JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 20, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 49th meeting of the Standing Committee on Justice and Human Rights.

I would remind those with cameras that at this point they could probably find a way to some place outside the room.

Mr. MacKay, on a point of order.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Mr. Chair, I'm just thinking that in the presence of the minister, perhaps we could confirm for the record that for the purposes of reviewing the main estimates of the Department of Justice, the minister will be returning to the committee.

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada): Yes, Mr. MacKay, there's nowhere I'd rather be—

Mr. Peter MacKay: Merry Christmas, minister.

Ms. Anne McLellan: —than with you.

Mr. Peter MacKay: We're looking forward to it.

Ms. Anne McLellan: I will be back on main estimates.

The Chair: On that happy note, I would advise that today we're considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

Today, for the second time on this legislation, we are pleased to have the Minister of Justice and Attorney General of Canada, Anne McLellan. I'll leave it to the minister to introduce her colleagues.

[Translation]

Ms. Anne McLellan: Thank you, Mr. Chairman and members of the standing committee, for having invited me again to appear before you on Bill C-36, the Anti-terrorism Act.

[English]

Excuse me for being late, Mr. Chair and members of the committee. There was a quorum call in the House, and a number of my colleagues and I were requested to be in the House to form quorum.

Since the day this bill was introduced we have heard from members of this committee, members of the Senate special committee, witnesses who have come before both committees, and others about what they do and do not like about this bill. It is an understatement to say that there has been no shortage of debate on this bill. While I do not agree with everything that has been said about this bill, I would like to say that it has been important to debate it thoroughly, because it does deal with fundamental issues of human security and rights and freedoms. To pass this bill in the absence of an extensive debate would have been inappropriate and careless.

Furthermore, the debate has been thoughtful and helpful to my cabinet colleagues and me. By this I mean that by making your concerns known in the House, in committee, and publicly, you have allowed us to come here today and respond directly to you and present you with the government's thinking about proposed amendments. I cannot be clearer than to say I am thankful to you and our colleagues in the Senate for the work you have all done. You have not only helped to shape the debate on Bill C-36, you have had an important influence on the amendments that are being proposed by the government.

All of you have expressed a desire to know what kind of amendments will be proposed by the government later this afternoon. As you consider the amendments the government is proposing, I hope you will do so in the spirit in which they are being proposed: first, as evidence of this government's commitment to listening to the members of this committee and to the Senate committee; and second, as evidence of our commitment to passing a bill that reflects our values as Canadians, while providing an effective legislative package to fight terrorism.

[Translation]

Before discussing the amendments proposed by the government, I would like to spend a few moments to talk about why the government thinks this bill is necessary. It is an issue that is very close to me.

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[English]

Our current laws allow us to investigate terrorism and prosecute those who have engaged in various specific acts generally associated with terrorism, including hijacking, murder, and sabotage. However, these and other laws are not sufficient. Perhaps the greatest gap in the current laws is created by the necessity of preventing terrorist acts from taking place. Our laws must reflect fully our intention to prevent terrorist activity, and currently they do not. Under our current laws we can convict terrorists who actually engage in acts of violence if we are able to identify and apprehend them after their acts have been committed. However, I think we all agree that Canadians have a right to expect their government to do everything it can to prevent such horrific acts as those of September 11 from happening in the first place.

Additional investigative tools will help the gathering of information on terrorist groups before they engage in their attacks. The preventive arrest powers in this bill are an example of these tools. These powers will enable us to interfere with and destabilize terrorist groups who are in the planning stages of an attack. The Criminal Code offences in Bill C-36 will allow us to convict those who facilitate, participate in, and direct terrorist activity, and these must include preventive measures that are applicable whether or not the ultimate terrorist acts are carried out.

In addition to increased tools and more effective laws, Bill C-36 allows Canada to fulfil our international obligations. These include terrorist financing, terrorist bombings and use of other lethal weapons, and the protection of United Nations and associated personnel.

At the same time as we address terrorism by improving our tools and laws, we need provisions that enhance our ability to fight hatred and discrimination. September 11 was horrific in many ways. Not only did it result in the murder of many innocent victims, it has led to a growing distrust and, in some cases, acts of violence against ethnic groups and individuals. As the Prime Minister has said many times since September 11, this is not a war against one ethnicity or religion, this is a war against evil and terror. Nevertheless, we have heard from witnesses who came before you and said clearly that they fear being targeted. This is something this government is working hard to address.

Let me be clear. Canadians, whatever their ethnic or cultural background, must benefit from the protection accorded to all Canadians to be free from discrimination. So as we fight terror, we need to send a strong signal that behaviour such as destroying or damaging a church, mosque, or temple or interfering with religious activities is completely unacceptable in Canada. Communication of hate messages using new technologies such as the Internet is a discriminatory practice under the Canadian Human Rights Act and will not be tolerated.

This, Mr. Chair, is a brief overview of some of the key reasons the measures in Bill C-36 are necessary. I would note as well that in putting forward Bill C-36, we are acting in concert with other countries that are strengthening their laws against terrorism. Among these are the United States, the United Kingdom, France, and the European Union acting in concert. The threat posed by terrorism and the need for countries to work together and to strengthen their laws have been widely recognized and are being acted upon.

As requested, the Department of Justice has provided the clerk of the committee with extensive materials on the nature of the terrorist threat and on the nature of the international response, including the legislative responses of our allies named above. I urge you to examine these materials.

I move on now to the text of Bill C-36 itself. It is my intention to explain some of the amendments we are proposing this afternoon for consideration by this committee. These amendments are being proposed in order to improve and clarify the legislation. Again I would like to emphasize that much of what we are proposing reflects the comments and concerns that have been put forward by members of this committee, members of the Senate Special Committee on Anti-terrorism, and witnesses who have appeared before this committee.

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Let me begin with the definition of terrorist activity. As this definition is a key element of the bill and the term is used in many of the bill's other provisions, no one should be surprised at the level of detailed scrutiny that has been paid to this element. One of the main concerns that has been expressed relates to the exclusion of “lawful advocacy, protest, dissent or stoppage of work” from the scope of the definition. It has always been the government's intent that lawful, democratic dissent and advocacy be protected and excluded from the definition. Some have questioned whether, because of the use of the word lawful, the definition might be construed and interpreted in such a manner that activities of this type would include unlawful activities, such as assault, trespass, and minor property damage, that might amount to terrorism. We have further examined this provision, and we agree that the provision could be misinterpreted.

Therefore, the government will propose removing the word lawful. I think this was a suggestion made by a number of people at this committee, including Professor Patrick Monahan, when he appeared here or before the Senate committee. I do, however, want to underscore that this would not have the effect of making otherwise unlawful protests lawful. What we're trying to do here is ensure that for example, with the illegal strike that takes as part of its form a demonstration in the streets—and this is an example that has been used by some in the trade union movement—even though that demonstration or the strike itself may be illegal, nobody for a minute assumes it is caught up within the definition of terrorist activity.

So we believe that by taking out the modifier “lawful”, we will clarify the intent of the government and reassure those who might otherwise be concerned that unlawful activity that falls well short of terrorist activity would ever be caught by this legislation. By taking out the term lawful, we believe we are clarifying that this specific exclusion from the definition of terrorist activity applies whether or not the advocacy, protest, dissent, or stoppage of work is lawful. What is important is whether the activities meet the high standard of the definition of terrorist activity, not whether the particular activity is lawful or not under some other law.

For similar reasons, we will be proposing other minor amendments to the definition to clarify that terrorist activity requires the commission of harmful conduct and intention alone does not suffice. We also propose to clarify that the illegal acts of a few cannot be construed to taint the legitimacy of other protesters.

Another concern that has been raised in this committee's hearings, the Senate committee's hearings, and elsewhere about the definition of terrorist activity is the possibility that the anti-terrorist enforcement measures in the bill could be used to target particular cultural, religious, or ethnic groups. We must be very sensitive to this criticism and to the feelings of Canadians who have no connection at all with terrorist activity, but nevertheless may feel that they have come under suspicion merely because of their cultural, religious, or ethnic backgrounds.

It has been suggested that part of the difficulty in this regard is posed by the use of the words “political, religious or ideological purpose, objective or cause”, which refer to the motivations for terrorist activity in the definition. I actually don't agree with this concern. In no way do these words target any particular cultural, religious, or ethnic group or political or ideological cause. Rather, the words recognize the various motivations that underlie the unacceptable activities that are set out in the definition of terrorism in Bill C-36. The words are limiting words that help to distinguish terrorist activities from other forms of criminality that are intended to intimidate people by the use of violence. These words are important to appropriately define and limit the scope of Bill C-36 to deal with terrorism.

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Nevertheless, I believe we can and should take additional measures to help ensure that the enforcement provisions in the bill are not interpreted or applied in a discriminatory manner or in a manner that would suppress democratic rights. The government will therefore be proposing the addition of a new provision that will stipulate, for greater certainty, that the definition of terrorist activity would not apply to the expression of political, religious, or ideological ideas that are not intended to cause the various forms of harm set out in the definition.

You, Mr. Chair and committee members, have heard a great deal about review mechanisms and oversights. So let me say a few words about that now.

Proper review and oversight of the powers provided for in Bill C-36 help ensure that the measures in this bill are applied appropriately. In this regard, I would emphasize that various review mechanisms already established under Canadian law would apply to the exercise of powers under the bill. This would include, for example, such mechanisms as complaints investigated by the commission for public complaints against the RCMP and the various complaint and review mechanisms that apply with respect to police forces under provincial jurisdiction. Significant powers under this bill are subject to judicial supervision, and in many cases this is in addition to explicit ministerial review and supervision powers. As well, the provisions in the bill will be subject to a full review by Parliament within three years.

Some have made a strong case, however, that additional monitoring is necessary. Therefore, following models that exist elsewhere in Canadian criminal law, we will be proposing a requirement for an annual report. This provision would require the Attorney General of Canada and those of the provinces to report publicly once a year on the exercise of the Bill C-36 powers of investigative hearings that took place under their respective jurisdictions.

The provision would further require the Attorney General of Canada and those of the provinces, as well as the Solicitor General of Canada and the ministers responsible for policing in the provinces, to each report publicly once a year on the exercise of the Bill C-36 powers of preventive arrest that took place under their jurisdictions. Detailed information to be reported in each case would be specified in the law.

Not only would this information provide an annual check on the use of these new powers, it would also inform the parliamentary review that is to occur within three years. This report mechanism is similar to that which exists currently under part VI of the Criminal Code, which deals with the interception of communications. It is also similar to reporting provisions relating to the use of the limited justification for otherwise illegal law enforcement activities that are part of Bill C-24, which was passed by the House of Commons earlier this year.

It has also been suggested that a sunset clause will give additional impetus for close re-examination of the provisions of this bill. The thinking on this point is that Parliament should be required to turn its mind directly to whether certain provisions of the bill are still required after a given period of time.

As you know, the government does not see the need for a sunset clause for the entire bill. First, a sunset clause on the entire bill would call into question our commitment to meet our ongoing international obligations. Second, the need to maintain vigilance against terrorism is a continuous one, and the measures in the bill are balanced, reasonable, and subject to significant safeguards. Furthermore, the provisions of Bill C-36 comply with the Canadian Charter of Rights and Freedoms, and therefore a sunset clause is not necessary to ensure their compliance.

At the same time, I do recognize that certain aspects of Bill C-36 have given rise to concern. I agree that certain powers under the bill should be subject to close monitoring. This being so, in addition to proposing amendments to make investigative hearings and preventive arrest powers subject to an annual report, as an additional safeguard, the government will also propose that these two measures be subject to a sunset clause, under which they would expire after five years. This expiry would be subject, however, to the ability of Parliament to extend the provisions. This ability to extend the provisions would require a vote of both houses of the Parliament of Canada, and on such a vote, the continuation could extend for up to an additional five-year period.

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The parliamentary power to extend the provisions responds to the concern that the expiry could otherwise occur in urgent circumstances where it is clear that the provision should continue. At the same time, the requirement of each chamber to turn its mind directly to the issue of the continuation of powers is an important guarantee of parliamentary oversight.

Another area of the bill that has caused some concern is the certificates that would be issued by the Attorney General under the Canada Evidence Act, the Access to Information Act, the Privacy Act, and other acts in order to prohibit disclosure of sensitive information relating to international relations, national defence, or security. It has been suggested that this power has not been appropriately circumscribed and made subject to safeguards. I continue to believe that the power to issue such certificates is a vital addition to our ability to prevent the disclosure of information injurious to international relations, national defence, or security. While there currently exist procedures to protect this information, the guaranteed protection from disclosure offered by the certificates is necessary, above all with respect to security and intelligence information shared with Canada by other countries.

At the same time, I am aware of the criticism that the provisions could be more carefully tailored and should be subject to review. For this reason, I am proposing that the certificates have a maximum lifespan of 15 years, unless reissued. After its expiry the effect of the certificate would no longer apply, and the information to which it applied would be subject to the normal provisions of the law concerning disclosure or non-disclosure. Further, I am proposing that the issuance of a certificate should be reviewable by a judge of the Federal Court of Appeal. Also, under the amendments we are proposing to Bill C-36 the certificate could no longer be issued at any time, which is the present language, but only after an order or decision for disclosure in a proceeding. The result is that the certificate could only be issued after the judicial review of an access or privacy request. Finally, each certificate would now be published in the Canada Gazette.

I am proposing a number of adjustments to other areas of the bill to improve its operation. These include changing the name “list of terrorists” to “listed entities”. This was a suggestion made by the Senate special committee that looked at this matter. While this change is merely one of name, it eliminates what might otherwise be seen as excessively blunt language in the bill.

We also propose moving the definition of facilitate from proposed section 83.1, so that it appears in conjunction with a facilitation offence at 83.19. This responds to criticism that the separation of the definition from the offence was confusing in this particular instance and failed to emphasize clearly that facilitation must be knowing.

These and other technical changes will be the subject of motions at clause-by-clause proceedings before this committee. Many of the amendments I have talked about in my remarks today respond to issues raised by the Senate, our caucus colleagues, the Canadian Bar Association, and other witnesses.

With that, I will bring my opening remarks to a close. I again thank you for your close attention to Bill C-36, your hard work, and that of the Senate special committee. And let me say that I hope you and—speaking to others who have appeared before you as witnesses over the past weeks—people will see, to some significant extent, their concerns and their issues reflected in the amendments the government is proposing today. As I said at my first appearance here, there were two lenses through which we looked at every provision, effectiveness and fairness. We believe that today, with these amendments, we have been able to guarantee a high level of effectiveness, as Canadians expect and as our allies expect, but also to increase the balance, as it relates to fairness and openness and transparency.

Thank you. Merci beaucoup.

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The Chair: Thank you, Madam Minister.

I turn first to Mr. Toews for seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair, and thank you, Madam Minister, for attending today's committee hearing. Of course, I would like to see some of these provisions you've proposed, and we'll be examining them, but the tenor of your remarks is encouraging.

I do have some concerns, specifically with the phrase related to religious, political, and ideological motives. I think you've gone a long way in addressing some of the concerns religious and other groups may have. The concern, I think, remains from a prosecutorial angle that this is still a very cumbersome process, and indeed, may impede prosecutions.

We have also heard from the Canadian Police Association, as well as the chiefs of police, that the introduction of a sunset clause in the legislation would interfere with ongoing police investigation. It would deter long-range planning and discourage the commitment of resources to these complex investigations. Indeed, on October 22 you voiced similar concerns about the introduction of a sunset clause, noting the problems associated with the risk of not having effective laws in place at crucial times.

The first question I will leave with you, because I want to go on to two other issues, is essentially, can you assure this committee that your proposal for the two clauses affected by the sunset clause would avoid the risk you have identified?

Second, can you confirm that the anti-terrorist legislation does provide for parole eligibility for murder after 25 years, regardless of how many innocent people die at the hands of a particular terrorist group or individual?

Finally, other democratic nations criminalize membership in proven terrorist organizations. For example, the Spanish investigating judge recently charged eight alleged al-Qaeda members with membership in a criminal organization. In Canada our legal process is cumbersome and expensive. I heard just the other day that it took us about $5 million to prosecute three Hell's Angels. While that certainly is a great motive, I have a great concern that our resources do not allow for effective prosecution on an ongoing basis. So, Madam Minister, if the purpose of an organization has proven to be criminal, why should Canadian law tolerate continued membership in that organization? Surely, even the Supreme Court of Canada would agree that such misguided tolerance is an affront to the rule of law and an abuse of the concept of freedom of association.

Those are my comments, Madam Minister.

The Chair: Madam Minister.

Ms. Anne McLellan: Thank you very much.

Mr. Toews, we did indeed listen very intently to the law enforcement community in relation to their concerns. You are quite right to point out that they are my concerns as well. That is why, in relation to the sunset clause, first, we obviously have the opportunity, if Parliament so chooses, for continuance for a period of up to five years. But we have also grandfathered, so that if, for example, an investigative hearing is ongoing, and if it is the collective wisdom of Parliament not to continue with that particular provision, the investigative hearing would be grandfathered and any evidence from that hearing that could be used in any way would continue to be quite appropriate. We felt that in light of the potential sunsetting of these two provisions, it was important to grandfather.

Mr. Vic Toews: Thank you. I am satisfied on that issue until I see the amendments.

Ms. Anne McLellan: Right.

Mr. Vic Toews: So we have the second and the third questions, Madam Minister.

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Ms. Anne McLellan: In relation to whether a terrorist who has been convicted of first-degree murder could apply for parole after serving 25 years, the answer is, yes, but whether one is granted parole rests with the parole board, and it is not for me to speculate on hypotheticals.

Mr. Vic Toews: And the third issue?

Ms. Anne McLellan: As I have said before, we are not criminalizing membership in a terrorist organization. We believe, actually, our law will prove to be more effective, because of the broad scope of the new offences that are being created. It does mirror the approach we are taking under Bill C-24, where we are targeting the acts, the conduct.

Mr. Vic Toews: What is the specific constitutional objection to criminalizing membership in a proven terrorist organization?

Ms. Anne McLellan: I think it's fair to say that some people raise issues about freedom of association, but that is not the real reason, in my opinion, not to move on membership, it is, how do you have the most effective law possible for getting at the conduct we want to strike at and, in enforcement and prosecution, proving that? We believe the facilitation, recruitment, participation, those kinds of things strike at what we want to get at here, which is the conduct: what has this person done, and does it constitute, for example, facilitation of terrorist activity or participation in terrorist activity?

Mr. Vic Toews: Madam Minister, what is the purpose of being a member of a criminal organization?

The Chair: Thank you, Mr. Toews.

Madam Minister.

Ms. Anne McLellan: Indeed, the purpose of the membership may very well be to facilitate, to show support, to participate, I wouldn't deny that. But in fact, we believe, rather than entering into the discussion in and around membership, which will raise constitutional arguments among others, it is much better to ask, what is the evil we're striking at here, what is the object of this law, what do we want to get at? We want to get at conduct, such as the facilitation of a terrorist activity, the participation in a terrorist activity. In fact, if someone does that, whether they're a member of al-Qaeda or not doesn't matter. It does not matter. What we want to do is get at that conduct. They may not be a member. We may not be able to prove that they're a member as such. But if they have done something that facilitates or they participate in some way in a terrorist activity carried out by such an organization, this is what this strikes at, and we think we're striking at and targeting the real evil.

The Chair: Thank you very much.

Monsieur Bellehumeur, seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you, Mr. Chairman.

Madam Minister, I listed to you very carefully. Of course, I don't have the amendments in front of me. I'm anxious to have them, even though we'll have to proceed very quickly, because the clause-by-clause study will be done this afternoon.

My first reaction is that I'm very disappointed by what you presented us today. You have always said that you would listen to the people who would appear before the committee, that you would take into account very seriously the work we were supposed to do here. And I would say that this work has been done very carefully.

Experts have come. Lawyers have come, and, very often, on very short notice, because you did not give them much time to make arrangements, given the speed you have driven this issue with.

You are presenting today amendments and I wonder where you have heard about the two main ones. Who asked you for a sunset clause that would only apply to two sections in particular or to two exceptional powers?

All the witnesses we have heard here have suggested that the sunset clause should apply to the entire bill, except its international aspects. A number of witnesses have even talked about three years, and those witnesses were experts in collective and individual rights.

I wonder whom you have listened to, Madam Minister, to propose that, for the whole question of the certificates that you will be able to issue in order to put aside the Access to Information Act and the Privacy Act, they will be valid for 15 years. I don't know where you have heard that, Madam Minister. Maybe this was already drafted before Bill C-36 was even submitted to the committee.

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I am very disappointed. I don't know whom you have listened to. Who did you listen to when you say that to reassure the public, you will ask the federal and provincial Attorneys General to make a report? I don't know who asked for that. For myself, I have not heard that before the committee. Nowhere, nobody, no group has ever asked for that. There is absolutely nothing in what you present us that would reassure a concerned public; absolutely nothing, Madam Minister.

I very sincerely ask you what you meant when you said before the House of Commons, in answer to my questions and to those of my colleagues, that you would listen. I ask you very sincerely if the people that you listen to are not those who are talking to you right now. You only listened to your colleagues and you haven't listened at all to the public, who is very concerned by a bill that introduces so many exceptions.

We say yes to a bill that would make our population more secure and that would give more powers. The Bloc supports this in principle but it doesn't support Bill C-36 in its present form, nor with the few cosmetic amendments you are introducing now. This is not what the witnesses said.

Once more, I have the feeling the Department of Justice is making fun of people who work in this committee. You present a bill saying you will listen to us, that you will listen to the witnesses. Then you present us other amendments. I am under the impression that the day you presented the bill for first reading, you already had with you the amendments that you were going to suggest, without taking into account the work done by this committee.

We could talk for hours, Madam Minister, but I'll ask you the first question, which is very important, about the sunset clause. Why do you refuse, in order to reassure the public, to adopt a sunset clause for the entire bill, with the exception of the part that deal with the implementation of international conventions, something that Canada should anyhow have done a long time ago?

[English]

The Chair: Madam Minister.

Ms. Anne McLellan: First, let me respond to the general assertion by Monsieur Bellehumeur. In fact, we have listened very carefully, and I think while much was heard, it is possible to summarize many of the main concerns. I believe the key amendments we are proposing go to the very heart of most of those concerns. In fact, with the sunsetting of the provisions, the major concerns expressed—I'm not suggesting exclusively, of course not—related to the two new powers given to law enforcement authorities for investigative hearings and preventive arrest. A great deal of time was spent by witnesses—not exclusively, of course—on those two provisions, in part because they are relatively new to our criminal law. In fact, we as a government feel that it is, although not necessary, appropriate. It doesn't undermine the effectiveness of those provisions as preventive tools. We do believe that it is quite appropriate to reassure Canadians.

Indeed, Monsieur Bellehumeur, I meet with people all the time from ethnic communities and elsewhere who have expressed to me their concerns in relation to those two powers particularly and in relation to those issues as they directly relate to law enforcement. I think it is more than appropriate, based on what we have heard before both committees, to think about a sunset provision in relation to those two powers. They are relatively new to our criminal law. People have expressed particular concern about them.

In fact, at the end of a five-year period let's see, but you will also see on an annual basis how those powers are being used. If the experience of the U.K. under their anti-terrorism legislation as it relates to preventive arrest is any indication, the power will probably not be used that often, but we will be reporting every year, and then at the end of five years you, members of this house and the Senate, will have the opportunity to determine whether those powers will continue. That is why we determined to sunset those two provisions. We think it is there without undermining the effectiveness of the bill.

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In relation to other provisions of this bill, this government has been clear—and let me state again—that we do not believe a sunset clause is required. Terrorism is not a short-term threat. Terrorism existed long before September 11, 2001. We learned some horrifying things about the modern face of terrorism on September 11, and the fight against terrorism will be a long one. It will be fought at home and it will be fought in partnership with our allies.

The Chair: Thank you, Madam Minister.

Mr. Blaikie, for seven minutes.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Chairman, I think there's a bit of a problem with the process here. It's not entirely the minister's fault, but she is under pressure to say that she's listened to the committee, when in fact, the committee has not had a chance to form its own mind about this bill or to make any recommendations. All the committee has done is hear from witnesses, and we have not collectively made, either through consensus or through majority opinion, any recommendations to the minister. So I'm not sure who the minister was listening to. I would certainly agree with Mr. Bellehumeur that a lot of what the minister has come forward with are not things that were particularly or strongly recommended by witnesses, and certainly they haven't been recommended by the committee. So I don't think we should be under any illusions as to where these things are coming from. The minister may have had very interesting conversations with her parliamentary secretary, or perhaps with Mr. Cotler, or perhaps with others on the Liberal side of the committee, but this is not something that comes out of recommendations made by the committee or even feedback from the committee. I think that is definitely a problem.

For instance, with the so-called sunset clause, this is basically a ten-year sunset, and it's only on those two aspects of the bill the minister has identified as controversial. Well, it's not just those two aspects that have been identified as controversial. There were many before us who would like to have seen, in the absence of their being eliminated altogether, the provisions with respect to privacy and information, the three-year period for wire tapping, all kinds of things sunsetted, including the definition of terrorist activity, for instance, because that is something we might want to have an opportunity to review, to pass or not pass after a three-year or five-year sunset, whatever the case may be.

Under the terms you've laid down the House will not have an opportunity to do that. The only thing the House, if I understand you correctly, would have an opportunity to do or not do is extend or not extend the provisions having to do with preventive arrest and the investigative hearings. Everything else continues forever. I don't think that reflects at all what a great majority of the witnesses who came before us were asking for.

The 15-year period with respect to the certificates is certainly not something that anybody put forward as a solution, nor is the whole question of an annual report. So I'm not sure where the minister is getting the idea that this somehow reflects what the committee has decided. I certainly would want to urge her to rethink the adequacy of the sunset provisions she's brought forward, and perhaps she would want to say more about that.

I think I'll just leave it at that, Mr. Chairman, for the moment, and perhaps give the minister a chance to defend or change her mind.

The Chair: Madam Minister.

Ms. Anne McLellan: On the question of the certificate and the power of the Attorney General, in fact, I was peppered with questions in the House of Commons from members of this committee, and it seemed to me they were concerned about my ability to issue that certificate with no review process. So now there's a review process, and it's a review process we use commonly in relation to a whole range of matters, and the review is by the Federal Court of Appeal. If you have some problem with that, I would suggest it's something you might want to discuss in a whole range of statutes we have, but I view review by a member of the judiciary, in this case a federal court, as one of the strongest and most transparent processes we have within our entire democratic system of governance. Therefore, I think that responds, in a very meaningful way, to the concern that was expressed about the issuance of the certificate.

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In fact, keep in mind that under the existing proposal I could issue that certificate at any time. Now, in fact, that is not the case. There are significant limitations on when I can issue a certificate. It will only be in the course of a proceeding after a decision has been made concerning disclosure. That is a fundamental change and a key limitation on the ability of the Attorney General to issue a certificate. These were exactly the kinds of protections that people who were concerned about the issuance of the certificate wanted. In fact, we have discussed this matter with the Privacy Commissioner, among others. Therefore, we believe that we have gone some a considerable distance towards ensuring fairness, openness, and accountability in relation to these provisions, at the same time ensuring their overall effectiveness.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: You said you had some discussions with the Privacy Commissioner, which is good to hear, because he was having a hard time meeting with you earlier on.

Ms. Anne McLellan: I don't know why he'd say that—

Mr. Bill Blaikie: Well, he did.

Ms. Anne McLellan: —because I and my officials have spent a great deal of time with him.

Mr. Bill Blaikie: Your officials, perhaps, but I remember at one point he was trying to meet with you. Has he expressed an opinion on these amendments? Do these amendments have his approval? Do you know that?

Ms. Anne McLellan: We have consulted with him. We took very seriously the letter he submitted to me some weeks ago. It will be up to the Privacy Commissioner to determine how he feels.

Mr. Bill Blaikie: So at the moment you don't know whether he approves of the amendments you brought forward.

Ms. Anne McLellan: We have had discussions with the Privacy Commissioner. We understand his concerns, and he understands our concerns and the importance of the development of an effective provision. I would not want to speak for the Privacy Commissioner.

Mr. Bill Blaikie: Can you explain, just briefly, because I wasn't sure I understood completely, the amendment you're proposing with respect to the list of entities?

Ms. Anne McLellan: All we're proposing in relation to the listing of entities is that we change the title, as requested by the Senate. The Senate did not think “lists of terrorists” was an appropriate title, if you like, so now we're simply referring to them as listed entities. As I indicated, I think it's a minor change, but the Senate flagged it.

Mr. Bill Blaikie: Just the title of the section.

Ms. Anne McLellan: That's right.

The Chair: Thank you Mr. Blaikie, Madam Minister.

Mr. MacKay, seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chair, and I want to thank the minister and her officials for being here. I know this is a very complicated bill, one that has many people in the country alarmed.

I want to first question the decision to exempt the issuance of ministerial certificates from the sunsetting, and certainly, the five-year period also draws questions—that goes beyond your government's mandate obviously. You would have to admit that the issuance of these certificates could be a very effective political tool to blanket information. I wonder why it is you feel this is necessary at all? The current access to information process is one that can already severely limit access to information for journalists, parliamentarians, Canadians generally. We've all, if we've gone through this process, received volumes of blanked-out pages. There's also cabinet confidentiality. There are also provisions under the Criminal Code that permit the withholding of and refusal to disclose information.

I'm glad to see that the minister has, at the very least—and I share my NDP colleague's optimism—come down, at least somewhat, from the initial position that was taken in this bill. But why is it necessary at all, given the safeguards that exist on the dissemination of information currently at your disposal, to go this far?

There's this idea that somehow other countries have requested that Canada toughen up its information laws. Your assistant deputy minister, Mr. Mosley, got himself in a bit of hot water last week when he indicated that terrorists might gain access to sensitive information by utilizing the current access laws. There's no evidence of that. A lot of the experts have said, nonsense. There's never been a recorded example of a terrorist gaining information about infrastructure, about themselves, about ongoing investigations. Does your department have any empirical data or evidence to suggest that Canadian information that we currently wish to keep secret, that the government doesn't want to disclose, is vulnerable to terrorists? Is there anything you can point to?

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Can you tell us, have other countries somehow suggested that we should toughen our laws? Because that doesn't seem to be the truth either. The United States has no ability to issue certificates. Even the President of the United States is answerable to Congress and to the judiciary. The United Kingdom has very limited use of these types of certificates. No other Commonwealth countries, Australia, New Zealand, go this far in the ability of the minister, the Attorney General, to blanket information, as envisioned by this section of the bill.

And why would you exempt that from this five-year period of sunsetting, knowing that this controversy exists, knowing that the potential for abuse is there, to withhold information for political purposes? Is there some hidden agenda here? Why would you not want to subject that to the sunset clause as well?

The Chair: Madam Minister.

Ms. Anne McLellan: First, I take deep exception to Mr. Mackay's suggestion that any Attorney General would issue such a certificate for political purposes. The role of the Attorney General in this country is clear. It's distinct from the role of the Minister of Justice. It is to uphold the rule of law. If Mr. Mackay is suggesting that any Attorney General would use his or her powers to undermine the laws and the rule of law of this country, I, on behalf of myself and previous Attorneys General, take exception to that.

Mr. Peter MacKay: What about future Attorneys General, Madam Minister?

Ms. Anne McLellan: I think the role of the Attorney General is clear. The heavy responsibility upon anyone who holds that office is clear as the chief law officer of the crown. Therefore, I take deep exception to the statement that was made by the honourable member.

Having said that, I also take exception to his statement that other countries do not have mechanisms by which members of the executive can issue certificates to protect information. In fact, almost all our allies do. I don't think either Mr. Piragoff or Mr. Mosley should take the time right now to take you through that. In fact, one of the reasons we're doing this is that we didn't have similar provision. I can assure Mr. Mackay that some of our allies have commented that unless we can guarantee to them that certain kinds of highly sensitive, limited information are not made available to the public, they will cease providing that information. One of the things we need to break the back of terrorist organizations is the best intelligence we can get. You get it not only by collecting it domestically, but by sharing with others. Those who collect it and with whom we share want some guarantees.

It is true that in these other countries that have similar certificate regimes there is an oversight process. That is what we're adding today, the review by a Federal Court of Appeal judge. We're going somewhat further. There are some jurisdictions, and I'm not sure whether Australia and New Zealand are two, where in fact the judge can review and indicate whether he or she thinks the certificate was appropriately issued, but all the minister has to do is take that under advisement. Here we are providing a judicial review by a Federal Court judge. That Federal Court judge can, after making a determination as to whether this is the kind of information outlined in these sections, either modify or rescind a certificate made by the minister, or they could uphold it.

Mr. Peter MacKay: Those most affected by the attacks of September 11, the United States of America, haven't gone so far as to put in place a certificate process.

With respect to this ability to use a judge, I have a specific question about proposed section 83.3 that deals with recognizance with conditions. There's no current mechanism in that section to allow an individual, as they would in a bail hearing provision, to review that process, to get back before the court if they have been taken into custody and detained for refusal to provide information. Has your department anticipated issuing some sort of working manual or attaching bridge funding, as we've seen in other instances, to help provide for training for police, for the crown, and for legal aid? There should be provisions where the courts can appoint counsel for persons taken into custody, particularly new Canadians, who I suggest are most vulnerable to this and to being taken into custody. Would your department be open to allowing a provision that permits the judge to appoint counsel for those who have been taken into custody, and to allow for a mechanism like a bail hearing, where an individual can go back before the court after they've been detained?

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The Chair: Thank you, Mr. MacKay.

Madam Minister.

Ms. Anne McLellan: I want to go back to the United States and why these processes are not all identical. I would refer the honourable member to the Classified Information Procedures Act. While the procedure is not identical, it does permit the Attorney General of the United States to issue a certificate in relation to the non-disclosure of certain kinds of information. While regimes may vary, as I said, we're going further than some in relation to the judicial review and the power of the judge on judicial review. The regimes are somewhat different. We're going further in giving the judge more power to review, that's what we're doing, in comparison with some others.

There are differences, but we're all moving in the same direction, which is certificates being issued by members of the executive, the Attorney General in most cases, but not all, to prohibit disclosure of certain limited categories of sensitive information, and we are adding to this legislation that which a great many people requested, including the Privacy Commissioner, and that is a review process done by the Federal Court of Appeal of this country.

All normal bail provisions apply in relation to these provisions, so I'm not sure what your concern is. Perhaps Mr. Mosley can—

Mr. Peter MacKay: Access to counsel is what I'm concerned about.

The Chair: Mr. MacKay, if Mr. Mosley wishes to answer, fine, otherwise it can wait until we come back the next time, because we want to make sure we get everybody in.

Ms. Anne McLellan: Did you want to say anything else, Rick?

Mr. Richard G. Mosley (Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice Canada): Very quickly, legal aid, of course, is available to anyone who may be picked up under this provision.

On your point about training, we are meeting with the provinces on the subject of preparations for the implementation of the legislation, and that will include assistance from the federal government in the development and delivery of training materials to provincial law enforcement, crown attorneys, and so on.

Mr. John Maloney (Erie—Lincoln, Lib.): I have a point of order. Further to Mr. MacKay's questioning of the minister and the response, and further to the minister's comments earlier on that the Department of Justice has tabled information with our clerk regarding the nature of the terrorist threat and the international response, including legislation, which was bandied back and forth here, could we have that tabled with this committee? I'm not sure giving it to our clerk has the same import we want for the record.

The Chair: Understood and agreed.

Ms. Anne McLellan: We will make sure copies of the relevant legislation are before the committee.

The Chair: Mr. Myers, you have seven minutes.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chair. Madam Minister, I wanted to thank you for appearing.

This is very serious legislation, given the very serious circumstances since September 11, and I think Canadians understand that. For me, it's always been a matter of balance, kind of a tripod, human rights on one hand, civil liberties as the second, and national security as the third point we're trying to balance under the Canadian Charter of Rights and Freedoms.

I think you've listened very effectively, not only to the Senate, but to this committee, regarding the kinds of witnesses we heard on all sides of this issue. I think you've proposed now some modifications based on your ability to listen and respond accordingly, and I think that's very positive.

Mr. Chairman, I think it's appropriate too to note that in light of what the Minister of Justice has said, this committee will take on a heightened role. It's clear that on an annual basis, for example, the reporting will come back, I'm sure, to this committee and ultimately to Parliament. With the parliamentary review, it's a given that it'll come to this committee as the committee of justice and human rights. And indeed, with the five-year sunsetting, there'll be discussions at that point too. So I think it's very good that we have that kind of heightened role, as I pointed out.

I am concerned, though, Madam Minister, in two areas. The first relates to racial profiling and the fact that some people who did appear indicated that they felt there might be a targeting of them. I know in your opening statement you alluded to that and mentioned that you thought that was unacceptable. I wanted to hear more from you about that.

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Some of the people who appeared before us actually referred to the Emergencies Act, I think it was section 4, suggesting that might be an appropriate amendment to put in to protect them. I wondered if you had a comment about that, section 4 of the Emergencies Act, as some people requested. It's a non-discrimination clause.

The second area of concern is the whole issue of hate crimes. Again, you mentioned in your preamble that it was something of grave concern to you, but I wanted to get more information, because I think we need to have in this country, given some of the things that have happened, a sense of confidence that racial profiling, as it's been described by some people, with the fear they have surrounding that, will not be the case. Second, we need to be assured that hate crimes will be dealt with, and dealt with effectively, so that they will not be repeated, and what we have will serve as a deterrent, so others will act accordingly, based on the strength of our conviction, and I believe the conviction of the country, when it comes to those fundamental values and what it means to be a Canadian.

The Chair: Madam Minister.

Ms. Anne McLellan: Obviously, we are deeply concerned about the concerns of the ethnocultural communities in this country. That's why my department has set up a process by which we are meeting with them. We will continue to consult with them. I think it goes well beyond this legislation, however, and well beyond anything I or we as a justice committee can do alone. In fact, what it requires is a societal response—the Prime Minister has said this—to ensure that we continually reiterate the fact that this legislation and the conflict we're involved in, the struggle we're involved in right now, are against terrorism.

Remember that the worst terrorist act in the United States up until September 11 was committed by Timothy McVeigh. So terrorists can take many different forms and shapes and colours and ideological persuasions. This is not about any one ethnic or religious group. It is about those, regardless of who they are and where they're found, who would commit terrorist acts and tragically kill or maim thousands of innocent people. That's what this is targeted at.

It is incumbent upon all of us, as members of a multicultural and pluralistic society, to keep reiterating that point over and over again. It is incumbent upon all of us, whether it is law enforcement authorities, parliamentarians, the courts, to ensure that we stay focused on terrorist activity and that this is in no way about ethnic or cultural communities or profiling any community or anyone in that community. That's why oversight is important, that's why civilian oversight of police organizations is crucial, that's why parliamentary oversight is crucial, and that's why oversight by the courts at different stages and at different levels with different courts is so important.

Racial profiling is an issue about which I have talked to representatives from various ethnic communities. It is an issue that clearly is of legitimate concern. This legislation doesn't deal with racial profiling. Racial profiling is a much broader issue and concern. In fact, I think some of the safeguards in here probably go some distance to limiting the ability of anybody who would be inclined to use racial profiling. What we need to do as a society is ensure that there is nothing here that encourages racial profiling, which is why I have made it absolutely clear now, under the definition of terrorist activity, that we are not targeting religious, ideological, or political motivations, other than when those motivations are linked to the kinds of horrific conduct outlined in other parts of the definition. We're telling communities this is not about religious persuasion, this is not about ethnic persuasion, this is about terrorist activity. Hopefully, that will be reassuring to the communities out there.

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I think our work with ethnocultural communities needs to continue, because I think we all have to be sensitive to the fact that some communities, in particular right now, feel they are being profiled or targeted. That calls not upon, I think even primarily, a legislative response, it calls upon education, it calls upon the basic Canadian values on which this nation is based. We are a nation of immigrants from around the world. What we are targeting is conduct that everyone I have met with, regardless of ethnic or cultural community, has condemned outright and strongly, and that is terrorist activity.

The Chair: Thank you very much.

Mr. Toews did very well with seven minutes, let's see how he makes out with three.

Mr. Vic Toews: Thank you, Mr. Chair.

I want to address an issue that was brought to our attention in respect of charities and inadvertent facilitation of terrorist activities. I've been advised, for example, that a Canadian Muslim charitable organization has asked a Canadian Christian organization to distribute certain humanitarian aid and supplies on its behalf, because it is fearful that it may be under a higher degree of scrutiny by police and security agents than a Christian based organization might be. Part of your answer in response to Mr. Myers gives me some reassurance in respect of the profiling, but my point is that inadvertence, coupled with political, religious, or ideological motivation as an element of the crime, causes these charities concern.

What steps will you be taking in order to ensure that an appropriate level of criminal intent will be required before conviction? I think that hasn't been spelled out clearly in the legislation, and various organizations have expressed concern about that. How will you address that, Madam Minister?

Ms. Anne McLellan: As you can tell, we weren't exactly sure, so we may not get this right as to which provisions you're talking about here. Proposed section 83.19 says:

Every one who knowingly facilitates a terrorist activity...

—knowingly facilitates. You must have knowledge that you are facilitating, which rules out any possibility of inadvertence.

Mr. Vic Toews: So your testimony, Madam Minister, is that in respect of any potential crime faced by a charitable organization, that crime must be committed knowingly, and that is the criminal standard.

Ms. Anne McLellan: With any potential charge in relation to an offence, yes. It rules out the possibility of inadvertence.

The Chair: Thank you very much.

Mr. McKay, three minutes.

Mr. John McKay (Scarborough East, Lib.): First, let me say that I think your testimony has shown that you have substantially listened to the concerns raised at this committee, and I congratulate you on that. However, the devil will be in the details, and we'll see what happens at 3 o'clock or 3:30.

I have three or four questions right off the top. The first is with respect to “entity”. This is not something that's received a great deal of notice.

“entity” means a person, group, trust, partnership or fund or an unincorporated association or organization.

What is excluded or not listed, at least as a definition of entity, is a state or a country. Is there some specific reason in law or in logic as to why a state or a country could not be in the definition, and therefore not be included in a listing?

The second question is with respect to your proposed annual review. Will the annual review also be directed to issues pertaining to lists and deregistration of charities? Various entities may end up on these lists the presence of which parliamentarians may, quite legitimately, take exception to, or they may feel there are absences. Will the annual review include that, or will it be limited to investigative hearings or preventive arrest?

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The third question is with respect to charities, and I'm deriving the question from the Canadian Bar Association representation on due diligence defence. They were very specific that the bill should provide a due diligence defence to a bona fide Canadian charity that may inadvertently distribute funds to a foreign entity. I appreciate that the changes in facilitation may address one half of that concern, but they don't necessarily address the other half. You didn't mention anything about that.

Finally, as you know, Madam Minister, my riding contains quite a number of people from a variety of backgrounds, multi-ethnic, multi-religious, multi-racial. I had the great privilege of being in a mosque on Friday afternoon after prayers and discussing this bill with people at the mosque. They were extremely concerned—I can't emphasize enough how concerned they were. Mr. Myers and others have highlighted that question. They presented me with a petition, which is in improper form, but having said that, I want the record to show that I will be delivering that petition to you privately. It has over 400 names, and it does represent a fear in a community that I believe has some basis and legitimacy.

So if you could address those issues, I would appreciate it. Thank you.

Ms. Anne McLellan: Do you want me, Mr. Chair, to address those?

The Chair: Yes, please. But the three minutes has been used.

Ms. Anne McLellan: In relation to the last point, I think I have dealt with that. Obviously, we are doing things in this legislation that we think should reassure any ethnic or religious community. This is targeted at terrorist activity and not at any particular religious or other group. As well, I think with the increases in review and transparency and the increased reporting requirements and roles publicly, at venues like this, for the House of Commons and the Senate, people should be reassured that these laws will be carefully applied and will not be abused, and that if, for some reason, an abuse occurs, it will be quickly brought to light.

In relation to the listing and the deregistration, these are matters within the jurisdiction of other ministers. Listing is a matter for the Solicitor General, deregistration is a matter for the Minister of National Revenue. I think when Minister MacAulay was here, he outlined the fact that there are a number of review mechanisms that provide protection to an organization that feels it is unfairly or unduly included.

On this list, I would remind colleagues that after the very successful G-20 meeting this weekend, hosted by our colleague the Minister of Finance, this country has taken a leadership role in ensuring that not only developed, but developing nations do everything within their power to dry up money that is raised to support terrorist organizations. We need in place, domestically and collectively—that's what the G-20 meeting was so much about—the mechanisms by which we make sure countries like ours are not used to raise money that then provides the financial wherewithal to commit horrific acts like those on September 11. But we are very mindful of the fact that we do not want to unwittingly or unintentionally include organizations that are carrying on legitimate humanitarian or other purposes that have nothing to do with terrorist activity. That is why the review processes are set out under listing.

As it relates to deregistration of a charity for the purposes of providing tax receipts, it's a matter for the Minister of National Revenue, but he only acts when he has reasonable grounds to believe. Obviously, that is a standard well known to all of us. Again, there are opportunities for review of his decision.

The Chair: Thank you very much.

Madame Venne, three minutes.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Thank you, Mr. Chairman.

Madam Minister, I would like to present you my comments about your amendments. I am disappointed, very disappointed. In your amendments, you even mention changing a title. In your presentation, you talk about changing “list of terrorists” to “listed entities”.

When you are bringing this type of amendments, when you are presenting this to a committee, I can tell you that it's because you don't have very much to say.

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How can I ask my colleagues from the Bloc Québécois to vote in favour of your amendments, as you have presented them? Honestly, I'm unable to do that at this moment.

I will give you some examples of things which have been submitted by witnesses who have come here and told us, among others, that the concept of “reasonable grounds to suspect” that someone is about to commit a terrorist activity was a concept that the police doesn't know and can't enforce. You don't touch that. You haven't proposed any amendment to that section. This has not even been mentioned. Policemen have come here and told us that they didn't know what that meant. One of them, Mr. Niebudek, told us that it was:

[English]

a mix of legal language in the section that is ambiguous, and we think there should be clarification.

[Translation]

I don't see any clarifications. You don't even mention that.

Another example was about the Access to Information Act. And on that subject, I would like to mention to Mr. Mosley an article from yesterday's Globe and Mail, that was reporting some of his statements that the Minister of Justice didn't trust the Federal Court judges and that it was for that reason that Bill C-36 allowed the Minister to put aside the Access to Information Act. It's quite something to read that in this morning's paper. I would like to know if the statements made by Mr. Mosley have been correctly interpreted?

In the same vein, I'd like to know what are the grievances you have against the Federal Court judges or against the commissioners responsible for the enforcement of the Access to Information Act that you want to substitute something else?

I think those are a few examples that show that you have not taken into consideration any of the evidence this committee has received.

[English]

The Chair: Thank you, Madame Venne.

Madam Minister.

Ms. Anne McLellan: Again, I take strong exception to the honourable member's statement. In fact, I'll let Mr. Mosley respond to the issue of reasonable grounds and the views of the police community, or at least one member as quoted by Madame Venne.

I want to clarify again that I have absolutely no problem with federal court judges and federal court review, which is why, in fact, in relation to the issuance of a certificate by the Attorney General, we are amending this legislation to make it subject to judicial review by a judge of the Federal Court of Appeal. Nothing could be clearer. In fact, I view judicial review in this country as one of the foundation mechanisms by which those who have a concern about potential abuse of power or authority by government or law enforcement agencies or others can air their issues and have them dealt with. So I really don't know what Madame Venne is talking about in relation to that.

The Chair: Mr. Mosley.

Mr. Richard Mosley: Thank you, Mr. Chairman.

The standard of reasonable grounds for suspecting is well known in the criminal law and is found, in fact, in the Criminal Code. So I find it somewhat surprising that Mr. Niebeduk is not familiar with it. But it does point to the question raised by Mr. MacKay earlier about the need for training. There are clear statements in the jurisprudence about the difference between reasonable grounds to suspect and reasonable grounds to believe. So we would be pleased to work with the law enforcement community and the provinces to ensure that those differences are made known to officers who may not be familiar with that difference in law.

The Chair: Thank you very much.

Mr. Cotler, for three minutes.

Mr. Irwin Cotler (Mount Royal, Lib.): I have one basic question.

A number of witnesses have come before this committee whose core position has been that this legislation is simply unnecessary, that the problem is not the absence of a legislative base, but has been the absence of resources or a failure of intelligence. What, then, is the necessity for this legislation?

Ms. Anne McLellan: Keep in mind, Mr. Cotler, that you yourself have written fairly eloquently and persuasively on this very point, and I'm not going to repeat what you have said.

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I have made it absolutely clear from the outset that what we have to do is reorient the way we go about dealing with these kinds of horrific acts. As we know, and as you've written yourself very recently, our criminal justice system is generally premised on the fact that a crime is committed, an investigation takes place, charges may be laid, the courts do what they do, and so on. What we learned on September 11 is that this simply is not the kind of approach that is going to work in and of itself. Of course, it will continue to play some role, nobody's suggesting otherwise, but we must for the sake of innocent civilians in our country—and I think of those in other countries who are our allies—understand the modern face of terrorism. It is globalized, it uses technology, it is sophisticated, it does not care how many people it kills, how many innocent people's lives are destroyed in the pursuit of its objective. We know they raise money worldwide. They launder billions of dollars daily throughout the world. In fact, it calls upon us to take a new approach as part and parcel of our criminal law. We are called upon to do this as members of a civilized community, as members of a global community who understand the invidious nature of terrorism and how it strikes at the right of every one of us to human security and safety.

This legislation acknowledges the fact that in instrumental ways, be it through information gathering, be it through law enforcement, we need new tools to help provide the human security and safety that all Canadians have a right to and, quite truthfully, all members of the civilized world have a right to.

The Chair: Thank you very much.

Mr. Blaikie, three minutes.

Mr. Bill Blaikie: Thank you, Mr. Chair.

There are two quick things I'd like to raise with the minister.

Towards the end of the definition of terrorist activity there's another exclusion, if you like, in proposed subsection 83.01(1):

does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties...

It seems to me that armies and police forces are well covered here, but what about resistance forces opposed to non-democratic, racist, or totalitarian regimes? I'm reminded this week of Mr. Mandela and the fact that a person who was once regarded as a terrorist, certainly by his own government, but also by many other governments at one time, is now regarded in a completely different way.

I wonder whether or not you would be open—you didn't say whether you would or not—to an amendment to that particular exclusion that would add something like “or during the course of resistance to a non-democratic, racist or totalitarian regime, as long as such acts are not directed at civilians” etc.

Ms. Anne McLellan: In this regard, we're subject to international law—

Mr. Bill Blaikie: But international law has become fuzzy.

Ms. Anne McLellan: Under the 1977 protocols, which are additional to the Geneva Convention of 1949, an armed conflict includes people fighting against colonial domination, alien occupation, or racist regimes in the exercise of their right of self-determination. That is the definition with which we operate, and it is the definition that is accepted globally. That, in fact, does cover... I should not, I guess, discuss specific examples. That is a clarification for the purposes of international law, by which we are governed, with regard to the language that appears in that section.

Mr. Bill Blaikie: Moving on from there, in the legislation we have:

“terrorist group” means

(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or

(b) a listed entity

Some people have raised concerns about this. Pursuant to your view that people should be judged for what they're actually doing as opposed to what they may be called, would it not make some sense to judge them only on the basis of (a) and not (b), and remove the provision having to do with the listed entity, seeing that we're simply taking these lists from the United States or elsewhere and not making an independent judgment as to whether or not they conform to (a)? If they conform to (a), we should include them anyway, rather than do it just on the basis of the fact that they're listed somewhere else.

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The Chair: Minister.

Ms. Anne McLellan: Proposed section 83.05 deals with lists of terrorists—the name we will be changing. This outlines the process, and in fact, with any listed entity, one does analyse their conduct. It is conduct-based, there's absolutely no question about that. One does not become a listed entity, for the purposes of the definition of terrorist group, without the process in proposed section 83.05 being gone through. That is a process that my colleague the Solicitor General can speak to more fully. It says:

...on the recommendation of the Solicitor General, the Governor in Council is satisfied that there are reasonable grounds to believe...

So one is focusing on conduct. These people don't get added to lists by being pulled out of the air. There must be “reasonable grounds to believe that the entity has”—I'm not going to read it, it's spelled out there. So to be a listed entity, the test is clearly conduct-based, and that conduct is defined for you in proposed section 83.05.

The Chair: Thank you very much.

Mr. Maloney, Mr. MacKay, and that's it.

Mr. Maloney.

Mr. John Maloney: I have no questions.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

To follow up on that, you're right, Madam Minister, to suggest that these lists are not pulled out of the air. They're often based on information that's been provided by other countries. I pose to you a follow-up to the line of questioning by my colleague Mr. Blaikie.

What if that information comes from the Sudan? What if it comes from Afghanistan? Using his example, Mr. Mandela wouldn't have been given honorary citizenship, he would have been arrested upon arrival, under this particular bill, based on his conduct. Not only that, anyone who sent aid to help him in his struggle against a totalitarian government would have been subject to provisions of this. What recourse is there for those who are wrongly listed or those who are wrongly placed in jeopardy? The bill itself is completely silent on that. It's silent on other things as well, like boundaries. It's silent on immigration matters generally. Why is there no mention of recourse or some review?

And, Madam Minister, with respect to this political, religious, or ideological motivation, I agree with my colleagues that this is going to be virtually impossible to prove. Why wouldn't we want to make that an aggravating circumstance after conviction on more appropriate charges under the Criminal Code? Why wouldn't we want to have a system set up not unlike the dangerous offender applications? After conviction, the state could then produce evidence of ideological, religious, or political activity, after the fact, after the conviction has been secured, rather than creating this hurdle that crown prosecutors and police will face in trying to prove the motivation of those individuals who engage in all sorts of vicious acts.

And what about those who are motivated purely by hate, who act purely out of blind, vicious, pathological hate? That's not ideological, not political, not religious. It doesn't fit the bill. What do we do with those individuals if we're trying to prove that they were carrying out terrorist activities?

The Chair: Thank you, Mr. MacKay.

Madam Minister.

Ms. Anne McLellan: In relation to the last point Mr. MacKay raises, they may not be guilty of terrorist activity, but they would certainly be guilty of other criminal acts under the code. I would ask people to remember that we're focused here on terrorist activity.

The other thing I would say, Mr. MacKay, is that starting at proposed subsection 83.05 (5), you indeed have all the review mechanisms that are available to an organization that is listed by the Solicitor General:

Within 60 days after the receipt of the notice of the decision... the applicant may apply to a judge for judicial review of the decision.

That which follows outlines the review mechanisms and the procedures that are to be followed in relation to reviewing the listing of any entity.

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The first question I've forgotten.

Mr. Peter MacKay: That takes time, it takes legal counsel, and once you've been listed, to quote one of the witnesses here, you lose the ability to be a charitable organization or you lose your reputation. I believe she said it was death by firing squad or death by electrocution. You can't give a person their reputation back.

Ms. Anne McLellan: This goes back to the first question, which I forgot to respond to: how does someone get on the list? In fact, we do not take the lists provided by other nations and simply rubber-stamp them. Under the existing UN regulations what we do is receive independent advice from organizations like CSIS. We're not simply saying, some other international organization has said this group is a bad group. We base our decisions upon independent evaluation of every name on those lists, and that information comes from domestic Canadian intelligence gathering organizations, over which we have civil oversight.

The Chair: Thank you very much to the members of the committee and the minister and officials. We appreciate very much the time the minister has made available to the committee.

Ms. Anne McLellan: Thank you very much. Good luck with your deliberations.

The Chair: We will be reconvening here at 4:15. Note the change in time.

The meeting is adjourned.