C-17 Committee Meeting

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37th PARLIAMENT, 2nd SESSION

Legislative Committee on Bill C-17

EVIDENCE

CONTENTS

Tuesday, February 25, 2003

1535

The Acting Chair (Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.))

Mr. Terence Taylor (President and Executive Director, International Institute for Strategic Studies, United States)

The Acting Chair (Mr. John O'Reilly)

Mr. Terence Taylor

1540

1545

1550

The Acting Chair (Mr. John O'Reilly)

Ms. Jill Courtemanche (Consultant, Ontario Regional Poison Information Centre)

1555

1600

The Acting Chair (Mr. John O'Reilly)

Mr. W. Niels Ortved (Bencher, and Co-Chair, Emerging Issues Committees, Law Society of Upper Canada)

The Acting Chair (Mr. John O'Reilly)

Mr. Niels Ortved

1605

1610

1615

The Acting Chair (Mr. John O'Reilly)

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance)

The Acting Chair (Mr. John O'Reilly)

Mr. Terence Taylor

1620

Mr. Gary Lunn

Mr. Terence Taylor

Mr. Gary Lunn

The Acting Chair (Mr. John O'Reilly)

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Mr. Terence Taylor

Mrs. Marlene Jennings

Mr. Terence Taylor

1625

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

Mr. Niels Ortved

Mrs. Marlene Jennings

1630

The Acting Chair (Mr. John O'Reilly)

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ)

Mr. Niels Ortved

1635

Mr. Mario Laframboise

The Acting Chair (Mr. John O'Reilly)

Mr. Claude Bachand (Saint-Jean, BQ)

The Acting Chair (Mr. John O'Reilly)

Mr. Claude Bachand

The Acting Chair (Mr. John O'Reilly)

1640

Ms. Jill Courtemanche

Mr. Claude Bachand

Ms. Jill Courtemanche

The Acting Chair (Mr. John O'Reilly)

Mr. Marcel Proulx (Hull—Aylmer, Lib.)

Ms. Jill Courtemanche

Mr. Marcel Proulx

1645

Ms. Jill Courtemanche

Mr. Marcel Proulx

Ms. Jill Courtemanche

Mr. Marcel Proulx

Ms. Jill Courtemanche

The Acting Chair (Mr. John O'Reilly)

The Acting Chair (Mrs. Marlene Jennings)

Mrs. Bev Desjarlais (Churchill, NDP)

Mr. Terence Taylor

Mrs. Bev Desjarlais

1655

Ms. Jill Courtemanche

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

Mr. Niels Ortved

Mrs. Bev Desjarlais

The Acting Chair (Mrs. Marlene Jennings)

Mrs. Bev Desjarlais

The Acting Chair (Mrs. Marlene Jennings)

Mr. Rex Barnes (Gander—Grand Falls, PC)

1700

Ms. Jill Courtemanche

Mr. Rex Barnes

Ms. Jill Courtemanche

The Acting Chair (Mrs. Marlene Jennings)

Mr. Rex Barnes

The Acting Chair (Mrs. Marlene Jennings)

Mr. Gary Lunn

1705

Mr. Niels Ortved

Mr. Gary Lunn

Mr. Niels Ortved

Mr. Gary Lunn

Mr. Niels Ortved

Mr. Gary Lunn

Mr. Niels Ortved

Mr. Gary Lunn

Mr. Niels Ortved

Mr. Terence Taylor

1710

The Acting Chair (Mrs. Marlene Jennings)

Mr. Terence Taylor

The Acting Chair (Mrs. Marlene Jennings)

Mr. Mario Laframboise

Mr. Niels Ortved

1715

The Acting Chair (Mrs. Marlene Jennings)

Mr. Claude Bachand

The Acting Chair (Mrs. Marlene Jennings)

Mr. Terence Taylor

1720

The Acting Chair (Mrs. Marlene Jennings)

Mr. Niels Ortved

The Acting Chair (Mrs. Marlene Jennings)

Mr. Niels Ortved

The Acting Chair (Mrs. Marlene Jennings)

Mr. Terence Taylor

1725

The Acting Chair (Mrs. Marlene Jennings)

Mr. Niels Ortved

The Acting Chair (Mrs. Marlene Jennings)

Ms. Jill Courtemanche

The Acting Chair (Mrs. Marlene Jennings)

CANADA

Legislative Committee on Bill C-17

NUMBER 012

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, February 25, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Acting Chair (Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.)): Good afternoon, ladies and gentlemen. Thank you very much for attending.

Obviously I'm not Bob Kilger, but I am acting chair. Bob was called back to his riding and asked me to fill in for him. I'll try to see if I can get through this without messing it up.

Today we have three sets of witnesses. From the International Institute for Strategic Studies, we have Terence Taylor.

Mr. Taylor, I believe you were at another committee this morning, so you're a busy guy.

Mr. Terence Taylor (President and Executive Director, International Institute for Strategic Studies, United States): I was indeed.

The Acting Chair (Mr. John O'Reilly): From the Ontario Regional Poison Information Centre, we have Jill Courtemanche; and from the Law Society of Upper Canada, we have Niels Ortved and James Varro.

Mr. Taylor, I believe you're going to start. We're a little different from a standing committee of the House of Commons because we are a legislative committee run basically by the Speaker's office. We allow each witness about 10 minutes for a presentation and then have questions from members of Parliament in five-minute rounds, which include the question and the answer. We're a little more generous with our witnesses than we are with the members of Parliament.

Mr. Taylor, if you'd like to start, we'd be looking forward to your presentation.

Mr. Terence Taylor: Thank you very much, Mr. Chairman.

I'm most grateful and honoured to be asked to appear before the Legislative Committee on Bill C-17, particularly because Canadians have played a major role in the institute I come from, which is international, private, and non-partisan. Canadians have been involved with it since its inception in 1958 to the present day. For example, the second president of our international council was Lester Pearson, and today we have the Honourable Mr. Roy MacLaren as one of our council members. Canadians from all parts of the political spectrum are members of the institute. Our members range over 100 countries around the world. We have our headquarters in London and other offices in Washington, where I am, and in Singapore.

I say all of this at the beginning because one of the things we're now researching is comparing what countries are doing in relation to the kinds of issues in Bill C-17. It's fascinating for us to see the various issues come up around the world.

In the nine minutes I now have available, I'm going to focus my remarks on the biological aspects of public safety and security, which are dealt with in the bill, simply because I know more about them. But as someone who has studied the implications of the risks arising from a range of sources, I'd be happy to answer questions on any aspect of the bill, because I have a deep interest in the elements of it.

I have wrestled with the issues of information sharing between different agencies and all the privacy issues that go along with that, and with issues of proper collection and analysis of intelligence, which are particularly challenging and require legislation in most democratic countries. For example, the United Kingdom has done some pretty radical legislation over the past year. I wrote a chapter on this subject for a book.

Mr. Chairman, I apologize, as I should have drawn the attention of the committee to it, because it does analyze how the legislation has developed over the more recent period.

Canada is setting a good example in the bill in enacting domestic legislation to implement the provisions of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. It's important to state the full title, so that the convention applies to its citizens and others who are subject to its jurisdiction and part 23 of Bill C-17. I think Canadian leadership on this issue is important in an exemplary way, as only a minority of states party to the convention have enacted legislation like this.

In this context, it's important to note that the BTWC is complementary to the 1925 Geneva Protocol, which remains the legal instrument banning the use of these weapons. The BTWC deals with possession, development, stockpiling, and so on, so the two conventions have to be looked at together. I note the bill recognizes this in bringing the two essential prohibitions together, possession on the one hand and use on the other hand.

In proposed subsection 6(1) under clause 106, the bill states that:

No person shall develop, produce, retain, stockpile, otherwise acquire or possess, use

—which is a new word not in the BTWC—

or transfer

(a) any microbial or other biological agent...for any purpose other than for prophylactic, protective or other peaceful purposes;

¹ (1540)

I think it's important for committee members to understand that the two things have to be looked at together. I should mention that the general legal view is that the 1925 Geneva Protocol is now part of international customary law, which is why I am spending a few minutes on it. So whether people are party to those conventions or to the BTWC or not, it's illegal to use biological weapons.

One of the limitations of the Biological and Toxin Weapons Convention and other global treaties dealing with weapons of mass destruction, such as the Chemical Weapons Convention, is that they are essentially state-to-state agreements. Extending the legislation in the way proposed in Bill C-17 goes some way toward dealing with possible threats of the use of biological agents as weapons by non-state groups--that is, terrorists--as well as by individuals.

The biological risk environment facing the public today makes this a vital step, with the recent evidence of terrorists using biological agents such as the attempts in the 1990s by the Japanese terrorist cult--one way of describing it--Aum Shinrikyo. They used anthrax to attack the public in Tokyo. Fortunately, they were not successful with anthrax. Of course, more well known is that they used sarin, a chemical nerve agent, which unfortunately caused a number of deaths and a very large number of casualties. They also looked into the use of the ebola virus as a weapon.

These are facts, not just allegations. They did all these things. And of course, there were the more recent anthrax attacks in the United States in 2001 and, more recently, in January 2003, the discovery of the deadly toxin, ricin, in the hands of an extremist group in London. It was quite clear the possession of this toxin was for malign purposes. There is no question about that.

So this is a very serious issue, and I think the enactment of this legislation is a matter of some urgency. We have to be sure it reaches out to individuals. Ricin is of particular interest to me because when I was chief inspector in Iraq, on one of my inspections I caught a scientist who led the program developing ricin and doing field trials on this agent.

So there is a capability in Iraq. Who knows where that capability might end up? But that's speculation.

While the legislative action proposed in the bill is a vital component to the effort to protect citizens against such attacks, which if successful could potentially kill thousands of people, the legislation is in effect a backstop. This is not a negative comment, but if you have to actually prosecute somebody with this legislation, then obviously something has gone wrong somewhere. Careful consideration is needed of other action required.

Of course, when countries have legislation like this, there is some deterrent effect in simply having it. Because you have this legislation, I think the whole legal system, police, intelligence, and all these other agencies have an obligation to support it. So it does have a very powerful deterrent effect.

In the minute or two I have remaining, I'd like to say a few words about the revolutionary developments in the life sciences and associated technologies that have brought enormous benefits in terms of human and animal health and in agriculture. We're still at the threshold of further extraordinary advances; however, there are attendant risks in that these advances, if misused, can result in more effective biological weapons being acquired by those with malign intent. The pace of development is such that it is extremely difficult for governments to keep pace and understand their full implications.

We have to be careful, though--and this is a kind of warning--about too detailed legislation dealing with specific technologies that can be out of date before the ink is barely dry on the legislation, whether it's national or international.

So new approaches are necessary to support and complement basic legal obligations at the national and international levels. I would just briefly mention--and we can expand on this in question time, if you so wish--two areas that are among the steps that can be taken to lessen the risks to the public, yet--this is important--safeguard and exploit the enormous benefits that advances in the life sciences and biotechnology will continue to offer.

¹ (1545)

First, there needs to be a national and international effort to monitor the advances in the life sciences, not just the leading edge but also the technologies; for example, in molecular biology and in drug delivery devices, production techniques for therapeutic drugs that facilitate the dissemination and production of biological agents. Such monitoring, perhaps by an independent commission of some kind, will aid legislatures to regulate sensibly and protect the public. I think that is best done by an independent panel of appropriate experts.

The second area where new approaches are needed is in relation to the private pharmaceutical and biotechnology industry. The leading edge of dissemination of the technologies of concern is private industry. And for sound commercial and technical reasons, it is disseminating geographically. While the highest concentration of capital investment in this industrial sector is in North America, Europe, and Japan, the research and development and production activities are much more widespread than that.

Both major pharmaceutical companies and smaller biotechnology companies are partners throughout the world in their research and development activities. Leading-edge international research centres are developing rapidly in places as diverse as Singapore and Cuba. I've been to both.

I'm not suggesting such activities should be stopped or inhibited. It would be fruitless to do so, and I think attempts to try to regulate and control information technology in past decades show us that's not a practical approach.

One way is to encourage industry to take responsibility itself, perhaps subscribe to an international charter, a private charter, so they and their partners in other countries can undertake to observe and support national and international legislation in relation to the life sciences. Instead of keeping regulation at arm's length, which is the biotechnology companies' traditional approach to these things, they should take a more proactive role in developing workable and effective laws and regulations. I could say more about this, if members so wish.

Finally, if I can squeeze in another 20 seconds or so, Mr. Chairman, one of the hardest challenges for governments is to conduct risk analyses of biological threats and vulnerabilities. Competent risk analysis is the key to ensuring resources are appropriately allocated to meet the threats to public safety and security and that measures are taken effectively to lower the risks.

We have to be careful here, because an obsession with the weapons part of the threat to the public spectrum could undermine general efforts and may lead to a dispersion of resources. This is a kind of warning note in the other direction, I think. Anyone doing the risk assessment or risk analysis needs to look along the whole spectrum--from naturally occurring diseases, the antibiotic-resistant disease, the industrial accident or research misadventure, to the use of weapons. For example, when the inevitable influenza pandemic comes to us sometime in the next decade, if you need to devote sufficient resources to epidemiological surveillance and a public health response, it will go a long way toward protecting the public against the deliberate use of biological agents. So you need to look along the whole spectrum.

Mr. Chair, I've strayed outside the bill, but I'm just trying to point out where the bill should sit in the total activities, not only on the biological side.

¹ (1550)

The Acting Chair (Mr. John O'Reilly): Thank you very much, Mr. Taylor. We let you go over by about three minutes, so you're not all bad. We let the witnesses go a little bit, because we like to hear what they have to say. After all, that's what we're here for. But I'm sure you'll get some questions later.

I believe, Jill Courtemanche, you're next with your presentation.

Ms. Jill Courtemanche (Consultant, Ontario Regional Poison Information Centre): Thank you, Mr. Chairman.

I've been asked, I believe, to speak to this committee to give a perspective of the health care sector and the ways we've organized our emergency preparedness, particularly as it pertains to the threats we're seeing today. I don't think there's anything specifically in the bill that actually addresses the health care sector, other than the immigration parts of it that might affect us and, as well, the quarantine parts.

I'll give you a little bit about my background as to emergency preparedness. I don't know whether many of you have heard of the National Capital CBRN first response committee here in the capital, but we started as a small group in 1999. It was a grassroots response to emergency preparedness needs in the health care sector because we were very uneasy. We were worried about the facility with which malcontents, people in the community, could use the information highway to produce chemical or biological threats to our community. We knew that aside from the hazmat team, we in the health care sector did not have any protection against that.

When we looked at Ottawa specifically--and I'm taking Ottawa as an example that could apply to any large Canadian city--this was really where we felt uneasy. We had yet to have the G conferences, so we hadn't had any real protests of any size in Ottawa. We'd never used lacrimators or riot control agents in the city. Chalk River was up the river, and it was out of sight and out of mind. We weren't worried about that. We're not highly industrialized, so we didn't think we had a chemical threat from an industrial accident in the city. We didn't realize there are trucks passing nearby every day with hazardous chemicals in them. We were worried that the information highway had brought information to people who might have a grudge, who might be psychotic, and who for whatever reason might unleash a chemical or biological threat to our community.

At that time, in 1999--and not little has changed since then--the disaster plans for the hospitals and the health care sector were providing for surge capacity. In other words, we were looking at how to streamline policies and procedures, how to free up supplies, and how to create more space so we could deal with multi-casualty incidents and deal with more patients in a shorter period of time. But we did not have any plans for extraordinary events, in other words, for contaminated patients or biological threats.

The way it sits now, ambulances have a slow response time in a lot of our communities, according to the North American standard, and when they do get to a hospital, the attendants can't find a stretcher to unload the patients. They're there maybe an hour or even longer, which ties them up, and this is happening on a day-to-day basis.

When your disaster plan dealt with freeing up space, that meant discharging into the community patients who could be discharged. Well, those patients have already been discharged. Anybody who could possibly leave the hospital has already been shown the door. We don't have any extra capacity whatsoever. Our disaster plans used to say that we would cancel elective surgeries, but well, we're cancelling elective surgeries every day because there are no beds for the people. This is the reality.

¹ (1555)

I'll address the capacity we had to different threats, such as biological threats, a pandemic. We were coming to grips with the fact that we did not have any capacity in our health care system to deal with an epidemic. After we more or less eradicated polio in the fifties, we closed all our isolation hospitals. We discovered antibiotics. We just did not have any more capacity for that. Even with hospitals that do have so-called isolation rooms, what they have would not be sufficient for some of the life-threatening viruses we're talking about. They don't have direct outside access, they don't have negative pressure or HEPA filters, and a lot of those are mostly in children's hospitals anyway. We don't have capacity for a biological event.

Chemical threat: In the brief I brought--this might just give you a visual--it refers to an ER television series episode where patients were brought to the emergency department from a fire, and the emergency department was already chockablock with critical patients at the time, as every emergency department is. All of a sudden people started realizing that there was an obnoxious odour and that one of the patients was seizuring; then they realized that one of the doctors was seizuring, and they came to the realization that these patients weren't just burnt, they were contaminated.

It's fair to say that the resulting chaos produced and the trying to figure out whether to push these patients out the door or get the regular patients out of emergency and close off the emergency ward is really a reflection of what you would see today if that were to happen. And we're talking about a very limited event--there were maybe 12 patients--not something that would be reality if you had a chemical release that was terrorist-originating.

As far as nuclear and radiological capacity is concerned, we have a nuclear reactor up the river. There are 800 people who work there. The hospital that's designated to receive those patients if something goes wrong is a small, very charming cottage hospital, and the next hospital would be down the river here. We have the Queensway-Carleton, which has been designated for years to receive patients. They have very limited equipment. None of the other hospitals even have the detection equipment we would need to tell us that there had been an exposure and what type of exposure it was. As well, there is a considerable amount of fear associated with anything radiological or nuclear.

For pharmaceuticals, well, my background is poison control, and I can tell you that we had very limited stocks of antidotes. We had enough to just barely deal with a handful of patients. We're in a city where there is a poison control centre, and there's only one in every province in the country.

Communications: Well, every disaster debriefing in Canada over the last few years--actually, in North America over the last 20 years--has pointed to communications as being a problem, and we in the city are no different. We have a Deskon system, which is a dedicated radio system to join the hospitals with what would be an emergency operations centre and what would be the ambulance communications centre. In every exercise we've ever had in the last 10 years, something has failed on us; one portion or another of that has failed. We know that land line communications systems and cell phones will all fail. There are dead spots and there just isn't the capacity right now for us to deal with communications.

Respiratory support: We had no respirators that could be used in the field to support victims from a chemical attack, for a release that would produce paralysis or respiratory failure. Even with just a limited event, 500 people, we would lose those patients because we just did not have the capacity.

Then there was September 11. Well, that validated the work we had been doing. At least we weren't fringe any more, we weren't off the wall. Yes, what we had been warning people about now had some validity, but it also made us realize that our scope wasn't wide enough. We had been talking about crackpots, we'd been thinking on the basis of what somebody could make in their basement, and now we realized that there was state-sponsored terrorism. We haven't had an attack on our sovereignty since the Fenian raids or since 1812, and now all of a sudden North America is vulnerable, and there are people who are dedicating their lives to that. This is just something we couldn't get our minds around.

º (1600)

Since then, what have we done? On communications, most of our emergency services--police, fire, and ambulances--have upgrading to 800 MHz. We in the hospital sector can't use that because of medical devices. Any fix for that would be very expensive for us--under consideration but not in place.

On pharmaceuticals, we know that the government has undertaken to produce vaccines. We know that they have stockpiles with NESS that are spread out over the country. They also have contracts with manufacturers to call up supplies on demand, but these are not for agents such as nerve gas, organophosphates, or botulism. You need to have drugs on hand in the field right away for those agents. You can't call somebody and have them in two hours, three hours, four hours, or, in winter, God knows when. We have two ampoules for botulism in eastern Ontario.

On radiation, we've had some very plausible and chilling scenarios drawn up for our committee that could happen any time. They could happen tomorrow in this city, and we don't have the detection equipment, the protocols, or the space to put patients. We know that these are plausible risks. We know that small amounts of radioactive material go missing every day in this country--not accounted for.

On chemical and biological risks, a lot of hospitals have purchased equipment and we're in the process of purchasing more. We have level C, maybe. It wouldn't work for a lot of vapours or a lot of biologicals, but we're starting.

We have not had the opportunity to train all our staff. None of our staff is familiar enough to be competent to work in this. Nobody could do medical procedures with that equipment because they haven't had the practice. We don't have the money. We don't have the time.

I'd just like to close with what I've put at the end of my brief. The U.S. Navy Surgeon General has said that the front of the new war will be the health care sector. I really agree. If that is so, we could lose this war because we're not prepared and we do not have capacity.

Thank you.

The Acting Chair (Mr. John O'Reilly): Thank you very much, Ms. Courtemanche.

I'm kind of at a loss as to the relevance of this to a legislative committee and the technical experts we call to study each section, but I do appreciate your information. It's very informative for us who have to live here in Ottawa. Being a former fireman and having been on a hazmat team, I certainly have some thoughts I could share with you on that.

We thank you for your presentation.

Mr. Ortved, are both you and Mr. Varro making a presentation?

Mr. W. Niels Ortved (Bencher, and Co-Chair, Emerging Issues Committees, Law Society of Upper Canada): No. I'm going to make the presentation and he's going to take the questions.

The Acting Chair (Mr. John O'Reilly): You have 13 minutes.

Mr. Niels Ortved: Thanks, Mr. Chairman.

Members of the committee, ladies and gentlemen, my name is Niels Ortved. I'm a lawyer practising in the city of Toronto. Jim Varro, who is accompanying me today, is a policy adviser with the Law Society of Upper Canada and also a lawyer.

Just to give you 30 seconds on the Law Society of Upper Canada, it is the governing body of the 32,000 lawyers in the province of Ontario. It is administered by a board of directors, and the directors are called benchers. There are 48 of them and 40 are elected, 20 from inside Toronto and 20 from outside Toronto. There are 8 benchers who are appointed by the provincial government. I happen to be one of the current elected benchers.

I happen to be here today because I'm the co-chair of what's called our Emerging Issues Committee, which looks at new legislation. We've looked at your bill and have some very narrow submissions to make regarding it. So what we're presenting to you are the submissions of the Law Society of Upper Canada.

Let me just commence by saying thank you for giving up your time to hear from us today. All of us have an intense interest in the fight against terrorism. I can underline that, having heard from Mr. Taylor and Ms. Courtemanche. But we take the position that the threat of terrorism ought not to result in our relinquishing fundamental rights that are at the core of Canadian values and legal traditions. Simply stated, we take the position that the fight against terrorism must respect the rule of law.

The crux of our submission is that Bill C-17 ought not to be enacted in its present form without additional safeguards to protect critical legal rights. I emphasize that our submission is on a very narrow ground that's being advanced today.

The background to our submission concerns what we refer to as solicitor-client communications. You will understand and have heard it referred to as privileged communications. Confidential communications to a lawyer, that is to say privileged communications, are central to the administration of justice in our adversarial system.

Within the past few months the Supreme Court of Canada has reiterated the point that solicitor-client privilege is an important civil and legal right, and a principle of fundamental justice in Canadian law. In that same judgment the court stated: “Therefore any privileged information acquired by the state without the consent of the privilege holder”--which is to say the client who communicated it to the lawyer--“is information that the state is not entitled to as a rule of fundamental justice”.

Coming then to the bill before you, I turn first to part 19. This part proposes an amendment to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, which I'm going to call the proceeds of crime act. That legislation is currently the subject matter of a challenge brought by all of the Canadian law societies, and as a result of that challenge, on the basis that it requires the disclosure of privileged information, lawyers are currently exempted from the operation of that legislation. That will ultimately be heard in the British Columbia Supreme Court in June.

º (1605)

Clause 101 of Bill C-17 raises concerns in addition to the disclosure of confidential information under the act that we have challenged. Clause 101 would amend section 65 of the proceeds of crime act to allow information to be exchanged between FINTRAC, the Financial Transactions and Reports Analysis Centre, and various bodies, regulating those who are required to report suspicious transactions. The information would relate to the compliance of those persons with the money laundering legislation.

The amendment to section 65 that you have before you would extend significantly the scope for information sharing under the proceeds of crime legislation. Presumably, FINTRAC could disclose information to the Law Society as the regulator of a lawyer for proceeds of crime compliance purposes.

This provision is worrisome to us as the regulator. As matters stand at the moment in regard to our constitutional challenge, it's our position that such information disclosed to us concerning a report made by an individual member might be grounds to initiate discipline proceedings against the member for disclosure of the information in question. We take the position it ought not to be disclosed. We couldn't do that because the disclosure, to us, is limited for compliance purposes.

On the other hand, if the constitutional challenge is resolved against the Law Society, then we are presumably in a position where we're expected to discipline this member. Frankly, we take the view that it is not our job to serve as the agent of FINTRAC.

We take the position simply that this provision, clause 101, is unnecessary. The legislation itself has sanctions for those who don't comply. You don't need us or others to supplement that and it ought to be deleted.

I want to turn next to the Biological and Toxin Weapons Convention Implementation Act. Mr. Taylor had a good acronym for that. I'm going to refer to it as clause 106 implementing BTWC.

Could I have you pause? I know you've been through this a million times already, but I want to take you through what is contemplated in clause 106.

We have the convention, and the clause implements the convention. Proposed sections 6 and 7 describe the prohibited activities. Enforcements are contained in proposed sections 8 through 16. In proposed section 9, the minister is authorized to designate inspectors for the purposes of enforcement.

In proposed section 11, the inspectors can go out without a warrant, unless it's a dwelling-house. They can, among other things, inspect any information relevant to the administration of the act. They can utilize any computer system that they find. They can make copies of any record. They can remove any relevant information.

Proposed section 13 requires you to assist them if they call upon your assistance in the course of this inspection. Proposed section 18, which is a critical section in our view, provides that the minister may require any person who the minister believes on reasonable grounds has information or documents relevant to the enforcement of the act to provide the information or documents to the minister. Proposed section 14 contains penalty provisions if you don't comply.

Once again, as with the money laundering legislation, our concern is that this implementation provision doesn't contain protections for privileged solicitor-client communications.

You have proposed section 19, which I invite you to read. It doesn't actually extend to protect privileged communications. It provides, for the documents that were previously treated as confidential, that the confidentiality should be maintained. Then it provides a whole shopping list of exceptions.

º (1610)

The simple submission of the Law Society of Upper Canada is that there should be a specific exception recognizing the confidentiality of information and documents protected by solicitor-client privilege. It's not possible to simply track the wording of an analogous Criminal Code provision, as is done here for search and seizure under proposed section 12, because that provision has actually been struck down by the very case I referred to earlier, and it was struck down on the basis that it protected solicitor-client information in the course of research. But it didn't go far enough. Here, there isn't any protection at all.

What we are urging is that the committee consider a provision. There is an analogous provision in the Income Tax Act, section 232.There is an analogous provision that is to be found in the proceeds of crime legislation. It is section 64 of that act and provides that where there is information that is sought in the course of an inspection--the analogous provision is inspection under the proceeds of crime legislation--if the suggestion is it's covered by privilege, then there's a process to test that. This is a protection that has been underlined by the Supreme Court of Canada as protecting the rights of all of us.

On behalf of the society, we appreciate the opportunity to make these submissions.

We support the goal of fighting terrorism and ensuring the safety and security of all Canadians. On the other hand, we urge the committee to ensure that the bill preserve rights that have long been recognized as fundamental in Canadian society.

Thank you, Mr. Chairman.

º (1615)

The Acting Chair (Mr. John O'Reilly): We will have five-minute rounds of questions and answers, starting with Mr. Lunn.

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): Thank you, Mr. Chair.

Those were three very interesting submissions. I probably have questions for all three of you, so I'll have to go on metric time. That way I'll get 10 minutes, won't I?

To start, I found Mr. Taylor's submission quite interesting--although I came in partway through it--as he expressed that the threat that is facing us in the western world is something we have never seen before, to our knowledge. It is difficult, and it's going to dovetail on Ms. Courtemanche's presentation that we're not prepared for that threat. I must say that I'm not sure how we can prepare. I guess we have to do the cost-benefit analysis. If you prepared every city in Canada to that level against all of these potential biological and chemical attacks, could we feasibly, realistically, do that?

It's a question to which I don't know the answer. Is the level of threat that high--maybe Mr.Taylor could comment on it--that would warrant going to that level of preparation? That's sort of what I'm struggling with.

I fully support the proposed legislation. It is a great first step in combating this terrorism. It's a global thing that we need to work with our friends on--like our partners in the United States, Britain and other countries--and share information to make sure we are prepared. But do we fully understand the potential threat that is there and how high a threat it is, as well as what level of preparedness it justifies?

The Acting Chair (Mr. John O'Reilly): Mr. Taylor.

Mr. Terence Taylor: That is a very good question, and it is one I ended up on, but without elaborating, because I think the key to government preparedness is a very carefully worked-out risk analysis. The bill is part of this. The bill provides some tools for the government to actually help to prevent a deliberate attack from taking place, as far as I've looked at the bill and looked at the provisions on inspection and so on.

By the way, I was most interested in Mr. Ortved's presentation. It seemed to me, in reading those inspection provisions, that this would allow international inspectors to come if the government so agreed.

I think the best way is not to use the word “threat”, in my view. Use the word “risk”, which is composed of threats and vulnerabilities. The vulnerability part of the spectrum is the quality of the public health system. If the public health system is of poor quality--and Canada, despite some important shortcomings, has one of the best in the world when you compare it with other countries, which was a job I had to do--

º (1620)

Mr. Gary Lunn: Let me interrupt for a minute. I don't see it as poor quality or the level of our health care system. This is something quite new. We could have a great health care system for dealing with heart attacks, strokes, cancer, and all of that, but we're talking about something we're not used to seeing in health care. I agree that we're probably not prepared.

Mr. Terence Taylor: I think it is very relevant in the sense that in order to get the best defence, you have to look along the whole spectrum, from natural air carrying disease to the influenza pandemic I mentioned, which next time will be a more virulent strain. It'll be international as well. If you're preparing for those kinds of contingencies, you're going a long way toward helping to deal with deliberate attacks. You have an emergency system that can deal with a surge in sick people coming into the system and how you handle them and how you quarantine, which is a very important part of the bill.

My final remarks were about urging the government to take this broad spectrum approach of looking at threats and vulnerabilities. You have to look at both of them in order to produce the counter. Take, for example, the issue of smallpox, which is very prominent in the United States.This falls into the category of low probability but very high consequences if it happens. This is a real challenge for governments, which is why I think this bill is to be commended, because it helps with information sharing and gives powers to people who inspect in order to help forestall some of these very high-consequence events.

I think that in doing risk assessments it's an absolute key. I think there needs to be a new way of doing risk assessments. We need to push back the boundaries and concepts related to it. So I think the question you raise is a very important one.

Mr. Gary Lunn: Thank you.

The Acting Chair (Mr. John O'Reilly): Thank you, Mr. Taylor.

Mr. Lunn, your time is up.

I will tell you that Mr. Taylor didn't submit his presentation in both official languages, so I didn't have it circulated. But as soon as it's in both official languages, we'll distribute it to the committee.

Madame Jennings.

[Translation]

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chairman.

I would like to thank the witnesses for their presentations.

[English]

Don't worry, I'll ask you my questions in English.

Mr. Taylor, you talked about how Canada is showing a good example in enacting this legislation, Bill C-17, so as to conform with two international conventions, the 1925 Geneva Protocol and the 1972 Biological and Toxin Weapons Convention. Am I correct?

Mr. Terence Taylor: Yes.

Mrs. Marlene Jennings: I just want to make sure I'm quoting you accurately.

It appears that some countries think the 1972 convention is actually quite weak in verifying compliance. There have been efforts on the part of countries to strengthen that, but it has fallen apart fairly recently. Do you think Canada is correct in bringing forward Bill C-17 notwithstanding the criticisms that have been laid against the convention?

Mr. Terence Taylor: Yes, I think the Canadian government is correct to do that. I'll tell you why. The oversight and the implementation are set nationally. What can be agreed internationally and globally ends up being lowest common denominator. What you end up with is a kind of whitewashing system under which really determined violators can cheat but still have the inspectors visit and do all these things.

I think that, with or without an international inspection system, countries should be doing something like this, because we're facing a different threat. This is not a state-to-state arrangement. We're not here just talking about Iraq and North Korea and all of the problems associated with them. We're talking about individuals and non-state groups. Having the legislation cover individuals, Canadian citizens and others who are subject to your jurisdiction, is an important step and a good example to other countries. If many more countries did this, we'd make life very difficult for those who want to misuse this amazingly beneficial technology. That's the real problem.

º (1625)

Mrs. Marlene Jennings: Thank you, Mr. Taylor.

For you, Mr. Ortved, you raised the fact that part of the legislation is currently the subject of a constitutional challenge by the Federation of Law Societies on behalf of each Canadian law society on the basis that it'll prevent clients from obtaining confidential legal advice from their lawyers if the legislation is enacted as it now stands. Am I correct?

Mr. Niels Ortved: That's the proceeds of crime legislation, Ms. Jennings.

Mrs. Marlene Jennings: Yes, but in Bill C-17 there are provisions that relate to the proceeds of crime.

Mr. Niels Ortved: Yes, right.

Mrs. Marlene Jennings: Okay. If your court challenge doesn't succeed, are you still fine with Bill C-17?

Mr. Niels Ortved: No. I'm really premising my pitch to this committee on the premise that we may be unsuccessful in the challenge. If we are, then we really don't want to be the policemen for FINTRAC, the federal authority that's responsible for collecting all this information.

They have the power. There's the power to exact penalties for those who don't report suspicious transactions. They should be exacting them. We don't feel we should be put in the position of going after the same people again.

Mrs. Marlene Jennings: In terms of double jeopardy, you mean. But doesn't double jeopardy already exist? For instance, a lawyer who's on staff, who's an employee of a hospital or a corporation, could be subject to disciplinary action by his employer and at the same time subject to disciplinary or ethical action on the part of his or her law society under the ethical code of that law society.

Mr. Niels Ortved: Yes, that exists at the moment. But we don't believe you have to share all the information that's collected by FINTRAC with the law society in order to have us act as we would in terms of our own rules and regulations of professional conduct regarding particular members. We don't think you have to have all this sharing of confidential information, which, frankly, we don't think should be produced in the first place. But if it's going to be produced, and you're going to convict someone for it, let us go after our own person, on our own basis, not on the basis of sharing all this information all over the place.

Mrs. Marlene Jennings: My only difficulty is that my understanding is the information would be disclosed to the law society.

Mr. Niels Ortved: That's correct, as I understand it.

Mrs. Marlene Jennings: The law society's concern is that there would be an expectation that it would be obliged to carry out some kind of disciplinary investigative action against a member. Is that the concern?

Mr. Niels Ortved: It is the concern, except that in regard to the terms of the bill, clause 101 of Bill C-17, I don't think we're allowed to. So in other words, it says it could be shared for compliance purposes only.

So what FINTRAC is doing is saying here's some information about a bunch of suspicious transactions that we're sharing with you, the law society, maybe qua lawyer, but actually you can't discipline the lawyer on the basis of that information.

So frankly, we don't want it. We don't want it.

Mrs. Marlene Jennings: So you don't have to take it. Just because FINTRAC would be legally allowed to disclose that information doesn't mean the law society has to receive it. Am I correct?

Mr. Niels Ortved: Well, I really think we are dancing on heads of pins here, because they're going to send us some sort of missive saying they have this information about lawyer X. You know, what do we do? We can't fail to open the letter.

I just don't think we need it, Ms. Jennings.

Mrs. Marlene Jennings: Well, I'm still in a quandary. I'm a lawyer and a member of the Quebec bar. I'm trying to understand the concern about having this information disclosed to you when you're under no legal obligation to receive the information.

I don't think it's how many angels are dancing on a pin head. I mean, honestly, the legislation--and correct me if I'm wrong, because it's quite possible that I am wrong--authorizes FINTRAC to disclose information about individuals they're called upon to regulate who are members of the law society, doctors, or members of another legal corporation, some body that they have to be a member of. But I have not seen anything that requires that third party, the law society, for instance, to receive that information.

So what would stop the Law Society from sending a letter or a resolution to FINTRAC saying, we are not interested in receiving any information that you may collect about our members in the course of your carrying out your authority, functions, duties, powers, etc.?

º (1630)

The Acting Chair (Mr. John O'Reilly): And with that, we're well over your time by three minutes.

[Technical difficulty--Editor]

Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): My first question is for you, Mr. Ortved.

From the day we started our deliberations, every group of witnesses representing the police, CSIS, the RCMP and police groups in general, totally supported the provisions contained in the bill. However, all the other witnesses, including the Privacy Commissioner, the Information Commissioner and the Canadian Bar, had a very different point of view.

Let me tell you a story. Last week, officials from the Department of Transportation appeared before the committee along with representatives from CSIS and the RCMP. When I asked questions of the Department of Transportation officials, the RCMP spokesperson answered. The bill may not have been drafted by RCMP or CSIS experts, but they certainly had their hand in it.

You say you are concerned about certain provisions contained in the Chemical Weapons Convention Implementation Act, including those dealing with solicitor-client privilege. I am also very concerned and I think all Quebecers and Canadians, if they are listening to us, should be as well. We, as a society, have a problem if we feel we cannot confide in our lawyer in the interest of receiving a full and complete defence. If I understood you correctly, sections 11, 12 and 13 of Part 23 of the bill, if passed, would threaten solicitor-client privilege. If that is the case, I would argue that citizens will have lost their right to a full and complete defence. Did I understand you correctly?

[English]

Mr. Niels Ortved: I believe you are.

It doesn't surprise me that the authorities would be supportive of the bill in its present form, because if I were one of the authorities I would very much like to have the powers currently embodied in Bill C-17.

I think we have to appreciate that this protection of communications with counsel, now embodied as a fundamental right protected by our charter, is a developing phenomenon. It didn't use to be incorporated in federal legislation. It was then incorporated into the Criminal Code, and more recently it has been incorporated into the proceeds of crime legislation. With each occasion it gets incorporated into legislation, they try to fine-tune it to do the job that I'm urging this committee should be included, which is to protect privileged communications.

I would like to think the implementation statute for the BTWC is something that actually predated, in terms of its thinking, the evolution of this protection.

All we are really proposing is that on behalf of the House of Commons, you propose that something along the lines of the protection found in the proceeds of crime legislation be included—and be ratcheted up a little bit, because it may not yet pass muster in terms of what the Supreme Court of Canada is saying. But I believe it would bring this particular portion of the bill in line with current thinking in 2003, and it would be an improvement on the bill.

º (1635)

[Translation]

Mr. Mario Laframboise: Thank you.

[English]

The Acting Chair (Mr. John O'Reilly): Mr. Bachand.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): Do I have any time left?

[English]

The Acting Chair (Mr. John O'Reilly): One minute.

[Translation]

Mr. Claude Bachand: Thank you, Mr. Chairman.

I am interested in the risk analysis with regard to an ABC attack. I must admit, Ms. Courtemanche, that your presentation scared me somewhat. I don't know what would happen if something of the sort happened in Toronto, Vancouver or Montreal. But as it now stands, no one seems to be ready, and that gives me great concern.

I recently visited Israel and was extremely surprised to find out that the Israeli government provides each Israeli citizen with a gas mask, including babies, who are outfitted with a unique suit. Of course, there is a greater risk for Israel to be subject to an ABC attack than Ottawa. However, they are ready to deal with such an attack: not only do they have suits and masks at their disposal, but each house must have a contained room where people can take shelter.

We visited Jerusalem's Hadassah Hospital, which is the most advanced in the world for the treatment of ABC contamination. This hospital is ready at any time to treat between 500 and 1,000 people simultaneously. I get the feeling that we are not making much progress with regard to this type of emergency preparedness. Ms. Courtemanche, you are from Ontario. Under the Constitution, health care is a provincial jurisdiction. Therefore, we have a constitutional problem with regard to an eventual emergency preparedness plan, and it seems to me that we should combine our efforts to be fully prepared for such an event. I'd like to know what you think about this.

I know that the Department of National Defence—this is my area, since I am my party's defence critic—has a base in Suffield where there are specialized teams with regard to treatment in case of an ABC attack. But the Department of National Defence must also protect essential infrastructures. This would include nuclear reactors, water plants and so on. I think that there is a lack of coordination in all of this. If we were attacked tomorrow, many people could die, and the rest of us would spend our time trying to assign blame by finding out who did what. The time to prepare is now, isn't it?

I am willing to provide you with all the information I have to help you organize something. As a lawmaker and member of Parliament, it's not enough for me to wait for disaster to strike and then to assign blame. I think we should begin preparations now. In your opinion, how should we deal with this situation as it now stands?

[English]

The Acting Chair (Mr. John O'Reilly): Madame Courtemanche.

º (1640)

Ms. Jill Courtemanche: I think you've touched on an essential point and that is the coordination. Right now, we do have a lot of government departments that are taking steps on planification and supplies. We have OCIPEP. We have NOHERT. We have teams at the Solicitor General. We have a lot of different departments mounting different projects.

I belong to the Canadian Healthcare Emergency Planning Forum, which is emergency planners across the country. I think it's the same in every province. But in Ontario we've put together three teams of OPP officers--I think there are 12 members in each--that are preparing to respond.

We're talking about grassroots. Each municipality is taking it in hand. They are going to be responding to a terrorist event immediately, in the first 12 hours or the first 24 hours, depending on how big the city is and how close you are to Borden, Petawawa, or anywhere else where you're going to get help.

We're putting our plans together. We haven't been connected. There is no national strategy. We haven't been connected to the NOHERT team or the OPP teams. The Ministry of Health and Long-Term Care in Ontario is putting together three pilot projects. The Office of the Ontario Fire Marshal is putting together a project. Everybody is putting together a project.

Where the rubber hits the road, and where we're sitting here, we don't have one plan that we can all practise and all feel a part of, where we know, if it happened tomorrow, who we would be contacting, what we would be doing, and where we would get the help that we need.

Absolutely, practice is the key to being prepared. Even if we don't all have class A suits, we don't all need them. Even if we don't have class B suits, we don't need those either. We do need the coordination.

[Translation]

Mr. Claude Bachand: The chairman has told me I have to be brief.

The United States created the Department of Homeland Security with Tom Ridge at its head. I often wonder whether Canada should not have something similar to the Department of Homeland Security, an organization which would be in charge of coordinating all departments. What do you think of this idea? The way things are now, it would be chaos. Everyone would try to get involved with their own action plan and there would be no one to coordinate activities on the ground. Do you think it would be a good idea for Canada to create its own Department of Homeland Security?

[English]

Ms. Jill Courtemanche: I absolutely see, whether you call it homeland security or what, that on a national level there needs to be some body that is directing, coordinating, and going to give us plans and direction, and that is going to plug us all in and to keep us all up. We don't all need to be at the same level. You're absolutely right, risk assessment is where it's at, but the risk assessment could change in a matter of minutes.

Yes, they put a lot money into municipal response in the States. They put in $40 million and they scrapped that. They realized it had to be homeland security. The coordination had to be from the top.

The Acting Chair (Mr. John O'Reilly): Thank you very much.

Mr. Proulx.

Mr. Marcel Proulx (Hull—Aylmer, Lib.): Thank you, Mr. Chair.

Mrs. Courtemanche, along the same line as my colleague, let me ask you this first. Is the National Capital Chemical, Biological, Radiological Nuclear First Response Team strictly for the Ontario side of the National Capital Region?

Ms. Jill Courtemanche: We did have representation on that committee from Gatineau, Montreal, and even Quebec City. These were guests. Just recently, the Quebec government funded the equivalent team to be put in place in Gatineau.

Mr. Marcel Proulx: They're running their own shop and you're running yours on this side.

º (1645)

Ms. Jill Courtemanche: That's right. We've been sharing information.

Mr. Marcel Proulx: For years I've been saying that we needed extra bridges, Mrs. Courtemanche.

What about emergency preparedness? It used to be called, and I think it's still called, Protection civile Canada. Do they not have a national role? It used to be that they had volunteers throughout the country set up by different local groups. These were disbanded probably in the late 1970s and early 1980s. Do they still not have a national strategy role, if I can call it that?

Ms. Jill Courtemanche: Not that I'm aware of.

Mr. Marcel Proulx: I guess we have completely pulled out of it and are hoping that nothing will happen.

You were talking some time ago in your presentation about the situation in the national capital area. You're not exactly very positive. I can understand that. Is it the same situation throughout Ontario? You mentioned that one hospital, the Queensway-Carleton Hospital, has some equipment.

Ms. Jill Courtemanche: We have put forward the JEPP grant through the Ministry of Health and Long-Term Care. We're putting through a JEPP grant sometime in March to equip three or four hospitals in Ottawa with the detection equipment we need. So it is moving forward.

Toronto certainly has made strides. Since 1999 we have been doing all the planning.They have hospitals now that have protective equipment and have radiation detection capacity. But as far as taking care of huge numbers of victims is concerned, none of us has the capacity to do that.

The Acting Chair (Mr. John O'Reilly): Thank you.

Just to inform everyone, we're having some technical difficulties with the microphones—they're coming on and going off. So we're going to take about a two-minute break to see whether the technicians can straighten that out.

We'll recess for about two minutes.

º (1648)

º (1652)

[Translation]

The Acting Chair (Mrs. Marlene Jennings): We will resume our deliberations.

[English]

I'm Marlene Jennings, standing in for the chair.

[Translation]

Mr. Proulx, your time is up. I will now give the floor to Ms. Desjarlais.

[English]

Mrs. Bev Desjarlais (Churchill, NDP): Thank you.

Mr. Taylor, from the perspective of what's in the bill related to quarantine—and actually, others may want to comment on it as well—is what's in the bill sufficient to ensure that the public safety would be protected if there were a need to quarantine individuals?

Mr. Terence Taylor: I personally think, yes, it would be, provided there was a rapid epidemiological surveillance system that picked up the particular illness, or the particular organism, and it was identified and so on. So speed is essential. But I think there's enough flexibility in the Quarantine Act here that would meet the kinds of risk that would be posed in Canada.

I think we have to look at this as coming back to risk assessment. How far should you go? I think of the point about Israel that was raised earlier by one of your colleagues. If you're living in Israel, you're surrounded by countries that actually have chemical weapons on all sides, for example, and Iraq is not far away. Syria has chemical weapons capabilities. Actually, Egypt has too, and so on. So the perspective is going to be very different. But with a country the territorial size of Canada, and the geographic size and the distribution of the population, clearly in major population centres you need to be able to act promptly. But you're very unlikely to get something that's going to swamp the whole population of Canada.

I think the kinds of provisions that are in this bill are probably about, in my personal view, right on balance.

Mrs. Bev Desjarlais: What led me to question it was Ms. Courtemanche's comment that there wouldn't be the availability of, say, space within a hospital to quarantine anybody. Tying this into the fact of health care being under the provinces, how do we make the decision as to who gets booted out or who gets quarantined here? From the perspective of your point that people who are in the hospital need to be there or they're in tough shape, I'm curious whether--

º (1655)

Ms. Jill Courtemanche: We've recognized with our looking at the pandemic...and I almost say thank God for the pandemic, because people believe in that even if they don't believe that botulism is going to be put in our water or that smallpox is going to be imported. But what we're actively planning for now is off-site facilities, whether it's identifying facilities where we could use one of the hospitals in a box, set it up in a high school somewhere and handle patients once it was identified.

One of our concerns when we're talking is not so much the quarantine but, as you've talked about, the surveillance.

Mrs. Bev Desjarlais: Yes, I wanted to know on the quarantine, so that's where I'll stop you because we've ran out of questions.

Now, either Mr. Ortved or Mr. Varro can respond to this next question, because they've been off the hook the whole time without getting any questions.

In regard to the specific clauses that you mentioned in relation to where you would be affected, can you mention what they were again? You mentioned the Financial Administration Act, where you thought it would be an infringement, so to speak, on the relationship--

Mr. Niels Ortved: Mrs. Desjarlais, you're asking about the clauses of the bill?

Mrs. Bev Desjarlais: Yes, that were affected.

Mr. Niels Ortved: Clause 101 causes us a problem because we don't understand the rationale for sharing this information--

Mrs. Bev Desjarlais: Information to you.

Mr. Niels Ortved: That's right. We're not in the--

Mrs. Bev Desjarlais: But you followed that by saying that then you would be expected to bring sanctions against that individual, or did I get that wrong?

Mr. Niels Ortved: I posited that the only reason I can imagine their wanting to give us this information is for us to take proceedings against a lawyer, for instance, if it happens to be a lawyer, but in fact they preclude us from doing that because they say it's only given to us for compliance purposes. I actually don't understand why they want to give us the information. We do not understand it.

Mrs. Bev Desjarlais: So there's nothing there that would then take you to task if you didn't do something?

Mr. Niels Ortved: No, but it worries us as a regulator if we have this federal agency giving us some information, and if we don't do anything with it--

Mrs. Bev Desjarlais: Are you going to be seen as being party to the--

Mr. Niels Ortved: I don't know quite why they're giving it to us if they don't expect us to do something.

Mrs. Bev Desjarlais: And then the other clause that you mentioned?

Mr. Niels Ortved: The other one is part 23 of the bill, so it's clause 106. But under clause 106, then you have the actual proposed sections of the legislation to implement the convention.

Mrs. Bev Desjarlais: I see.

The Acting Chair (Mrs. Marlene Jennings): You're over the five minutes. I think we may have time to come back afterwards.

Mrs. Bev Desjarlais: Yes, but I think all the rest of you got eight. That's okay, I'm just kidding. Now you're the chair.

The Acting Chair (Mrs. Marlene Jennings): You were close to six minutes.

Mr. Barnes, five minutes.

Mr. Rex Barnes (Gander—Grand Falls, PC): Yes, thank you very much. I'm not going to be too long.

It seems as though from time to time we almost forget about the health aspect of this bill. The general feeling, I think, is that this war, or an act of terrorism, could be totally different from what we've been used to in the past.

One of the concerns I think people have across this country is that they have to be given the assurance that we're prepared. There's been a lot of information out there that leads to a lot of people feeling that we're not prepared because we don't have the proper information or else agencies are just keeping it so close to their own organization and they're not telling people.

But after hearing you today, I think we should have great concern. We may not be totally ready to fight the next step with regard to our health issues, with regard to a terrorist attack, with regard to chemicals, mainly because of the fact that we may not have either the facilities or the proper medication, or the prescription, to counteract some of the toxins.

» (1700)

Ms. Jill Courtemanche: I agree. I don't want to say about the information.... We have had good cooperation from government agencies--from CSIS, from the RCMP, from OCIPEP, from the Solicitor General. I've been doing this for 20 or 25 years and I've seen an amazing change in the last five years in terms of the information they're sharing with us.

We don't have the facilities. We're getting the equipment, but we do not have the ability to use that equipment effectively. It's like being a little bit pregnant; you can't use personal protective equipment unless you're doing it right. If it's a little bit, if it's not quite 100%, then you've lost a doctor or you've lost a nurse, and then we don't have the doctors and nurses, we don't have the time to practise, we don't have the staff to practise, we don't have the training.

So we do have the planners who are getting the information. We're getting some of the equipment, although not as much as we need. We're not getting as many antidotes as we need. We know what we want and we know what we need, but in terms of the staff, the time, and the money for training, we're not prepared.

Mr. Rex Barnes: Yes, it is important to have the time, the training, and to be prepared. I think sometimes you can have the best plan on paper, but if we don't do the training, if we don't have people ready to go.... But also, because my background is health care, I do know that the best plans laid out sometimes go astray.

But I think probably one of the big concerns this country might have is this. Say there is chemical warfare and all of a sudden, to be very simple about it, you may require a million capsules or, say, two million capsules, or whatever, of a certain drug in small towns, and of course we may not be prepared to counteract that.

Are the organizations you're involved with in the process of making sure there's enough medicine readily available? We can have all the plans and we can have all the practice, but if we don't have the tools to do a job, such as the medication to counteract some of the terrorist acts with regard to chemical warfare, then of course--it's history--we'll all die as a society if we're not prepared.

Ms. Jill Courtemanche: We are trying to make steps whereby, for instance, in the Ottawa area we have enough antibiotics to start 2,000 or maybe 10,000 people on treatment if you were looking at something like anthrax. We're trying to do things so that we're not wasting equipment, we're buying medications that we can recycle so that they don't go out of stock. But as for cyanide kits, we have 60, and they're all out of date.

The Acting Chair (Mrs. Marlene Jennings): Are there any other questions? You have 20 seconds, Mr. Barnes.

Mr. Rex Barnes: It's going to take more than 20 seconds. I was going to ask her a question.

Ms. Courtemanche, I do understand fully where you're coming from and I think that as politicians we need to impress all the organizations about it. We need to get more prepared because, if not, we'll be out the door before we know it ,and I mean in the ground too.

The Acting Chair (Mrs. Marlene Jennings): Thank you, Mr. Barnes.

Mr. Lunn, you have five minutes.

Mr. Gary Lunn: Thank you, Madam Chair.

I'm going to go to Mr. Ortved and specifically focus in on this solicitor-client privilege. I, too, am a lawyer and I know some of the privacy concerns. We've struggled with that issue in this bill. As you know, the PNR data is going to go from the airlines over to the agencies, and they can access it. The information they need is the last name, first name, date of birth, that type of information, or if they have a passport or visa document.

There are other fields we're still not sure of and we're going to question that. For instance, do you need to know what they ate or how they paid? If they don't need that information, then we shouldn't be forwarding it. CSIS and the RCMP have clearly said they're not interested in that.

I'll share with the committee what I gathered from speaking with Mr. Taylor during the few minutes' break we had. He noted that when they picked up these Algerians in London who had ricin, the nerve agent, which is a very deadly agent, they were able to do that because they had these agreements in place where they could collect these data from different sources and cross-reference. They didn't know they actually had this deadly agent, supposedly--and I stand to be corrected if I'm wrong--but in the pursuing investigation they knew they had some hits. They had some pretty concerned people and they were going back and forth; they weren't too sure, but in further investigation they actually discovered this.

So the whole goal is to stop any type of these biological or chemical consequences in our country on the front end, not trying to find a way of dealing with it on the back end. Obviously that's important too, but I think we need to do it in the front end.

I understand the solicitor-client privilege, and I didn't believe this legislation actually would require a breach of solicitor-client privilege. My question is, is there a specific clause in here that you think would infringe upon that safeguard in our justice system?

» (1705)

Mr. Niels Ortved: Yes. Mr. Lunn, with your permission, I'm going to answer you quite briefly and then actually I'm going to let Mr. Taylor provide the balance of the answer--

Mr. Gary Lunn: It's a very important issue, yes.

Mr. Niels Ortved: The specific issue we believe attracts our concern as far as additional protection goes is proposed section 11 of the implementation statute. In my copy of the bill it's on page 89. I'm not so sure I have the same pagination as you do.

What that provision allows are inspections other than in dwelling-houses, and in proposed section 18 you have the minister being able to require by notice persons to forward documents. In each of those instances we, as lawyers, have this trigger response, because that could be either an inspection of your office, Mr. Lunn, or it could be a notice to you to send to the minister some paper in your possession. There's no protection here in the event that it resulted from a privileged communication with a client.

Those provisions are actually very similar to the provisions that are found in the proceeds of crime legislation. What the proceeds of crime act did at section 64 was actually insert a following provision saying if there's solicitor-client privilege you can identify it.

Mr. Gary Lunn: Yes, exactly, and I think we could deal with the solicitor-client privilege when we go to our clause-by-clause deliberation, which will be shortly, The only exception would be if a lawyer were in possession of any type of material whereby he knew, or believed, an indictable offence was going to occur.

Mr. Niels Ortved: Absolutely.

Mr. Gary Lunn: Then he would disclose to prevent that offence from happening.

Mr. Niels Ortved: Then there's no protection--

Mr. Gary Lunn: Exactly. That's right.

Mr. Niels Ortved: --because it's not privileged.

Coming to the second part of your question, which is the privacy concerns and the collection of data under the Aeronautics Act and so on, I'm actually not here to comment on that part, but I wouldn't be surprised if Mr. Taylor had something to say about that, because he knows something about it.

Mr. Terence Taylor: Thank you.

This particular type of revision caused a great deal of debate in the United Kingdom and other countries because of the privacy concerns relating to it—the sharing of personal information across databases and between government departments. It was an issue of great concern, but on balance the House of Commons in the United Kingdom went for it, because their risk analysis was that, with the risk environment we're now living in, there should be some leeway in this, which of course does intrude on privacy. I think on balance the majority of the House of Commons thought it was a risk worth taking.

I think this recent incident with the ricin—which, by the way, is a toxin; it's not a nerve agent, but a virulent toxin for which there is no antidote—just proved the case to the public at large, although I'd have to say this is a case in progress. The people concerned have been charged, but there hasn't been a trial, so there's a limit to what we can say about it publicly. I think again it all comes down to risk assessment.

I was wondering, Madam Chairman, if for example under the Chemical Weapons Convention, to which Canada is a state party, Canada has an obligation to accept international inspectors on its territory. There are very detailed provisions under challenge inspection provisions. There must be some parallel experience here with—I don't know what enabling legislation Canada has put in hand. Certainly other countries I've been to in our studies on this issue have had to introduce new legislation to allow inspectors to have access to places, and private dwellings are not necessarily excluded.

This is a matter of great debate in countries such as Canada, or Australia, or the United States, which was heavily criticized for having reservations on exactly this kind of issue we're now talking about. It's a different matter when I go to countries that don't have the same democratic processes, who will sign a convention and say it's fine, because of course they can knock on anybody's door at any time.

It's quite right that we're having this kind of debate. But we have to set it into the kind of risk environment that I think is a question for the legislators in Canada to assess, doing their own risk assessment. I think there needs to be a very methodological and careful process in doing it, and I think it's something more than just intelligence assessment. This is much more than that. You have to look beyond the whole public health spectrum and assess the risks, judge how resources need to be applied, and decide what kind of privacy of members of the public can be intruded upon, in view of the possible horrific consequences if something goes badly wrong.

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The Acting Chair (Mrs. Marlene Jennings): I'm going to just insert a question to you, Mr. Taylor, before I go to the other members who have questions.

Given what you've just said and the fact that you mentioned in your presentation some of the research you're currently involved in, or your institute is involved in, how has September 11 impacted upon those joint research projects you mentioned?

Mr. Terence Taylor: They're impacted directly: they're inspired by the response to those terrible events. We thought home defence belonged to something out of the Cold War. That's how we perceived home defence, but I think we're into a different era now, post-September 11.

I was very interested in seeing that the words are correct in the bill—I'm trying to keep focused on the bill for you, if I can. I think the term “public safety and security” is exactly the way we should be looking at this. It is not just a military issue, if I may put it that way, whether the weapons come from states or from non-state groups or whatever. It's much more than that.

I think one has to look at the public as being at risk from extraordinary developments in biotechnology, which make more efficient weapons possible. Of course that's not the reason why these developments are taking place; the reason is to bring hugely beneficial things for public health all around the world, and they should be encouraged. I think the legislation and the oversight and so on has to be very sensitively handled so that biotechnological development and the life sciences are not unreasonably constrained.

[Translation]

The Acting Chair (Mrs. Marlene Jennings): Thank you.

Mr. Laframboise, you have five minutes to ask your questions.

Mr. Mario Laframboise: Thank you, Madam Chair.

I'll once more address my questions to Mr. Ortved. Part 23 provides for inspections without warrants. But we still live in a free and democratic society. I'll call upon your legal experience. In case of an emergency and when it is necessary, it is still possible to get a warrant. My question is simple. Should people be systematically allowed to conduct inspections without warrants in Canada? Should we go that far?

[English]

Mr. Niels Ortved: No. I agree with Mr. Taylor, to the extent that what all of us have to do in considering this legislation and our circumstances generally is make a risk assessment. I don't believe that risk assessment, in the circumstances I envisage, calls for systematic inspections without warrants.

There is provision in the legislation to enable searches on an emergent basis, and those also exist under the Criminal Code. But where it need not be done on an emergent basis, I believe generally that Canadians have benefited hugely by having a requirement for the authorities to attend before an impartial party and demonstrate on reasonable and probable grounds that they have a basis to search the premises. Really, I think that's something that should be considered in terms not just of this legislation but of legislation generally.

» (1715)

[Translation]

The Acting Chair (Mrs. Marlene Jennings): Mr. Bachand, you have five minutes.

Mr. Claude Bachand: Thank you very much, Madam Chair.

I thought that today's meeting would be somewhat boring because I did not know any of the witnesses, but, as it turns out, I have to admit that this is probably the most interesting meeting I have been at with regard to Bill C-17. The proof lies in the fact that I am still here.

I have a question about conventions. The research papers we received indicate that conventions have been signed. Mr. Taylor, you're probably the most well-placed person here to answer my question. The Biological Weapons Convention, which also deals with toxins, is currently in force. However, it seems to be a short one: apparently there are only about 15 sections. Nevertheless, it was signed by 163 countries, of which 144 ratified it.

Second, there is also the Chemical Weapons Convention which is much longer: it apparently runs to about 140 pages and contains many details. When a country's representative signs a UN convention, this person then goes back to his or her country which implements it. As far as I understand, this bill would implement several provisions contained in these conventions. In other words, you could say that Canada seems to be on the point of implementing the conventions it signed. But it's one thing to sign a convention in Geneva in a golden book, with a golden pen, while the light bulbs are flashing, which is all very well and good, but then you have to come home and implement it.

I wonder if the UN has ever thought of creating an instrument to see how many countries have implemented the conventions they have signed. I don't think Canada would ever attack the United States with toxic or chemical weapons. However, in some parts of the world, there are countries which may have signed these conventions and even ratified them, but which would still be tempted to launch this type of attack.

Could the United Nations not set up an organization to monitor or inspect the implementation by countries who have signed the conventions I mentioned earlier?

The Acting Chair (Mrs. Marlene Jennings): You have three minutes to answer the question, Mr. Taylor.

[English]

Mr. Terence Taylor: You're right. I'm holding here the Biological and Toxin Weapons Convention—just, I think, four or five pages. It's five pages only because there are big spaces, and the Chemical Weapons Convention is, I think, over 200 page, including the annexes. The reason for that is there is in the Chemical Weapons Convention a comprehensive—and probably the single most intrusive—verification system in any multilateral instrument anywhere. That was negotiated. I was a member of the U.K. negotiating team on that process.

It came to fruition between 1990 and 1992, just in that window as the Soviet Union was collapsing and the Cold War came to an end. We couldn't negotiate it today. In the euphoria of the collapse of the Soviet Union we have these extremely elaborate inspection provisions.

Since then, there has been an attempt to have a verification system for this, and the negotiations have failed for some very good reasons. There is a big technical difference between this and the Chemical Weapons Convention. That material is much easier to find. You need thousands of tonnes of material; you need plants the size of breweries to make significant military quantities of chemical agents. So it's easier to find.

But I don't think any verification system I know of that would be multilaterally agreed to—I'm not talking about Iraq, now, and the inspections there—could be effective under this convention. When Canada ratified this convention—as one of the original signatories, of course—there were no provisions in this treaty that had domestic legal implications.

There are some countries, and the United Kingdom happens to be one of them, who implemented the legislation in order that the legislation wouldn't apply just to the government but to citizens in its own country. I think it's an excellent thing in this new threat environment that Canada is about to do the same thing.

On the question of how countries behave and how they comply, each of the treaties has its own review conference. I don't think a single, central UN body overseeing compliance could deal with, for example, the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention, and the Biological and Toxin Weapons Convention. But each of those treaties has a review conference.

There is a review conference coming up on the Biological and Toxin Weapons Convention, which I know the Canadian government's getting ready for. I think that's something this committee and others should look at, asking what questions the Canadian government is going to ask at this review conference, in order to address the excellent question, Monsieur Bachand, that you have raised.

Each of these conventions has its own review conference. The states parties all together sit around the table and discuss its implementation. That's the purpose of the conventions. There may be amendments at some time. Each country has to report its performance. Each country has to report its national implementing legislation. In its next report to the Biological and Toxic Weapons Convention, I think Canada will be able to make a good report on this issue.

So that's a mechanism by which it's done, and I think it is probably the best way of doing it. But careful preparation for these review conferences—talking to allies, talking to countries where they might have difficulty, and being very proactive at these review conferences—would be very much in Canada's interest. I recommend it as a way to go forward to improve the situation as far as Canada is concerned.

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The Acting Chair (Mrs. Marlene Jennings): Thank you, Mr. Taylor.

We are now drawing to a close. I have one last question to the Law Society of Upper Canada. It comes back to your concern about why FINTRAC would wish to disclose information to the law societies as regulatory bodies of lawyers.

Did you contact them or the Department of Finance to ask why this provision exists and what they intend with it? You say on page 2 of your submission, in the last paragraph: “The implications of these provisions are unclear. From the Law Society's perspective, the key question is what is FINTRAC's expectation when it provides information to a regulator about compliance issues.” Has the Law Society contacted FINTRAC?

Mr. Niels Ortved: May I just have a moment, Madam Chair?

The Acting Chair (Mrs. Marlene Jennings): Yes. It may be of interest to the Law Society that, as you know, standing committees have researchers who provide background documents to the members. Our researcher, Mrs. Young, contacted FINTRAC and was told that FINTRAC “anticipates that information exchanged under clause 101 would be done pursuant to memoranda of understanding with the various regulators and would be general in nature”.

The Law Society may wish to contact FINTRAC directly to gain some understanding as to what their expectation is, and then you may wish to write to the committee to inform us whether or not the information or answer you were given was satisfactory and allayed your fears, or whether you continue to have preoccupations and would suggest amendments.

Mr. Niels Ortved: Thank you, we will do that.

The Acting Chair (Mrs. Marlene Jennings): Thank you very much.

Before I adjourn, I would like each of the witnesses to give a brief 30-second to one-minute conclusion for the benefit of the committee, if you so wish.

Mr. Taylor, I'll begin with you.

Mr. Terence Taylor: I think this is a very important bill, and I would urge the committee to recommend to their fellow members of Parliament that it be progressed as soon as possible. It has a good balance between assessing the risks, which some aspects of these deliberations have touched upon, and a certain amount of invasion of privacy, and so on.

The inspection provisions in the bill are reasonable. I think the Canadian government and other countries would expect there will be rigorous action by other governments if we're going to go through a cooperative process of tackling this global threat we're faced with.

It's very important that Canada can stand strong, so that internally and domestically it can assist other states and allies by carrying out thorough investigations and so on, and to do so in the expectation there'll be a reciprocal effect for Canada.

This is a very good bill and it is to be commended.

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The Acting Chair (Mrs. Marlene Jennings): Thank you, Mr. Taylor.

Mr. Ortved.

Mr. Niels Ortved: Thank you, Madam Chair.

We've followed this bill in its various iterations. I hope you will appreciate we've come down here today with a rifle as opposed to a shotgun. This is a very big bill, and we've come here to make submission to you on two provisions out of more than a hundred. Hopefully we've been able to persuade you there may be a basis to improve this legislation on the basis of what we suggested to you.

Insofar as your response to us concerning clause 101, we're going to supplement what we said to you today with additional communication.

The Acting Chair (Mrs. Marlene Jennings): Excellent. Thank you.

Madame Courtemanche.

Ms. Jill Courtemanche: My comment would be along the lines of Mr. Taylor.

I've tried to show you the state of preparation of the health care sector. Given that, I think it behooves us to do whatever we can to prevent the terrorists from acting in the first place.

The Acting Chair (Mrs. Marlene Jennings): On behalf of the committee, I'd like to thank our witnesses for giving us their precious time. We appreciate all of your presentations and all of the information you have given to us.

Thank you. We now stand adjourned.