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37th PARLIAMENT, 2nd SESSION

Legislative Committee on Bill C-17

EVIDENCE

CONTENTS

Tuesday, February 4, 2003

1530

The Chair (Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.))

Mr. Ken Rubin (Public Interest Researcher and Access to Information Expert, As Individual)

1535

1540

The Chair

Mr. Simon Potter (President, Canadian Bar Association)

1545

1550

The Chair

Mr. James Moore (Port Moody—Coquitlam—Port Coquitlam, Canadian Alliance)

1555

Mr. Ken Rubin

Mr. James Moore

Mr. Ken Rubin

The Chair

Mr. Simon Potter

The Chair

Mr. Sarkis Assadourian (Brampton Centre, Lib.)

1600

Mr. Simon Potter

Mr. Sarkis Assadourian

Mr. Simon Potter

The Chair

Mr. Ken Rubin

The Chair

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

Mr. Simon Potter

1605

Mr. Mario Laframboise

Mr. Simon Potter

Mr. Ken Rubin

The Chair

Mr. Steve Mahoney (Mississauga West, Lib.)

Mr. Simon Potter

Mr. Steve Mahoney

1610

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

The Chair

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

The Chair

Mrs. Bev Desjarlais (Churchill, NDP)

1615

Mr. Simon Potter

Mr. Ken Rubin

Mrs. Bev Desjarlais

Mr. Simon Potter

Mrs. Bev Desjarlais

Mr. Simon Potter

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.)

1620

Mr. Simon Potter

Mr. Ken Rubin

Ms. Aileen Carroll

Mr. Simon Potter

Ms. Aileen Carroll

The Chair

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

1625

Mr. Ken Rubin

Mr. Simon Potter

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

1630

Mr. Simon Potter

Mrs. Marlene Jennings

Mr. Simon Potter

Mr. Ken Rubin

The Chair

Mr. James Moore

1635

Mr. Simon Potter

Mr. Ken Rubin

The Chair

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

1640

Mr. Simon Potter

Mr. Ken Rubin

Mr. John O'Reilly

Mr. Simon Potter

The Chair

Mr. Claude Bachand (Saint-Jean, BQ)

1645

Mr. Simon Potter

Mr. Ken Rubin

Mr. Claude Bachand

Mr. Simon Potter

Mr. Claude Bachand

Mr. Simon Potter

The Chair

Mr. Steve Mahoney

Mr. Simon Potter

1650

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

Ms. Beth Phinney (Hamilton Mountain, Lib.)

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

Mr. Simon Potter

Mr. Steve Mahoney

1655

Mr. Simon Potter

Mr. Ken Rubin

Mrs. Bev Desjarlais

Mr. Ken Rubin

1700

The Chair

Ms. Aileen Carroll

Mr. Simon Potter

Ms. Aileen Carroll

Mr. Simon Potter

The Chair

Mr. Mario Laframboise

Mr. Simon Potter

Mr. Mario Laframboise

Mr. Simon Potter

The Chair

1705

Mr. Ken Rubin

The Chair

Mr. Sarkis Assadourian

Mr. Simon Potter

Mr. Sarkis Assadourian

Mr. Simon Potter

Mr. Sarkis Assadourian

Mr. Simon Potter

Mr. Sarkis Assadourian

Mr. Simon Potter

The Chair

Mr. Rex Barnes

Mr. Simon Potter

Mr. Rex Barnes

The Chair

CANADA

Legislative Committee on Bill C-17

NUMBER 007

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, February 4, 2003

[Recorded by Electronic Apparatus]

¹ (1530)

[Translation]

The Chair (Mr. Bob Kilger (Stormont—Dundas—Charlottenburgh, Lib.)): First of all, let me apprise you of a letter we received from the Barreau du Québec, who could not appear today. We will do everything we can to postpone their testimony to another meeting of the committee in the near future.

[English]

It's my pleasure this afternoon to welcome Mr. Ken Rubin, who will make the first ten-minute presentation. He will be followed by Mr. Simon Potter on behalf of the Canadian Bar Association.

Mr. Rubin, you might want to take half a minute or so and tell us a little bit about yourself before you begin your presentation.

Once the both of you have made your respective presentations we'll follow up with rounds of questions, five minutes per member.

Mr. Rubin.

Mr. Ken Rubin (Public Interest Researcher and Access to Information Expert, As Individual): Thank you, Mr. Chairman.

I've been around Ottawa for quite a while. I'm originally from Manitoba. I've been a public interest researcher for over 35 years. I'm probably better known for the work I've done in helping create Canada's Access to Information Act and Privacy Act, and ever since I've been a critic, because of course they didn't quite put in the kind of comprehensive, open government and privacy protection that I would like. That's one reason I'm here today. And I have been involved in citizens groups and with a variety of groups across the country on many issues, from food safety, to telephone rates, to even things on Parliament Hill.

The Chair: You can begin your presentation.

Mr. Ken Rubin: Thank you very much, Mr. Chairman.

Bill C-17 in its current form had better add a preamble that states, “Warning: the first- or second-hand effect of Bill C-17 may be dangerous or none too helpful to your personal privacy or environmental safety”.

Bill C-17 hits a sensitive nerve on a national scale. It crosses a non-returnable boundary with the powers it grants to the government, and it also transfers too much control over important personal and public information into American hands.

The three major problems with Bill C-17 that need drastic correction are, one, the disregard for any real public accountability; two, its intrusive nature; and three, its postponing dealing with existing emergencies and preventable disasters.

The first problem is that this bill has little regard for public accountability and transparency. It contains no sunset cutoff dates or guarantee of regular or statutory parliamentary review. The proposed ministerial interim order powers sacrifice public and parliamentary scrutiny. In secret, ministers can issue orders that are costly, ill-defined, and uncoordinated.

An example of what to expect may be found in recent unilateral actions of two ministers of health in purchasing emergency drugs. In the first instance, anthrax antidotes were hastily bought by Minister Rock at great expense from a generic and then a brand name drug company, both with limited shelf lives. Mr. Rock doesn't have a limited shelf life.

In a second case, massive amounts of smallpox vaccines are being purchased under Minister McLellan. Already, those front-line health workers who would be required to be vaccinated first are balking at the very real possible adverse and even deadly effects they risk.

Unfortunately, these ministerial interim emergency powers have not a thing to do with tackling preventative safety disasters, like young children in this country choking to death on imported products, or taking urgent action to assist those living next to lethal toxic waste sites.

On the other hand, three or more cabinet ministers can create security safety sites by orders in council. Already, three such controlled military access zones have been created even before Bill C-17's passage. Whether cabinet ministers should be able or have the authority to do this needs to be reviewed.

Not all agree that Bill C-17 is a power grab that takes undue advantage of or builds on people's fears, but there is no denying that many competing bureaucracies administering over twenty bills or laws are to be permitted to spend much public money with little scrutiny. The harbour and airport authorities, for instance, are to get large amounts of money and select a security direction from the government. Yet only a few years ago Parliament passed legislation making these very same authorities self-sufficient and more cost-effective.

Unaccountable costs do not stop with Bill C-17. For instance, collecting air passenger personal data for security and other reasons, which is very controversial, is being set in place by different bureaucracies, either via Bill C-17, the Customs Act, or Bill C-44, without any cost-benefit assessments being done. This is an invitation for reckless spending and pricey disasters. I think you've had a report today on the gun registry that says it will balloon a little further.

¹ (1535)

My second point is that Bill C-17 permits the government, more than ever before, to aggressively collect and use--and some would say steal--Canadians' personal data. That's why Bill C-17 is being associated with racial profiling, online spying, and draconian national identification card systems.

Its sweeping surveillance tracking methods only begin to meet the police and intelligence community's excessive demands. The bill's immediate impetus appears to come from the United States government, which wants Canada to adopt a post-September 11 fortress siege mentality and help in its worldwide policing efforts.

The enormity of such proposed intrusive actions in Bill C-17 hit home just over a week ago as I and many other Canadians affected learned from Co-operators Insurance of a missing computer hard drive housing our sensitive personal data. At least in this case we were notified by letter to be alert to the threat, and the Co-operators' CEO and Saskatchewan officials took to the airways and phones to offer some explanations.

We have rights to sue and demand answers on the sloppy storage and security practices involved. But under Bill C-17, the state can take our identities and use them in multiple ways without notifying us and without our being able to know or appeal practices being adopted.

The Ontario Court of Appeal recently declared that, minimally, police doing random infrared aerial searches for marijuana growers need warrants first. But Bill C-17 would enact provisions that strip-search Canadians electronically, whether we are a suspect or not, without warrants and without charter protection.

Police, CSIS, and RCMP witnesses coming shortly to this committee will undoubtedly claim that Bill C-17, as twice amended, bends over backwards to offer up a fair and acceptable balance between individual rights and collective security in the name of public safety. Bill C-17, however, removes any real balance and helps, along with other measures initiated on both sides of the border, to create a society based on two information checking standards: one for those considered “friendlies”, and another for those possibly unfriendly, with much depending on your background. It's happening already.

Third and finally, Bill C-17 delays dealing with pressing public safety issues. For instance, it focuses on amending the Aeronautics Act, which has been in the works for some time to meet some air safety security needs, while putting off enhancing air safety regulations needed to deal with unsafe operators and problems with aging aircraft.

This helps set a double safety standard. On one hand, Bill C-17 means there would be greater restrictions on toxins and explosives that terrorists could purchase or use. On the other hand, the bill assumes that no further tighter restrictions need be placed on chemicals that are sold for household, lawn, and garden use.

Recent avalanche and space tragedies only highlight the need for better prevention and regulation. Bill C-17 takes resources away and distracts attention from these issues.

In conclusion, as a third try, Bill C-17 strikes out, leaving Canada's access and privacy rights and needed safety protection in tatters. The Commons committee, Mr. Chairman, on Bill C-17 must address these tremendously serious problems. That means not rushing forward to give approval to such an intrusive bill.

Too many of the bill's provisions as drafted are counterproductive, costly, and need deleting and changing. They come at too high a price for Canadians' privacy protection and for Canada's future information sovereignty.

Thank you.

¹ (1540)

The Chair: Thank you very much, Mr. Rubin.

Now we'll hear from Mr. Simon Potter on behalf of the Canadian Bar Association.

Mr. Simon Potter (President, Canadian Bar Association): Monsieur le président, messieurs les députés, my name is Simon Potter. I am the president of the Canadian Bar Association, which represents some 38,000 jurists across Canada.

I want to thank the members of the legislative committee for this opportunity to review our CBA submission, which was filed about a week ago--you have several copies of it here--on the proposed new Public Safety Act, Bill C-17.

Our association takes the government's consultation process seriously. Last year we made 65 submissions to parliamentary committees and to the federal government, so you can understand our concern in the wake of media reports last Thursday in which the minister indicated, reacting to a report from the Privacy Commissioner, that the government would not change its mind on this legislation.

I have written to the minister, Mr. Collenette, to confirm our understanding that despite the news report, the democratic processes of Parliament would be respected. I understand you have copies of that letter before you.

[Translation]

Let me say from the outset that, although this is a third-generation bill, the Canadian Bar Association finds that it is still not good enough. The incursions into Canadian privacy in Bill C-17 go far beyond those needed to counter terrorism.

In our view Bill C-17 and companion pieces also said to be terrorism-related have Orwellian implications, and threaten to take Canada down the road to being a police State.

[English]

There are, in short, serious difficulties in this bill that we believe would be a simple matter to correct. As you might imagine, Mr. Chair, we at the Canadian Bar Association went to extraordinary lengths to try to be as helpful as possible to the government and to Parliament in grappling with the difficult question of the proper balance to be struck in Canada's response to the terrorist threat, the balance between security concerns and the edifice of individual rights and freedoms that we have been building together for decades.

We assembled a group of senior and expert counsel drawn from a wide range of legal disciplines all across Canada: constitutional law, international law, immigration, human rights, criminal, justice, charities, business law, civil litigation, media, and communications law. It was an elite committee assembled to assist with the Canadian response to terrorism.

¹ (1545)

[Translation]

Our association believes that the safety and security of Canadians is of the utmost importance and forms a legitimate government priority that requires special attention, and certainly more now than before we were all so rudely awakened by the immediacy of the terrorist threat.

We are also convinced that, as we draft the legislative response to this threat, we must protect the key values of our Canadian society—the real targets, after all, of the terrorists—freedom, justice, and the rule of law.

The CBA applauds the efforts of the drafters of Bill C-17 to go beyond the previous two versions in safeguarding individual rights. However, we remain deeply troubled, and frankly perplexed, by the intrusion threatened by the bill upon the privacy rights of Canadians in ways that are not necessary or do not represent legitimate compromises.

[English]

I will focus here on our key issue, the privacy concerns. We are convinced this bill can be amended to make legitimate room for those privacy concerns and still retain what is needed to protect us from terrorism.

We are also convinced that if it is not so amended, Parliament will not have done its duty to ensure the rule of law is preserved, to ensure our legal traditions are honoured, and to ensure that charter rights and freedoms are protected to the greatest extent possible.

Bill C-17 would allow the RCMP and CSIS to scour airline passenger lists, cross-referencing them with many other information bases for possible matches, to do this on the basis of mere belief that there is useful information to be had, and then to retain that information for time periods stretching long after the flight.

The Charter of Rights and Freedoms requires that you assess this proposal carefully, and ensure that the potential advantages merit the full extent of such an intrusion into the privacy of travellers.

Mr. Rubin, quite rightly, mentioned the absence of a cost-benefit exercise. Even under the charter, there is a form of cost-benefit analysis to be done. Is the cost to our freedoms and liberties worth it? Is the benefit to be had, in the fight against terrorism, worth the cost to our freedoms? That, we submit, has not been done, that exercise.

Bill C-17 has retained subsection 4.82(11), which would permit information to be disclosed to any peace officer based on a reasonable belief that it would assist in the execution of a warrant. While the term “warrant” has now been more narrowly defined than in previous versions of this bill, it still covers offences that do not approach the seriousness of terrorist offences, and it still covers offences having nothing to do with terrorism.

We believe the authority to match passenger information against other information held by the RCMP and CSIS should not serve as a fishing expedition in the fight against all crime. It is not enough to purport to limit this scouring and matching exercise to the identification of risks to transportation security. This is, with respect, mere lip service.

Police already have the power to obtain a search warrant under the Criminal Code in the normal course. Under the code, they can obtain the warrant if there are reasonable grounds to believe there is something in the passenger lists that will reveal the whereabouts of a person who has committed an offence.

Today Canadians can choose not to supply personal information to law enforcers except in certain circumstances. That right, Mr. Chair, evaporates if their personal information can be had without their consent at the mere expression of police authorities' belief the information would be useful. It is naive to think law enforcement officers would simply ignore information they have come across just because the information has nothing to do with terrorism.

Our conclusion is that all references to warrants should be deleted from this bill.

¹ (1550)

[Translation]

We agree wholeheartedly with the position of the Privacy Commissioner of Canada, George Radwanski, who said that the police have no business using this extraordinary access to personal information to search for people wanted on warrants for any offences unrelated to terrorism.

Our conclusion is the same as the Privacy Commissioner's: Bill C-17 should omit any reference to warrants within section 4.82. Extraordinary powers, which fall outside what we would have considered acceptable just a short time ago, should be used, if at all, in the fight against terrorism, not in the execution of normal police work.

[English]

Mr. Chair, our written submission covers other areas of concern as well. These include the destruction of the information, which should happen within 24 hours at most, rather than the seven days mentioned in this bill; the time limits on emergency directions; the air rage provisions, which seem to allow for very serious prosecution of what might be a very minor offence, and perhaps not even an offence at all; interim orders; and the new proposed FINTRAC authority. Our recommendations are detailed in the submission. I don't propose to go over them now orally, but I am prepared to answer questions on them.

In conclusion, all Canadians have a stake in the fight against terrorism, but we also all have a stake in standing up for the values and freedoms we have long cherished. Our desire to prevent terrorist attacks does not justify overreactive measures, which unravel the freedoms protecting the individual from the state and form a part of the very fabric of our society.

The Canadian Bar Association submits that Bill C-17 should only be enacted when it reflects a better balance between the enhancement of national security and the preservation of core Canadian values and traditions. The search for the right balance is difficult, but this search is a duty. While our response targets terrorists, we must ensure that we do not needlessly threaten the rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms.

Monsieur le président, je suis maintenant prêt à répondre à vos questions.

The Chair: Merci, monsieur Potter et monsieur Rubin.

Nous allons commencer par un premier tour de cinq minutes.

I will begin the first five-minute round with Mr. James Moore.

Mr. James Moore (Port Moody—Coquitlam—Port Coquitlam, Canadian Alliance): Thank you.

Thank you both for appearing here today.

Mr. Potter, in particular, thank you for your comprehensive submission and for focusing on the one issue that I, who am somewhat of a civil libertarian, believe is the Rorschach test of this bill--this is, “Should this provision go forward?” It's just an unsupportable bill.

There's one parallel or one example that hasn't been drawn often enough. There was a case, I believe it was in British Columbia, where a member of the RCMP who had access to privileged information took the information and gave it to a radical anti-abortion group. This information was then used to harass abortion providers and people who worked in a clinic.

Given the provisions of this bill and given the kind of information.... Human beings have human failings, and even people in authority have human failings, which we often fail to protect ourselves against. One of my concerns about this bill is precisely as you mentioned, which is that there is so much information and so much access to information for so many bureaucrats. I would urge my Liberal colleagues opposite to really think about this within the context of the examples that have already happened.

The one question I have is that there are arguments in favour of collecting this data for public security. In fact, most of the information is already collected by Revenue Canada. Mr. Rubin, you seemed to indicate that the government shouldn't collect this information at all. So I would ask you whether you believe the information already collected by Revenue Canada should be rolled back.

Mr. Potter, do you believe this government should collect the information at all? Not to do so would severely hamper the government's capacity to prosecute any kind of fight against terrorism or organized crime. So tell us where you draw the line. Should the government collect it, but put in certain safeguards? How do you strike a balance?

¹ (1555)

Mr. Ken Rubin: I agree with your harking on the privacy aspects of the bill. But when you have several overlapping agencies collecting this stuff in secret, how are you ever going to find out how much it costs and what was done with the information, and so on? The Americans, at least, have recently put in their federal register some of the outlines of what they intend to do with the information. We haven't done this, which is problematic.

Yes, I have some problems with why you need to collect it in the first place. There are other ways of targeting people, instead of collecting a certain amount of information from every single passenger, keeping it for seven days or six years, and keeping it beyond the stated purpose, for sure. Somebody had better sort out this mess, because it isn't just one agency but several agencies.

This is why Bill C-17 seems to be a lightning rod of sorts in this respect. Things have always been done in the privacy field, for example, with all kinds of information sharing of personal data, and agreements between the provinces, and agreements internationally for the last 30 years. Usually, though, these are not up front in the legislation and are not used for multiple purposes or do not go beyond the purposes. Starting with social insurance numbers and multiple agreements—hundreds of agreements—this evolutionary problem is now polarized and put to the test by this bill. This is because of the extreme way it's been done at the behest of certain agencies, who have always wanted it and never been able to get it in the last 30 years. They now seem to have it.

Mr. James Moore: You also spoke against Bill C-44. Had the government not passed Bill C-44, frankly, the United States would have said you're not flying into the United States. Every single Canadian would have to drive to Seattle, drive to Buffalo, or drive across the border in order to catch a flight to somewhere in the U.S., or internationally, if we wanted to fly something other than Air Canada. How do you reconcile that?

Mr. Ken Rubin: I've been flying to the United States for many years. I have family there. I feel that Canadians, as an independent nation, should be able to fly there. I don't think that because another nation puts a gun to your head you always have to respond and say everybody's information has to be collected.

I think Bill C-44 was a panic measure. It was split off from this bill because people knew that they could get that little part fixed. Now they want this part fixed, that part fixed, and so on. Where is it leading? That's the question.

The Chair: Sorry. The rounds of five minutes are rather brief, I know. You have to be succinct in both questions and answers.

I'll be a little more generous and give Mr. Potter two minutes to reply. In subsequent rounds, I want to accommodate every member of Parliament possible during your time with us. Please keep that in mind.

Mr. Potter.

Mr. Simon Potter: Thank you, Mr. Chair.

I do need only the two minutes in order to make it clear that the position of the Canadian Bar Association is understood.

We are not saying, Mr. Moore, that none of this should ever be collected at all. We are taking for granted that the drafters of this bill have a point when they say that this kind of information might be useful in dealing with a terrorist threat on an aircraft.

We are not saying not to collect it. We are saying collect it, but keep it only for 24 hours so that the information is available for the precise flight on which there is seen to be a threat. Do not use it simply to catch people who happen to be out on a warrant. Use it only for the purposes that the minister says it was meant for when dealing with terrorism.

The Chair: Mr. Assadourian.

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

As you know, this is a very sensitive concern of all the citizens in the country and members of Parliament. We received many witnesses in the past few weeks.

Mr. Potter, could you give a comparison of the similarities and dissimilarities of the homeland security bill, the British security bill, and Bill C-17?

Would you also comment on whether they have a similar item in their bills to maintain the record for seven days? Do they use it for any other crime--besides terrorism in the States, as you mentioned--where it should not be used?

Can you also give us an example of the warrants issued here under Bill C-17, compared to the warrants issued in the homelands security or British security system?

º (1600)

Mr. Simon Potter: First of all, Mr. Assadourian, I can tell you that we have not done an exhaustive analysis comparing the Canadian bill to legislation in England or the United States. There's a reason for that. The fact is we have our charter and our constitution, and they have theirs. This legislation cannot be made more constitutional simply by copying what someone else does. It has to be constitutional in light of our own charter. That said, I'm quite happy to ask our volunteers to do the kind of comparison you are suggesting.

In answer to the last part of your question, absent that comparison, we have warrants in the list included in the schedule to this bill that would have to do with procuring, for example, or simply creating public unrest. For someone wanted on that kind of a warrant, the police would be justified under this statute in keeping the information for seven days, or under subsection (14) for even longer, if they can say it's reasonably necessary in order to collect people who are wanted on that kind of a warrant.

We say that it is simply excessive and has no bearing at all to terrorist threats on the particular aircraft.

Mr. Sarkis Assadourian: I have one short point. Assuming I may be wrong, please correct me if I'm wrong.

Those who drafted Bill C-17 seem to think it meets the challenge of the Charter of Rights. You seem to think it doesn't. Am I right?

Mr. Simon Potter: That's correct.

The Chair: Thank you.

Mr. Rubin, do you have any comment?

Mr. Ken Rubin: Yes.

In response, I think what you're suggesting, and that is the problem with this bill in many areas, is that the proper comparative studies or cost-benefits have not been done. I would suggest it should go beyond only Britain and the United States. I would hope that the committee would do that.

I also would look at one feature of all the bills too. You mentioned the warrants and so on. There is an interchangeability of the sharing of information between provisions within the bills as to the extent of the sharing of information.

[Translation]

The Chair: Mr. Laframboise.

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

I agree with you that the bill is in need of significant amendment, but there is something much more disturbing than that. When, in the House, we questioned the Prime Minister on the bill and on its infringements upon our rights and freedoms, he frankly replied that the courts were there to protect those, and that it was up to Canadians to submit their evidence to the courts. If this bill is not amended, how can a citizen who suspects information on him is being retained confirm whether this is indeed happening? Will he be able to determine this only if he is charged with something, or will he be able to determine whether he is being watched? If this bill is not amended, will there be any way to guarantee that Canadians will be able to determine whether information on them is being collected?

Mr. Simon Potter: Mr. Laframboise, the bill contains no provisions to ensure that Canadians are indeed able to determine whether information on them is being collected. Moreover, if we accept the theory that it is up to the court to decide whether such infringements on rights and freedoms are constitutional, a Canadian would end up paying a lawyer for five, six, seven or eight years, for a whole series of appeals, to get a ruling—and in the meantime the legislation will continue to be in force and information will continue to be collected. That is why I would say—and this answers Mr. Assadourian's question rather more fully—that we cannot simply take it for granted that the drafters have done their work, and that the bill is in compliance with the Canadian Charter of Rights and Freedoms. This committee, and Parliament as a whole, must review it to determine whether these violations of the rights and freedoms of Canadians are worth it. In fact, that is exactly what our courts tell us. Our parliamentarians have to study the issue, and bear in mind that individual freedoms must be protected.

º (1605)

Mr. Mario Laframboise: So the bill has to be amended first. Otherwise, it will be very difficult and costly for Canadians to do what they will have to do.

Mr. Simon Potter: And if the legislation is ever found to be unconstitutional, it will still have existed for some time, and over that time a serious injustice will have been committed.

[English]

Mr. Ken Rubin: Well, one of the things I raised in my presentation--and it's in today's paper--is that in terms of the problem with the Co-operators and other material that seems to have disappeared in the hard drive, there is a class action suit. So there is legal recourse.

My analysis is that this is sort of the reverse of it, because how can you even get to ground one when Bill C-36 already establishes a certain gag order to the courts in the secrecy certification and takes away certain rights, particularly if you happen not to be the right person bringing up the case? It reverses the OECD guidelines for fair information protection, which include transparency, appeal, the right to correct your information, and the right to fair information practices.

The courts can react only to what they have. With a piece of legislation like this, it doesn't bode well for appeal rights of citizens trying to get privacy recourse and protection.

The Chair: Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Mr. Chair, I want to pursue this issue of eliminating the reference to warrants from the bill. I want to understand this, because Clayton Ruby, who I assume is a member of the bar, made a suggestion that before a warrant could be acted upon, the law enforcement officers should be required to seek an additional warrant for access to the plane or wherever. He used the example that if you suspect someone is evading a warrant and they're in a residence of some kind, you can't just barge down the door. You have to seek a warrant from a judge. That was his position, as I understood it.

Am I to understand that what I'm hearing from both gentlemen is that if we eliminate warrants altogether and limit it so that the RCMP and CSIS would have the ability to look at the information--I believe, Mr. Potter, you said that it would still be collected--they would be able to look at it only? If the information turned up something that led them to believe there was a terrorist threat or a national security issue, then they could somehow act upon it. But if they did discover there was someone on that aircraft with a warrant outstanding for murder, for example, a felon fleeing, they would not have the authority to do anything about that; they would simply have to allow that person to go. Is that what I'm hearing?

Mr. Simon Potter: What you're hearing from the Canadian Bar Association, Mr. Mahoney, is that we should not allow a draconian, warrant-free collection of wholesale information on a Canada-wide basis--essentially on every single Canadian, since we all fly one day--in the hope that maybe we're going to find someone evading a warrant.

At the limit, we can understand that information being collected in order to have available, on an emergency basis, the information you need to deal with a threat that has to do with a particular flight--that is to say, not to collect the information in order to find out if something terrorist is going on over a year's ambit, but to collect information to deal with a threat that's right there.... That's why we should limit it to 24 hours.

Mr. Steve Mahoney: So tell me how you practically deal with the issue where a police officer is looking at the information for specific problems in relationship to that flight at that point in time and then discovers that an individual is there who has committed a warrant offence as either described specifically in the bill, in the regulations--the nature of the crime--or that exceeds five years imprisonment, and so on. They have to ignore it.

That's what I'm trying to understand. I want to find out where the balance here is. If we don't want to have them peruse everybody's information, what do they do if we eliminate warrants from the bill and they discover that an outstanding warrant is represented by an individual on a flight? Are you suggesting they have to ignore that?

º (1610)

Mr. Simon Potter: I am. That's exactly what I am suggesting. I am suggesting that you take out proposed subsection 4.82(11) to make it so that someone who has access to this confidential, private information simply does not have the authority to give it to another peace officer whose only interest is collecting people on warrants.

Mr. Steve Mahoney: I just want to be clear that what you're advocating is no action by law enforcement agencies if they in fact do discover a person onboard with a warrant outstanding, even of a severe nature, such as murder or kidnapping. That person should just be allowed to go free when the plane lands.

Mr. Simon Potter: Mr. Mahoney, let me just explain why I'm saying that--with your indulgence, Mr. Chair.

Mr. Steve Mahoney: You had your opportunity to make your presentation, and we have it here, and you've done an extremely good job--

Mr. Simon Potter: I would just like to explain my answer.

Mr. Steve Mahoney: --but I have only five minutes, and I want to make sure I get all my questions in.

The Chair: Perhaps Mr. Potter can answer the question a little more fully. I'm sure we'll have time.

Strictly in light of the Barreau du Québec not being able to be with us and no time constraints being expressed by either Mr. Potter or Mr. Rubin, I'm sure we'll have plenty of time to ask all the questions that you wish to ask our witnesses.

Mr. Potter.

Mr. Simon Potter: If we allow a harvesting of information on the off chance that we're going to find people wanted on a warrant for a serious crime such as murder, which you mentioned, Mr. Mahoney, that logic would allow harvesting of information from all the buses, for example, as that's transportation--terrorists presumably use buses sometimes--or all the hotels. Why not? This is a very bad precedent to set, and the logic behind the question you pose would allow for the random stopping of Greyhound buses to find out who's on all those buses.

Mr. Steve Mahoney: Okay.

You outline on page 6 that your concern really has to do with the setting of a precedent on successor provisions. You use the example of city hotels and tickets to football games that would have to be made available, and now Greyhound buses, and so on.

Would it make more sense, considering that we are dealing with a bill that is designed to attack terrorism--and no one could doubt that there must be a situation where incremental information would come to the attention of law enforcement officers, if in fact the information was there--to put in, in some way, restrictions to ensure that these successor provisions that you're concerned about are not covered in this bill?

Simply, specifically, narrow it down, rather than eliminate warrants, regarding which, it seems to me, the Canadian public would look at us in a very strange light if they knew we were ignoring outstanding warrants on criminals who had committed serious crimes such as murder or kidnapping. The Canadian public would look at Parliament and ask, how in the world did you ever allow that to happen?

Mr. Simon Potter: Well, I'm sorry, I simply do not see it that way, Mr. Mahoney. I think the Canadian public would rather know that the government is not willy-nilly going around getting information on everybody just in case they find someone for whom there is a warrant.

Mr. Steve Mahoney: So how do we narrow down that information and eliminate words like “willy-nilly” from the vocabulary?

Mr. Simon Potter: You make it clear that the information is going to be used to combat a terrorist threat that exists then.

Mr. Steve Mahoney: But not a murderer. That's outrageous.

The Chair: We'll come back to this in another round.

Mrs. Desjarlais.

Mrs. Bev Desjarlais (Churchill, NDP): Mr. Potter--and I'm following along Mr. Mahoney's line of questioning--if it was necessary for a country like Canada to go out and try to catch all the murderers, wouldn't it make more sense, rather than put this type of clause in the Public Safety Act, to just bring a piece of legislation before the House under the Department of Justice and say we want to use this new method to go out and catch murderers and kidnappers? Wouldn't it be beneficial to just do it in that sense, rather than go out and sift through all the innocent people in Canada and see if we can find someone?

If that were the intent, which it certainly appears to me to be by this legislation, that this is one of the things they want to try to do, it's kind of just snowballing one on top of the other one. If it's so necessary to do that, would it not make more sense to put that in a separate piece of legislation?

º (1615)

Mr. Simon Potter: First of all, that's part of the answer I've already given, that we are worried that the ostensible purpose of this statute will turn out not to be the real use of it, and that really raises questions as to the cost-benefit ratio Mr. Rubin was mentioning. And if you're going to do it honestly to allow the police to collect information on a pell-mell basis on the population as a whole in order to find people who are avoiding warrants and if you want to do that in non-terrorist-related legislation, you'll have to explain to the public why you're not also collecting lists of everybody who happens to be in a hotel during a particular week, of who is in the room next door, and of everyone who bought a ticket on a train. That is why we are saying that down this path lies a police state.

Mr. Ken Rubin: I think the bill ignores the fact that our Canadian police, security, and intelligence forces do have acts such as the CSIS Act and the RCMP Act. They do have data banks and they do have CPIC, which traces not only criminals and suspected criminals but agents of organized terrorism. Why do you all of a sudden have in Bill C-17 a thing where you pick out airlines? As I said, what's next?

Start with the base, I agree with you, of proper investigative techniques and work your way back there. The police and security service under those acts already have great powers to monitor and track people and conduct surveillance. What's the logic of starting from this premise? Yes, there were airplanes that crashed into the World Trade Center, but what's it going to be next? What are we going to respond to next? Where does it end?

Mrs. Bev Desjarlais: Terrorists are going to go for places where they get lots of people, and the obvious thing would be, as somebody mentioned, sporting events. So who buys the tickets at sporting events, because that's going to be where there are lots of people and there's going to be the most damage? That would create a bit of a problem.

I'm just curious, because it keeps coming up about the warrants. Do either of you have any idea how many warrants are outstanding in Canada? I can find this information afterwards, but I just thought about it now, so I'm going to ask you. Would you make a guess?

Mr. Simon Potter: I don't know. I've gotten into trouble guessing on other occasions.

Mrs. Bev Desjarlais: I'll make a point of trying because I'm actually quite curious as to how many items we'd have to be looking at here and covering the cost just for the sake of a search and--

Mr. Simon Potter: I think the answer is that the simple fact that there might be a wanted murderer on a plane somewhere someday in Canada over the course of the next ten years does not justify collecting information on every single traveller.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, presenters. It's very interesting to listen to you. Although I was not here to listen to Mr. Rubin, I did read the blues and get a sense of where he and other witnesses were coming from.

I think the point that concerns me, Mr. Potter and your colleague here, is just exactly what you're using the term “cost-benefit analysis” to describe. That is, what price are we willing to pay? This question has been asked in our history, namely what price are we willing to pay for our freedom? Now I think we're asking the question, what price are we willing to pay for our security? If it is in fact, as you've described, a considerable deviation from our jurisprudential history and a loss of rights and freedoms of Canadians, then we do indeed need to look very critically at this bill.

I would ask you a question, Mr. Potter, if it isn't unfair, because you weren't asked today to comment on Bill S-23, which, as you may know, is an amendment to the Customs Act. It has a list in its schedule in the back of 32 or 34 items of information that can be collected and then held, and that information can be held for six years. The same list, as I understand, has been affixed to Bill C-17, although the time period for which it can be kept has been limited. You've commented on that. Would you see a concern from your perspective on the six-year timeframe?

º (1620)

Mr. Simon Potter: A six-year timeframe is a long time to be holding a lot of information in an enormous data bank. Of course, the larger the bank and the longer the information is held in there, the more you run the risk of leaks such as Mr. Moore has described. The difference between the two situations is that we have under this one an explicit authorization to actually leak the information for a purpose unrelated to what is said to be the reason for collecting it.

Mr. Ken Rubin: A few years ago the RCMP security service held files on up to 800,000 Canadians. It took considerable efforts, including by the privacy commissioner and others, to ask, why are you doing this? Are these files still relevant, or are they old files? A lot of those files were reputedly destroyed, but on what grounds? It wasn't organized. That's the kind of scenario you tend to get when you have long-term collection of information for whatever purpose.

Another thing I should make clear in my cost-benefit assessment is that it's not just the cost to liberties, it's the actual dollar cost. We have a gun registry that costs $1.5 billion. How much do you think the customs bill, Bill C-44, which we're paying for because of the Americans, or Bill C-17 are going to cost? It's not just going to be $1.5 billion. How many computer systems are going to have to be created and fail to maintain these systems? How many people are going to have to staff these? Where is the actual understanding? Where is our Auditor General? What is going on here when you're creating three systems? Give me a break.

Ms. Aileen Carroll: On page 22 you quote, Mr. Potter, what is according to footnote 13 a joint letter issued on November 12 to the Honourable Elinor Caplan. The last sentence of that quotation reads: “The public interest in combatting terrorism cannot be used as an excuse to expand the powers of the police or other agencies of the state, for other purposes.” I wonder, Mr. Potter, have you received a reply to that, and if so, could you share that with the committee?

Mr. Simon Potter: That letter is a letter from the privacy commissioner. I don't know whether he's received a reply to that letter. I know that I have received no reply to the letter I sent just a few days ago.

Ms. Aileen Carroll: I see, and that's the one of January 31, a copy of which we have here.

Thank you, Mr. Chair.

The Chair: Mr. Barnes.

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

Over the last short while we've heard from a lot of witnesses, and the privacy of Canadians has been front and centre. There's no doubt about that.

I said before that I think we as a country have gone the way of reacting too much to the United States. I know we have to find the balance and that it's difficult to find that balance. National security and terrorism get intermixed in between.

People sometimes forget that terrorists may not only fly, but they may also use other means of travel, such as trains, ferries, cars, and so forth. I don't think that someone who has an outstanding warrant for murder will fly, because they know that there's a high risk of them getting caught.

If we as a committee do not find the balance and we continue to do what the present government is doing, then this committee has failed the populace of Canada, and our time here has been wasted. We have heard some great suggestions, and I believe that this committee is going to make good recommendations.

Is there anything in this bill that looks good? Up till now there have been nothing but a lot of negatives about this bill. Is there anything in this bill that would give the government a passing grade to say that this is a good thing? I don't think it is a good thing. I think we need to protect our country from terrorists, but we also need to protect the privacy of Canadians.

º (1625)

Mr. Ken Rubin: The only thing I would say is that it's the third try, and it still isn't very good. Part of the problem is that it's an omnibus approach.

The amendments to the Aeronautics Act have been around for several years, but they haven't come before Parliament. Now they've halved this off. Of course they halved Bill C-44 off first, which is an aeronautics measure, and they haven't done anything about all the other recommendations and so on. I think there is the threat of it, but now it's two years later, and it's going to be three by the time something is done. Why don't you just amend a lot of the focus of the bill on the Aeronautics Act? Why don't you properly amend that? As the member from Manitoba said, why don't you amend, if you have to, the RCMP or CSIS acts? There are provisions within a lot of these bills where you could go further. I have no problem with some of the amendments related to the Aeronautics Act, but there is a proper recourse.

Why have this hodgepodge and mix everything together and then create fear? It was an American president who said you have nothing to fear but fear itself. That's what we're doing by creating this bill, and it isn't necessary to do it this way.

Mr. Simon Potter: My answer is that the question you are asking yourself, Mr. Barnes, is exactly the one the courts require you to ask. You must ask yourselves, is this kind of thing necessary at all? If you come to the answer no, we don't actually gain much by it, and it's just fraught with problems, then your duty is to recommend that it not be accepted. But if you come to the conclusion that this kind of information is necessary for a short-term purpose, fighting terrorism, it is then your duty to recommend changes to it that limit it to that purpose so that the violation of our rights as citizens is as small as can be.

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

We had a witness here last week, Clayton Ruby, who I'm sure you're familiar with, and I will try to faithfully and accurately represent what Mr. Ruby told us. Proposed section 4.81, in his view, respected our charter, would successfully meet a constitutional challenge, and could be justified. The question you were just discussing with Mr. Barnes--Do we as legislators, as parliamentarians, need to act in this particular area?--he answered yes, in fact; the circumstances are such that, yes, we do need to act, and proposed section 4.81, the provision of information, is appropriate. It has been tightened up sufficiently that in his view it would meet any court challenge; it is constitutional.

However, when we came to proposed section 4.82, which is disclosing to every Tom, Dick, Harry, Jane, Diane, and Marlene--I'll throw myself in the mix--there were serious problems, particularly the fact that there was no mechanism to ensure the destruction of the information. He didn't have a question about the seven-day delay, but the issue was where was the mechanism, where was the governance or oversight to ensure that the information was actually destroyed?

At the first level there was a mechanism, but once it's been transmitted to the next level, whether it be to any peace officer, etc., there was then no provision for destruction of the information at that level--seven days or 72 hours; there was no delay whatsoever, and there was no requirement for destruction once the information had been passed on to another level. That was a problem.

The other problem he had was on the issue of using the information, transmitting it to any peace officer on the basis that there might be a warrant that needs to be executed. He said that you need prior judicial approval or exigent circumstances.

I asked him one simple question. I said that when police officers seek a warrant before a judge because they have reasonable grounds and believe they can show reasons to believe that the individual against whom they're seeking a warrant may be travelling by air, and they have an order from the judge, if at the same time they could have access to the information collected under proposed section 4.81, this would allow the minister or any officer of the Department of Transport who actually receives the information to create a sort of bank, because there would be a judicial order saying that when data is collected because of a presumed security threat, that information may be used to verify if a warrant exists against anybody else there on that flight; we have authorized you to check their names in order to execute. Would you be comfortable if this existed?

º (1630)

Mr. Simon Potter: Madam Jennings, let me say first of all that I agree with Mr. Ruby in his assessment of proposed section 4.82. I disagree with his assessment of proposed section 4.81 because of its reference to keeping information for as long as 15 days.

To answer your precise question, as of today, if police go and get a warrant requiring disclosure to them of all the passenger lists of travellers flying in and out of Montreal all this week because they are looking for me, and they don't find me in there, but they find all of you, does that allow them to put all the information on you into the databank and squirrel it away? No, and that's what we're dealing with here.

Mrs. Marlene Jennings: But the point I'm making is that if proposed section 4.81...notwithstanding your issue that the 15 days should be five days, etc., take away that issue. The actual issue is on collecting the data, that it would pass the constitutional challenge if a judge ordered or allowed the disclosure of that information that's collected. It could be a week, two months from now, or never.

But if the Minister of Transport has reason to believe that there is a security threat--it could be a particular flight or it could be a day or a week during which flights are coming in--and there's a judicial order that says “If you should collect, you may compare it with this name as well”, are you comfortable with that? Because now we're saying it's the judges who are going to make the determination as to whether or not the police officer in fact has reasonable grounds that the person against whom a warrant needs to be executed may be travelling by air, either into and out of Canada or within Canada.

Mr. Simon Potter: If proposed subsection 4.82 were not there, only 4.81, and the authority to get the lists were made conditional on getting a judicial warrant, then it would likely survive.

Mr. Ken Rubin: With all due respect to Mr. Ruby, I think I would back up. If you're going to approach this bill on constitutional, narrow, legalistic things.... This involves the average Canadian. They're not going to have this argument when they're stopped or when they're having to do this. I think there are many other criteria that come into judging, including the cost-benefit assessments.

So whether proposed section 4.81 is good or not, I don't think we should be looking at this as whether there's a warrant or not or whether a judge will do it or not. We should look at what this does to our information sovereignty, what it does to the average guy's privacy. That's where I'm coming from; I'm not a lawyer.

The Chair: Mr. Moore.

Mr. James Moore: Thank you. I do understand.

I just want to go back to Steve Mahoney's intervention. I understand the political sensitivity. I know you can appreciate that. But I also understand Rex said never underestimate the capacity of criminals to be so insanely stupid as to actually want to get on a plane.

Regarding the 30-plus data sets that we have, I understand the argument against the wholesale rejection of the list and the collection and dissemination and so on.

Has the Bar Association done an analysis of the 30-plus data sets and what inherent privacy danger is associated with them? Because some may be more innocuous than others--for example, credit card information, method of payment, and so on. Canadian politics is the art of compromise, and when we come down to clause-by-clause, we may get to the point where we examine the list. Looking at that list of data sets, are there some you think are more problematic than others that you could help us compromise on--say this has to go, this is tolerable, etc.?

º (1635)

Mr. Simon Potter: There's no doubt, Mr. Moore, that the list in the schedule in clause 23, which is 34 items long, has some items that are more problematic than others. We have not done an exhaustive analysis to rank them from the most problematic to the least. For example, a simple name of a person travelling one day is perhaps not a real problem for most citizens.

But this question allows me to add to Mr. Rubin's answer. This is not just a legal exercise. The charter is not just a legal document, it is a document by which Canadians said to themselves what kind of society they wanted. And what we wanted as a society was a society in which the individual has some dignity and has some protection of individual movement vis-à-vis the state.

The simple feeling that an individual will have if he knows that every time he takes a plane, the police are getting all of this information--the number of bags, who was travelling with them, the passport numbers.... And some people say it includes what they eat, although I don't see that in here. But I can imagine some people worrying about an enormous data bank telling people whether they've ordered a kosher meal or not. I can understand people worrying about that.

What I'm trying to get at is it's not just a legal matter of ranking these in an objective way, in a cold, lawyerly way. It's also a matter of imagining what the individual Canadian will feel in his dignity as an individual vis-à-vis the state when he knows that every time he turns around, all this is there.

Mr. Ken Rubin: I think it was a governor general who said 39 steps.... With 34 items, do you know how much this is going to cost to put the database together? What happens if you fail 10 out of 34? You can't provide them. It's really very comprehensive, but very impractical in some respects.

The Chair: Mr. O'Reilly.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Mr. Chairman.

I want to thank the witnesses for appearing.

I don't want to be adversarial, because we're trying to learn something here. I don't want to be like Mahoney down there. He gets a little carried away.

Once again, I'd ask the question, is there any part of the bill that meets your approval?

I recognize the passenger in flight from justice, the present authority that the police authorities have with CPIC, and other things. I spent two terms on the parole board. I understand the criminal mind. It's not all that bright, as a general rule.

Presently, I could join a particular organization. I don't want to name one, but I'll say the CAA. I could give them an address and a name that is a little different from what I would normally use. Then the only people who have my address, besides Ottawa Hydro, is the CAA. All of a sudden I'm flooded with brochures and all kinds of things. I know they've sold their address list to other agencies, credit card companies, and all those types of things.

What bothers me is the information that's presently collected and held by bus companies. If you travel on a bus regularly, they know your destination. They know you've paid by credit card. They have all that information on file.

If you travel by train simply from Cobourg to Ottawa, the person on board the train who is the steward may bring you something, like a drink that you had the last time, because they have it on file.

I don't know that all of that computerization doesn't already exist. I think that when people are trying to escape from the law, they're probably not going to do it by aircraft, unless they use an assumed name, someone else's credit card, and that type of thing.

What I worry about right now--and I don't know how we can get around it--is if I give my name, address, and VISA number to guarantee a payment, most of the information is already out there.

º (1640)

Mr. Simon Potter: You're right, Mr. O'Reilly. There's a great deal of information in this digital age that is out there. That is the reason why we have provincial, state, and sometimes national requirements to guarantee the privacy of that information.

The very information that is at issue here...if Air Canada simply gave it to someone else, it would be an offence for Air Canada to do so. Here we have a statute that not only permits it to happen, but requires it to happen, and explicitly allows it to happen for a purpose unrelated to the purpose of the statute.

It's for exactly the reason you give that we find it quite alarming.

Mr. Ken Rubin: I would add one thing to almost try to reverse things.

One of the big problems that is a sleeper is identity theft. It doesn't only include the Co-operators. It includes people who are third parties going into state data banks. You're going to be creating a lot more state banks with this bill, and using them for many purposes, including terrorist purposes. These are sophisticated people at times.

There are other provisions in here about military computers and access, FINTRAC and money laundering, and so on. Some of the provisions can have a reverse impact.

People should look beyond their noses in terms of what they're creating. They're creating a massive system on everybody that somebody can go picking into, not just the authorities.

Mr. John O'Reilly: If you travel by chartered bus to the United States now as a senior citizen, you're required to have a passport. All of your medical file is taken by the reservation agent to make sure they can meet any requirements you may have. Once that's out there, how do you protect it from not being used by someone else when it's already in the private sector?

Mr. Simon Potter: Well, it's not necessarily out there in the private sector and then leaking out somewhere else. We have rules to prevent too much leakage. We ought to have rules to prevent leakage here in this bill.

You asked if there was anything worth saving. I'll again say, Mr. O'Reilly, the position of the CBA is we can understand that it might be necessary to ensure one has the information right when reacting to an ad hoc, immediate threat on an airplane, but it's not necessary to keep this information for seven days, or fifteen days, or longer. It's not necessary to collect all this information to go after the people who are on warrants.

So we can imagine wanting this information to respond to an immediate threat, and having the information at your fingertips right then. But the legislation should make it clear that's what it's for. It's not for anything else.

The Chair: Colleagues, I'm going to try to adjourn at approximately five o'clock, so keep this in mind.

Monsieur Bachand.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): Thank you, Mr. Chairman.

So far, your position appears to be very similar to that of our party. There are a number of things about this bill that we find disturbing. We have spent a great deal of time talking about passengers, but the bill also focuses on controlled access military zones. Such zones can be established by an order in council, without anyone knowing. The bill also mentions interim orders. I find that individuals do not have much of a voice there.

In your remarks, you said that the bill could and should be amended, and that Parliament would have failed to do its work if it did not amend it. But opinions within Parliament differ, depending on the party, and the majority prevails. That is why the whole issue of parliamentarians is very important to me. I have always said that it is the parliamentarians—the lawmakers—who should be doing the work, not the courts.

However, in some circumstances, we have referred cases to the Supreme Court of Canada. As my colleague said earlier, we might be told in reply to a question put in the House that any individual who is unhappy with the enactment of this legislation can appeal, and go before the courts. I find that unfair. Here in Ottawa, there are two buildings full of lawyers working for the government. But an ordinary individual who wants to take his case to court will spend half his life and all his money there, because there will be appeal after appeal as he tries to challenge the legislation under which his rights have been curtailed.

Before we go on to third reading and pass the bill with a majority vote, should we not... If I understand correctly, you are saying that in your view this bill in its current form cannot be justified in a free and democratic society, and may even breach the Canadian Charter of Rights and Freedoms.

Perhaps the government could refer the case to the Supreme Court of Canada? After all, the government has already done this with out our knowledge, and against us, with Bill C-20. This is a very important bill that will have a significant impact on individuals and on society as a whole. And once we have the Supreme Court's recommendations, we can decide whether to enact the bill as it stands, or whether to amend it. As I said, I am not used to this. Generally, I would not be asking for a referral to the Supreme Court. I believe that parliamentarians should make their own decisions, and not leave the decisions to the courts. However, we can certainly ask for the court's opinion before coming to a decision.

I would like to have your views on this.

º (1645)

Mr. Simon Potter: Mr. Bachand, you are surprising yourself by asking that this be referred to the Supreme Court by the federal government. I am surprised by the suggestion myself. I think that the solution is easy. The bill can be amended fairly easily to ensure that any information collected is used for its intended purpose, and for no other purpose. In my view, making those changes would save a great many people a great many problems.

[English]

Mr. Ken Rubin: One of the things I've tried to address—which most of your witnesses won't, because they might come from a different background from me—are the privacy implications. I certainly see these. But it's the access or secrecy implications that are enormous. Snuck into this one bill are all kinds of amendments to a whole series of bills. In effect, these override the Access to Information Act. They put the stamp of security on it or the stamp of it being so self-important that you're not going to find out about it.

Years ago, in the 1970s, I can remember doing a study for the civil liberties groups on the number of files the Canadian government held. One reason I was able to find out something in those days was that they actually put the number of people in each of the personal data banks. With my adding machine, I think I came up with about 292 million files.

After I did that study, nobody put in how many files are kept in which banks any more. In most cases, you can't find out how many files are kept. In this bill here, you can't find this out. You almost can't find out anything in this bill. This is very problematic.

[Translation]

Mr. Claude Bachand: Do I have more time?

The Chair: Very little.

Mr. Claude Bachand: I would like to know whether my suggestion that the bill be referred to the Supreme Court, which would then advise parliamentarians before we proceed, is a good one.

Mr. Simon Potter: The reference mechanism is available. Referring the bill would not be ridiculous. I would not say that at all. I am just saying that there is a much easier solution.

Mr. Claude Bachand: Yes, but if we cannot arrive at a solution, if we see that the bill cannot be amended, that this House does not want to amend the bill, then before going on to third reading should we not refer the bill to the Supreme Court so that we can have those judges' opinions?

Mr. Simon Potter: There is nothing in the parliamentary regulations that would oblige you to refer the bill.

Mr. Claude Bachand: No, we are not under any obligation to refer the bill. That is not what I said.

Mr. Simon Potter: No, you are under no obligation to refer the bill. But would it be a good idea? Perhaps, but in the political arena—an arena which you know far better than I, Mr. Bachand—when a majority wants to enact a bill it would not want a referral, even if the bill contains measures that go too far.

Mr. Claude Bachand: Exactly.

[English]

The Chair: Mr. Mahoney.

Mr. Steve Mahoney: Thank you, Mr. Chairman.

So I don't upset Mr. O'Reilly, I'll try not to be too aggressive.

Someone told me—and I can't find it in your brief, Mr. Potter—that you were recommending that interim orders be tabled within five sitting days as opposed to fifteen days after being made. Is this accurate? I couldn't find the five, but I see the reference to the fifteen.

Mr. Simon Potter: Yes, that is correct.

º (1650)

Mr. Steve Mahoney: Okay.

I'll just ask you to think about this. Quite often, Parliament doesn't sit. In fact, we all experience this when we go back to our ridings. People always say, “What are you doing here? You should be in Ottawa.” You say “It's Sunday afternoon”, or the summertime, or whatever.

We sit three weeks out of four, or eight months of the year. I'm really neither here nor there on five sitting days or for fifteen days. It seems to me that five sitting days could be dramatically longer than fifteen calendar days are.

I'll just leave this for you to think about.

Mr. Simon Potter: But at least they're sitting days.

Mr. Steve Mahoney: What happens if the interim order is issued when Parliament is not sitting? That's the problem.

Ms. Beth Phinney (Hamilton Mountain, Lib.): Or if it's issued one day before Parliament recesses?

Mr. Simon Potter: It's a good point.

Mr. Steve Mahoney: I'd like to deal specifically with what is in the bill, and would ask colleagues and perhaps witnesses to look at proposed subsections 4.82(4) and (5). These are provisions dealing with the requirement to provide information. The first one refers to the commissioner. If you go back to subsection (1), this means the commissioner of the RCMP. The second one deals with the director. If you go back, you'll see that it means the director of CSIS.

I'd be interested if these subsections give you any comfort, or if you can help me in correcting my interpretation of them. The subsections say:

The Commissioner, or a person designated under subsection (2), may, for the purposes of transportation security, require any air carrier or operator of an aviation reservation system to provide a person...within the time...with the information set out in the schedule

(a) that is in the air carrier's or operator's control concerning the persons on board...for any flight specified....

“Any flight specified” refers to the RCMP, who must specify a particular flight, as opposed to the fishing expedition concept of going after every flight landing everywhere in the country. A specific flight must be mentioned. And proposed paragraph (b) refers to “any particular person specified”. So they would have to name the individual to get this information. Then it goes on and repeats basically the same thing for the director of CSIS.

So both of these people or their designates, as outlined in this bill, must either give a specific flight where they suspect there is a concern relating to the purposes of transportation security for the RCMP, or relating to the investigation of “threats to the security of Canada” for CSIS.

It seems to me this is anything but a fishing expedition. It is quite specific, requiring either a flight or an individual by name. Does this provide either of you with any comfort? It also deals directly with the issues of air transportation or national security.

Mr. Simon Potter: Let me answer that. The fact it is not even broader is reassuring, of course. But it's still very, very broad.

If we look at exactly what you were just saying, the requirement that it be regarding a “person specified” only applies to paragraph (b). And that's for information coming into the possession of the airline after the flight—the 30 days after the requirement is imposed on them. It's an “or”; it's paragraph (a) or paragraph (b).

Mr. Steve Mahoney: It's an “or” 30 days after....

Mr. Simon Potter: Right. The person specified.... It doesn't have to be regarding a particular flight and regarding a particular person. It's regarding a particular flight “or” regarding a particular person. That is to say, under paragraph (a), the information you'd get is everything—

Mr. Steve Mahoney: I'm sorry, but the word “or” refers specifically to information that is in the air carrier's or operator's control or that comes into their control 30 days later, with regard to a specific individual name. It's not any specified flight or any person.

Mr. Simon Potter: I beg your pardon, Mr. Mahoney; the “or” I'm looking at is the “or” at the end of paragraph (a).

Mr. Steve Mahoney: All right.

Mr. Simon Potter: So what you're talking about, the specified person, only applies to the alternative (b), it does not apply to the alternative (a).

Mr. Steve Mahoney: Would it be fair to assume that in alternative (a) they might have reliable information that someone, who they don't know by name, or who has various aliases, or may be flying under false documents, is on board flight 222 flying in from wherever and it's coming into Pearson at such and such a time, so they specify that flight because they have what they consider to be reliable information that there's a problem onboard that flight? Or indeed, they may have information that there may be something on the flight that is not necessarily an individual but in fact may be a package they're concerned about.

Mr. Simon Potter: It may be that.

Mr. Steve Mahoney: So are they not restricted to a specific flight or a specific individual, as opposed to the fishing expedition you referred to earlier?

º (1655)

Mr. Simon Potter: There's no limitation on the number of flights this could be done on. This also, under subsection (4) and subsection (5).... And by the way, subsection (5) is broader than subsection (4); subsection (4) talks about transportation security only, and the other one talks also to “threats to the security of Canada”.

Mr. Steve Mahoney: It's CSIS's responsibility, I would assume.

Mr. Simon Potter: It depends on how that's interpreted. And it may be in the situation, you say, Mr. Mahoney, that this request would be made. But with the drafting of this it may also be in many other circumstances as well.

Mr. Ken Rubin: Very briefly, since you asked, what's troublesome about this is the vagueness about what transportation security is. But what's also troublesome, if you make the comparison with ministerial interim orders, is here at least you have some degree of direction and specificity, whereas for ministerial interim orders, what are you ordering? Where in the act does it tell you what they're supposed to do, what kinds of emergencies, for what?

It is so broad and wide as to make it.... And where are the examples here of what the ministers, the four ministers who came and the two who didn't, health and fisheries, had in mind with this really vague and unacceptable kind of clause? At least here you have some sort of reining in and control. You don't in those other orders.

Mrs. Bev Desjarlais: I'll try to be quite quick, and I want to get this in because I don't want for one second to have the Canadian public believing something that's not true. Just because your recommendation said sitting days to review an interim order, I would hate for anyone to think that given the need for reviewing it, an interim order couldn't happen when Parliament is recessed. Parliament can be called back at any given point.

And any parliamentarian who didn't get their butt in here under these kinds of conditions doesn't deserve to be a parliamentarian. I myself was in the bush when September 11 happened, and the moment I knew-- and it was within minutes after, just by chance--I contacted my office on a regular basis to make sure whether or not there had been a need for us to return to Parliament.

If I can do that from the boonies of Saskatchewan, where I was, I'm sure parliamentarians from Ontario can get here a lot quicker, and we would gladly come back to review an interim order to ensure that Canadian civil liberties were protected. So I think we should just put that issue to rest, because it is a non-issue as far as I'm concerned.

I do want to get your thoughts on something that in fact Mr. O'Reilly brought up, the issue of medical information that might be available to charter bus companies, because I've always been of the impression that when you give that information it's purely for that use and that nothing else can happen with it. But bearing in mind that maybe it's now going to become open, can it then be tied to all other medical information that would be available for Canadians? Are we now going to be into that kind of a situation where we can review hospital records, doctors' clinics, anything of the kind, if this continues?

Mr. Ken Rubin: One of the problems I have is Parliament went to a great deal of effort, not only when they first passed the Privacy Act, which dealt with government records, and privacy and access to personal information, but again recently when they passed this other bill involving the private sector, the personal electronic documents one.

Now this bill amends it, and how does it amend it? It adds the words “collecting and using the material”. Those are very significant, because it allows, for different purposes, the state to get involved with private sector partners in potentially passing on more information. And that's the airline industry today and the medical industry tomorrow.

Yes, there should be restrictions, but once you put the enabling clause in you've created a bigger mix. It's not like under the air transport data banks, the fact that it's for other purposes. This one says private sector partners, we're going to get your industry maybe in here, and this industry, and that. It's a different mix, which should be looked at.

You have a big job, your committee.

» (1700)

The Chair: I have an indication from four members who still want to speak. Our witnesses have been very generous with their time. I'll make a suggestion: no longer than fifteen additional minutes. I will shorten the rounds to three minutes, so be very succinct.

I think we pretty well know what these witnesses have presented to us today. You've given us what your interests and concerns are, so let's zero in here on whether there are any additional questions.

Let me begin with Ms. Carroll.

Ms. Aileen Carroll: Thank you, Mr. Chair.

Mr. Potter, in your executive summary, on the first page, you say: “Canadians currently can choose not to supply personal information to law enforcers, except in certain situations”. In my view, that's a very strong statement as to who we are and what we are as a nation.

The discussion has ensued that in order to countermand the negative aspects of this bill a Canadian would need to initiate a lawsuit. You made the comment that it could be seven years long and a very expensive process. Doesn't this legislation almost create then a reverse onus, that we no longer can assume that we have this prerogative of not supplying information by choice, and we now have to go and actively prove we have that right?

Mr. Simon Potter: I think you're right. I think it does.

Certainly in the instance of travellers it not only reverses the onus, but dictates the result under Bill C-17. The logic behind this would just as well explain the police stopping us in the street and insisting on getting our identity card and finding out where we are, where we've been, who we were there with--that's what this information is all about--when we were last in a hotel, which city we were in last time. The logic behind all of this would just as well explain something like that, which is anathema in our way of seeing our society.

Ms. Aileen Carroll: I am staying within the three minutes. Thank you, Mr. Potter.

How does the average Canadian even know the government has this information to react to?

Mr. Simon Potter: They don't. They do not.

Ms. Aileen Carroll: Thank you.

[Translation]

The Chair: Mr. Laframboise.

Mr. Mario Laframboise: Thank you, Mr. Chairman.

My question is on interim orders, particularly those provided for in Part 6, pertaining on the Department of Health Act. Section 11.1(4) stipulates that:

An interim order (a) is exempt from the applications of sections 3, 5 and 11 of the Statutory Instruments Act;

Sections 3, 5 and 11 of the Statutory Instruments Act are known as the filter of the Canadian Charter of Rights and Freedoms, among other things. If those articles applied, it would be the Privy Council's responsibility to determine whether interim orders were in compliance with the Charter of Rights and Freedoms. But when interim orders are exempted from those provisions, then they are not subject to the Charter of Rights and Freedoms for the period of time during which they apply before being made public. That is very worrying. Take a health issue, for example. If the Minister of Health wanted to force Canadians—school children and hospital patients, for example—to be immunized, then they would have no recourse, and would be forced to submit to the immunization without any obligation on the government's part to ensure that such a procedure was in compliance with the Charter of Rights an Freedoms.

Mr. Potter, I note that, in your remarks, you did not mention the fact that sections 3 ,5 and 11 of the Statutory Instruments Act would not apply.

Mr. Simon Potter: You are quite right in saying that this provision would remove interim orders from the filter provided for in the Statutory Instruments Act. That filter requires the Attorney General to issue an opinion stipulating that there appears to be no infringement under the Charter. However, that does not remove the requirement that interim orders need to be in compliance, however. The filter is simply removed for the particular period in question.

Mr. Mario Laframboise: But does the Canadian whose rights are curtailed have any grounds for a challenge? Can he say right away that he refuses to be immunized because, under the Canadian Charter of Rights and Freedoms...?

Mr. Simon Potter: That is the problem we always have in such situations. Do you breach the legislation, so that you can then challenge it by defending yourself against the prosecution that ensues, or do you comply with the legislation, and then go through normal procedures to obtain a declaration of rights? This problem comes up in all such cases.

[English]

The Chair: Mr. Rubin.

» (1705)

Mr. Ken Rubin: I think why these ministry interim orders are also dangerous is because, according to my analysis--and I think I'll be proven right--it removes the filters that are there in the checks of the information commissioner, the Auditor General, and others. It means that these guys unilaterally do what they want, spend what they want, and maybe Parliament eventually looks at part of it. The public will never know exactly what they are doing, because that's what these powers give them the right to.

In the Minister of Health's case, what I said in my brief is that they can't even get down to doing certain things to prevent a four-year-old kid choking to death on a product that they don't ban coming into the country as yet. If you want to use powers constructively, with Parliament and everybody else's okay, let's do it.

The Chair: Thank you very much.

Mr. Assadourian.

Mr. Sarkis Assadourian: Thank you very much, Mr. Chairman.

My question is based on an overall view of Bill C-17.

We have the very prominent president of the Canadian Bar Association, a very distinguished, intelligent, informed citizen, which is very much appreciated.

At the end of the day, would this bill, Bill C-17, prevent terrorist acts like September 11, the shoe bomber, or whatever? What are the chances, one in a hundred? Would this do the job, or would it not do the job?

Mr. Simon Potter: The reason we are not saying to kill the bill altogether is because we can imagine that if there is a plane hijacked, the authorities would want to have immediate access to the information about the people on that plane, that minute, for that period of 24 hours. That is why we're saying all right for the information for 24 hours, while the threat is continuing.

Would the legislation actually assist in catching people before the hijacking? I'm very doubtful, myself, but it's not my field of expertise. I can hardly see it.

Mr. Sarkis Assadourian: So basically your concern is duration for holding information, from the time they receive it to seven days. If it's 24 hours after they receive information, the flight is completed. Then it's okay with you. Basically that's what you're telling me, or your main concern.

Mr. Simon Potter: I'm taking for granted that the real purpose behind this, the justifiable purpose behind it, is to have information regarding who is on a particular flight right then, while the flight is happening, for the purposes of dealing with something having to do with that flight.

Mr. Sarkis Assadourian: As one quick point, the bottom line, the way I understand what you're telling me, is that the Canadian Bar Association will support this bill without question if the seven-day period drops to one day, 24 hours.

Mr. Simon Potter: Mr. Assadourian, with the greatest of respect--

Mr. Sarkis Assadourian: I'm not the lawyer. I'm asking you.

Mr. Simon Potter: Our purpose is not to support legislation once it's adopted. Our purpose is to try to tell you, with the benefit of our expertise, what has to be done to make this law better.

The Chair: Thank you.

Mr. Barnes.

Mr. Rex Barnes: I have one quick question, just to follow up from the honourable member.

Do you think we'll be better off if governments in general put time and effort into resources, rather than fooling around with databases, so that you don't have to hire the people on the ground to do the job right?

Mr. Simon Potter: Our position when we filed our representations regarding the anti-terrorism legislation was that what ought to be looked at first was increasing resources, making sure the resources were modern and well financed, before having recourse to draconian provisions.

Mr. Rex Barnes: Okay, thank you.

The Chair: On behalf of the committee, let me thank both Mr. Potter and Mr. Rubin for their testimony today, and again for the generosity of their time, and to all colleagues for their participation.

Just as a reminder, colleagues, the next meeting will be this Thursday, at 9 a.m., in this same room, Room 209, West Block. So you'll receive notice of change of venue.

The meeting is adjourned.