are contemplated in this bill. To the extent that there might be any interaction between holding an investigative hearing or imposing recognizance with conditions and the leaving Canada offence, it is likely that such a connection would be noted, in any event, without the need for this particular proposed amendment.

    The other aspect of it is the Senate committee. Senate committees have traditionally played an important role in reviewing anti-terrorism measures, and this amendment would be inconsistent with the provision in the bill that seeks to keep this option open and not restrict any subsequent comprehensive parliamentary review in this way.

    In summary, we say that the proposed amendment is unnecessary and is inconsistent with the policy underpinning the bill. We will not be supporting it.

    Mr. Scott.

    Just to reiterate, it's important to note that the end of this amendment reads, “the review shall include a study of the interaction”, because the first part indicates all the provisions that could be looked at on their own. We would simply prefer not to leave it to chance that the interactions would be looked at, and it's much more likely to be looked at if it's sitting there expressly in the text.

    Thank you, Mr. Scott.

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: On amendment NDP-12.

    Go ahead.

    Mr. Chair, I won't spend too much time on this, because I worked it into the earlier explanation, and Ms. Findlay has also replied.

    I would simply say that the importance of the Senate from the government's perspective and the possibility that it could only be a Senate committee that would do the review are clear from the text and from Ms. Findlay's counterpoint. I would simply like to reiterate that the NDP, the official opposition, very much sees that as a problem and would like to retain the wording that is suggested here:

    So when it says, “both Houses”, that would mean a joint committee.

    Thank you, Mr. Scott.

    Ms. Findlay.

    This is tied very much to the last proposed amendment, and as with the previous motion, this amendment seeks to exclude a Senate committee from conducting any review that is to be undertaken pursuant to the bill.

    As I stated earlier, because Senate committees have traditionally played an important role in reviewing anti-terrorism measures, we feel this motion is inconsistent with the policy intent of the bill, and therefore we cannot support it.

    Thank you, Ms. Findlay.

    Are we ready for the question on amendment NDP-12?

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: Do you want to introduce amendment NDP-13, Mr. Scott?

    Yes.

    I'll simply say that on reading it, I think it is clear what our concern is. The provision basically indicates that prior to starting the five-year comprehensive review, a separate report should be done around recommendations of the Arar commission report that have not been implemented regarding certain kinds of monitoring and accountability mechanisms over a range of agencies or within inter-agency relations.

    We heard a lot of testimony about how inter-agency relations will be at the very centre of the new leaving-the-country offences as well as the resurrected procedures. We're not asking for this to be done in advance or as a condition of this entering into force. We're simply saying that at the five-year review, we should be in a position to have a frank debate about where we are with the Arar commission recommendations, and that should form part of the report prior to the report.

    This one is deemed inadmissible, as it is beyond the scope of the bill.

    NDP-14.

    It's a similar kind of logic to the last one, although this one would be embedded within the review process of whatever committee—now possibly a Senate committee—is engaging in the review and report.

    We have expressed the concern that especially the leaving-the-country offences, but also the way in which investigative hearings could potentially end up being used in practice, do create some concerns around possible discrimination. We're not saying this will happen, and we're not saying it's in any way the intention of our law enforcement or intelligence agencies, but we recognize it's a possibility.

    Therefore, we're proposing that the Canadian Human Rights Commission be built into the process to report on what's been happening under the act from their perspective for its first five years of operation. Once that report is there, then a committee of the Senate or the House, or a joint committee, takes it into account as they would.

    Thank you, Mr. Scott.

    This one also is deemed inadmissible, as it goes beyond the scope of the bill.

    NDP-15.

    I think this amendment is self-explanatory. It falls under the category of I think two of the earlier amendments—namely, making more express and explicit that which we might think would more or less obviously be covered in a review process.

    Because of the stakes, because of the concerns about the extraordinary nature of investigative hearings and recognizance without conditions, we think it's just better to be clear about the kinds of information that would be minimally needed in a report. We're just setting out some of that in this provision.

    Thank you, Mr. Scott.

    Ms. Findlay, please.

    Thank you, Mr. Chair.

    Basically, we see this proposed amendment as unnecessary. Bill S-7 already calls for annual reports to Parliament on the investigative hearing and the recognizance-with-conditions provisions and their operation, and it calls for a comprehensive parliamentary review of these provisions and their operation.

    To the extent that these provisions are used in advance of the parliamentary review, both the sections themselves and their operation will be examined. To the extent that there is any connection between the operation of these sections and prosecutions of any of the leaving Canada offences, no doubt this information will be before the committee or committees without there being a need to amend the bill, as is proposed by this motion.

    We therefore cannot support it.

    Thank you, Ms. Findlay.

    Are we ready for the question on NDP-15?

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: NDP-16.

    NDP-16 simply is a proposal, through amendment, to allow for enough time to pass before extension of the provisions that are being resurrected in this bill, giving enough time for the report to be digested, analyzed, and debated. Ninety days is the suggested time for that.

    Thank you, Mr. Scott.

    Ms. Findlay, please.

    Thank you, Mr. Chair.

    The impact of this motion, as we see it, would be to add complexity to the procedure unnecessarily. The proposed amendment, by adding a timeline into the procedure, makes the matter more complex, and would reduce a certain degree of flexibility. Thus, if the report of the parliamentary committee were delayed so that the proposed timeline could not be met, then the investigative hearing and the recognizance with conditions would be sunsetted by default, without Parliament as a whole being able to consider the question.

    For these reasons, the proposed amendment is not supported by the government.

    The amendment is in order. Are we ready for the question on NDP-16?

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: We have no amendments from clauses 12 through to 28. If we have unanimous consent, we can group them and save some time.

    Do we have unanimous consent to group?

    Some hon. members: Agreed.

    (Clauses 12 to 28 inclusive agreed to)

    (On clause 29)

    The Chair: We have amendment NDP-17.

    Go ahead, Mr. Scott.

     I won't belabour this. Earlier we dealt with a harbouring-related offence. Our suggestion was that the mens rea has to be tightened up to move from the likelihood of committing an offence to intentionally carrying out an offence. Ms. Findlay responded with her concerns. I suspect they're the same. I won't say any more.

    Thank you, Mr. Scott.

    Ms. Findlay.

    Yes, as indicated previously, the proposed amendment would be problematic for the same reasons.

     How does one prove knowledge of what another person intends? To us, this amendment makes it far more difficult. Moreover, the harbouring and concealing offence addresses the situation where the harbouring or concealing is not done for the purpose of enabling a person to escape, but rather must be committed for the purpose of enabling the person to facilitate or carry out any terrorist activity.

     This amendment would have the effect of further narrowing the ambit of the offence, which already, again, has a very narrow and precise focus. We do not believe that the further narrowing is warranted given the purpose element of the offence.

    For these reasons, we are opposed to this amendment.

    Thank you very much, Ms. Findlay.

    Are we ready for the question on NDP-17?

    (Amendment negatived [See Minutes of Proceedings])

    (Clause 29 agreed to)

    The Chair: On clause 30, the NDP have I think their final amendment—NDP-18.

    Mr. Scott.

    I was just going to help the chair—

    The Chair: Oh, yes—

    Mr. Craig Scott: This one is inadmissible, I think.

     You still can introduce it, but because NDP-1 has been ruled out of order, NDP-18 cannot be put, so that is denied.

    (Clause 30 agreed to)

    The Chair: Shall the short title carry?

    Some hon. members: Agreed.

    The Chair: Shall the title carry?

    Some hon. members: Agreed.

    The Chair: Shall the bill carry?

    An hon. member: Can we have a recorded vote?

    The Chair: Yes. I'll ask Mr. Chaplin to proceed with the recorded vote.

    (Bill S-7 agreed to [See Minutes of Proceedings])

    The Chair: Shall the chair report the bill to the House?

    Some hon. members: Agreed.

    The Chair: Thank you very much. That went through more quickly than I thought it would.

    We want to move to future business, to committee business, which is in camera. We will suspend just momentarily to give the opportunity to go in camera. We will come back and discuss a delegation that wants to visit our committee.

    [Proceedings continue in camera]