SNAS Committee Meeting

37th PARLIAMENT, 1st SESSION

Sub-Committee on National Security of the Standing Committee of Justice and Human Rights

EVIDENCE

CONTENTS

Monday, June 10, 2002

¹

1530

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.))

Mr. Richard Mosley (Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch, Department of Justice)

¹

1535

¹

1540

The Chair

Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General)

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1545

The Chair

Mr. Richard Mosley

Mr. Kevin Sorenson

Mr. Richard Mosley

Mr. Kevin Sorenson

The Chair

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

Mr. Richard Mosley

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1550

Mr. Mario Laframboise

Mr. Mario Laframboise

Mr. Richard Mosley

Mr. Mario Laframboise

Mr. Richard Mosley

Mr. Mario Laframboise

The Chair

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

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1555

Mr. Richard Mosley

Mrs. Marlene Jennings

Mr. Richard Mosley

Mrs. Marlene Jennings

Mr. Richard Mosley

Mrs. Marlene Jennings

Mr. Richard Mosley

º

1600

Mrs. Marlene Jennings

Mr. Richard Mosley

The Chair

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC)

Mr. Richard Mosley

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1605

Mr. Peter MacKay

Mr. Richard Mosley

Mr. Peter MacKay

Mr. Richard Mosley

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1610

Mr. Peter MacKay

The Chair

Mr. Bryon Wilfert (Oak Ridges, Lib.)

Mr. Richard Mosley

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1615

Mr. Bryon Wilfert

The Chair

Mr. Bryon Wilfert

Mr. Richard Mosley

The Chair

Mr. Bryon Wilfert

Mr. Richard Mosley

Mr. Bryon Wilfert

Mr. Richard Mosley

Mr. Bryon Wilfert

Mr. Richard Mosley

Mr. Bryon Wilfert

The Chair

º

1620

Mr. Richard Mosley

The Chair

Mr. Paul E. Kennedy

º

1625

The Chair

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

The Chair

Mr. Peter MacKay

Mr. Richard Mosley

º

1630

Mr. Peter MacKay

Mr. Richard Mosley

Mr. Peter MacKay

Mr. Richard Mosley

Mr. Peter MacKay

Mr. Richard Mosley

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

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CANADA

Sub-Committee on National Security of the Standing Committee of Justice and Human Rights

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NUMBER 005

l

1st SESSION

l

37th PARLIAMENT

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EVIDENCE

Monday, June 10, 2002

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I call the meeting to order, colleagues.

    I happily see a quorum. We are, in a sense, continuing with our review of the proposal to collect statistical data under the provisions of Bill C-36, the anti-terrorism act. We have with us today Richard Mosley, who is Assistant Deputy Minister of Justice, and Paul Kennedy, senior Assistant Deputy Attorney General, from the Department of the Solicitor General.

    Our general objective here is to scrutinize the departmental plans for the development of an informational database, a format for the database, and the types of statistical data that would be used, presumably, by our colleagues in the House when we do the three-year review of Bill C-36. Of principal concern to us are the provision in that bill for a sunset clause and scrutiny of the uses to which the sections dealing with preventive detention and investigative hearing are put in that bill.

    Perhaps Mr. Mosley or Mr. Kennedy has an opening statement that will put us on the map. I'm sure colleagues will have questions following that.

    Mr. Mosley.

    Mr. Richard Mosley (Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch, Department of Justice): Thank you.

    As the honourable members are aware, Bill C-36 contains provisions for annual reports in relation to the two provisions to which the sunset clause applies. They are the powers of preventive arrest and investigative hearings. It also provides for a comprehensive review of the entire act after three years. We have inquired of our colleagues in the federal prosecution service and the provincial heads of prosecution, and to date those two provisions have not been used, to our knowledge. The only elements of Bill C-36 that have been employed thus far, to my knowledge, are those amendments to the Canada Evidence Act relating to the protection of sensitive or potentially injurious information. There have been several proceedings in the federal court in relation to applications to protect such information in proceedings governed by that court and under the Canada Evidence Act.

    To come back to the two special powers, annual reporting on those provisions will ensure not only that they are being used without abuse, to the extent that they will be used, but that reporting will also assist Parliament in determining if the provisions continue to be needed to respond to terrorism in the future. The reporting requirement, as you know, places an obligation on the federal and provincial attorneys general, the Solicitor General of Canada, and the provincial ministers responsible for policing to track and report on the use of these provisions and the various elements associated with each.

    On the three-year review, the act does not specify how that will be carried out, beyond establishing that it is to be a comprehensive review of all the provisions in the operation of the act. It will then be for Parliament to determine the precise form that review will take.

    As part of its implementation plan for the act, the Department of Justice has taken steps to support both the annual reporting and the review aspects of the legislation. Given that the provinces have responsibility for the administration of justice, much of the expected use of the act will be by the provinces. Given also that the federal government has no control over or right of access to the files of provincial governments, ongoing cooperation with them is essential in order to gather information to support the review. With that in mind, steps have been taken to set up a federal-provincial-territorial infrastructure to coordinate matters in relation to the act.

    Following the November 2001 meeting of ministers responsible for justice, a working group was formed to develop a template that will be used to collect data on the use of the act, in particular to provide a uniform base for fulfilling the annual reporting requirements with respect to preventive arrest and investigative hearings. Those templates have been finalized and distributed to jurisdictions to be further distributed within their territories. Although we expect that a cooperative approach will be taken, the use of these templates by the provinces will be voluntary, and some jurisdictions may decide to take a different approach in fulfilling the annual reporting requirement. Copies of the template have been provided to the clerk for distribution to the committee for your consideration.

    A deputy minister's committee has also been established, and coordination issues in relation to the act will be on the agendas of meetings of both the deputy ministers, who met as recently as last week in Quebec, the agenda of the heads of prosecution, which occurred in April, that of the coordinating committee of senior officials responsible for justice, which took place in May, and subsequent meetings of those bodies.

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    We've also been working with the provinces on the development of a protocol to ensure coordination of legal advice to the police and the coordination of any prosecutions that may be undertaken pursuant to the act.

    Other areas of importance in relation to the implementation of Bill C-36 include training and outreach. On the training front, we've had a number of sessions with judges, prosecutors, and the police. These have been largely of the nature of training the trainers, whereby relatively small numbers of police or prosecutors are brought together. For example, this week we have a two-day session with prosecutors in Gatineau. These will be both federal and provincial prosecutors, who will then be responsible for further delivering training within their respective jurisdictions. In March we gave a session to the federal court. We provided training to police officers in April at the Police College here in Ottawa. We provided a session to the Canadian Association for Civilian Oversight of Law Enforcement. And we've been speaking at a number of professional and academic conferences and meetings of professional associations.

    We've also prepared a training video which has been widely distributed. The clerk has copies of that, which I believe have been or will be made available to all members of the subcommittee. That is intended to assist in individual training by persons who have need to gain a thorough understanding of the act. It's broken down into modules, and they can deal with individual components of the CD-ROM on a demand basis. This is essentially a video that has been translated to CD-ROM format and can be used at the convenience of the holder.

    We're conducting outreach activities that will focus on interested communities. For example, the former Minister of Justice undertook to produce a brochure on basic rights in relation to Bill C-36, and we are continuing work on that and hope to have a draft for consultation shortly with interested communities. We're also intending to convene a round table of representatives from Canadian cultural and religious communities to discuss implementation issues.

    In a research plan that has been developed, apart from basic monitoring of activities under the statute, we propose to do a file review in those jurisdictions that actually have cases under Bill C-36 within the next three years. We expect those numbers to be relatively small, and the file review would be intended to pull out from the actual case histories as much information as possible about how the legislation was employed and what effect it may have had on interested individuals and groups.

    We'll also be conducting an overview of jurisdictional structures. This would be essentially a snapshot of how jurisdictions have been dealing with terrorism and the legislation since September 11. We would do a crime trend analysis, which would review trends from September 11 to see if there are any anomalies in the crime data, in either the reporting or charging statistics. This is to determine, in part, whether there have been collateral effects on police practices, such as heightened awareness leading to more reports of perceived offences, as well as additional charging practices.

    We will also be looking at the social and business cost implications of terrorism in the context of the application of Bill C-36. We expect these to be quite minimal, but we'll be looking at issues such as costs associated with delays at the border, limited travel, reduced consumption, and entertaining, to see if those trends are borne out.

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    Further, we would conduct a focus group with criminal justice officials to conduct a qualitative analysis of how the work of their parts of the justice system may have been affected since September 11.

    Then we'll do an impact study on affected communities. Again, that, in conjunction with the production of the brochure and the round table, would be intended to determine what the impact may have been on the individuals and collectivities of communities that may be affected by events since September 11. We would be doing that in partnership with other departments, such as Canadian Heritage, HRDC, and CIC.

    Finally, we're proposing to do some data mining, which, in effect, would be to examine existing government databases to analyse changes that may have been recorded, such as immigration deportations due to criminal activity, incoming immigration numbers, the number of hearings, citizenship numbers, refugee hearings, and so on.

    The total cost of this we estimate over the next three years to be in the neighbourhood of $600,000. We don't have the funds yet. That would still be dependent upon a Treasury Board submission early this fall.

    The Chair: Thank you very much. There's a lot more out there than I thought, so that's a good start.

    Mr. Kennedy, do you have a statement you'd like to leave with us today?

    Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General): No, I don't, except to indicate that the Department of the Solicitor General is working with Justice. Mr. Mosley was taking the lead to champion this before the CCSO, the Canadian senior officials. We're working with him in that regard. I'm quite happy with the progress, as I'm sure we all are.

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    The Chair: Okay, thank you.

    We'll go to questions. Mr. Sorenson.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I really don't have too many questions.

    When you've come together with the attorneys and the judges and the police officers, have there been other concerns brought forward about things that have been omitted or questions about whether it's going to hold up to a charter challenge? Have there been any huge concerns that have come out of any of these seminars? It's more of an instructive seminar, I realize that, but sometimes when you get together with the people who are involved in interpreting the law across this land, other things will come forward and be a red flag. Is there anything substantive?

    Mr. Richard Mosley: Not really. This is a very large piece of legislation, 186 pages in this printed version at royal assent, with amendments to 15 statutes. It creates an entirely new statute, the one dealing with the charities. It's very complex legislation. What we've been hearing thus far is mainly a concern about getting a handle on it, understanding what's in the act and what may have to be employed by people if the situation arises within their bailiwicks.

    There has been, I think, some speculation, particularly within the academic community, about charter vulnerability. For the most part, those views have confirmed the assessment of the government and the Department of Justice that the legislation is not vulnerable to charter challenges. That's the sort of thing that has been the focus of the conferences that have taken place, issues as to whether a particular clause or group of clauses may be subject to a successful charter challenge.

    Mr. Kevin Sorenson: How many of these seminars have there been? Are they an ongoing thing? How long are they going to continue? Are they all across Canada or just here? What's the cost of these seminars?

    Mr. Richard Mosley: I don't have those figures at hand, but the costs can be considerable, as we are picking up the travel costs associated with bringing people in from across the country. But rather than us going out to every corner of Canada to deliver these programs, we are training personnel from the provinces and territories who will then deliver that training themselves back in their home jurisdictions.

    Mr. Kevin Sorenson: Thank you.

    The Chair: Monsieur Laframboise.

[Translation]

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

    You said earlier that all the provinces worked together but that this could be applied differently from one province to another. Could you explain that to me, please?

[English]

    Mr. Richard Mosley: I actually suggested that it will be open to the provinces to choose another means to collect the data. They won't have to use the templates we developed in conjunction with several of the provinces. I'm not suggesting that the information will be different from one province to the next, but the way they collect it and report it may be different, subject to the requirements of the statute. The statute is very specific about what type of information has to be reported, but how that information is collected and what form it's reported in will be up to the individual province. We hope they'll use these templates for consistency. I expect most of them will, but if a province chooses to assemble and present the information in a different way, that will be up to them. That applies only to their own operations, the activities of their own police forces and prosecutors. Insofar as the RCMP activities or federal prosecution service activities occur across the country, they will be standardized and presented by the Attorney General of Canada and the Solicitor General of Canada.

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[Translation]

    Mr. Mario Laframboise: You understood that, in the case of Quebec, the RCMP are not providing many services. Most services are provided by the province authorities. You were in agreement up to now. Is it going well with Quebec?

    Mr. Richard Mosley: It's going very well with Quebec. We don't have any problem at the present time.

    Mr. Mario Laframboise: Is your agency responsible for producing the annual report to Parliament afterwards? Will you be doing it?

[English]

    Mr. Richard Mosley: At the federal level the Attorney General of Canada and the Solicitor General of Canada will table reports before Parliament. At the provincial level the attorneys general of the provinces and the provincial ministers responsible for the police must make their reports public. To respect the division of constitutional responsibility, they will not be filing any reports before the Parliament of Canada, but under the statute they must make their reports public each year. As to how they choose to do that, I wouldn't care to speak for them, but they will presumably follow the normal procedures within each province for publishing government reports.

[Translation]

    Mr. Mario Laframboise: This is my last question.

    Regarding the type of information that sould be maintained in the databank, are you totally in agreement or was there some differences regarding the information which should be controlled?

[English]

    Mr. Richard Mosley: No.

[Translation]

    Mr. Mario Laframboise: Thank you.

[English]

    The Chair: Ms. Jennings.

[Translation]

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

[English]

    Mr. Mosley, I assume you've heard the expression driving while black?

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    Mr. Richard Mosley: Of course.

    Mrs. Marlene Jennings: Then you know the ethnocultural communities, particularly the visible minority communities, the communities of Islamic faith, have been very concerned about this particular piece of legislation and have felt there have been, even before the events of September 11, a certain number of problems with our law enforcement in respect of possible racial profiling. When I look at the questionnaire, I see no way, with the information that would appear to be collected, to have any kind of oversight of whether or not there was any kind of unjustifiable targeting on the basis of ethnocultural origins, on the basis of legal status in Canada, on the basis of physical appearance or religious faith. I think that is a real problem.

    When you talk about this file review, based on the actual files in the next three years, are you talking about the actual police files? I know a lot of police forces, even though they will not publish the information on their daily incident report or arrest report, have a little box that says, “white, black, other”, etc., and that's where they'll write in East Indian or Vietnamese or Asian or Haitian or whatever. I've seen the reports. I was deputy commissioner for police ethics for the Province of Quebec. I'm one of the founding members of one of the associations you mentioned, CACOLE, the Canadian Association for Civilian Oversight of Law Enforcement. So I've seen these reports. I worked with those reports for many years. The data are there, correctly or not, because it's the officer's subjective viewpoint as to what the person's ethnocultural origin is. Is that file review going to go to the actual police force documents? If it's the SPCUM, the Montreal city policy force, or the Toronto police force, or Chicoutimi, or Sûreté du Québec, will they be dealing with the actual police reports? Or is it with what I would call the sanitized information of the provincial attorneys general and ministers responsible for the law enforcement within that province, and the federal Attorney General and the Solicitor General for the RCMP, obviously, in their annual reports? If it's just these annual reports, then we're never going to be able to answer, in an objective fashion, criticisms that are bound to come out, based on anecdotal information, that profiling has gone on with the application of these new measures.

    Mr. Richard Mosley: We would hope to have access to the actual files.

    Mrs. Marlene Jennings: Why wouldn't you be able to?

    Mr. Richard Mosley: Because we don't have the authority to compel the provincial or municipal police forces to permit us access to their files. However, we do have, in these circumstances, a compelling, persuasive case that researchers should have access to the raw file material. The research plan has been developed in part because of the concern that the data collection exercise, represented by these templates, will not present a complete picture. We hope to get at a complete picture to support the parliamentary review through a number of different means, including file review, but also through feedback from the communities, who will themselves have a good idea whether there is a perception of abuse on the part of the authorities, through interviews with those working on these cases directly, and through the other means I've described. At the end of the day--and again, we're anticipating a very small number of actual cases--together with the statistical data, Parliament would have a good understanding of how this legislation has worked.

    Mrs. Marlene Jennings: Okay.

    Police forces that come under provincial jurisdiction are not RCMP, obviously, so in order to gain access to the police files, you would need to have the consent of the provincial governments. With regard to the data collection, which is legislatively required, they can collect the data in whatever way they want, as long as they become public in some form, such as in an annual report. Is the issue of access to the police files for those cases that come under the sections requiring publication of the data part of an ongoing discussion with, for instance, the Attorney General of Quebec, so that a review can be done to see if there is any evidence of unjustifiable profiling? Is that part of the ongoing discussions I'm assuming Justice is having with its counterparts in the provinces with regard to the application of this legislation?

    Mr. Richard Mosley: It will be. I can't tell you whether it has come up yet, because I haven't been involved in all those discussions. Certainly, it will be part of the ongoing discussions we're having with them. These have been held at different levels on different related topics. That process is by no means complete. As I said earlier, we are still working on training personnel as to what's in the act and how to employ it in appropriate circumstances. When we start to roll out this research plan, we will, of course, sit down with the provinces and territories to discuss the practical means to make it work.

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    Mrs. Marlene Jennings: I'm going to explain to you why I think you should begin your discussions with the provinces immediately. In my previous professional career, I presented a brief in the late 1980s to a public inquiry conducted by the Quebec Human Rights Commission into race relations between the Montreal police department and the visible minority community, specifically the black community. Under that public inquiry they had the authority to secure access to police files, and over a period of about three years they did a study of files involving four criminal charges, assault, disturbing the peace, mischief--I forget what the fourth one was. They were able to determine that if you were a member of a visible minority, with all the facts listed in the report, you were two to three times more likely not to be released on your own recognizance, to be forced to appear before a judge, and to be detained. The level of the charge was liable to be more serious, and it was more likely to be handled by indictment rather than summation, the whole bit. They were able to show that scientifically. They then recommended that another study be done in five years time. Since then no one has been able to have access to those police files.

    So I'm not as confident as you are that the provinces will want to allow access to their files if the purpose is to look at whether or not people of ethnocultural origins and specific religious groups have been unjustifiably profiled. That is why I would suggest that discussions begin sooner rather than later. I would ask you to comment on that.

    Mr. Richard Mosley: We will be having further discussions with the provinces in the near future, and I'll be certain to put that matter on the agenda.

    The Chair: Good.

    Now I will go to Mr. MacKay, and then to Mr. Wilfert.

    Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair, and I want to thank both Mr. Mosley and Mr. Kennedy for being here.

    The first question I have is with respect to the time period. I know it's a done deal now, but do you feel that sufficient time will have passed to get an accurate read on the use and potential misuse of these sections?

    I also have a general question I hope you can respond to with respect to your understanding of the actual documenting of the preventive arrest and investigative hearing procedure, if you will, because I, like my colleague Ms. Jennings, have concerns about how much of this will work in practice. Under current Criminal Code provisions, we've come a long way with disclosure, but I'm still aware of instances where police notes, for example, become very much the subject of controversy over disclosure in the course of a criminal hearing. I would be very interested in your opinion as to how we ensure ethical disclosure of the details of these investigative hearings and this process of preventive arrest.

    Mr. Richard Mosley: What Mr. MacKay has pointed to is, of course, a practical reality in any system that depends on human beings for implementation. One advantage we have in this context is that there are a number of different points where the information can be collected. There is the level of the police force. There is the role of the Attorney General, which is crucial for the implementation of these two provisions in particular, inasmuch as the consent of the Attorney General is required. In both instances, as well, there is the involvement of the court. We will be collecting data in relation to all three. You would have the benefit of being able to cross-reference information collected by the Attorney General through his or her prosecutors across the country and in each province with the information that is collected by the police, aggregated, and reported by the solicitor general or provincial minister who's responsible for policing in a particular province, and then compare it with the information on the court record. The court record is, of course, a public document, unless it is, in extraordinary circumstances, sealed.

    So there are those opportunities to compare the information, and it's not solely dependent upon what any one of the three components of the system would report.

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    Mr. Peter MacKay: I appreciate that answer.

    What I'm getting at is this. Is it your understanding that by virtue of this legislation and the mandated review, and even with the sunset clause element, for lack of a better word, the participants or the enforcement element are compelled to make complete disclosure for this review? You touched on the very important element of seeking out the information. If it's on the court record, it's there, it's quite easy to locate. My concern is with the investigations that never result in charges, investigations that never even result in the matter being documented. We're into a very nebulous area of recording and what the police are obligated to keep track of.

    As an aside, I have similar concerns about how we're going to mandate the police to keep records of warnings for youth. It's the same sort of problem when we're trying to track, keep account of, and review behaviour on the part of our law enforcement community and prosecution that may, in fact, not be documented. I'll hesitate to make any comments on contracts that aren't documented. That's at the very root of this in the matter of accountability.

    Mr. Richard Mosley: That is a very valid point. The statistical requirements set out in section 83.31 of the Criminal code are very detailed--these are pages 40 and 41 of the assented to version of the bill--and do provide an opportunity to learn, for example, where somebody has been arrested without warrant and been released before either the consent of the Attorney General was sought or the person was brought before the court. That's in paragraph 83.31(3)(b). They are perhaps the most detailed reporting requirements of any statutory requirement to report in relation to police activity--that would be my guess, having been in the business for a while. So it doesn't leave a lot of room for an intervention with an individual to fall outside the scope of the reporting requirement. That assumes, of course, that a report is made, as it should be and is required under the statute.

    Mr. Peter MacKay: It is my belief that the overwhelming majority, 99%, of police do keep comprehensive notes and do act in good faith, but much of this reporting scheme and mechanism is based on voluntary disclosure and goodwill on the part of the law enforcement community. Would you agree with that statement?

    Mr. Richard Mosley: The reporting requirement is dependent on members of the law enforcement community observing their statutory responsibilities. Clearly, if they don't, there are means to deal with that as a matter of discipline, or even, in appropriate cases, more serious sanctions. The research plan as a whole is intended not to be reliant upon the goodwill of any individual who is required to report, but on the collection of information from a number of different sources, all of which, collectively, should present a thorough, comprehensive picture of how the legislation has been employed.

º  (1610)  

    Mr. Peter MacKay: You're right, I apologize. Goodwill is perhaps not the word, but professionalism and following of those requirements. But again, my overriding concern here is that we're into a completely new area of police power that hasn't existed before. I am sure you would agree. Even currently, with the mandated rules of disclosure as a result of case law and new provisions of the Criminal Code, there are instances, sadly, of the bad apple, the bad case. Where cases are jeopardized, this is a review that is going to be so important in justifying whether these new powers will continue and whether they are in fact justified, given the numbers and the data that supposedly are to be collected.

    Thank you.

    The Chair: Thank you.

    Mr. Wilfert.

    Mr. Bryon Wilfert (Oak Ridges, Lib.): Thank you, Mr. Chair.

    I'm sorry I missed the beginning of your presentation, but in this legislation we're trying to strike the balance between what's in the public interest and what's in the individual's interest. One of the terms that keeps coming up is the accountability factor. Presumably, you are familiar with the legislation of the United States. Could you outline very briefly where there are points of contention between the two of us and where there may be areas of similarity in addressing this issue, making it accountable to Congress and, in our case, Parliament?

    As well, I have a couple of specific questions about the coordination factor between the federal and provincial governments.

    Mr. Richard Mosley: There are some similarities between this legislation, the Patriot Act in the United States, and the comparable legislation in the United Kingdom. Once Bill C-36 was before Parliament, we prepared a comparative chart and made it available to the standing committee. We'd be happy to provide an updated version of that to this committee if you wish to look more closely at comparisons between the two pieces of the legislation.

    There is a sunset clause in the U.S. legislation that applies to wiretapping provisions. They don't have anything precisely comparable to the two provisions the sunset clause under Bill C-36 applies to, but they did have, and do have, comparable mechanisms in their general law of broader application. For example, one of these provisions deals with investigative hearings. The U.S. collects information through grand jury proceedings, which may subsequently result in an indictment. With the grant of immunity, waiver of the fifth amendment rights of the individual, they compel witnesses to appear and testify in those proceedings in order to support an investigation and prosecution. That's a different way of trying to achieve the same objective the investigative hearing mechanism under Bill C-36 attempts to achieve.

    They also have procedures whereby they can apprehend and hold individuals for periods of time. They can do that, for example, under immigration law. That was the subject of amendments through the U.S.A. Patriot Act. They can hold people as material witnesses, and they have since September 11.

    So the provisions of their law are not precisely identical with those of Bill C-36 or our other laws of general application, but they seek to achieve the same ends.

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    Mr. Bryon Wilfert: Thank you for that.

    Mr. Chairman, I'd be interested in obtaining a copy of that comparison.

    The Chair: Is that the document dealing with comparisons with the U.S. law?

    Mr. Bryon Wilfert: Yes.

    Mr. Richard Mosley: The U.S. and the U.K. law. We have an updated version, which we'd be happy to provide to the researcher.

    The Chair: Mr. Wilfert first, but then our researcher would really like to have a look at that too.

    Thank you, Mr. Wilfert.

    Mr. Bryon Wilfert: Thank you.

    The legislation requires a comprehensive review on the provisions and the operations after three years by Parliament, a committee, or whatever it's going to be. Is there going to be any consolidated approach in tabling the law enforcement annual reports? Is there going to be any coordination to review what's in each of these reports? Presumably, you could have over 20 reports. Is there going to be a mechanism for consolidation or an overview to see what's in each of them in a form that would be recognizable?

    Mr. Richard Mosley: There is an agreement to compare notes on these reports. The provinces are not obliged to share their reports with the federal government, but in discussions with provincial officials, we've reached an understanding that there will be an exchange of this information before the reports are made public. I would expect that most of these reports will be nil reports, that there will be simply nothing to report.

    Mr. Bryon Wilfert: You can only hope.

    Mr. Richard Mosley: One would hope.

    Mr. Bryon Wilfert: But in the worst-case scenario, if you're not sharing the information with the federal government, in theory... We've seen the problems we've had in the past when information has either not been shared or has slipped through the cracks. So when you say some of this information will be shared, at least before it goes public, who is going to get it?

    Mr. Richard Mosley: I was referring specifically to the reports required under the statute. There has already been a great deal of sharing of information about best practices in relation to responding to the post-September 11 environment, and that will continue. That's ongoing and is being conducted in a spirit of mutual cooperation and collaboration. With regard to the specific reports, the responsibility rests with each minister to ensure that the report is made, not officials. We will discuss them, I would presume, before they are either tabled in Parliament at the federal level or made public provincially.

    Mr. Bryon Wilfert: Thank you very much.

    The Chair: Other members may have a second round. There is room. I have a couple of questions myself.

    In particular--this is really picky--your draft reporting document, which I guess is the reporting document you've compiled and sent out to the provinces now, right around items 34 and 35, deals with subsection 83.3(6). That was a subsection in the statute that caught my eye earlier. It wasn't revised, and I do understand the reason for it and I'll explain it. This has to do with the preventive detention and releasing or not releasing somebody with a recognizance. It says that when a person is in custody, the person has to be taken before a provincial court judge within 24 hours. That's 83.3(6). Paragraph (a) says 24 hours, but paragraph (b) provides an exception to that and says, if a provincial court judge is not available, it should be as soon as possible. So you have the option to take the person in front of the judge within 24 hours, but if a judge isn't available, it needs to be done as soon as possible. It's the “as soon as possible” that bothers me, given the potential extent of sensitivity to civil liberty issues in relation to these detentions. I wish we could have drafted something a little more precise than “as soon as possible”, remembering that we're not so much concerned about the good faith exercise of these authorities by police as we are with the bad faith exercise.

    I was worried about the case in some locations in Canada where the police simply decided to hammer down and couldn't find a provincial judge within 24 hours. The individual they detained might nominally have been in custody based on these sections and released two or three days later, after the weekend, with or without the availability of a judge within 24 hours. I thought it would have been better if your questionnaire had asked whether or not an individual had been held beyond the 24-hour period, just because I have always seen this as a loose end. I regret the possibility that someone might be held beyond 24 hours without getting the person in front of a judge. It could have been noted. There doesn't appear to be a place there to say, whoops, we're sorry, we couldn't find a provincial judge. Of course, in the urban areas there are lots of provincial judges available, I guess.

    Would you just take that as something I flagged? It's a civil liberties issue.

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    Mr. Richard Mosley: Let me just say, if I may, it's a recognition of the geographic reality of Canada. This is actually, I think, a stronger term than what is often found in the Code, “as soon as practicable”, which I think allows a bit more leeway. “As soon as possible” suggests, when you can physically find a judge to bring this person before. But I would draw your attention to item 35: “Elapsed time from arrest to appearance before a judge: x hours”. Does that not address your concerns?

    The Chair: Maybe it does. If the accurate hours get put in there, it would. That's a good point.

    The second item I wanted to raise was, have any of the police forces or provinces raised the issue of the administrative costs of compliance with these things with the federal government? I've been asked about it. The response sometimes out there is, this is a federal deal, terrorism is a federal jurisdictional responsibility. This has been foisted upon us. We have to now work under some direction of the federal authorities, and we hadn't earmarked any resources to deal with this. Is this something that has been raised with the Department of Justice or with the Department of the Solicitor General?

    Mr. Paul E. Kennedy: I can try to answer that. You're talking with reference not to the administration of the questionnaires, but to administration of the law. It has been raised by my officials to be looked at. We're developing templates, as are our provincial colleagues, to see if we can find out exactly what costs, if any, they're actually incurring. We have seen public pronouncements by some chiefs of police across the country that they would like x millions of dollars to discharge this duty. I go back to the comment, though, by my colleague Mr. Mosley that the reality is, in the terrorism area, if you look at it strictly from that point of view, the information you would have access to that would allow you to initiate an investigation and to carry it through is most likely derivative of evidence in the possession of the federal government, not something that would occur at the provincial level. So I'm not really sure to what extent our provincial and municipal colleagues would be players in this particular area in any event.

    There was a great deal of anxiety immediately surrounding September 11, of course. As we move a greater distance from that, I think we expect the federal authorities to put procedures in place to identify, monitor, investigate, and so on these people. The role of the provinces, I think, will actually come in a different manifestation, which is the first responder role, where we can assist them and where we would expect the provincial colleagues to be the first on the ground. There is a separate financial package for that through OCIPEP, the Office of Critical Infrastructure Protection and Emergency Preparedness, where we do deal with our provincial colleagues to make money and training available for them to play a role there.

    I think there's a difference between what they think they are going to be playing on and the actual realities, what agencies will in fact be doing the administration, investigation, and enforcement of this legislation. But the question has been raised.

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    The Chair: Thank you.

    Mr. Sorenson.

    Mr. Kevin Sorenson: This talks about the confidentiality of this report and says it's “protected when completed”, but does CSIS have access to any of this? I don't know if there's any information on there that would help them.

    Mr. Paul E. Kennedy: I can speak on behalf of the Department of the Solicitor General. I don't know what information would be of value to CSIS from it. Clearly, there are dialogues that occur between CSIS and the various police forces where appropriate. They have authority under their legislation--I think it's under paragraph 19(2)(a)--to share national security information where it may indicate an indictable offence is going to be committed. That's the nexus, because terrorism at various stages migrates into criminal activity. I really don't see any benefit there. Hopefully, the information they have is a bit more profound than what's appearing at this stage. If there's something appropriate that municipal or provincial police forces have, they are sharing it with either CSIS or the RCMP, who could collaborate with the intelligence agency.

    The Chair: Mr. MacKay.

    Mr. Peter MacKay: As somewhat of a follow-up to that--and this may be going far afield and into the hypothetical--would a shared or joint operation that might involve our allies, most particularly the Americans, be covered by the scope of this collection of information? Could you contemplate an instance where information might be withheld, again keeping in mind the need for confidentiality and not to compromise any of these investigations and the length of many of these investigations? I'm trying to figure out the scope of the data that will be collected and whether the CIA or FBI could exclude themselves from the coverage of this when working in conjunction with a Canadian police force.

    Mr. Richard Mosley: The actual requirements in the statute relating to the data are not specific to individual cases, so it's unlikely that any information of concern from an operational perspective would be reported in any of these data templates. Beyond that I really couldn't comment on your question, other than to point to the amendments to the Canada Evidence Act that do provide mechanisms to protect information that, if disclosed, would be injurious to national defence, national security, and international relations.

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    Mr. Peter MacKay: So I take it from your response that essentially--and I know this is a bit of an obscure point--you have to admit that there are potentially large operations involving a significant number of people in the pursuit of a terrorist cell that could have a very profound impact on the quantitative data. If that were excluded, I'm suggesting it would have a real skewing effect on the information that's reported.

    Mr. Richard Mosley: I don't think there'd be any reason to exclude the quantitative data. Where it might present a problem is with respect to a file review, and there may be sensitivities, for national security reasons, about access to a particular file for our researchers. In those circumstances, I think your concern might arise.

    Mr. Peter MacKay: All right.

    Finally, and I think the chair alluded to this, there is the training aspect. Aside from the resources--and I note that we've been provided with a video CD--has this type of information already been disseminated to police as well for training purposes and manual purposes to get this process started? Has that happened already?

    Mr. Richard Mosley: Not in the form of a manual, but there certainly have been training programs conducted already with the police, for example, in April, a three-day session at the Canadian Police College.

    Mr. Peter MacKay: Thank you.

    Mr. Richard Mosley: Also, the video that is now on that CD was launched at the meeting with the Canadian Association of Chiefs of Police in January.

    Mr. Paul E. Kennedy: By the way, with credit to my colleagues, it's a good CD. You should look at it. Through the years part of the challenge with new legislation is trying to get it in a user-friendly format that actually is instructive to people and not something that sits on the shelf. My colleagues in the RCMP working with the Department of Justice have done a good job with this CD. If you put it on, it won't put you to sleep--I think it'll engage you for a little bit anyway.

    The Chair: To put this stuff in some practical context, the fact that there haven't been any reported incidents of the use of these subsections means either there's absolutely nothing going on or there is quite a bit going on, but it hasn't been necessary to conclude any of the investigations with a detention or a hearing. I suppose we're going to have to go into more detail than that, but we'll find out in due course. The trigger point for the use of these sections would presumably be when it's time to pre-empt an incident or to cut and run. We haven't reached that practical stage yet in any of the possible real-life situations that are out there.

    Mr. Paul E. Kennedy: That's an excellent observation. To go back to one of the questions Mr. MacKay posed to us, as to whether or not the three-year time period was an appropriate period, it's clear that if you look solely at this legislation, it will be event-driven as to whether or not there will be need to have recourse to it. There has obviously been activity conducted by the Government of Canada with respect to terrorist threats for quite a while, or we wouldn't have had an intelligence service with a mandate in this area. Of course, we have the provisions we use a couple of times a year under the Immigration Act to remove people who we believe are of some concern. I think one has to put this legislation in the proper context. It is an overlay of additional powers and tools available to the state, when and if a situation gets to the crisis stage. If there are easier ways to do it, you use them. I believe Mr. Elcock, in his appearance, articulated that continuum of recourse to tools by the state, up to the most intrusive, which would be some of the items in this package.

    The Chair: Good.

    Colleagues, that will do it. Thank you very much, Mr. Mosley and Mr. Kennedy.

    We're now adjourned.