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37th PARLIAMENT, 2nd SESSION

Legislative Committee on Bill C-17

EVIDENCE

CONTENTS

Thursday, January 30, 2003

0905

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

Mr. Steve Mahoney (Mississauga West, Lib.)

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

Mr. John O'Reilly

Mr. Vincent Gogolek (Policy Director, British Columbia Civil Liberties Association)

0910

0915

0920

Mr. John O'Reilly

Mr. Warren Allmand (Individual Presentation)

0925

0930

Mr. John O'Reilly

Mr. Clayton Ruby ( As Individual)

0935

0940

The Acting Chair (Mr. John O'Reilly)

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

0945

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

0950

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

0955

The Acting Chair (Mr. John O'Reilly)

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

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

1000

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Sarkis Assadourian (Brampton Centre, Lib.)

1005

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais (Churchill, NDP)

1010

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

1015

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney (Hamilton Mountain, Lib.)

Mr. Clayton Ruby

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney

The Acting Chair (Mr. John O'Reilly)

Ms. Beth Phinney

Mr. David Goetz (Committee Researcher)

The Acting Chair (Mr. John O'Reilly)

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

1020

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

1025

The Acting Chair (Mr. John O'Reilly)

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

1030

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

Mrs. Marlene Jennings

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mrs. Marlene Jennings

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

1035

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

Mr. Steve Mahoney

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

1040

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Mario Laframboise

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

1045

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

The Acting Chair (Mr. John O'Reilly)

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais

Mr. Steve Mahoney

Mrs. Bev Desjarlais

The Acting Chair (Mr. John O'Reilly)

Mrs. Bev Desjarlais

Mr. Steve Mahoney

The Acting Chair (Mr. John O'Reilly)

Mr. Gary Lunn

1050

The Acting Chair (Mr. John O'Reilly)

Mr. Clayton Ruby

Mr. Vincent Gogolek

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

Mr. Warren Allmand

The Acting Chair (Mr. John O'Reilly)

CANADA

Legislative Committee on Bill C-17

NUMBER 006

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, January 30, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

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

I want to take this opportunity to call the meeting to order. This is a legislative committee on Bill C-17, a legislative committee being a little different from a committee of the House of Commons in the fact that it's formed to deal only with Bill C-17 and then it ceases to be a committee.

I'm John O'Reilly. I'm filling in for Bob Kilger as chair. The Speaker is down with the flu so Mr. Kilger has to assume his parliamentary duties for him. I think he's hosting a group of school children right now and probably enjoying himself more than he would if he had to sit on this committee.

That being said, I want to first of all welcome the witnesses and thank them for attending on this lovely sunny, heatwave day in Ottawa. I think it's only minus 27, so I'm sure everyone is enjoying themselves.

Mr. Steve Mahoney (Mississauga West, Lib.): And that's in here.

The Acting Chair (Mr. John O'Reilly): I will tell you the meeting is carried on in both official languages through interpretation. That's what the earpieces are for. If you want to hear what's going on, the only way you'll hear is through the earpieces, so don't be afraid to use them. Questions will be asked of you in both French and English.

The microphones are controlled by this handsome gentleman behind me, so you don't have to worry about turning them off and on. And by the way, it is televised, so straighten your ties and make sure your hair is combed.

Mr. Steve Mahoney: Are you talking to us or them?

Mr. John O'Reilly: To them--no, to you, Steve, yes.

I don't get to ask questions, which bothers me, but other than that, Gary, I'll work on it.

We're going to start this morning with our three witnesses. Vincent Gogolek is the policy director of the British Columbia Civil Liberties Association. Warren Allmand, as we all know, is a former parliamentarian, a man of great distinction. Clayton Ruby, who happens to summer in my riding and we share some old car novelties...his cars are worth much more than mine, but we do have that connection.

I would call on Vincent Gogolek to make his presentation. We normally allow 10 minutes for each presenter and then we go to questions, starting with the official opposition. Each member here has five minutes in the first round. The five minutes includes the question and the answer, so if someone waxes eloquent and doesn't allow you to answer, you have to take it up with them.

So, Mr. Gogolek, perhaps you would care to start.

Mr. Vincent Gogolek (Policy Director, British Columbia Civil Liberties Association): Thank you, Mr. Chair. It's a pleasure to be here on this sunny day, even if it's a little cooler here than it is in British Columbia.

The B.C. Civil Liberties Association is the oldest and most active civil liberties group in Canada. This is our 40th year of working to protect Canadian civil liberties.

This piece of legislation is the third iteration of the Public Safety Act. It's the son of Bill C-55, and the grandson of Bill C-42. The government has been rounding off the edges each time, in response to criticisms that the legislation is draconian, that it infringes on privacy rights and civil liberties, and, quite frankly, that it is just overly broad in a number of ways.

One of the major problems we see with this bill is something that should affect you, the members of the committee, because a lot of what is going on here is the exclusion of parliamentarians from the process. There's a lot of delegation to the minister and by the minister, whoever the minister might be, to officials. These powers, the ability to issue orders, are very, very extensive ones. Some of them are time-limited. Some of them are subject to confirmation by the governor in council. They go on for a while.

What's happening is that these powers are not subject to your scrutiny. They're not subject to judicial scrutiny. Nobody really gets a chance to look at them. What we're seeing here is a return to the 1970s—and I don't mean in a fashion sense. What we're seeing here is essentially a return to the War Measures Act. It's a return to writs of assistance. It's as though the Charter of Rights and Freedoms never happened. This is what we're starting to see here. It's not just with this piece of legislation; it's with others as well.

The problem with this is that we still do have a Charter of Rights. People have come to expect that their civil liberties and their privacy rights will be respected. This is not where this bill is going. We have a database that will require Canadians to self-identify. But fortunately, a third party, the airlines, is being interposed between them. It's not as though the police will be stopping you on the street and demanding that your ID card be shown. They don't have to do that, because the airlines are already being conscripted to do this.

One of the big problems with this bill is not with this bill. The problem is with the existing API/PNR database, which is being run by Canada Customs and Revenue. They can essentially keep the same data for six years. There's a very handy restriction here on the ability of CSIS and the RCMP to look at all this passenger information, including what meal you ordered, how you paid for it, your name, who you were sitting with, and what your luggage was. They can only hang on to all this personal information for seven days, as the database is supposed to be rubbed after this period.

Taking the government at its word that it will not adopt an unduly broad definition of transportation security, the net effect of this restriction is really quite limited. An RCMP or CSIS officer would be able to call up an official at Canada Customs and Revenue, and under section 107 of the Customs Act, they'd be able to get essentially the same information off the database.

So the protection of 7 days—which is down from 45 days, which is down from 90 days—for which this information will be kept is an illusion. I realize that the Customs Act is not before you today, but it's impossible to look at this bill without looking at it in the context of the powers already given under section 107 of the Customs Act. It is not possible.

¿ (0910)

Something else that bothers me is regarding the controlled access zones. And this is something that's not referred to in our brief, so forgive me for going on a little bit at length, I just found out about it on the plane out here.

The Minister of National Defence was here testifying before you on December 10 last year, so a little more than a month ago the Minister of National Defence was sitting here in this chair, or maybe one of the other chairs along here, and he was talking about the controlled access zones.

[Translation]

Now, when Mr. Bachand asked him a question concerning these controlled access zones the minister gave an interesting reply. He indicated that they were much more limited than before in several respects and that there will only be three zones : Halifax, and in British Columbia, Nanoose Bay and Victoria, and I will quote him in English:

¿ (0915)

[English]

I do not have the full details as to the dimensions and the period of time during which these zones remain in effect. That shouldn't come as a surprise because the details haven't yet been finalized. However, the order in council will be published in the Canada Gazette. We are still working on the details, but these will be published locally when they've been finalized. We're drawing up and fine-tuning the plans.

I haven't had an opportunity to go to the Privy Council Office to check the orders in council, and why would I? I would assume that the minister, given the fact that this committee is here looking at this legislation, given that questions have been raised about his government's ability to bring in these orders in council without legislation, without specific legislative provisions that were included in Bill C-45, might hold off on this. You would think so. No, two days later apparently--and again, I would have to go and check this, I haven't had the time--orders in council had been passed. We're still here talking about controlled access zones, and orders in council have been passed.

I don't know the details of these orders in council. I don't know what the minister will be doing. I don't know how big they are. I don't know if any of you do. I find this disturbing. This is, again, the government's contempt for the role of parliamentarians, for your role as our watchdogs, the people looking out for our civil liberties and our privacy.

The government has removed the legislative provisions, which is a good thing, because they were pretty draconian, but now they've decided to make this move through the royal prerogative, according to the minister. I'm not sure that the royal prerogative gives them the power to do that. I guess we'll find out when somebody, possibly somebody exercising their democratic right to protest, is arrested and challenges it in court. I find it very unfortunate that parliamentarians haven't had the opportunity to make their recommendations to the House and let the government know what they think about this important part of this bill.

There are a number of detailed provisions, and I've set these things out in the brief. These are essentially our concerns: that your role is being circumscribed; and that the government is claiming to act more and more under mysterious powers like the royal prerogative, which has been cut back since 1688 in the Bill of Rights passed by William of Orange--not the Diefenbaker Bill of Rights but 1688. That's when that started getting restricted. I think there's a real question about the government's ability to do this.

The API-PNR database: The Minister of National Revenue was in here and in her testimony she said about Bill S-23, which was passed, that it was really only a codification of powers she had anyway as the minister. What this bill does, in many aspects, is to bring in new provisions that will give even more power to the minister, who will then have the authority to delegate it to officials.

A final word: At the beginning of my remarks, I talked about our going back to the 1970s. This is because in the 1980s Parliament passed the Emergencies Act. Mr. Allmand, I believe, was there for that debate and could probably give you a much more detailed account of the considerations that went on. But that bill, and the Emergencies Act, which continues in place now, explicitly recognized the role of the charter and the balance with the need for the government to act quickly to protect Canadian society in times of emergency, all kinds of emergencies: international emergencies, war emergencies, public safety emergencies. Parliament debated this extensively. Parliament recognized that we have a Charter of Rights and Freedoms now and that the government's ability to act has to be there,but it is subject to the Charter of Rights and Freedoms. And it also makes a specific provision for members of Parliament to examine regulations and orders that are being made by the government to deal with these situations.

¿ (0920)

We recognize, as I think everybody does, that sometimes the government will have to act quickly, will have to take serious measures, extraordinary measures, to deal with these extraordinary circumstances. However, the problem we have is that there is no scrutiny of what's being done. There's no scrutiny by you, our parliamentarians, our elected representatives. There's no scrutiny by judges. So we don't get it at either end. This is very disturbing. We don't know where it's going to lead. I would ask you to keep that in mind while you're looking at the provisions of this bill and also to look at this bill in the context of the other pieces of legislation and laws that have been passed and that are coming down the pipe, like the government's lawful access proposals on wiretapping.

I think my time is done, so I'll be happy to either leave it to Mr. Allmand or to take your questions.

Mr. John O'Reilly: Thank you very much, Mr. Gogolek.

We're giving each witness 10 minutes before we go to questions. Now, the 10 minutes is a little flexible. You went about 12, but that's fine because I think the 10-minute rule was brought in so ministers couldn't go on and hold up the time that we have to ask them questions.

So perhaps we could go now to the Honourable Warren Allmand, who is ready to roll. Sir, we're looking forward to hearing from you.

Mr. Warren Allmand (Individual Presentation): Thank you, Mr. Chairman and members of the committee.

I am pleased to appear before you today because I have hope that my testimony and the testimony of others will encourage you to make changes, improvements, to this Bill C-17. I'm hopeful because improvements were made to Bills C-42 and C-55, predecessors of, or the first two versions of Bill C-17, as a result of testimony and submissions by witnesses on those bills. So sometimes the system works, and I'm hopeful that it will work once again and improvements will be made.

I'm making this presentation on the basis of my experience as president of Rights and Democracy for the last five years, and as a former minister, Solicitor General, and chair of the justice committee, and my continuing work in the field of human rights.

I want to say immediately that it is appropriate that the government and Parliament take action against terrorism. Terrorist attacks on innocent persons are a serious violation of human rights. Article 3 of the Universal Declaration of Human Rights states that “Everyone has the right to life, liberty and security of the person.” Article 28 of the Universal Declaration says that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” So not only do you have a right, but states have an obligation to protect those rights.

Article 6 of the International Covenant on Civil and Political Rights states that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

On the other hand, the Universal Declaration also says in Article 30 that “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”

Article 5 of the International Covenant on Civil and Political Rights says more or less the same thing.

Consequently, in protecting or enforcing one right--that is, the right to life--you cannot destroy, reduce, take away, or limit any other right in the Universal Declaration. This was confirmed at the World Conference on Human Rights in Vienna in 1993 in the Vienna Declaration supported by 170 states, including Canada, which stated that all human rights were indivisible, interdependent and equal. In other words, you can't pick and choose among those rights in the Universal Declaration. The declaration also stated that human rights were the first obligation of states.

Therefore, in examining Bill C-17 I see several provisions that cause me concern, provisions that are contrary to our charter, contrary to the Universal Declaration and to the International Covenant on Civil and Political Rights, which Canada has ratified, provisions that are an unnecessary and dangerous intrusion on our democratic freedoms, and provisions that provide investigative powers and enforcement tools that go beyond the Emergency Act of 1988.

The Emergency Act explicitly says that all of its provisions are subject to the Charter of Rights and Freedoms. For example, Bill C-17--and these are among my concerns--grants ministers and bureaucrats a wide range of powers to issue interim orders, security measures, emergency directions and authorizations, to delegate to lower-level officials and to collect and use personal information, all without parliamentary approval, scrutiny, or oversight and without the usual checks and balances.

In most cases throughout the bill there are articles that say that these provisions are not statutory instruments and consequently cannot be reviewed by the joint parliamentary committee, which by law reviews all other statutory instruments. In proposed subsection (9) on page 63, it states that no action lies under the Crown Liability and Proceedings Act with respect to intercepted communications under that part.

¿ (0925)

The right of ministers and delegated officials to proclaim interim orders is found in parts 3, 6, 9, 10, 15, 18, 20, 21, and 22; to proclaim security measures and emergency directions in part 1; to issue authorizations in part 13; to collect new personal information in parts 1, 5, 11, 16, 17, and 19; and in particular, to collect personal information under the clause 23 schedule. It already referred to the advanced passenger information database that, in fact, provides an intellectual database of all law-abiding Canadians.

In my view, these provisions referred to violate charter articles: article 8, the right to be secure against unreasonable search and seizure; article 7, security of the person, which includes the right to privacy; and so on. They also violate the Universal Declaration article 12, dealing with the right to privacy.

By the way, article 12 reads:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Furthermore, it says in article 4 of the International Covenant on Civil and Political Rights with respect to derogation.... This is an important article that I want to bring to your attention. I did that when I appeared on Bill C-36. This is the derogation section of the International Covenant. It says:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,

--in other words, the emergency is officially proclaimed--

--the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

It goes on to say:

Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

In other words, if you're derogating from a convention, such as the International Covenant on Civil and Political Rights, that we have ratified and that we say we support fully, and we derogate from any of the provisions--I've referred to some of them--then we have to follow the procedures set out in article 4.

I ask the committee whether the Government of Canada has done that, and whether they have required the Government of Canada to do that.

It provides in subsection (3), as I mentioned, for a sunset clause. In other words, you're supposed to advise when you intend to end these particular measures.

It's also doubtful, in my mind, whether the derogations would pass under article 1 of our Charter of Rights and Freedoms. Failure to respect these provisions in the Charter and in the International Convention has serious consequences.

First, these provisions erode the role and powers of Parliament. Secondly, they weaken respect for the rule of law, both nationally and internationally. Thirdly, it puts us on a slippery slope to a police state. Fourth, it threatens the work of international GOs in development, human rights, and environment. Fifth, it subjects the bill to charter court challenges. Sixth, it leaves all citizens open to suspicion and investigation without traditional protection. Seventh, many provisions have been administered by delegated civil servants and therefore are subject, in my view, to abuse, overkill, the commission of errors, and so on.

Two and a half years ago, on August 18, 2000, a list was found through the access to information laws of this country. CSIS and the RCMP had put together a threat assessment list. On the threat assessment list they had Amnesty International, Greenpeace, the Council of Canadians, several trade unions, Rights and Democracy, which is my former organization, and several churches.

¿ (0930)

The bill goes beyond what is required. Much of what you need to do could have been done under the Emergency Act, in my view. There's never a question, Mr. Chairman, in choosing between security and human rights. The protection of security requires the respect of human rights, and the protection of human rights requires the provision of security.

I also have to put to you, what message are we sending to new developing democracies, states that are in transition from communism or from dictatorship to democracy? The message we're sending is that it's all right to suspend human rights when there are certain threats. Of course, as we have observed, this has given many of these states the justification to return to their old ways. Look at China and the Falun Gong, and at some measures in the Soviet Union, Burma, the Ukraine, Pakistan, and India, where they're using the war on terrorism and anti-terrorism legislation, with the examples of the United States, Canada, the U.K., and others, as justification for what they're doing.

To conclude, Mr. Chairman, as members of Parliament, I believe you have an obligation, first, to provide for greater oversight and control by Parliament with respect to this bill; to limit the power of ministers and officials to legislate by interim orders, emergency directions, and security measures; to limit the powers to collect, disseminate, and use personal information relating to innocent civilians; to make sure these measures are not contrary to the charter and international conventions ratified by Canada; to make sure that Canada has carried out its obligations under article 4 of the International Covenant on Civil and Political Rights regarding derogation; and to require that all ministers submit annual reports regarding their administration and implementation of this act to the appropriate parliamentary committees, where you can examine the ministers and officials with respect to their administration.

Mr. Chairman, much more could be said about the bill, but I'm limited by time. I thank you very much.

Mr. John O'Reilly: Thank you very much, Mr. Allmand. It's a pleasure to hear from you again.

We would now go to our next witness, Clayton Ruby, a renowned lawyer and old friend from Fenelon Falls.

You have the floor, sir.

Mr. Clayton Ruby ( As Individual):

Thank you, Mr. Chairman. I want to thank you for the opportunity of appearing in such distinguished company. That's the first thing.

I want to move immediately to just say a word about the legal context in which we ordinarily operate in information data gathering and dissemination. It's the same thing you use for wiretaps, the same thing you use for searching someone, a twofold structure that our Constitution has approved.

One, get a warrant, so that someone who is independent can decide whether you can really do this and whether it's justified. That's the first part of the framework.

The second part of the framework, an essential part, is that if there are exigent circumstances and you can't take the time to get a warrant, then you can act on mere legislative authority without the interposition of a judicial figure. That structure has proved very effective. That structure has been abandoned in this piece of legislation virtually completely.

The large amount of information that is going to be taken is problematic, and this is the theme I want to play with in my 10 minutes, not just because it is being gathered and seized by a government but because there is no control that's effective on what's done with it by the government agency that seizes it. In other words, it gets disseminated down a really long line.

The information is broad. The manner in which the passenger paid for the ticket: well, I pay for my tickets with my credit card number such-and-such, and that goes into a government database. Who paid for the ticket: not by itself, you might think, a very useful concept. When my daughter travels, unfortunately she travels on my credit card. You don't learn much about terrorism by doing that.

The problem with giving out such information is that it is unlikely to be effective. Gérard La Forest, whom the lawyers here will know, a distinguished former justice of the Supreme Court of Canada, wrote in an opinion, which I probably think you've seen, that Mr. Radwanski obtained, said:

It has not been established that travel pattern analysis is a particularly accurate indicator of criminal or terrorist propensities. At a minimum it seems likely that the potential for “false positives” (i.e. occasions when innocent persons are targeted for scrutiny) is immense. ...Yet free and democratic societies do not generally tolerate the creation of databases of personal information on vast numbers of innocent citizens for general law enforcement purposes.

We're talking about air travel in general, in or out of Canada or arriving in Canada. That's millions and millions of people a year. It's the vastness of these numbers that's the problem.

It's the constitutional problem here, too, because you might tolerate a narrow intrusion for urgent situations, exigent circumstances, where there's a threat to the safety of passengers due to terrorism. But the courts, in my respectful opinion, will never tolerate the use of this kind of database for general law enforcement purposes. And yet that's what has happened here. Let's just take a look at that.

There is obviously a reasonable expectation of privacy when you buy an airplane ticket. You don't contemplate that government and the local police officer down the block are going to get access to it, not without a warrant of some kind, some judge saying it's okay.

And so we have values that are fostered. As the Supreme Court of Canada said in Plant, “In fostering the underlying values of dignity, integrity and autonomy...the Charter should seek to protect a biographical core of personal information” that would “reveal intimate details of the lifestyle and personal choices of the individual”.

So in this case, even if the information-gathering is justified to prevent exigent circumstances such as terrorist activity, this includes passing on information for the general purpose of executing, for example, outstanding warrants for offences, criminal offences, immigration offences. And the list and definition of offences is very broad. It includes, for example, offences such as common assault, which means that they can use this data to give to your local police department to catch someone who has a warrant outstanding for common assault.

¿ (0935)

When I'd go into the airline database, together with millions of other passengers, it would never be within my contemplation that this would happen. It is not anything other than a general law enforcement purpose. It's not narrowly focused on terrorism activities or airline safety. Therefore, in my submission, it's not going to pass muster.

There is indeed a seven-day limit on the information that is gathered when it's in the hands of the RCMP or CSIS, but that seven-day limit ceases to apply if they meet the threshold for passing it on. Then the information-gathering, in anybody's hands, not just CSIS and the RCMP but whoever they passed it on to, is a permanent taking and keeping of the information. The person they pass it on to is under no obligation in this bill not to pass it on further or use it for general law enforcement purposes.

So you've taken a narrow kernel of constitutionality...and it may or may not be wise; I think this information is not very helpful for gathering terrorists and stopping them. Wisdom is not my concern here, but constitutionality is. The idea that you can take that information and pass it on, without time limits, without restraints, for general law enforcement purposes is simply unheard of in this country. We have never done it. Perhaps more importantly, free countries just generally do not do it. Democracies generally do not do this.

I've asked to have this document distributed to you, and my thanks to Mr. Roy, who got this yesterday at 3 o'clock or so and managed to translate it overnight. So you should have the translation in the little document. In it, I make some points that I want to summarize. It's headed “Submissions to Legislative Committee...by Clayton Ruby”. It's a three-page document.

The first little section, section 4.81, is restricted to purposes of transportation security, and it's probably valid constitutionally because, as I say, it's collected for a limited purpose and for a limited period of time. The intrusion into privacy of individual travellers, millions of Canadians each year, is minimal and rationally connected with the purpose of the legislation. That is what the Constitution requires. But the rest of it, for example, subsection 4.82(11), which allows for the disclosure of information to any peace officer to assist in the execution of a warrant for any offence that has a five-year maximum penalty--that's almost all the offences, other than summary offences in the Criminal Code--at the discretion of government to decide which ones, is unconstitutional, in my view. There should be prior judicial approval or exigent circumstances, one or the other.

You could make that better by limiting it to offences that were really related to air safety, such as hostage-taking, hijacking, or terrorism offences. That, too, might pass muster, but the general provision will not, in my submission.

I'm concerned about the retention of this information. You'll see in the middle of page 2 of the document that I've given to you that CSIS and the RCMP have to destroy it within seven days “unless it is reasonably required for purposes of transportation security or the investigation of ‘threats to the security of Canada’.” But there is no requirement that any other agency to whom the information is passed on must destroy it, nor is there any requirement that it be passed on and used only for the purposes of transportation safety, as opposed to general surveillance by police forces across this country. Every small-town cop is going to be free to keep this and use it once he gets it.

So I've suggested, at the bottom of page 2, two restrictions that should be added to the legislation: one, when a police officer gets information, he shall use it only for the purpose of executing a warrant--and I would recommend limiting it to terrorism offences, as I've indicated; and two, if the information received is not used in the execution of a warrant, that is, it turns out not to be useful within seven days, then it should be destroyed.

Mr. Chairman, you've been very patient with me. I'll have further remarks if members have questions.

¿ (0940)

The Acting Chair (Mr. John O'Reilly): Thank you very much, Mr. Ruby, Mr. Allmand, and Mr. Gogolek. It was very interesting.

We'll now go to the round of questions. The questions and answers are five minutes each. If members wish to ask questions, please let me know.

We'll start with Mr. Lunn, for five minutes.

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

I think most of the witnesses have touched on the Canadian Alliance's main concern. There's one huge issue for us, and that is the retention of the PNR data for general law enforcement purposes. It can be disseminated to other agencies, and they can do what they want with it, as you pointed out. That single provision has caused our entire caucus to be opposed to this piece of legislation as an intrusion on an individual's rights and freedoms, and we recognize the importance of this information for the purposes of public safety and going after terrorists.

But I want to go one step further. I sit here and listen to all of this, and it almost seems a moot point that we're going through this when Canada Customs takes that data now and gives it to the United States government, and Canada Customs can retain that data.They're doing it now. I would like to hear your comments with regard to that.

Also, how do you ensure the protection of that data so that we use it strictly for terrorists? What would you recommend so that data is available only for the purposes of going after terrorists and ensuring public safety in transportation and not for general law enforcement?

I would like Mr. Ruby to start, and then Mr. Allmand.

¿ (0945)

The Acting Chair (Mr. John O'Reilly): The chair says you can start with Mr. Ruby.

Mr. Gary Lunn: Thank you very much, Mr. Chair.

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

Mr. Clayton Ruby: Thank you, Chair.

You're absolutely right, it's very sad that those other pieces of legislation have gone through without the scrutiny we're now getting. But it's important for this committee--even as it acknowledges that when we go into the barn it's utterly empty, and it's too late to close the door--to set the standard now. Parliament can always come back and say--and I'll leave this to Mr. Allmand, who understands the ways in which this place works--that was a good standard. Let's incorporate it more generally.

How would you do it? You simply say that a peace officer, CSIS, anyone who receives information--and list the other ones we're concerned about--pursuant to this act, or you could add “or any other act”, shall use the information solely for the purpose of certain defined offences, and you name the terrorism offences. That's broad enough to let them do anything they want to do and need to do, but it prevents any further use.

Mr. Warren Allmand: I think Mr. Ruby has made an appropriate answer to that question.

All I can say, Mr. Ruby, is it's my experience that in Parliament we do have various pieces of legislation that contradict each other and have different standards, and the only way it's sorted out is when it goes to court. If there were some way of making everything comprehensive and consistent one with the other, that would be great. But I've found that as you work along, you find that sometimes in one bill it says this and in another bill it says that, and there's not always consistency between these laws. The problem is you have, for instance, this legislative committee dealing with this bill, whereas the justice committee, a different group of members of Parliament, was dealing with Bill C-36, and members of Parliament have so many things to take care of, it's very difficult for them to be experts on every piece of legislation before the House and to know where the inconsistencies are.

But there is this inconsistency, and it has been pointed out. Now, once it has been pointed out, maybe parliamentarians should do something to try to bring consistency between the Customs Act and this bill, and in the right direction, I would hope.

The Acting Chair (Mr. John O'Reilly): Mr. Gogolek, do you have a comment?

Mr. Vincent Gogolek: Yes, I do. In our brief we do suggest making amendments to section 107 of the Customs Act to bring it into line at least with the seven-day provisions that the very same database has under this bill. It's an absurdity to have the same information being retained for six years for customs purposes but for seven days for transport security. I think you have the ability to put forward that amendment.

I'd also like to just quickly point out that under Bill S-23, the bill that amended the Customs Act, originally the minister's plan was that this was going to be a screening device. It was going to be kept for 24 hours. So you could locate somebody who would be a serious threat. Now we're looking at seven days under this bill and six years under the Customs Act. I don't see the logic.

The Acting Chair (Mr. John O'Reilly): You're out of time, Mr. Lunn.

Mr. Mahoney.

Mr. Steve Mahoney: Mr. Chairman, as Mr. Allmand well knows, we all tell our constituents on a regular basis that we're experts in all of these things and then try to fool people like you into believing it.

If I might, though, I want to deal with a couple of questions, because our time is just as limited as yours.

Mr. Gogolek, when you said that Parliament doesn't have scrutiny on the issue of the interim orders, I'm sure you're aware it must be tabled in the House within 15 days. I believe the Bar Association is suggesting that it should be five sitting days. This is interesting because it could in fact be a lot longer than 15 days, given that Parliament sits basically three out of four weeks, or eight months of the year. So we could be in the middle of a hiatus when the problem occurs.

But it must be tabled in Parliament; it must be gazetted in 23 days; and it must go to cabinet for approval as well. So there is an attempt to put oversight in there in terms of Parliament's responsibility. What we're doing here is very much oversight in terms of the bill. I would like your comments on this.

Just to make sure I get all of my oars in the water, let me just ask Mr. Ruby about this issue. By the way, I think your suggestions are good. I'm going to ask that we look at them in relationship to the execution of a warrant, the information and all of that. If you look through all the proposed subsections in clause 11, we're going to have to have major training courses for all the police officers in Canada on just how they treat this information, when they should destroy it, how they disseminate it and how they share it, and what the word “reasonable” means. Otherwise, I suspect this is ultimately going to wind up in the Supreme Court, which is probably not to the good of any of us.

So I think they're good ideas.

¿ (0950)

The Acting Chair (Mr. John O'Reilly): They are good for the lawyers. Through the chair, of course.

Mr. Steve Mahoney:Yes, good for lawyers. Well, we're here to help.

Some hon. members: Oh, oh!

Mr. Steve Mahoney: But what I'm concerned about in your analysis is what I think I heard you say, that there should be prior judicial approval when a warrant is being dealt with. But the warrant has already been issued. We're talking about someone who has a warrant outstanding for their arrest for a crime that is serious enough to lead to five years of imprisonment, which you well know is a pretty serious crime. This crime must not only be that serious, but it must also be outlined specifically in the regulations, because I think you can get five years in jail for collecting driftwood, which we're not too concerned about. So it has to be specified. I'd like your remarks on this.

Maybe if there's time, Mr. Allmand could also comment on the interim order issue and where the government's responsibility changes when you're dealing with collective rights and the security of the nation versus individual human rights. As you well pointed out, it's a circle in which human rights and security are very much intertwined.

So maybe I'll leave it at that.

The Acting Chair (Mr. John O'Reilly): Mr. Mahoney, you've taken three minutes to ask the question.

I'll allow Mr. Ruby to start, then Mr. Allmand, and Mr. Gogolek.

Mr. Clayton Ruby: I'll just deal with a little piece of it.

When you say in the legislation that you're authorizing the government to do anything that has a maximum penalty of five years--i.e. most of the Criminal Code, but only when offences are specified by regulation or by other method--I would say two things. First, it's still general law enforcement purposes, because it's beyond the two or three offences you can think of that would be nameable and easily relateable to terrorism or airline safety. And second, we're saying, “Trust the government”.

This really is not an area where we ought to be doing this. I look at you, and I know in your tummy you don't want to do this.

Some hon. members: Oh, oh!

Mr. Clayton Ruby: I've said more than enough.

The Acting Chair (Mr. John O'Reilly): Mr. Allmand, why don't you take over.

Mr. Warren Allmand: It's true that the interim orders must be tabled within seven days and be gazetted and so on. But it's after the fact.

As a member of Parliament for 31 years, it has been my experience that to keep track of what's gazetted and what's tabled in Parliament every day...you know, every day, you don't even know what they are. You sit in question period and you hear that some parliamentary secretary is tabling this and tabling that, and you don't have the time, unless there's some official in the parliamentary research library or in your offices, or you're chairing the justice committee, or whatever, with somebody to really look at these things and bring them to your attention. You have so many things. As you pointed out, we're supposed to be experts on everything. How do you keep up with all the things gazetted in the Canada Gazette and all these things?

It's like the provision in the rules of the House of Commons that every order in council appointee can be examined after the fact by the appropriate parliamentary committee. So if there's a new chair of the National Parole Board, or whatever, you can examine him. But he has already been appointed. You can express your disgust afterwards, but sometimes the damage is done. I don't know if any order in council appointment made under that provision has ever been fired after the parliamentary committee said they didn't think that was a very good appointment.

You may be faced with the same thing here. It's better than nothing that you can see it seven days after—if you've got the time and you know about it. But it's not what Parliament should be doing. Law is to be made by Parliament, not by officials and bureaucrats.

¿ (0955)

The Acting Chair (Mr. John O'Reilly): Thank you very much, Mr. Mahoney. You took a fair bit of time, so we're out of time.

Monsieur Laframboise, cinq minutes.

[Translation]

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you, Mr. Chairman.

I would like to ask you the question that we from the Bloc Québécois asked the Prime Minister and the Minister of Transport as soon as Bill C-42 was introduced in the House of Commons: what could the Government of Canada not do on September 11 that it will now be able to do thanks to this new bill?

I will present my argument and you will have an opportunity to respond afterward. Of course Bill C-42, which became Bill C-57 and subsequently Bill C-17, was not introduced in the wake of the events of September 11. We quickly came to the realization that this is a functionary's bill, finally. It became obvious quickly enough that all of the departments wanted to see their dreams come true. The controlled military access zone is a good example of that, Mr. Gogolek.

Of course for those of us from Quebec this is a victory: nothing in Quebec is affected by this bill. But there is still an underlying will, and you summarized it very well. Now, with this bill, the government will be able to make orders which will completely obviate votes in the House of Commons or debates on the floor of the House. One can feel that will. One can feel it in the famous interim orders provided for in part 6 concerning the Department of Health Act. Further on, there are proposed amendments to the Food and Drugs Act in part 9, and to the Hazardous Products Act in part 10. The interim orders simply demonstrate a will to obviate provisions which were traditionally recognized throughout Canada, i.e. the application of sections 3, 5 and 11 of the Statutory Instruments Act. But the Statutory Instruments Act is the filter of the Canadian Charter of Rights and Freedoms.

So what we have just said is that during 30 days, because of these interim orders, there will be no need to respect the filter of the Canadian Charter of Rights and Freedoms. This would mean that the Department of Health could vaccinate a whole population without having to respect the Charter of Rights and Freedoms. And when we are told that there would be an implementation period, what you need to know is that on the day a vaccination is ordered, the jig is up: seven days later, everyone will have been vaccinated and that will be the end of the story. This means that an emergency measure would have been adopted which would already have affected the population before it got to the House of Commons, and without paying any heed to the Canadian Charter of Rights and Freedoms. This is the will one feels in this bill.

Of course, insofar as personal information is concerned what one sees quite simply is that there is a will to target frequent travellers. That is the objective. The government wants a data bank on frequent travellers since it has adopted an independent bill—you are quite right—on information to be provided to the Americans and on the information it wants to keep. But once again, what the government apparatus wants is to allow the RCMP and CSIS to constitute a data bank on frequent travellers. Thus, in the name of terrorism and transport, Canadian men and women, Quebeckers, will be tracked by the federal government against the wishes of society. This will mean that we will have let terrorists have their own way and will have allowed them once again to control our freedom.

So I would like you to answer my first question: what will the Government of Canada be able to do now that it could not do on September 11? It was able to respond quite capably on September 11, after all.

[English]

The Acting Chair (Mr. John O'Reilly): Maybe I could start with you, Mr. Gogolek.

[Translation]

Mr. Vincent Gogolek: First, I want to say, insofar as the controlled access zones are concerned, that the Department of National Defence stated that even if the orders will only affect three essential areas, one in Halifax and two in British Columbia, in Nanoose Bay and Esquimalt, it also indicated that it could if it so desires issue further orders, even in Quebec. It has that discretionary power. You are quite right. I agree with you entirely that this bill is a public servants' dream. It gives them a power to act, to constitute data banks, lists of personal information for purposes that are not linked to the fight against terrorism but rather to ordinary government objectives.

Several of the powers or needs identified by the government in this bill are not necessary. Criminal law gives it and gives authorities the capacity to act, to prevent attacks, to identify wrongdoers to arrest them, under the protection of the Canadian Charter of Rights and Freedoms. Unfortunately, this bill basically allows for an intrusion into several other fields of federal jurisdiction and provides a lot of powers that do not fall under anyone's purview, and will not be reviewed by anyone, neither parliamentarians nor judges, nor other authorities.

À (1000)

[English]

The Acting Chair (Mr. John O'Reilly): Mr. Ruby, do you have a comment?

Mr. Clayton Ruby: Thank you, Mr. Chair.

Primarily, you're quite correct. There is very little additional given in this bill that they really could possibly use, except they're getting more information. They're getting all travellers on Canadian airlines, whether you come into the country or not. That has expanded. The information gathering and dissemination is real.

The problem with that was pointed out by Justice La Forest very aptly. Let me read you a passage from that same opinion. He says that when you collect these profiles, you may “by design or effect, disproportionately identify individuals with disfavoured racial, ethnic, religious, national, or political affiliations. These people may subsequently be targeted for heightened customs scrutiny or other forms of surveillance”.

As the Supreme Court of Canada noted in cases, this kind of profiling is traditionally used, more likely to be used, against disadvantaged groups than the economically favoured and powerful. It's capable of great misuse as well as being of little utility.

The question of governing by order in council is one that really is troublesome. Even if it's for short periods for time, that is not our way. There are countries where governments issue decrees daily and weekly that govern the ordinary life of a citizen. We do not do that. Democracies generally do not do that. It's troubling.

Lastly, you ask why they are doing this. I'm struck by your notion of a wish list. In each ministry, it's as if the most paranoid person was asked what they could possibly want in order to make us safest to produce this list. You look at it and ask why a rational person would want this.

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

I'm going to allow the witnesses time to answer the questions. If I asked Mr. Laframboise the time, I'm sure he'd build me a grandfather clock. He went on a little long. I would ask other members here to keep that in mind.

Mr. Allmand.

Mr. Warren Allmand: Mr. Chair, there's no doubt that the bill provides the government with extra powers to deal with terrorism. Are they going to be effective in really getting much done to combat terrorism? I believe the present Criminal Code and the Emergencies Act are just as effective, but with less intrusion on our civil liberties and our freedoms.

I want to point out that if you really want security, it's not by laws alone, either Bill C-17, the Emergencies Act, or the Criminal Code. It's by dealing, through your foreign policy and development policy, with the conditions and causes that give rise to terrorism around the world, especially mass terrorism.

The Prime Minister himself said that at a certain point. He finally said, yes, we're going to deal with terrorism. We have to address the causes of unrest, poverty, instability, and justice in the world. To me, if we did that, not only in Canada but in the countries of the world, you'd have less terrorism.

The Acting Chair (Mr. John O'Reilly): Mr. Assadourian, you're next. You have five minutes.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): Thank you very much.

I have a general question to all the witnesses. All of you mentioned the fact that Bill C-17 does not conform with the Charter of Rights. If that is the case, why would the government and their lawyers draft a bill knowing full well it doesn't conform with the Charter of Rights? Is that job creation for the lawyers or protection to society from terrorism?

I asked the RCMP commissioner a few weeks ago, when he was here with the director of CSIS, about the seven-day “rub-off” situation. I was told by the commissioner then that if the information collected on the passenger is not used within seven days, it is destroyed. Within the seven days, if there's a person who is wanted by the security forces, police, municipal police, or the RCMP, then the file will be kept for future reference or actually will be taken.

If Air Canada knows where I sit and what I eat, from my food, they know if I am Christian, Muslim, Jewish, or whatever the case may be. That has been going on for 50 years, since we've been flying. What's wrong with the police using similar information to target those who avoid the law and avoid being arrested for crimes they committed two, three, five, ten years ago, or whatever the case may be?

À (1005)

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

Mr. Allmand, we'll start with you this time.

Mr. Warren Allmand: On the first point, I wasn't here and haven't read the testimony. The government would probably argue that they believe Bill C-17 passes the derogation provision in article 1. It says:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrated and justified in a free and democratic society.

They may believe that, but most lawyers who examined the bill don't believe it would pass that test. The Supreme Court of Canada has spelled out the details on what you must prove to pass the test as being “reasonable limits prescribed by law as can be demonstrated and justified in a free and democratic society”.

I know there are many cases where government legislation has been challenged in the courts. They've argued that, even though it's against certain provisions of the charter, it passes the test in article 1. In many cases the courts have said, no, it hasn't.

I don't know. Maybe that's what they've said to this committee. It's what they probably said. When I was here, it's what they used to say on certain bills that later were struck down, or provisions of which were later struck down.

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

Mr. Clayton Ruby: What's wrong with arresting people on warrants? Nothing. But we could arrest people on warrants by stopping people in the street at random, too. If you did that in some sections of downtown Toronto, you'd do very well, but you'd stop 99 innocent people for every one you caught. I'm making the numbers up. There are countries that do this kind of thing, where they have to carry identity cards, and if they don't have one.... They're checked constantly. Canada is not that country, and you know we value these freedoms.

If you start cutting away at them like this...this is a significant intrusion. It's an intrusion into millions of people a year, ordinary law-abiding citizens. That's what's wrong with it. It's not that the result is wrong--arresting the person on the warrant--it's that the price we pay for it is totally disproportionate.

Some of this information is just silly. A terrorist is not going to order a halal meal on an aircraft. I promise. It's not going to happen. If I'm going for secret training in Lebanon, I'm not putting Beirut down on my destination.

So these guys are silly. A rational person looks at this and says, “Why would you do this?”, unless you're in love with the idea that we'll get databanks. That's the perspective of some people in government, but it's not our way.

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

Mr. Vincent Gogolek: In regard to the first part of your question about the charter and why lawyers argue, well, lawyers always argue. Part of the problem is that a lot of times legislation gets passed, and because we have a charter and we have courts, there's a lot of shrugging of the shoulders. They say, well, don't worry; if it's unconstitutional, the courts will tell us and then it will come back.

In effect, what's happening is that the courts are being left to do the job that you should be doing here, which is to look at it and say, do we really believe this would pass muster under the charter, or are we just being told that you could make an argument that it passes muster under the charter?

I think Mr. Ruby is much more of an expert on that than I am. You can make an argument on a lot of things, but I think it's really up to this committee, and up to the House, to use your judgment to look at the charter and to look at the provisions of this bill and decide if this is in effect going to be punted to the courts.

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

Madam Desjarlais.

Mrs. Bev Desjarlais (Churchill, NDP): Thank you, Mr. Chair, and thank you to all our witnesses.

If we had misgivings about this bill before, they're certainly a lot stronger now, and for all the reasons you've indicated.

Any of you can choose to answer this question. I'm curious as to your thoughts on why a minister would want to pass on to bureaucrats these types of powers. In my view, at a time of such great emergency within any country, that would be when ministers or each and every one of us is really there to do our job. That's probably one of the most serious times that a country deals with. So why would a minister want to pass on that responsibility?

À (1010)

The Acting Chair (Mr. John O'Reilly): Perhaps we could start with the former minister, Mr. Allmand.

Mr. Warren Allmand: I think it's because they know they don't have enough time to deal with all these things. They're so overloaded with so many things to do--political, legislative, God knows what--that they think they have this department, whether it's the Solicitor General's department or the Minister of Defence, with lots of people who are experts, in their view--and some of them are--that they can easily and appropriately pass these things on. They know there's no way in an emergency they can do all the things that have to be done, and some do have to be done by competent and trusted civil servants.

But I think this bill goes too far. As Mr. Ruby has pointed out, you can pass on information and there's no obligation on those who receive it, etc.

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

Mr. Clayton Ruby: I don't think I understand ministers nearly as well as you do. It would seem to me, as an observer only, that this whole series of legislation that your colleague referred to started in fear. I'm like all of us. When I'm afraid, I say to government, “Do something. Make me safe”. I don't look too critically at that point, when I'm in fear, at how they're proposing to do it or how soundly based the proposals are.

This one has trickled down late, and I think it's more a question of saving face and not backing down. If this had gone through right after September 11, I don't think we would have asked these questions. We were terrified. But we are no longer terrified. We are thinking more rationally, and it deserves the kind of scrutiny it's now getting.

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

Mr. Vincent Gogolek: The answer, in two words, is “administrative convenience”. It's easier for the minister to pass along.

Again, as Mr. Ruby indicated, this bill has been cut back from the original outrageous proposals in Bill C-42, which were brought in December 2001, three months after the attack on the World Trade Center. People were really worried, and the bureaucrats who drafted the bill thought they could get away with unlimited powers for three months, or a month and a half.

To partly answer Mr. Mahoney's question, we've seen the time limits come down and some level of scrutiny brought in, but a lot of this is a bureaucratic power grab.

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

Mrs. Bev Desjarlais: One of the issues that have come up in other committee meetings--and I had discussions with the privacy commissioner, as well--is how we respond to the U.S.'s demand for information. Some thoughts have come up in the past, so I'd like to get your opinion on that.

Actually, maybe other members had this e-mailed to them as well, about something taking place in the U.S., where they're actually targeting public libraries to check the list of who takes out certain books, and then tying it in to other companies as to who is buying certain books. Somehow I kept thinking, okay now, is my Chapters card tied to any kind of membership list that's going to the U.S.? Not that I fear that I'm a terrorist, but it just kind of ticks me right off that anybody could do that.

So how do we respond to the U.S.'s dictates for information?

The Acting Chair (Mr. John O'Reilly): We'll start with Mr. Gogolek.

Mr. Vincent Gogolek: With regard to the question about public libraries, again we're seeing the compartmentalization of this move toward the administrative takeover. Late last year the Department of Justice had a consultation document out on something they called “lawful access”, which would deal with a number of the very same issues regarding libraries and interception of data, the preservation of data, seizure of e-mail, and monitoring of Internet surfing.

A lot of that is something that will be coming down the pipe later on, once the Department of Justice and the minister have looked at it. It won't be before this committee. It will be before another committee, and they will look at that piece of legislation in isolation. I would urge all members of the committee to take a look at the lawful access proposals and read this bill in light of them.

À (1015)

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

I'm going to go now to Ms. Phinney, since we're over time on this one.

Ms. Beth Phinney (Hamilton Mountain, Lib.): Thank you, Mr. Chair.

Mr. Ruby, I think I heard you say something that I wasn't aware of, and I just want to verify it.

Did you say it's all the information from all Canadian airlines, regardless of whether they ever land in Canada?

Mr. Clayton Ruby: No. I think it's anybody coming in, anybody going out, or anybody travelling within Canada.

Ms. Beth Phinney: Okay. I thought you said--and I wrote it down when you said it--whether they're coming into Canada or not.

The Acting Chair (Mr. John O'Reilly): Deal through the chair, please. Thank you.

Ms. Beth Phinney: Thank you.

The Acting Chair (Mr. John O'Reilly): I know I'm sensitive, but I have to do something here.

Ms. Beth Phinney: Pardon me.

Secondly, my colleague mentioned that everybody would have to be....

Can I look at him? Is that okay?

The Acting Chair (Mr. John O'Reilly): I didn't mean that--

Mr. Steve Mahoney: I think it's better to look at them than him anyway.

The Acting Chair (Mr. John O'Reilly): Right, good choice.

Go ahead.

Ms. Beth Phinney: My colleague mentioned that we would have to do a lot of training, right down to the policeman in the small town, since we're not allowed to keep it or we have to destroy the information after seven days. I'm wondering if you have any ideas as to how this is going to be enforced and what the penalty should be if they happen to keep it for nine days.

I haven't seen anything that indicates what the penalty is. Is this just going to be arbitrary afterwards and how are we going to keep track of where this information has gone? How many people along the way have to be told that after seven days you get rid of it?

The Acting Chair (Mr. John O'Reilly): Mr. Ruby, go ahead.

Mr. Clayton Ruby: Thank you, Mr. Chair.

She was looking at me, you see.

The Acting Chair (Mr. John O'Reilly): If I can just take a minute....

The reason for that is because we're televised. We need time to switch back and forth with the sound systems, and so on, and private conversations are great, but we can't then control what's being recorded.

So please, Mr. Ruby, go ahead.

Mr. Clayton Ruby: There's no provision for telling anybody, and with the nature of data banks and the transferring of information, no one is ever going to know. That may be lurking in the minds of some of the proponents of this legislation, that if we, government, collect this information and it doesn't prove terribly useful and we just gather it, who is going to complain? The subject of the information is never going to find out, never going to suspect that we have this record.

There's a sense in which your question turns on a broader issue, the uses of technology. If this had been proposed by government 25 years ago, the airlines would have said, are you kidding, the cost of gathering this information and disseminating it is ridiculous, and we're not going to do it. But today, you push a little button, and it costs nothing and it all goes. So we haven't thought properly about what kinds of protections we need in the light of these technological changes. We're not up to date.

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

Mr. Warren Allmand: On that question, I have nothing.

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

Mr. Vincent Gogolek: Basically there is no penalty. That's the short answer. As Mr. Ruby indicated, there's very little supervision, there's very little oversight. That's a problem with pretty much all the provisions of this bill.

If I can answer Mr. Mahoney's earlier question, the Emergencies Act provides for orders and regulations made to come back before committee of Parliament, where it'll be voted on. It doesn't come back...quite frankly, tabling an order in council weeks later really is not an equivalent. It's something but it's not an equivalent.

Ms. Beth Phinney: Mr. Chair, do I have any time left?

The Acting Chair (Mr. John O'Reilly): You have a minute, yes.

Ms. Beth Phinney: I would like to ask the researchers if they are aware of where the penalty would come in, who's going to tell them. If somebody is caught, they've kept the information for 9 days, they've kept it for 53 days....

The Acting Chair (Mr. John O'Reilly): We can deal with that after the witnesses are through.

Ms. Beth Phinney: All right, thank you. So I can't ask the researchers--

The Acting Chair (Mr. John O'Reilly): You can ask them.

Ms. Beth Phinney: --if they know anything now, or do we have to put it in the bill?

Mr. David Goetz (Committee Researcher): I'm not aware of anything right now.

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

Mr. Barnes, five minutes.

Mr. Rex Barnes (Gander—Grand Falls, PC): Thank you, Mr. Chairman.

I'm very pleased that you came today, and of course you've opened the eyes around the table with a lot of your comments. We've heard from several groups so far, and of course I don't think our eyes have been opened as much as they've been opened today.

In one of your answers you basically said, why would they want to know everything? I firmly believe it's about power, it's about control.

The government for some reason either goes to bed at nighttime, some of the bureaucrats, and they wake up in the morning with this brain scheme that we can do something that's not going to cost us anything worth talking about. Then they say they have an agreement with the U.S. on defence with regard to personnel. They're not giving the police force any more tools or probably money to do the job that's required. So now we'll come up with a database so we can track people from one end of the country to the other end of the country all over the world, and that may not cost us what it would cost us if we had to put the bodies there to do the job.

Of course it's all about trust. Do we trust the government? Do we trust any government, regardless of whether it's Liberal, PC, or NDP? Do we trust governments? The answer is no, we do not trust governments, because they have not looked out for the goodwill of the people in the past and probably for the future.

Now of course 9/11 brings a different kettle of fish to the table. If airline tickets go up, it's because of 9/11. All of a sudden if there are long line-ups in the airport, it's because of 9/11. Everything is 9/11. We're losing our rights, it's 9/11.

What does this bill do? It takes the rights from the travelling public; it takes the rights from citizens of this country. We have to find a balance so that we, as a group of politicians, can make sure our country is safe. Where do we find the balance to make sure that people's rights are protected and the rights of our country are protected?

À (1020)

The Acting Chair (Mr. John O'Reilly): Mr. Ruby, can we start with you? Or Mr. Allmand, whoever.

Mr. Warren Allmand: As I pointed out in my remarks, which I was reading quickly, there has been a tendency for some officials in CSIS and in the RCMP to do these kinds of things in the past. I mentioned that on August 18 and August 20, 2000, some journalist found out through access to information that the RCMP had put together this “threat assessment list” with CSIS. There was no legislation. On the list for threat assessment were Greenpeace, Oxfam, Rights and Democracy, some of the churches, trade unions, as threats to.... How did that come about? Now with legislation like this, it's just a great opportunity to do even more of that.

When I wrote Mr. MacAulay, who was the Solicitor General at the time, because it had my organization on the list, and I asked for an explanation, I got no answer. Finally I came to a parliamentary committee and I said I didn't get any answer, then I got an answer a few weeks later, in which Lawrence, a good friend of mine, gave me an explanation that really wasn't an explanation. There was no basis in law for this threat assessment list.

There are other examples, which probably Mr. Gogolek, and Mr. Ruby, and many other witnesses could tell you about, that go back over the.... So there are people who just want to make up these lists of people who think they are a threat.

By the way, to give you another example, I just saw recently something about a woman who applied for a job in the federal government, and she was getting a security clearance. They said to her during the security clearance, “I see that your brother visited Cuba three times over these past few years”. So what?

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

Mr. Clayton Ruby: Let me try to deal with the question you asked, which was where do we find the balance between protecting the country on the one hand, and protecting Canadians' individual rights and democracy on the other.

I'm very proud that there is an answer. Our Constitution and the Supreme Court of Canada have really answered this question beautifully. They say, yes, you can infringe on individual rights. You have to have a sufficiently important goal, and you have one here if the purpose is protection of air safety and prevention of terrorism. And you have to narrowly tailor what you're doing to fit that purpose and no other, and if you do those things and meet those criteria, you've found the balance.

Our Constitution is not just a legal instrument; it's a wonderful political instrument, because, to me, that is the political question answered.

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

Mr. Vincent Gogolek: Mr. Allmand has raised the question of threat assessments, and this is one of the reasons why the bureaucracy goes out and develops information.

A lot of you may remember--it caused a great deal of controversy--the issue of longitudinal files on individual Canadians being put together by HRDC. There was a lot of upset about that. Of course, that was before September 11 when everybody was upset.

What we're seeing with this bill is a lot of administrative convenience, a lot of information for other purposes.

The Minister of National Revenue was here and outside of this committee talking about all the wonderful things her database has allowed her to do without ever using the “t”-word. Terrorism never comes up. It's guns; pornography; children being taken out of the country; somebody sitting next to you has Ebola, and they would be able to find you in Flin Flon four weeks later and tell you, you know what, you don't have Ebola, or you do have Ebola.

That's really where we're going with this, and you can see the bureaucratic impulse in the HRDC affair. And it continues now, except it's coming up behind the battle against terrorism, which is a legitimate battle, but you have to make sure that what's being proposed is actually aimed at terrorism and not at other purposes.

À (1025)

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

Mr. Barnes, you're well over.

So we now go to Madam Jennings. Cinq minutes, merci.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I'm going to limit my questions or comments to three issues.

One, this particular legislation amends the Aeronautics Act. As you stated, Mr. Ruby, it's about air travel into and out of Canada and domestic air travel. If we wanted to promote transportation security, one could then ask why we are not also looking at other forms of travel domestically.

You have rail travel. I understand Canadians are using air travel more frequently, but given the high cost of air travel, we now have a reverse trend, where more people are using the train, and the railways are in fact looking at upgrading in order to make them more competitive on short hauls, like in the Ottawa-Toronto-Windsor-Montreal area.

So that could be a viable question that could lead to a court challenge. If in fact that is the sole purpose, why is it being limited to just air travel?

Secondly, on the oversight issue, my colleague Madam Phinney raised the issue of what limits have been built into the legislation to ensure that the seven-day rule is in fact adhered to. Do you have any proposals, given that there doesn't appear to be any--this is for all three of you--as to what kinds of limits could be built in to ensure that the seven-day limit is actually adhered to?

I can think of a periodical external audit. It could be every six months, a trial. You go in and test a number of cases to see whether or not the seven-day limit was adhered to, and it would go all the way through.

The last one is on the disclosure of information to any peace officer to assist in the execution of a warrant.

You, Mr. Ruby, suggest that it actually detail specific offences that are related to transportation security and the fight against terrorism.

Let's flip it on its head. Most Canadians, I think, would agree that if there's a warrant against someone, the expectation of privacy is limited to a certain extent, less so for a Canadian who does not have a warrant issued against them. If the legislation were built in such a way that a peace officer gets prior judicial approval--because they have reasonable grounds to believe that the person against whom a warrant has been issued may be using air travel--and would then be able to forward that name to the ministry of transportation, that name could stay there on a list as long as the warrant existed. Then the information, the IT program, the software program, would flag it if that person.... Would that then survive a court challenge?

À (1030)

The Acting Chair (Mr. John O'Reilly): Mr. Ruby, we'll start with you.

Mr. Clayton Ruby: Let me begin at the end.

Yes, the warrant suggestion you've made is I think one that would survive. It has an overriding purpose, namely we don't want warrants unexecuted on people who could be dangerous, or maybe even if they're flouting the law and not surrendering. Regardless of the offence, I think it would pass muster if there were a warrant requirement. You'd have to have reasonable and probably grounds to think that they're travelling by air, for example. That would be a perfectly legitimate amendment to the Criminal Code.

In this case, if you restrict it to terrorism offences and the like, you can do that, and there's no problem with it. That would achieve perhaps much of what the government wanted to achieve without running into the problems we've outlined.

I'm not sure the premise you outlined that there is less expectation of privacy for somebody who is the subject of an arrest warrant is true. I'm not sure we would think it justified to intrude on someone's privacy in a criminal law sense. I'm not talking about whether you can get a passport or a driver's licence, civil issues. But in a criminal law sense, I'm not sure you have a diminished expectation of privacy. All the jurisprudence in criminal law is that you do not, merely because you're arrested, or sought to be arrested, or anything else. That's probably a good place to draw the line between civil and criminal. That's where we have traditionally drawn it.

The problem, though, and I refer to it in another answer, is not the result of effecting the arrest of somebody who is under a warrant. The problem is that in order to do it, you violate the privacy of thousands of innocent people. That's what the warrant requirement doesn't do.

Mrs. Marlene Jennings: If you had the warrant--

Mr. Clayton Ruby: You safeguard all those interests.

The Acting Chair (Mr. John O'Reilly): You're over your time, but I'm going to allow the witnesses to answer.

Mr. Allmand.

Mr. Warren Allmand: On this question that was raised by Beth Phinney and by Ms. Marlene Jennings on the penalty, as I thought about it, nearly all of this bill amends other acts. In those other acts, very often it says that if you fail to live up to an obligation under the act, you're subject to a summary offence. So it could be that in the original basic Aeronautics Act, the Health Act, etc.--all the acts that are referred to--there are clauses that apply for penalties, but I don't think that's the answer.

Part of the answer is what was proposed by the other witnesses on what you should do about the dissemination of the information to a wide range of people. There were some suggestions on how the bill could be amended to prevent abuse. Maybe there should also be some prior consultation with parliamentarians. There are many things that could be done to stop the possible abuse.

Mr. Ruby would know more about this than I do, but I think there's a general provision in the Criminal Code that if you violate a provision of any act where there's a responsibility to do something, you're subject to an offence, which covers.... Where it doesn't provide for a penalty in an act, the Criminal Code comes in and says if you don't live up to or if you violate a provision of another act, you're subject to a penalty.

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

Mr. Vincent Gogolek: On your first question regarding the Aeronautics Act, of course section 107.1 of the Customs Act, which I keep coming back to, allows the minister to go after any prescribed person or class of persons, or provide access to prescribed information about any person onboard a conveyance, in advance of the arrival of the conveyance in Canada, or within a reasonable time after that arrival. I understand that CCRA will be going after ferries, trains and other things--international ones.

The Acting Chair (Mr. John O'Reilly): You're over time, Madam Jennings.

Mrs. Marlene Jennings: I was talking about domestic.

The Acting Chair (Mr. John O'Reilly): You're seven minutes over time.

Mr. Mahoney is next on the list.

Mr. Steve Mahoney: Mr. Chairman, I want to go back to the question I asked Mr. Ruby on the suggestion I think he made that there should be judicial approval on the issue around warrants, and that it should be specifically only for terrorist activity.

So we could be talking about a situation where a warrant was outstanding, and that would already seem to implicate there was judicial approval, since a warrant had been issued against the individual and it was outstanding. I'm concerned that most Canadians would accept violation of their privacy rights to determine if someone onboard the same aircraft as them had committed murder, kidnapping, or rape and had an outstanding warrant. Particularly given the events during and after 9/11, they would accept that as the price of freedom.

I just wonder if you could answer the question on judicial approval and maybe make a comment on why it should be so narrow in relation to terrorism.

À (1035)

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

Mr. Clayton Ruby: I want to be quite clear on what is authorized by a warrant of arrest. It's true that the judge authorizes something in relation to that person, but what he authorizes is the forceable seizure and taking of that person--that is all. He doesn't authorize wiretapping his house, surveillance, entering into the house to get him; you need a warrant for that or other circumstances that are exigent. It's a narrow authorization, and that's the short answer. The warrant doesn't deal with these issues and never has been thought to. It's only a very narrow authorization in law.

The second part is really something I've answered before: the murderer on the airplane example. You're right, I want him caught. I don't want him sitting in the seat next to me, with all respect, Mr. Allmand, if he's a murderer.

Mr. Steve Mahoney: A former parliamentarian.

Mr. Clayton Ruby: That's not nearly the same category, I think.

I certainly want to look at the cost. I don't want him on the same street. I don't want the murderer loose in a restaurant five blocks from me. The question is: at what cost?

I have confidence in saying if ordinary Canadians understood that more than 19 million air travellers a year were going to be checked and have their privacy invaded to this extent--credit cards and personal information--they would say, “Get the murderer some other way. Don't pay this cost”.

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

Do you have any comments, Mr. Gogolek?

Mr. Vincent Gogolek: Just a very brief addition to that is a comment on the danger of function creep. What can happen here is once we go beyond terrorism, there are all kinds of good and worthwhile and useful purposes for collecting information, but they're not related to terrorism. That's the problem. We've seen this with the minister justifying it in terms of drugs, guns, child pornography, all kinds of other reasons. So for this reason as well.

The Acting Chair (Mr. John O'Reilly): You still have two minutes, Mr. Mahoney.

Mr. Steve Mahoney: Mr. Gogolek used the term that this is a bureaucratic power grab. That's somewhat of a political term, but that's okay. I can't imagine why they would want it in this case, in terms of grabbing power.

It seems to me--maybe you could react to this--that if the bureaucrats, due to many of the reasons Mr. Allmand outlined in terms of available time, etc....there has to be some way of having someone in charge of the store with certain authorities when the boss is away.

I give you the example of Minister Collenette in 9/11, who was on a cell phone driving back from Montreal, in touch with his staff, shutting down the skies in Canada and making all of those arrangements, not even sure if he had the authority to do so, but simply doing it and making those, I think, rather courageous decisions and giving the authority to his staff to carry out the communications, etc., that were required; and we all know the outcome. It was one of the finest situations Canada has ever reacted to in terms of the relationship between the politician and the bureaucrats.

Why is that a power grab? We have to have some kind of authority or transfer of authority and responsibility, and ultimately, if they overstep their bounds, in my view, in answer to Ms. Phinney, in any of these areas, ministerial or bureaucratic, they face a serious consequence, which could be the loss of their position.

The Acting Chair (Mr. John O'Reilly): Just before you answer, I want to know, do the witnesses require wrap-up time? Do you need five minutes at the end? We can go to more questions or we can go to a wrap-up after you answer, of course. We have to be out of this room by 11 o'clock. There's another committee coming in.

Mr. Clayton Ruby: After we answer the questions.

The Acting Chair (Mr. John O'Reilly): In fairness, I wanted to allow the witnesses time to wrap up if they need it. Okay, thank you.

Mr. Gogolek.

Mr. Vincent Gogolek: Just very quickly, I believe Mr. Mahoney has answered his own question.

Minister Collenette was contacted and Minister Collenette provided the authority. He was telling his officials what to do. He didn't say “I've now left the building and, like Elvis, I will not be found except on the pages of the Weekly World News.” He has cell phones. This is the wonder of the new technology. Ministers are contacted. They can be contacted by e-mail. They can be contacted by cell phone. Minister Collenette was, and he carried out his job, and that's what should happen. The minister should make those decisions, not come back to Ottawa and find out later that something has happened that he wouldn't have approved of.

À (1040)

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

Mr. Warren Allmand: Yes, we do need people to mind the store when the minister's busy, but it's always been limited. For example, the whole reason for passing the Privacy Act is it puts limits on what you can do with information on individuals. But this bill sort of--and Mr. Radwanski has spoken about that--breaches some of the things that we thought at one time, when we passed the Privacy Act, were good things to do.

When you're a minister, you have all sorts of information that's for the minister's eyes only. There are limits in passing on information. So you can have the store properly minded but still have limits on who gets the sensitive information, on who can do certain things. The police have limits on what they can do in the use of force, use of firearms, etc. It's where you put the limits, what is necessary for the store to be minded when the minister's busy. There have always been limits.

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

Mr. Clayton Ruby: I, too, am very proud of what Mr. Collenette did on that day. It's a classic example of legislation authorizing action in exigent circumstances. But this is far, far removed from exigent circumstances. We're talking about the permanent creation of databases involving innocent people to be sifted through on a daily basis for years. It's a very, very different situation.

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

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman. My question is on the Canadian Charter of Rights and Freedoms.

When we questioned the Prime Minister, a representative of the government and of the Liberal Party, he told us quite simply, concerning the rights that citizens might lose, that if they believe that their rights and freedoms have been jeopardized they have only to challenge this before the courts. But there is a reality in this bill. All of these interim orders, which make up about two thirds of the bill, obviate the application of sections 3, 5 and 11 of the Statutory Instruments Act. Section 3 says that it is up to the Privy Council to ensure that the order or the bill or the regulation must comply with the Canadian Charter of Rights and Freedoms.

What is clear concerning all of these interim orders is that even if we went before the courts we would lose because the bill says that they do not have to comply with the Charter. So there is already a good chunk of the bill that cannot be challenged and regarding which we have no legal recourse.

As for the other part, which deals with personal information, the information is kept during seven days or more—and we are talking about frequent travellers, we understand that well—and it will be up to the RCMP and CSIS to purge the data on a yearly basis. But as long as you don't know that your information is in a data bank, you will not be able to turn to the courts, and you will have no legal recourse. You will only know that you are in a data bank if you are picked up by the authorities or arrested or questioned. We thus may have to wait a long time before finding out whether there are any legal recourses that would allow us to invoke the Canadian Charter of Rights and Freedoms.

I would like to hear your opinion on that issue.

[English]

The Acting Chair (Mr. John O'Reilly): Mr. Allmand, would you care to take that?

Mr. Warren Allmand: To begin with, you can't put in any legislation that the legislation will not be subject to the Charter of Rights unless you use the notwithstanding clause. The notwithstanding clause only applies to certain articles. You can't escape the charter. As you say, you have to wait for the case to be contested in court.

I found that in the Department of Justice they're supposed to check all legislation to advise whether or not it is in accordance with the charter. They have a tendency to always err on the side of the government. It's like in the Department of National Revenue on whether you must pay taxes or not. They always err on the side of, yes, you owe the tax. You pay them, go to court, and win, but it costs you a lot of money. It's too bad.

That's why I would hope that this committee--and I say I have some hope because, with the last two bills, you improved on Bill C-42 and Bill C-55--will do more in view of the testimony that's given to you, not only by us here today but by others who have pointed out weaknesses in the bill.

It could be made better. You can improve it instead of waiting for it to go to court, even putting in a provision that the bill is subject, as the Emergencies Act is, to all the provisions of the charter.

À (1045)

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

Mr. Clayton Ruby: The government can take the orders in council out of the legislative process of safeguards in terms of compliance with the charter, but they cannot oust the jurisdiction of the court. You're absolutely correct. Even if they could do that for legislation, actions of government are subject to charter review fully.

You're right in suggesting that this process of waiting to go to court, with its costs, means that many violations will never come to light, even if someone does get to know about them and gets to know about them in a timely way.

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

[Translation]

Mr. Vincent Gogolek: Mr. Laframboise, this also depends on the means of the people concerned, on their knowledge. As you indicated, it is quite possible, even though you may be in a data bank, that you never find out. And you have no possibility of protecting your rights.

As for the other points raised, suppose someone has gone into a controlled zone that has just been created by order. That person has to have the means of going to court, of retaining a lawyer's services, of presenting constitutional arguments. Moreover, the burden or proof is essentially on the person and not on the government. But, here in this committee, the government has the burden of justifying the measures it proposes, and I don't think that it has discharged that burden.

[English]

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

Mrs. Bev Desjarlais: Thank you.

First, I want to again comment on Minister Collenette following through on that day, because that is something that has come up numerous times. All government departments--and I think people throughout the country agree with this--responded very well, and that's why we're kind of astounded that we would need this type of bill to follow through. If some fine-tuning needs to be done, I think we can do that without jeopardizing the civil liberties of all Canadians in the process.

Through the chair, in a roundabout way Mr. Mahoney happened to make the comment that Minister Collenette didn't know if he had these powers. I would have to suggest that if Minister Collenette, with all his years of experience in cabinet, didn't know he had those powers, we're in big trouble as a country, and we need to do some fine-tuning elsewhere. I just had to mention that.

Mr. Steve Mahoney: How many times did he--

The Chair: Order.

Mr. Steve Mahoney: That's absurd.

Mrs. Bev Desjarlais: Another comment was made with regard to the cost to the airlines. I've been involved in other committees, and that issue came up. There is a cost to the airlines, and as a result, some airlines are really concerned that they won't be able to provide this information and that it will have an impact. As well, there will be people who will not travel by air if they feel their privacy is going to be jeopardized.

I don't have anything to hide from this world, but quite frankly I have a real objection to this type of information being taken about me. As you listed those names, I thought, if they rate you if you fall into these categories, I belong to a union, and I have probably given money to Greenpeace, Amnesty International, the Council of Canadians, and numerous others, so I probably have a few strikes against me. Then to add to that, I have a possession-only licence for a gun, so I'm probably really done in. I would suggest that there are numerous Canadians in that boat.

I don't think there's the need to collect this type of information. The cost of collecting the information is great, but it is also very much an infringement.

I just want to emphasize my thanks for your presentations today. We'll certainly do what we can to respond to your recommendations.

The Acting Chair (Mr. John O'Reilly): I didn't distinctly hear a question in there, but I certainly think that--

Mrs. Bev Desjarlais: It was questions and comments.

Mr. Steve Mahoney: It was, don't you agree?

The Acting Chair (Mr. John O'Reilly): Obviously, three strikes for most of what was said.

Perhaps I could go to the last questioner, Mr. Lunn, to ask his final question before we wrap up.

Mr. Gary Lunn: Thank you very much, Mr. Chair.

This may have been asked before. If so, I apologize, but I had to leave for half an hour to attend another meeting .

Following up on my first question, we talked about the importance of using this PNR data only for the purpose of tracking terrorists and about restricting it very narrowly with a very limited timeframe in all other acts, with which I completely agree. That would look after domestic flights inside Canada.

That brings us to the second question on turning over this data to the United States for, obviously, Canada-U.S. flights. Is there anything we could do--I don't believe there is--to restrict the United States' use of this data? Obviously, we don't have jurisdiction. They can keep it for however long and do what they want with it. I don't think we have any jurisdictional control. I'd be interested to hear your comments on that.

If not, it seems a little bit absurd that we would give this data to the United States government to do whatever they want with it, but yet not to our own government. Again, I'm being a devil's advocate, because I absolutely believe that this data has to be used in the strictest, narrowest terms for tracking terrorists and in a very time-limited way, and we should apply that to all other acts, as Mr. Ruby has suggested.

I'd like to hear their comments on that.

À (1050)

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

Mr. Clayton Ruby: You're right, it's crazy to give this data to the Americans where we cannot control its use and indeed don't even attempt to put restrictions on it, not that they could be effective, and then try to do it here knowing that the Americans could freely give it back to Canadians if they wanted to.

But then we haven't looked very carefully at this data processing problem. To what extent, if any, for example, is transportation data processed in the United States or some other country? There's no reason data processing has to be done in Canada. What other agencies get access to it if that happens? We haven't looked at any of this stuff.

All I can say to you is what I said before, which is that this is before you now, we now understand the problem in a way we didn't earlier, so let's improve this bill.

Mr. Vincent Gogolek: The only real parallel I can see, and again this is not very effective, is that sometimes we ask for conditions, such as not imposing the death penalty, when we extradite people to the United States. We should be at least asking for an undertaking, as part of our agreement with the United States to share this data, that they respect our laws. It shouldn't be a matter of just blindly sending it down there and just firing it off into the abyss and hoping they do things. We should get some sort of agreement.

The Acting Chair (Mr. John O'Reilly): The final word will go to the Honourable Warren Allmand.

Mr. Warren Allmand: I have nothing on this question, but I might have a final word.

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

Mr. Warren Allmand: I just want to go back to one point I made at the beginning and have you also consider the message that this kind of legislation sends to democracies in transition and new democracies.

We're trying to encourage the development of human rights around the world, the development of democracies, and the President of the United States says that. But when we do this, I must tell you I've had many examples, such as in Pakistan, where the Government of Canada and the Commonwealth and other countries had said, after the coup d'état by Musharraf, they must return to democracy within a certain period of time. After 9/11, that was thrown out the window. As a matter of fact, they were giving money to Pakistan, and Pakistan went back to its old ways.

Many countries are using the examples we're setting to step on human rights and democratic freedoms. If we can do it, they can too, and of course it's much worse in those countries. It's very important that there's consistency between what we say our foreign policy goals are and when we pass legislation like this.

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

I'd like to take this opportunity to thank the members for their indulgence, putting up with a new chair.

Also, to our most distinguished witnesses, it has been a great honour and a privilege and a pleasure to have you here. Thank you very much for your time.

This meeting is adjourned.