FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 30, 2001

• 0909

[English]

The Chair (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): Colleagues, I'd like to call the meeting to order.

• 0910

Before I turn to our witnesses in respect of Bill C-35, I'd like to hear from Mr. Harb. Mr. Harb's subcommittee called a meeting to discuss the issue of the sugar industry. You will recall that there were some concerns about sugar under free trade in the Americas, particularly in Central America, as fallout from the Costa Rica bill we recently did.

Do you want to speak to this, Mr. Harb?

Mr. Mac Harb (Ottawa Centre, Lib.): I will very briefly, Mr. Chair.

I'd just tell you that this came about as a result of the effort of my colleague Ms. Jean Augustine, chair of the sugar caucus, along with my colleagues Mr. Rick Casson, Mr. Pierre Paquette, and Mr. Svend Robinson. Using facts, they have collectively convinced us that it's important for the committee to put some tangible recommendation before Parliament, for the government, so in the future—

The Chair: Mr. Robinson has finally realized that you can get further with sugar than with vinegar.

Mr. Mac Harb: In the future we will be able to take that into consideration when consulting with the sugar industries so we do everything we can to protect this viable interest in Canada.

This was unanimous, Mr. Chair. It was a unanimous report.

The Chair: Good.

Colleagues, do we have any discussion, or can we adopt this report and instruct Mr. Harb to report it to the House for us?

[Translation]

Does everyone agree? Thank you very much.

Mr. Harb, you have the floor.

[English]

Mr. Mac Harb: I would like to ask Ms. Augustine to put it before the House, because she's the chair of the sugar caucus, and I think it's appropriate.

The Chair: We'll ask Ms. Augustine if she could represent the committee and report it to the House.

Mr. Mac Harb: Sweetheart.

The Chair: That would be very good. So there's sugar and spice in this report, is there?

Okay, that's the tenth report.

Colleagues, we are now moving to Bill C-35, and we have some officials from the government to speak to us about it. Will each one of you be presenting, or will you be organized more on a sectoral basis?

Ms. Swords.

Ms. Colleen Swords (Deputy Legal Adviser and Director General, Legal Affairs Bureau, Department of Foreign Affairs and International Trade): Mr. Chair, I think our intention was that I would give an opening overview, and then we would respond to questions. We have people here from the Solicitor General's office and the RCMP because one of the provisions affects them quite considerably, and they are better able to answer the questions in that regard.

To my right I have Keith Morrill, who's been working in the trenches on these issues for many years and is able to answer everything it's possible to ask about this bill.

The Chair: We always welcome a view from the trenches.

Well then, why don't you do that? I think that would be very helpful. And thank you very much, each one of you, for coming. We'll ask Ms. Swords to just go ahead, and then we'll turn it over for questions.

Ms. Colleen Swords: Thank you very much, Mr. Chair.

There is an opening statement in the book that's been provided to you. I thought that I would just try to summarize it somewhat, though, and give you an overview, because it is a little more detailed and more lengthy than time permits for a full presentation.

It's my pleasure to speak to the bill entitled “An Act to amend the Foreign Missions and International Organizations Act”. The main amendments in the bill are designed to facilitate international events in Canada, including summits, and to enable us to comply with our existing commitments under international treaties. The bill will also correct several housekeeping inadequacies identified since the act was passed by Parliament in 1991.

As you may know, the Foreign Missions and International Organizations Act provides a statutory basis for the privileges and immunities of diplomats in Canada. It also provides the government with the ability to deal by Order in Council with the privileges, immunities, and legal status of international organizations and their events or summits in Canada. For example, existing Orders in Council under this act govern the legal status in Canada of organizations such as the International Civil Aviation Organisation in Montreal, the United Nations, and the Agence de la Francophonie.

The bill's core amendment is key to providing privileges and immunities to foreign officials who attend intergovernmental conferences or summits in Canada. The amendment is an amendment to the definition of “international organization” to include international organizations and meetings that are presently excluded, such as the G-8, the Organization for Security and Co-operation in Europe, and APEC.

• 0915

The reason they are not currently covered is, as was pointed out by the Standing Joint Committee on Scrutiny of Regulations several years ago, that the definition only provides for international organizations that are covered by a treaty. In today's modern world there are many international organizations that are not based in a treaty, including the G-8.

Therefore, we have a somewhat odd situation where something like the Sommet de la Francophonie is covered by the act and an order can be granted, but then you have the G-8, which is not based in a treaty, and therefore you cannot provide an order under the act. This is an anomaly we would like to fix before Canada hosts the G-8 summit, which is scheduled for June of 2002. This amendment will ensure that the meetings and the foreign officials involved enjoy protection and good treatment under Canadian law.

Another key proposal in the bill concerns the police authority to provide security for intergovernmental conferences held in Canada. This has become necessary if you look at violent protests and events such as the one in Genoa and more recently the terrorist attacks in the United States. It's considered to be timely for the government to clarify in statute the existing common law authority for police to provide security for international events. Other countries, such as Australia and New Zealand, have already taken these legislative steps.

Specifically, the bill will clarify the RCMP's role for assuming primary responsibility to ensure security and the proper functioning of an international conference attended by persons granted privileges and immunities under the Foreign Missions and International Organizations Act and for which an order has been passed.

In practical terms, the proposal simply reflects in statute the current primary role played by the RCMP in providing security at international events. As in the past, the RCMP will continue to work in close partnership with provincial and municipal police forces in providing security for the events.

Another amendment will allow the government to extend privileges and immunities to international inspectors who come to Canada on temporary duty in order to carry out inspections under the Chemical Weapons Convention and the agreement with the Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization. For example, the Chemical Weapons Convention requires that inspectors be granted diplomatic privileges and immunities similar to those accorded to diplomatic agents under the Vienna Convention on Diplomatic Relations. Currently, no Canadian legal instrument other than the implementing legislation provides that level of privileges and immunities, so we want to bring ourselves into conformity and full compliance with that obligation.

The bill also broadens the privileges and immunities of permanent missions accredited to international organizations such as ICAO in Montreal. ICAO is presently the largest international organization with their headquarters in Canada. This amendment will improve the ability of Montreal and other Canadian cities to service the headquarters of international organizations operating their headquarters in Canada. The amended legislation will also help Canada compete with other countries to attract such headquarters.

The benefit to local economies of such organizations is significant. A 1990 study found that the economic benefit to Montreal was in the order of $80 million. Of course, Montreal is not the only Canadian host city that benefits from the presence of international organizations. Vancouver hosts the Commonwealth of Learning Secretariat, and Halifax hosts the Northwest Atlantic Fisheries Organization.

The final important amendment I want to mention is the clarification of the relationship between the Foreign Missions and International Organizations Act and the Immigration Act. The amendment, which is supported by the Minister of Citizenship and Immigration, will make clear that when an order is passed under the Foreign Missions and International Organizations Act, the requirement to grant minister's permits under the Immigration Act is removed. The need for this became quite obvious in the case of Nelson Mandela, where in order for him to attend a conference in Canada he had to be granted a minister's permit. If it's clear in the law, then we will not have to take that step; it will be covered under the legislation.

The remaining amendments, Mr. Chair, we consider to be fairly technical and sort of housekeeping amendments, covering things that have come up over the course of the ten years' operation of the legislation. I don't want to go into them in too much detail, as I'd like to leave time for questions. I'll just cover them quickly.

• 0920

There is an amendment that will ensure that tax privileges currently granted to the members of a mission accredited to an organization like ICAO also go to the mission itself. So the mission will be able to purchase its Xerox machine without paying GST, just as an individual who is accredited to the mission can do so. This, again, enhances our attractiveness to host these kinds of organizations.

We also want to clarify an existing provision in the legislation that allows us to provide certain privileges and immunities to political subdivision offices of foreign states like Hong Kong on a reciprocal basis. The amendment makes it clear that if Canada does not presently have a provincial office in that foreign subdivision, we nevertheless can grant privileges and immunities in reverse, provided it's understood that this could be done on a reciprocal basis.

We're looking for a technical amendment to clarify that the Foreign Missions and International Organizations Act takes precedence over the Importation of Intoxicating Liquors Act with respect to the importation of alcohol for foreign missions.

There's another provision, Mr. Chair, that will authorize the Minister of Foreign Affairs and International Trade to make time-limited orders under the act to authorize the detention of diplomatic goods in response to the infringement of the Vienna Convention by foreign states, especially in the area of customs clearances. This will allow us to ensure that we are able to respond in a reciprocal manner when something happens to our diplomatic shipments overseas.

The final amendment in the bill, which we consider to be fairly technical, is to add a provision to enable the government to issue certificates providing to courts the status of individuals, foreign missions, or international organizations covered by the act. This authority already exists in common law and it's just a question of giving it a clear statutory basis.

To conclude, the bill to amend the Foreign Missions and International Organizations Act will make useful technical changes to clarify the existing legislative basis and to answer certain questions that have arisen over the course of the past ten years on how the special treatment granted by the act affects other acts of Parliament. It will clarify in the statute the granting of tax privileges to accredited missions of international organizations headquartered in Canada, and thereby enhance our ability to host important international organizations such as ICAO.

The bill will also allow Canada to live up to its international obligations, to grant privileges and immunities to international organizations and certain individuals who are here on a temporary basis for inspections under international treaties.

Finally, we believe the amendments will enable Canada to continue to safely host important international events and summits here in Canada.

Mr. Chair, there's quite a grab-bag and an inventory there of a number of different issues, but that gives you an overview of the provisions we seek to have amended in the Foreign Missions and International Organizations Act.

Thank you.

The Chair: Thank you very much, Madam Swords.

Perhaps before I turn to questions, I'd like to particularly welcome Mr. MacCallum to the committee.

I was in Quebec City and was seriously gassed as a result of Mr. Robinson having stirred up things outside, so I want to make sure that in today's hearings we're going to figure out how to deal with that issue.

We'll go to questions. We're going to go to Mr. Pallister.

Mr. Brian Pallister (Portage—Lisgar, Canadian Alliance): Thank you for your presentation.

I would like some clarification. We've hosted events in this country. Have we been using a process to grant diplomatic immunity up until now and is this simply a way to codify that process we've been practising up until now?

Ms. Colleen Swords: The quick answer is that we have been using the act in issuing orders for international organizations in meetings that are treaty-based. For example, Agence de la Francophonie is based in a treaty and therefore we can use the act and issue an order. Something like a G-8 meeting is not treaty-based and we have not been able to issue the order. We would like to have them both on exactly the same basis.

Mr. Brian Pallister: You've had some problems with diplomatic immunity as recently as nine months ago in the sense of the conduct of certain diplomatic personnel. And there's a history of other very unfortunate events, where Canadian law has been broken by diplomatic staff. How does this in any way, shape, or form deal with those problems?

• 0925

Ms. Colleen Swords: The situation you referred to of nine months ago, of course, was a great tragedy. We want to note that this bill will not in any way change the immunities that diplomats in Canada have. This is directed really at international organizations and summits, for the most part, that take place in Canada.

I'd like to point out—and I think you are referring to Mr. Knyazev—that it is an exception to the normal behaviour of foreign representatives in this country. There are not a lot of breaches, in percentage terms, by foreign diplomats. The overwhelming majority are law-abiding.

We also want to stress that the Russian authorities are investigating and proceeding with a prosecution. So that is being dealt with.

Mr. Brian Pallister: With all due respect, I'm sure the same could be said about the Canadian population: the vast majority are law-abiding, therefore we don't need laws. That of course has no validity at all.

There was a case in 1996 where a Ukrainian diplomatic staff member tried to lure two young girls into his car with an anaesthetic-soaked rag. There was a case in 1991 where Kenyan diplomats claimed immunity after sexually assaulting four girls in an apartment they broke into. There are cases, and it goes on and on. So to suggest that these are a rarity is dismissing some very serious concerns that certainly the victims, if no one else, would have about the behaviour of consular staff and diplomats.

Does this bill in any way address that? Yes or no.

Ms. Colleen Swords: The bill doesn't change the existing privileges and immunities.

Let me clarify. The reason we grant these privileges and immunities to diplomats is because the world community expects it and we expect it for our diplomats—

Mr. Brian Pallister: Do we go beyond what the world community expects?

Ms. Colleen Swords: No, we don't.

Mr. Brian Pallister: Do we extend more rights to staff than is required?

Ms. Colleen Swords: No, we don't. And that's one of the reasons why we want to ensure that accredited foreign missions themselves, in addition to the staff, have the same privileges and immunities, so that we can attract international organizations—

Mr. Brian Pallister: I understand the rationale, but you said we don't. When I asked you whether or not we extend more rights to staff than is required, I assume under the Vienna Convention, you're saying we don't.

Ms. Colleen Swords: We don't extend rights any further than other governments. I thought that was the question. Perhaps Keith Morrill can provide you with a clarification.

Mr. Brian Pallister: Yes, I'd appreciate some clarification, because my understanding is that we have. In fact, diplomatic staff are supposed to be immune only in the course of the performance of their duties, if I'm using the right phrase. And yet it would hardly seem that trying to lure two young girls into your car with an anaesthetic-soaked rag was actually a normal duty. So that particular person was allowed to go scot-free. There were no consequences here in Canada at all. And there are other cases as well. I'd like your clarification on that.

Mr. Keith M. Morrill (Deputy Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade): If you're talking about diplomatic immunity, there are a number of levels of diplomatic immunity within a diplomatic mission. When we usually talk about diplomatic immunity, we're talking about the immunity of the diplomatic agent, which is the highest level of immunity. There are also levels of immunity within a diplomatic mission relating to, in effect, the administrative and technical staff who are not diplomatic agents. They are not representing their country.

Mr. Brian Pallister: I understand that.

Mr. Keith Morrill: There are also service staff. Historically, people would send people who would be the janitors and so on. That's not done very much any more.

In Canada we have one agreement with the United States that specifies we can grant immunities to administrative and technical staff. We can grant to administrative and technical staff the immunities of diplomatic agents.

The other issue in terms of diplomatic missions relates, essentially, to who are administrative and technical staff and who are diplomatic agents. In those areas, basically, Canada deals with foreign countries in roughly the way we try to deal with ourselves.

Mr. Brian Pallister: If I can interrupt, Keith, I'm asking for a fairly simple answer, I think. The question is whether or not we have gone beyond the requirements of this act. How would it be that someone would be given immunity from a criminal action here in Canada when they are not in performance of their duties, as is clearly the case with a number of these past events? And how could it be that they would still be given the right to return to their home without consequence under Canadian law?

• 0930

Mr. Keith Morrill: The short answer is that hasn't happened. A diplomatic agent has immunity from all criminal or civil jurisdiction in Canada, so it's not what we call functional immunity. That's a diplomatic agent. There are other groups of people who do, such as administrative and technical staff, and also consular staff.

Mr. Brian Pallister: Right.

Mr. Keith Morrill: I think you're referring to the Ukrainian situation of several years ago—

Mr. Brian Pallister: 1996.

Mr. Keith Morrill: —where you were dealing with a member of the consular staff—

Mr. Brian Pallister: Who had complete diplomatic immunity.

Mr. Keith Morrill: No, he had functional immunity. However, his wife—

Mr. Brian Pallister: Maybe Ms. Carroll would like to answer the question. I'm just curious.

Mr. Keith Morrill: At the time the prosecution was being examined, his wife was appointed as a diplomatic agent to the Ukrainian embassy. The family members of the diplomatic agent have the same immunities as a diplomatic agent.

Mr. Brian Pallister: Right.

Mr. Keith Morrill: So the law had to stop treating him as a consular officer with a limited immunity and turn around and treat him as the spouse of a diplomatic agent who had complete immunity from criminal prosecution.

Mr. Brian Pallister: Okay.

Mr. Keith Morrill: That is what international law required in that situation.

Mr. Brian Pallister: And this act wouldn't change that.

Mr. Keith Morrill: No, that wouldn't change.

Mr. Brian Pallister: So that kind of action could occur again in Canada, with no consequence under Canadian law. This act does nothing to address that type of event occurring again without consequence.

Ms. Colleen Swords: There could be a consequence under Canadian law. Charges could be laid, but we can't proceed with the charges unless the government of the diplomat-sending state agrees to waive immunity.

Mr. Brian Pallister: Right. That was my question.

Ms. Colleen Swords: We expect the same overseas.

It's important to understand that there are different levels of immunity. If you are a diplomat, you enjoy diplomatic immunity, which is for everything you do, not just what you do in the course of your work, which is functional immunity. Functional immunity applies to consular officers. So they're different.

Mr. Brian Pallister: Right, I understand that. That's why I alluded earlier to the part of the bill that says “in the performance of your duties” or something along that line. You're suggesting that is the strict definition that has been applied in the past for the consular employees. So they're not extended complete diplomatic immunity, simply immunity for those tasks that relate to the performance of their duties, and you know of no example where greater latitude has been given—is that correct?

Ms. Colleen Swords: That's correct.

Mr. Brian Pallister: Thank you.

The Chair: Maybe just so we all have clearer heads, because obviously this is a matter that has been of concern, particularly since the tragic death here in Ottawa as a result of the Russian incident, as I understand the bill, it doesn't in any way alter our treatment of and responsibility in respect of persons protected by the Vienna Convention, but it extends that protection in circumstances where it wouldn't have prevailed before because they weren't treaty people.

So in fact now you will have a broader coverage. More people will be covered by the protection than there were before. So in that sense, it changes to increase the class of people, but it doesn't in any way change the quality of the way in which they are treated. So there will be more people involved, but there won't be....

You mentioned the large number of people who are law-abiding. Ms. Swords, could you tell us how many diplomats there are in Ottawa at this time, as opposed to the number of incidents? I've heard numbers anywhere from 1,500 to 5,000.

Ms. Colleen Swords: I'm not sure how many are actually in Ottawa. We could find that out.

The Chair: How many in Canada, then?

Ms. Colleen Swords: We tend to keep track of those who are.... It's not just the diplomats, of course; it's their families and dependants as well who enjoy diplomatic immunity. I believe it's in the order of 3,000 across Canada, but that includes families.

The Chair: Okay, that gives us some idea, about 3,000 across Canada. This bill would then—

[Translation]

Mrs. Francine Lalonde (Mercier, BQ): Mr. Chair, I am sorry but we are not accustomed to not being able to speak on the second round.

[English]

The Chair: I'm just trying to get this cleared up at the beginning.

[Translation]

Mrs. Francine Lalonde: Let us ask some questions.

The Chair: Mrs. Lalonde, you will have the floor in a moment.

[English]

I just want the number across Canada, and how many additional this would.... Do you have any estimate?

Ms. Colleen Swords: It's a little bit difficult to answer, Mr. Chair, because what we're talking about is allowing an order to be passed for international meetings that aren't currently covered. So the numbers would depend on the size of the meeting, and they would be time-limited.

• 0935

There would be an extension of privileges and immunities to the actual missions accredited to ICAO. I think there are 40 or 50 of those. All the members of the mission already have privileges and immunities. They're pretty well covered.

The Chair: Thank you very much.

[Translation]

Mrs. Lalonde, you have the floor.

Mrs. Francine Lalonde: Thank you, Mr. Chair.

I will perhaps ask the same questions as Mr. Pallister, but he speaks so fast that the interpreter cannot follow. I must therefore switch from one channel to the other. So I will probably be asking the same questions.

I would first like to know if it is absolutely essential that this bill be passed before the next G-8 summit?

[English]

Ms. Colleen Swords: I suppose it depends on the definition of essential. It certainly will facilitate it. It will clarify the laws, privileges, and immunities that will apply. It will clarify the security level that applies. It will clarify whether ministerial permits are required for those who might otherwise not be able to enter. Certain heads of state have criminal records for minor events in the past. Our Immigration Act technically requires that they have a ministerial permit. This will clarify it.

It will greatly facilitate the holding of a summit like the G-8. We have had G-8 summits in the past and have not had an order in place. Luckily, we haven't had any difficulties or incidents. We've managed to get ourselves through. Legally speaking, it's far better to have clarity and the protection that clarity in the statute would provide. We would like to have it in place.

[Translation]

Mrs. Francine Lalonde: Let's try to clarify a bit what this will facilitate. You have mentioned for example the security level. Could you explain to me what that means?

[English]

Ms. Colleen Swords: I might turn this over to the representative of the Solicitor General. The provision that clarifies the common law by putting it in statute will allow us to concentrate on ensuring the security level is correct, and not to be as concerned with any possible court cases challenging what the common law actually is.

Perhaps Paul Kennedy would like to answer a little further on that one.

Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, Policing and Security Branch, Solicitor General Canada): Yes. I'm the Senior Assistant Deputy Solicitor General. You've already been introduced to Assistant Commissioner Dwight MacCallum. Marian Harymann, who is with me today, is a senior policy adviser from the police law enforcement division.

Colleen is quite correct. We already have the capability at law. The police currently are authorized because of things like the Security Offences Act, and so on, and the requirement to provide protection to internationally protected people. It's a particular class defined to provide protection to those folks when they meet.

Here we'll have a greater indication as to who the Department of Foreign Affairs would designate as people entitled to this kind of protection. We're indicating in proposed section 10.1 that, in addition, it's going to be clear. This is only a clarification.

The RCMP will also be responsible for ensuring the proper functioning of the intergovernmental conference. In this case, it would be the meeting of G-8 ministers. For that, I'm looking at proposed subsection 10.1(2), which states that the RCMP

may take appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances.

I think it is a point of clarification we wish to make in the legislation. As I say, it is for clarification. Everyone says if you have the power, why do it? Even though we say we have the power, people are always seeking that we articulate some of it. We've striven to make sure this is merely for clarification.

You'll see under proposed subsection 10.1(3), as well, that we've tried to clarify the fact. This is not to take away from, and doesn't derogate, whatever peace officers possess in common law by virtue of other statutes and so on. It continues to be in place.

We are certainly clarifying that, in addition to protecting IPPs, they'll have the authority to ensure the proper functioning of these events.

• 0940

[Translation]

Mrs. Francine Lalonde: So this means that the putting in place of a security perimeter will from now on be provided for in the act and that no one will be able to challenge, discuss or call into question the fact that it must be done this way. Even if you say this is already provided for in common law, you become in a completely new way the only ones to decide how things are to be done, and no one can discuss your decision.

[English]

Mr. Paul Kennedy: No. The wonderful thing about Canada is that you can take nothing for granted.

[Translation]

Mrs. Francine Lalonde: I would like to believe that.

[English]

Mr. Paul Kennedy: A perimeter was in fact used in Windsor. There was a perimeter used in Vancouver. And there was a perimeter clearly used in Quebec City. All of these were security features used at those three particular sites.

Based on upon threat assessments, the police are authorized to use whatever means are appropriate in the circumstances to provide the protection that is required. One can always challenge it, just as the use of that was challenged in Quebec City, before, Mr. Tremblay brought an action to challenge it.

Whether it's in law or whether it's done under a common-law power, one can challenge it, looking to the charter, as to whether or not in any given situation that response is an appropriate response, that it's reasonable and proportionate.

Whether or not it is present here in the legislation, there's nothing to stop an individual. I'm sure it wouldn't stop an individual from bringing an application to say it somehow infringes on their freedom of assembly, freedom of speech, or some kind of freedom.

[Translation]

Mrs. Francine Lalonde: Yes, but you say this clarifies things. It must therefore make life easier for you.

I would now like to discuss another issue, namely the promise made by Mr. Manley that an event of the type that implicated Mr. Knyazev would not repeat itself. I understood from what you said that, basically, you cannot prevent such events from happening over and over.

[English]

Ms. Colleen Swords: We have revised and reinforced our policy with respect to impaired driving so that if a diplomat is found—believed on a reasonable basis by the police—to have been impaired, in addition to making sure they don't get back in their car and drive home, for safety reasons, we will ensure that their right to drive is effectively removed for three months, either by the mission or by the licensee himself. If it happens a second time, they will be asked to leave the country.

Alternatively, the state involved could waive their privileges and immunities, and we would then proceed with a prosecution of the person.

We're doing everything we can to have it similar to what happens to Canadians who are found driving while impaired. We believe that, within the realm of the possible, this will improve the situation considerably for the future.

[Translation]

Mrs. Francine Lalonde: Could you explain to me how? According to what I understand, anyone working for an embassy such as Mr. Knyazev can by virtue of his immunity refuse to take the breathalyser test if he is arrested. How could we possibly lay charges or prosecute with proof?

[English]

Ms. Colleen Swords: This bill, of course, doesn't change any of that.

[Translation]

Mrs. Francine Lalonde: This is exactly why we are having this discussion.

[English]

Ms. Colleen Swords: Just to give you an idea, the Vienna Convention on Diplomatic Relations says you are not allowed to detain a diplomat. The Supreme Court of Canada has considered a breathalyser to be a detention. For that reason, they do not have to give one. They can voluntarily give one. If they voluntarily give a breathalyser, it may establish that they were not impaired.

Before we had breathalysers, the police were able to lay charges that someone was driving while impaired on the basis of other indicia. I'm sure our friend from the RCMP knows them all, but they relate to erratic driving, a smell on your breath, incoherence or slurring of speech, and so forth. So there are other indicia of whether someone is impaired that could be used in order to prosecute them, if need be.

[Translation]

Mrs. Francine Lalonde: Mr. Manley had promised us that this would not happen again. I was expecting that something in the act would give us an idea of how the problem would be addressed. I am not reassured when I hear you saying that prosecution would be possible even if the person has not taken the breathalyser test. Have I heard you correctly?

• 0945

[English]

Ms. Colleen Swords: As I said, there are other indicia of whether someone is impaired, beyond blowing into a breathalyser. That's not the only basis on which a charge could go ahead.

But as I said, there's nothing in this bill or the amendments to it that will change that situation. So it's not really related to the provisions that are in these amendments.

[Translation]

Mrs. Francine Lalonde: I know, but what made the people we represent interested in diplomatic immunity all of a sudden is what happened, this accident in which a person died. I draw attention to Mr. Manley's promise because it was made formally. He took his time and made the promise. I therefore expected to find something to this effect. If there is nothing in the act, I think something should be added to reassure people.

The Chair: You have used up your 10 minutes.

Mrs. Francine Lalonde: Thank you, Mr. Chair.

The Chair: We now move to Mrs. Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chair, and thank you all very much for your presentations.

Before I start asking questions, I would like to clarify some points concerning the question asked by Mrs. Lalonde in relation to a statement supposedly made by the Foreign Affairs Minister, that is that such events will not happen again. Is it not true that the minister was referring to a case where someone with diplomatic immunity had been arrested more than once, police having reasonable grounds to think that he was driving while impaired? Moreover, since the police or the justice system could not remove his driving permit, this happened a second time and perhaps a third. The proposed amendments to the act do not change the authority to prosecute. However, if the police has reasonable grounds to think that a person with a diplomatic immunity is driving under the influence of alcohol, it would then have the authority to start procedures to withdraw the driving permit. Is this right?

[English]

Ms. Colleen Swords: That's certainly my understanding. That's the consequence of the policy that I was explaining has been put in place.

Of course you can never say no one will ever drive while impaired again. It's a question of making sure that the consequences—

[Translation]

Ms. Marlene Jennings: Indeed, you are right. Some citizens drive even if their driving permit has been suspended for six months or a year.

My questions concern section 5 of the bill amending section 10 of the act. This is how the proposed subsection 10.1(1) reads, and I quote:

10.1(1) The Royal Canadian Mounted Police has the primary responsibility to ensure the security for the proper functioning of any intergovernmental conference in which two or more—

You say that the only purpose of this paragraph is to clarify the RCMP's role for assuming primary responsibility. However, I think this raises a question.

Some Canadian provinces do not have a provincial police force, namely British Columbia and Alberta, although Quebec and Ontario have their own. When an international event takes place in a province like British Columbia—we saw this during the APEC Summit—, it is obviously the RCMP's responsibility to ensure security.

• 0950

This includes the authority to set up a security parameter, to decide at what distance it will be installed, and so on. However, when activities or events take place in Quebec or in Ontario, is it not then different? When such events were held in those provinces, I seem to remember that provincial police had a say on the subject.

I am wondering if this amendment does not in fact give the authority to the RCMP only because, during past international events, there were perhaps disagreements between the different police forces involved over primary responsibility.

I am asking you this because I know that, in the past, there were in fact such gnaws concerning other police activities, for example with respect to the fight against organized crime. I am therefore wondering if the need for this clarification does not come from such incidents.

[English]

Mr. Paul Kennedy: I think I'd like to answer that.

First of all, the RCMP currently has primary responsibility already in law to protect internationally protected people, who are the people who would in fact attend these events. That responsiblity flows from the Security Offences Act, our obligations under the Criminal Code, and the fact that these are international events the federal government is hosting. So that really isn't an issue.

The use of “primary” doesn't mean “solo”. As a matter of fact, you've made reference to two events. At the Quebec summit there were four police forces involved: the Sûreté du Québec, obviously; Quebec police; and the Sainte-Foy police—all at work collaboratively in a joint venture with the RCMP. It was the same thing at Windsor, where we had the Windsor police, plus the Toronto police, the OPP, and the RCMP—highly collaborative. As a matter of fact, in that case I think it reached across the border as well, to the Detroit police.

With reference to your concern here, primacy doesn't go to sole ownership of the problem. We recognize there's a requirement for partnership, because there are local police responsibilities. You're quite correct: you've pointed out the difference between a national police force, a provincial police force, and a municipal police force. Even in Quebec City, if you didn't have the RCMP, you would still require the Sûreté to work together with two municipal police forces. So no matter how you cut these issues, there's a requirement for police cooperation.

Mrs. Marlene Jennings: Yes, but someone does have to have the final word. Doesn't primary responsibility clarify that in fact it is the RCMP that has the final word in any area where there may be disagreement? We're all human. Police forces, as individual humans, don't always agree on issues.

Mr. Paul Kennedy: I think you've pointed out, too, that at these kinds of events there is, if I can describe it so, a series of concentric circles of events that occur. Within the very inner circle would be the protection of the internationally protected person, for which the RCMP is responsible. That event, though, is going to be surrounded by a series of other events that occur, which can require, maybe, public unrest or mischief charges, assault charges—things that occur on the streets surrounding an event. Those in fact would be handled by the local police of primary jurisdiction; they will handle those particular events.

The other thing is—going to a reference you made concerning organized crime—I'd like to indicate that this is an area, I think, of less conflict than we've had before.

Mrs. Marlene Jennings: Now?

Mr. Paul Kennedy: Now.

Mrs. Marlene Jennings: I was referring to the past when I made that comment.

Mr. Paul Kennedy: Yes. What we've done, though, in a whole series of areas like that, is break down the silos and have integration of police forces, joint-force operations.

For instance, I chair, at the ADM level, a national coordinating committee on organized crime with representation from all police forces in the country, all federal enforcement agencies, all prosecution levels, and all policy people. People have learned the lesson—and they learned it years ago—so there's integration. The model that's followed in Quebec City and the model that in fact would be followed in subsequent events is one of cooperation, and not “I'm king of the hill”. If you recognize these concentric areas of responsibility, I think it works.

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Mrs. Marlene Jennings: Except—and I agree with you—I just wish to clarify this point. In clarifying with the amendment that the primary responsibility resides with the RCMP, that means—in terms of cooperation or collaboration that is essential in organizing proper security for these events—that in the event of a disagreement, the final word resides with the RCMP. Am I correct on that?

Mr. Paul Kennedy: It says “primary”, and I have indicated to you not “sole”, because we cannot discharge these things by ourselves.

Mrs. Marlene Jennings: I know, but now we're playing with words.

In the event that after all the good faith and the work and everything, there's one issue with your partners—everyone you are working and organizing with—where there is a disagreement as to the approach, the RCMP, if you're unable to come to a satisfactory conclusion, will have the final word on it. Is that correct?

Mr. Paul Kennedy: The legislation says “primary responsibility”.

Mrs. Marlene Jennings: Fine. I will presume that the RCMP will have the final word.

This reminds me of the public inquiries I used to preside over investigating the police in the province of Quebec, so I'm used to this.

I'm going to presume that in the event of a disagreement on a particular issue relating to security, when an international event is being organized that this legislation covers, the RCMP—given that it has the “primary responsibility”—will have the last word.

That brings me to the issue as to whether or not the provinces, municipalities, and their police forces—i.e., municipal, and provincial where that applies—do in fact approve of these amendments. Do they interpret clause 5 of the draft legislation—which adds a proposed subsection 10.1(1)—as stating that in the event of a disagreement as to a decision that needs to be taken or a particular approach to, or for the security of, and relating directly or indirectly to, an international event, the RCMP has the final word?

Do they interpret it in that fashion? And do they agree, if they interpret it in that fashion? Is my question sufficiently clear that we can also have a clear response?

Mr. Paul Kennedy: Oh, yes.

Mrs. Marlene Jennings: I'm looking forward to that.

Mr. Svend Robinson: It's a fair question; the response is another issue.

Mr. Paul Kennedy: I've indicated that the RCMP already has primary responsibility under the Security Offences Act, so the language showing up here is a reflection of the responsibility that police already have. I've indicated it wouldn't change how that duty is actually currently performed, which is in collaboration with our partners.

In some areas it's very simple. Where the RCMP is municipal, provincial, and federal policing at a site, it is very easy. But clearly, in other areas, we work in partnership because there are different activities that have to be played out by different forces. They have primary jurisdiction for something that occurs outside the perimeter around an event. It hasn't changed, to that extent; therefore, it hasn't impacted upon our municipal and provincial partners as to how they would discharge their duties and how they would contribute to the public safety of such an event. My indication to you is it has not changed how we're doing business.

Mrs. Marlene Jennings: I think I'm on route 417, and you're on route 400 or 404.

Some hon. members: Oh, oh!

Mrs. Marlene Jennings: Let me try one last time. Do I have the time?

The Chair: We've got until 11 o'clock, if other members aren't objecting. I get the impression nobody is objecting to where you're going, so as long as you're on the 401 and stick to it....

Mrs. Marlene Jennings: I'm going to try again. Do the provinces and municipalities and their police forces interpret...? Do you have knowledge—you can just say no.... Do you have knowledge that the provinces, municipalities, and their police forces interpret clause 5 of Bill C-35, which adds a proposed subsection 10.1(1), in the manner I have described—that is, that the RCMP, having primary responsibility to assure the security when an international event is taking place, and which falls under this legislation, would have the last word should a disagreement arise as to a decision that needs to be taken directly or indirectly relating to security of that event, heretofore mentioned? I love using that word. Do they agree with that?

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That's not an issue of yes, we collaborate, and that the security outside the perimeter is the primary responsibility of the municipal police force or the provincial police force. That relates precisely to the size of the perimeter, for instance, or buildings, including residential ones, that fall within a perimeter that it's been mutually agreed upon is going to be at x number of metres from the actual site of the event. That's just one example.

Do the provinces, municipalities, and their police forces agree that the RCMP should have the final word in the event that they interpret this particular clause as giving you the final word? All you have to say is “To my knowledge, they don't interpret it in that way”, and you've answered the question directly.

Mr. Paul Kennedy: I don't know how they're interpreting it because I haven't asked them, so I can't answer your question as to how they're interpreting it.

Mrs. Marlene Jennings: Fine. So you may wish to contact these various authorities, and let this committee know what their response is as to how they interpret that section. Thank you.

The Chair: I have one follow-up to that.

Let's just give a concrete case. We're in Quebec City and the RCMP says they need to use tear gas. The Quebec police say no, they don't think tear gas is either appropriate or justified in these circumstances. Do you use it, or don't you use it? That's the question Madame Jennings is trying to get to the bottom of. I think you're telling us that ultimately it would be the RCMP's judgment as to what is the appropriate measure in the circumstance under proposed subsection 10.1(2) that would prevail over that of any other authority. Is that not the understanding?

Mrs. Marlene Jennings: Then their police force wouldn't agree with that.

The Chair: Let's get one answered first, before we go to question two. That's question one.

Assistant Commissioner Dwight MacCallum (International Liaison and Protective Operations, Royal Canadian Mounted Police): Mr. Chair, I can comment possibly on the scenario you present.

For any of these major events, we would not operate a control centre operating with only RCMP in there. We'd have a contingent of all representatives of those who have responsibility within for the protection of that event. So in an event such as Quebec City, all those police forces would be represented in the command centre, and when it comes time to employ whatever method it may be, it is done through a consensual operation.

The Chair: That's helpful. Thank you very much.

Mr. Robinson.

Mr. Svend Robinson (Burnaby—Douglas, NDP): I don't find it terribly helpful. I want to ask one final supplementary on this one.

Mr. MacCallum says we do it on a consensual basis, but Ms. Jennings' question is, and I think it's a fair question, what if you don't have consensus. That's the issue. It's all well and good to say everybody will get along with one another, we're going to agree, there's going to be a consensus; but let's take another very specific illustration.

The RCMP believes that the perimeter should be on one street, and the provincial police believe it should be on another street. You disagree; you can't arrive at a consensus. You're sitting in that control room. Who makes the final decision?

A/Commr Dwight MacCallum: We look at that kind of a scenario—I'll go back to these circles again—as that the RCMP is responsible right now, through legislation, for the protection of the internationally protected people. In that inner circle are the internationally protected people. If it is a decision that affects the security of one of those people inside, we will make that call—

Mr. Svend Robinson: You'll make the call. That answers the question.

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A/Commr Dwight MacCallum: But let's not talk just about that. The fence is something else. We're talking about a perimeter outside, for which public order issues fall under the local police force's jurisdiction. And when you have a situation like Quebec, they're multifaceted: you have the Quebec City police, you have the Sûreté du Québec, and you have another police force involved, Ste-Foy—

Mr. Svend Robinson: Anyway, I think we've gone as far as we can go on this one, yes.

The Chair: That is helpful.

Mr. Svend Robinson: Yes.

The Chair: It's obviously a perimeter concept and relates to the presence or absence—

Mr. Svend Robinson: Of internationally protected people, right.

A/Commr Dwight MacCallum: And that decision is not solely ours to make, and we would not execute that. We would not get into that kind of an argument of a fence outside because it's a public order issue.

Mr. Svend Robinson: Right.

I want to follow up with Ms. Swords on a couple of questions that were asked earlier around the issue of not so much diplomatic immunity, but how we respond to drunk driving by diplomats. That's the issue.

There's a long history of diplomatic immunity, and I understand that this bill isn't changing the nature of diplomatic immunity at all. But I think that Canadians do have a concern about the following scenario, and I'm grappling with this question of whether we shouldn't be making a change, frankly. And that's the issue of a diplomat who is apprehended by the RCMP because the RCMP believes, or whatever police force, that the person has been driving while they're drunk. The indices are there. They stop the car, the diplomat is apparently drunk, refuses to take a breathalyser, and says “I'm a diplomat. I don't have to take your breathalyser. I'm going to drive off. You're not going to stop me—I'm a diplomat.” If that person insists on doing this, you say that we can't, under these conventions, detain them. Is that correct?

[Translation]

A voice: Correct.

[English]

Mr. Svend Robinson: And if that is correct—let me just follow this through—you're saying that if the diplomat is even apparently quite drunk in the opinion of the police, if that diplomat insists on continuing to drive and says “I'm a diplomat, you can't detain me”, under the existing conventions the police would have no power legally to detain that person and to stop that person from driving off, and driving off and thereby endangering quite possibly the lives of people in that community. Am I understanding correctly what you're saying?

Ms. Colleen Swords: It's a little bit more complicated than that. The Vienna Convention does say you can't detain, but there's a question of what an actual detention is. In a circumstance like you described, there is no desire on the part of the sending country or on the part of Canada that a diplomat go off and endanger their own life, let alone the lives of those in the receiving country. So in a circumstance like that, in the first instance, what the police are instructed to do is call a taxi, call the diplomatic mission, try to get someone to come and take the person off safely. If that fails, then measures will be taken to ensure that the person doesn't get in the car and cause a public safety hazard to themselves and to the public. That's not considered to be detention; that's considered to be taking measures in the interests of public safety.

Mr. Svend Robinson: And I assume they are written instructions of this nature to the police, are there?

Ms. Colleen Swords: Yes, there are.

Mr. Svend Robinson: Can you table those with the committee?

Ms. Colleen Swords: I would have to check where they are, but yes, we can.

Mr. Svend Robinson: If you could forward them to the committee, that would be helpful.

Ms. Colleen Swords: There is a diplomatic note that was sent around to all missions. It was copied to the police and we can give you that.

Mr. Svend Robinson: If you could forward that to the committee, it would be helpful, I think.

On clause 5 of the bill, the proposed section 10.1, we've gotten two different versions of briefing notes on this. In the initial briefing notes we got, in response to the question of whether this bill will affect any outstanding court cases of protesters arrested at the Summit of the Americas in Quebec City, the answer we were given was, and I quote, “This is a matter for the courts to decide”. In our latest version of the briefing notes, the answer to the same question is no. I'd like to get some clarification. Why did the answer change?

And more specifically, this proposed section purports to, as I understand it, codify the existing common law with respect to police powers in this area. Is that correct? Or does it in any way expand the existing common law?

Mr. Paul Kennedy: I don't really think the positions are inconsistent. It may be an effort for us certainly to clarify. Our view is that it does not have an impact on litigation that is currently before the court for or against either party. But in terms of it being for the courts to decide, clearly, the matter is before the court.

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God knows what an individual judge may rule on a particular case, but certainly it is the position of the Government of Canada that this legislation has no impact on the particular issue that is before the court. But we're not prescient in terms of how the court's going to decide. They're independent. So I don't think those are inconsistent.

In terms of it being a codification, I don't think it's fair to say it's a codification, because under proposed subsection 10.1(3) we've made it very clear that the articulation we've made in proposed subsections 10.1(1) and (2) are not to be read as affecting the powers that peace officers possess at common law. Police officers possess, as you know, a body of other powers, and it's not our intention to go through and try to codify all those powers.

Mr. Svend Robinson: I understand that. But is there anything in proposed section 10.1—because as I read it there may very well be—that in fact expands the powers that are given under the existing common law?

Mr. Paul Kennedy: From my perspective I don't believe it expands that power. I've indicated that the police used, for instance, the security perimeter. That's the part that's really spoken to earlier on. They used, obviously, a fairly weak fence during the APEC conference. There was a perimeter used in Windsor, and clearly there was a perimeter used in Quebec City. All of this was done in terms of the exercise of common law power to take preventive steps where the police have reason to believe there's a threat to an IPP, someone they have a positive duty to protect, and they take appropriate steps.

In any given case it's factual driven as to whether or not the court will find that the steps you've taken in response to the threat are of such a nature that they're justifiable.

Mr. Svend Robinson: Right. Of course, in the case of Quebec City these powers were also used outside the perimeter. The numbers we've seen are that something like 900 rubber bullets were used in Quebec City, an extraordinary number given the supposed restraints on the use of rubber bullets, and over 6,000 tear gas canisters were fired, many of them outside the perimeter.

We don't have time this morning for a lengthy exposition of the powers that were authorized for the four different forces in Quebec City, but I would ask that the witnesses table with the committee, Madam Chair, a document that indicates precisely what powers were authorized. We're told, for example, that, as I said, 900 rubber bullets were used. What was the authorization for the use of those bullets and when were they supposed to be used? We're being told that we're codifying powers here, and if we're codifying powers to fire that number of rubber bullets, for example, in the circumstances we saw in Quebec City, some of us have a problem with that.

Mr. Paul Kennedy: Just to clarify, what we've articulated here is maybe a further articulation of a duty that exists. There are two things: there is the duty, and you can challenge the law as to whether or not it's appropriate, and then there's the execution of the duty as to how you'd do it and whether your execution of the duty is reasonable and proportionate. Obviously, that is subject to review. It can be subject to review by a court because there can be criminal or civil action brought against a police officer who carries out a particular duty, and of course there's the police complaints review, which looks to see whether or not the officer executed his duty in a reasonable, proportionate fashion.

To my knowledge, there isn't a list of things that we've put forward—

Mr. Svend Robinson: But I assume there are some written criteria—and maybe Mr. MacCallum could clarify this—as to what powers were acceptable. For example, the use of lethal force, when was that acceptable and what restraints were in place?

Mr. Paul Kennedy: I think that may be the more appropriate question having to do with the continuum of force the police use in the execution of their duties and what their norms and standards are, as opposed to a specific menu.

Mr. Svend Robinson: If that could be forwarded to committee—

The Chair: You've gone well over your time.

Mr. Svend Robinson: Oh, I'm sorry. I have two other brief questions. If that could be forwarded—

The Chair: Just file them as brief questions. We can't get into long answers.

Mr. Svend Robinson: That's fine. If we could get a written response to that in terms of that continuum, that would be helpful.

We're told that New Zealand and Australia have codified in legislation the powers that are necessary. I wonder if you could also forward to us the relevant legislative provisions from New Zealand and Australia.

The final question has to do with the issue of immigration. This would be addressed to the foreign affairs officials. Ms. Swords talked about a person who had a minor offence long ago and that they shouldn't have to worry about a ministerial permit. But this doesn't deal with just minor offences; this deals with anything other than crimes against humanity or war crimes, as I understand it—for example, murder.

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Why should we be giving a blanket exemption in these circumstances to people who are attending these international events, as opposed to expanding so that at least there would be discretion to require a ministerial permit? Obviously in the case of Nelson Mandela you would exercise that discretion and say no, you don't need a permit. But why would we be giving a blanket exemption so that, for example, individuals attending these conferences—

The Chair: Mr. Robinson, excuse me for interrupting you, but I think the short question is now turning into a long question, with what I expect will be a long answer.

I just want to point out to you that on Thursday the immigration officials will appear before us, so it might be more appropriate to direct that question to them. We'll have time to get into that specific issue of immigration matters with the immigration officials.

Mr. Svend Robinson: That's fair enough. I'll put it to them.

Mr. MacCallum was just going to respond to the previous question.

The Chair: Very quickly.

A/Commr Dwight MacCallum: Mr. Chair, I wonder if I could respond to the question about the continuum of force. The continuum of force has existed in all police organizations, where one starts with dialogue. Unfortunately, at the end there can be some tragic consequences, sometimes involving lethal weapons. That is all dependent on the force that's exerted toward you.

Our role is to maintain peace, tranquillity, and security within the communities. We exercise the appropriate force contingent upon what is being directed at us in the communities we serve. As I said, we start off with consultation. That's our primary method, and we've been very successful at it over the years. Sometimes, through chaos and events such as we saw in Quebec City, it leads us to work down that continuum of force in order to restore law and order into a given area or community.

The Chair: Thank you.

We're going to go to Dr. Patry.

[Translation]

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Thank you, Mr. Chair, and I wish to welcome all our guests, this morning.

Mrs. Swords, in your opening remarks, you have explained the differences between privileges and immunities for diplomats and consuls. You said to us:

The Bill's core amendment is key to providing privileges and immunities to foreign officials within intergovernmental conferences or summits in Canada.

I have a very simple question. Who are these foreign officials? Are they official representatives only? For a G-8 conference or an event like the Summit of the Americas, which took place in Quebec and where the Free Trade Area of the Americas was discussed, some countries can send huge delegations comprised of several hundred people. Will all these people enjoy privileges and immunities?

What will be provided to these foreign officials? Will they have the same type of privileges and immunities that are provided to consuls and diplomats? Is there a difference between these privileges and immunities and those provided to consuls and diplomats?

[English]

Ms. Colleen Swords: With regard to the first question, the number of persons who would be covered by the extension to an international organization such as the G-8, which isn't treaty-based, depends on the size of the delegations. Normally for a meeting such as the G-8 there's an indication of the approximate size desired for a delegation, because there isn't room for any more either in the actual conference meetings or in the hotels. It is up to the sending government, though, to decide who is a member of their government delegation, who they're responsible for. So the numbers will vary, but there's a limitation based on the nature of the meeting itself.

With regard to the second question, I'll ask my colleague Keith Morrill to respond.

[Translation]

Mr. Keith Morrill: If I understand your question, you would like to know what is the difference between diplomatic immunity and consular immunity.

[English]

Mr. Bernard Patry: For the people who come here as official delegates representing their country, what type of immunity or privilege will they have in Canada? Is it the same as for a consulate or the diplomatic corps?

Mr. Keith Morrill: For the meetings of the intergovernmental organizations, they'll have the immunity specified in the existing annex III of the act, passed by order, which is slightly less than diplomatic immunity and more than consulate immunity.

Mr. Bernard Patry: I'll read annex III to try to find out.... You should be a politician.

Mr. Keith Morrill: I'll take that as a compliment.

Some hon. members: Oh, oh.

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Mr. Bernard Patry: It's not a bad name. I think it's a good name as a politician.

The Chair: That's very wise of you, Mr. Morrill.

[Translation]

Mr. Bernard Patry: I have a very brief question concerning immigration. You propose amending a person's right to immigrate if he or she has a police record and you mention the case of Nelson Mandela. In this bill, are there any amendments to the act other than the one concerning the police record? Will the amendments cover other issues or will they concern the police record only?

[English]

Mr. Keith Morrill: I think you may wish to repeat your question to the Department of Citizenship and Immigration officials when they come on Thursday.

My understanding is that all the provisions of section 19 of the Immigration Act that deal with inadmissibility are affected by this. For instance, I believe there's a provision there for being a member of an intelligence service that has spied against democratic states, or something like that. That would also apply.

Mr. Bernard Patry: The question I want to pursue is the fact that somebody could have un casier judiciaire itself, but if someone is suspected of terrorism, anything like this, and doesn't have any casier, what's the latitude at that time?

Mr. Keith Morrill: Again, the provisions of the Immigration Act deal with who is inadmissible. There are a number of provisions in section 19 dealing with various situations. The provisions of the Foreign Missions and International Organizations Act now will continue to state that representatives of foreign states are immune from immigration restrictions. So to the extent that the section 19 provisions address issues of terrorism or those other concerns, this makes it clear that if they are invited to attend an international conference, they can come. Otherwise, we shouldn't invite them.

[Translation]

Mr. Bernard Patry: Thank you.

The Chair: Mr. Patry, thank you.

[English]

Mr. Pallister, sir.

Mr. Brian Pallister: To be clear, you've changed the practices now as a result of this impaired driving incident last year so that there are new practices in place as a consequence of that event having happened in the past. Is that true? Yes or no.

Ms. Colleen Swords: We've formalized the practice and changed it. We've made it clearer, really, that if there's a second incident, the person will be asked to leave the country. That's been made quite clear and sent around to all the diplomatic posts.

Mr. Brian Pallister: That's good. In retrospect, it's only unfortunate it wasn't there before, I suppose.

If there are other events, we could assume, then, that after the fact there would be changes in practice to further clarify the consequences of those unfortunate events so that they wouldn't happen again either, we'd hope. Is that what's going to happen?

So if we have a sexual assault occur, for example, we would then put into place similar new, more solid consequences that would occur. If a diplomat committed a sexual assault, there would be a one-time warning and then they would be asked to leave, too. Is that what's going to happen?

Ms. Colleen Swords: The policy that has been made clear and revised relates only to impaired driving.

Mr. Brian Pallister: So there's nothing for any other....

Ms. Colleen Swords: Other offences are dealt with depending on the nature of the offence.

People don't just get off scot-free. Charges are laid and we request a waiver of the sending government. And depending on the severity, if it is quite a severe offence and the sending government won't waive, then we ask that the person be removed from Canada.

Mr. Brian Pallister: Can you give me the number—

Ms. Colleen Swords: It obviously varies, depending on the facts of each case.

Mr. Brian Pallister: You say they don't get off scot-free, but of course by the nature of diplomatic immunity they do.

Ms. Colleen Swords: Not necessarily.

Mr. Brian Pallister: Give me one example where Canada prosecuted an offence, a sexual assault, a murder, even a theft, a break and enter. Give me one example, if you would, where the foreign country waived the right of diplomatic immunity and Canadian justice was allowed to prevail. Can you simply give me one example where that's been the case, please?

Ms. Colleen Swords: I can't give one off the top of my head because it's not something that's provided for in this particular piece of legislation.

Mr. Brian Pallister: My understanding is it hasn't been done—

Ms. Colleen Swords: You're right.

Mr. Brian Pallister: —but I'd be interested in knowing if it had.

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Ms. Colleen Swords: The thinking behind your question is it's not that common. Occasionally there have been cases where, among western governments, you agree to waive with respect to a particular case, depending on the exact circumstances. I don't have the exact examples right now, but perhaps Keith can give....

Mr. Brian Pallister: I think the committee would really benefit from knowing any examples where in fact the other country waived the right of diplomatic immunity. You say it's not common. I would like some clarification. What isn't common, the waiving of diplomatic immunity?

Ms. Colleen Swords: The waiving of diplomatic immunity.

Mr. Keith Morrill: I can recall a few cases. I can recall a case of a waiver in relation to a shoplifting charge for a family member in Vancouver out of the Commonwealth of Learning. I can recall a case relating to public mischief that I think is presently before the courts in Quebec. There are other cases, so—

Mr. Brian Pallister: You'd be prepared to put those down on paper, so the committee would have them for reference?

Mr. Keith Morrill: I can.

Mr. Brian Pallister: Of course, what you've listed, Keith.... As you know, public mischief and shoplifting are considered to be relatively minor offences. What we'd be concerned about would not be so much those as the more significant consequences of a death, an assault, physical harm being done.

I'd like to ask Mr. MacCallum a question. Sir, I think we understand that you're charged with a responsibility of policing on the basis of laws that apply equally to all people. Is that how it works?

A/Commr Dwight MacCallum: That's correct.

Mr. Brian Pallister: That assists you in the performance of your duties. So I would assume it's difficult for your agency when laws don't apply equally. That's difficult, isn't it? And the nature of diplomatic immunity is that laws don't apply to some people.

For example, under the Vienna Convention it says that you have the responsibility to protect these folks who have diplomatic immunity. They're above the law, so we have to ignore whatever they do that may break Canadian law. And it says here you have to protect not only their personal safety, freedom, and attacks on their person but also you have to protect the dignity of those persons.

Would protecting the dignity of a foreign diplomat in Canada include guarding them against hearing an insult? I'm just curious about that.

A/Commr Dwight MacCallum: No, not at all.

Mr. Brian Pallister: Okay. So what does “dignity” mean in the context of this then?

A/Commr Dwight MacCallum: That's a tough question, because we're dealing with laws and behaviours.

Mr. Brian Pallister: I'm concerned, because protecting someone's dignity seems so fuzzy. Different people would define “dignity”, I suppose, in a very different way.

A/Commr Dwight MacCallum: That's right. Some of that is based on customs, beliefs.

Mr. Brian Pallister: The general public had some concerns about political influence with the RCMP around the time of the APEC meeting. There was a sense that President Suharto was being accorded a kind of favoured status. He was being protected, but Canadian people who wanted to protest his actions were not treated with the same kind of dignity. So there was a concern that the balance had shifted in favour of a foreign leader who perhaps deserved to see a protest or two, and against Canadian individuals who wanted to exercise their freedoms.

I'm sure you're concerned about that shift. This is why I ask you this question. To what extent do you see it being necessary to protect a person's dignity? A foreign diplomat's right to the protection of their dignity is in law. I'm just interested in your observations.

A/Commr Dwight MacCallum: In this country we have freedom of expression. We have the charter. In this area alone we deal with approximately 600 demonstrations a year, many of them directed towards a diplomatic corps, embassies and so on. We don't suppress the freedom of these people to demonstrate outside of these missions, and they do. However, once that freedom of expression turns to violent behaviour, that's when we intercede, as we would with any Canadian.

And quite often people come from other countries, and what's offensive in one country they presume is offensive in another. That's not the case. Our Charter of Rights guarantees those freedoms of expression in our country and it is our job to allow that to happen as well.

• 1030

Mr. Brian Pallister: It starts when they conflict, I suppose, when the exercise of our rights conflicts with the dignity of someone else—

A/Commr Dwight MacCallum: But we wouldn't suppress it on behalf of the foreign diplomat.

Mr. Brian Pallister: That's good to know. Thank you.

The Chair: Before I go to Ms. Carroll, I have a question.

Are foreign leaders treated somewhat differently from diplomats? Is the degree of protection at these international conferences...? If you get Mr. Bush here, is he treated the same way as the ambassador from Sierra Leone, say, or is there a different...?

Some hon. members: Oh, oh.

Mr. Svend Robinson: Is that a rhetorical question?

The Chair: No. Is there a difference? What I'm trying to get at is whether there is a qualitative difference in the nature of the protection offered at these international conferences between world leaders, as opposed to normal diplomatic immunity, which has been another discussion.

A/Commr Dwight MacCallum: There is a difference on the level of security, but it's based on the threat against the individual and not on who that individual happens to be.

The Chair: I see. That's a good answer.

Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

Before I get some clarification as well, I was reminded when Mr. Morrill and you were joking about being a politician of a quote I read yesterday by President Kennedy, who said that every mother in America wanted her son to be president, but none of them wanted him to become a politician on the way. That would decide whether we think it's a good thing or not to be a politician.

I think it's a really interesting discussion this morning, and perhaps some of the events that have been discussed give rise to questions on the part of members of the committee and in some situations a certain angst. But I think that what I'm trying to become very clear on is what falls within the purview of the act we have in front of us and what falls outside of the purview.

And Mr. Pallister, I did not mean in any way to appear keen to answer you; it's just I'm an addict for homework for the serious addict.

One thinks about the Vienna conventions and the reasons for them historically. When I think that diplomats were sent to foreign countries and were hanged if the outcome in a series of negotiations wasn't what was desired, it illustrates why we began to build this patina through international conventions of immunities and protection so that the work of diplomats—usually then in a bilateral setting, now today in a multilateral setting—could go on and could be fruitful.

Maybe we need, Mr. Chair, another day to talk about those things that are outside of the parameters of this bill to give us a sense of perhaps catharsis but at the same time information.

To come to what I understand is what the subject matter of this bill is, I wanted to make sure of something—and I'm last, so I have little pieces. When you talk about extending immunities to people attending a meeting in Canada, whether it's G-8 or a similar meeting, the immunities, am I correct in understanding, will be extended to them while they're here?

Maybe Mr. Morrill would like to respond.

Mr. Keith Morrill: Yes. Obviously while they're here this affects their status in Canada; it can't affect their status outside of Canada. And usually, in addition, in the order for a meeting it would be contemplated that it would be of a limited duration. So for an established international organization like the UN there's been an order in place for the UN since 1947 and it continues in force today, but it only applies to people who come to Canada.

Ms. Aileen Carroll: In other words, when the G-8 ends and those persons who attended and were granted immunity somewhere within the diplomatic and consular levels you described exit the country, they have left behind then the immunity that was assigned them.

So you feel that because we don't hand out immunities in Canada there was a need to clarify then within this particular piece of legislation the temporary nature as well as the type. And then with regard to international organizations that are permanently headquartered in Halifax or Montreal, these employees will benefit from those immunities for the duration of their working period at that particular headquarters.

• 1035

Ms. Colleen Swords: There have been orders already for meetings that are of organizations that are treaty-based, such as Agence de la Francophonie. So that's already been done and we have granted orders related to specific meetings for them. This is just extending it to those that aren't treaty-based but nevertheless are of a similar character. So we're extending it in that sense.

The other major extension, and it's not really major, is to make sure that the mission of one country to ICAO gets the same privileges and immunities that the members of the mission already have. It's the institution, the mission itself, that would have privileges and immunities, with the main impact relating to GST rebates.

Ms. Aileen Carroll: Great. As well, it sends a message, as I think you mentioned in your opening remarks, Ms. Swords, to other headquarters that might choose to come to Canada that this set of rules will be in place for them as well.

Am I almost out of time?

The Chair: One minute, yes.

Ms. Aileen Carroll: One more minute? Thanks. Then I would come around to my colleague Madam Jennings' comments or lengthy discussion.

The Chair: You've been on five minutes, so if you can wrap it up....

Ms. Aileen Carroll: Thank you.

With regard to proposed subsection 10.1(1), it seems to me that it has always been the custom and tradition, if we speak in terms of common law, that the RCMP has had responsibility for IPP, and that when we were dealing with meetings or get-togethers of a variety of natures, the onus was within the ambit of the RCMP to have the lead role.

At the same time, I'm hearing you say—and I don't know why I'm not having the same confusion, maybe it's because I'm not a lawyer—that you work as a team, you set out your rules, you have your game plans before the thing takes place, and you have a sense of what action you will put in place in response to a ratcheting up of events.

So being someone who's relatively comfortable with the fact that you do have certain bars you have to meet always, whether you're at an APEC or whether you're on the streets of Ottawa, one of them being to be reasonable and proportionate—and I'm sure there are many others that are known to us—I'm just failing to see the confusion here. You're going to have primary role, you're going to have set up a team before the events occur. So I'm not having the same difficulty, but by all means, give it to me if I should.

Mr. Paul Kennedy: No, if you understand, I don't want to introduce any confusion. I think we understand each other, so—

Ms. Aileen Carroll: Feel free to confuse me.

Mr. Paul Kennedy: No, you have it right. I'm going to stop while we're ahead.

Ms. Aileen Carroll: It may just be because my father-in-law was a member of the RCMP.

The Chair: We'll count that as a soft lob from a non-lawyer.

Ms. Aileen Carroll: But my husband's a lawyer. Thank you, Mr. Chair.

The Chair: As I've said, Madam Carroll, we'll count that soft lob from a non-lawyer.

Mr. Paul Kennedy: We'll take two of those.

Ms. Aileen Carroll: In my family, my son and I have to stand firm on that. We're getting to be a minority. Thank you.

The Chair: Perhaps before we go to Mr. Paquette, I know this will be totally goofy, but given the nature of these international meetings and everybody's asking about these various gradations—if you're the baggage carrier you get this kind of immunity, and if you're the diplomat you get that, and if you're the head of government you get that—is there a distinction between...?

Presumably if a president comes here, then they're a foreign sovereign, so they have total sovereign immunity. So it's not even diplomatic immunity. They have all the panoply of sovereign immunity, whereas if another head of government, like a prime minister, comes, they only have whatever immunity is conferred by law. Surely you can't keep all that straight inside the policeman's head as he's walking around looking, saying “There's Mr. Bush, there's president so and so, and forget him, he's just a prime minister”. Do you actually do anything to sort this out, or does everybody get the same level of protection or immunity?

Mr. Morrill.

Mr. Keith Morrill: In fact, that's one of the reasons this kind of effort is necessary. A hundred years ago you had a concept of absolute state immunity, which is foreign sovereigns were immune and their officials were immune and that was that. Diplomatic immunity was perceived just as a reflection of that.

• 1040

Over the last century—it's nice to use that phrase these days—state immunity has been restricted. For instance, you can now sue a foreign state that is running a shipping line and has contracted with you. You can sue in commercial matters, non-state matters. It's a very complicated area of law and it's a bit of a moving target. But one of the outcomes of its being a moving target and of state immunity having diminished is you then have to face up to exactly these very practical questions you've raised. A head of state, by customary international law and also by Canadian common law, clearly has a very high level of immunity, which is not affected by this act at all.

Whereas one country—you mentioned the United States—might have a president who is an official actually running things, another country, for example Germany, will have a largely symbolic presidency and the key interlocutor for them will be their prime minister or chancellor. If you're having them together at a meeting, then the short answer is yes, their legal status, absent an Order in Council under an act like this, is different. It's a complicated situation as to how things work.

That's one of the reasons why it's quite useful to be able to deal with these structures within the structure of a statutory provision rather than trying to figure out how the common law applies in the area, because it's messy.

The Chair: Thank you.

I won't ask your opinion, Mr. Morrill, as to what is the legal status of Her Excellency, the Governor General of Canada, when she travels abroad in Germany. Is she the head of state or is she...? I'm not asking that question.

Mr. Keith Morrill: We've spent a lot of time on that one, actually.

The Chair: I'm sure you did.

Some hon. members: Oh, oh.

The Chair: However, thank heavens it's outside the scope of this bill.

[Translation]

Mr. Paquette.

Mr. Pierre Paquette (Joliette, BQ): Thank you, Mr. Chair.

I am not a lawyer and there are some things I still do not understand. I must say I am an economist by training, which is not necessarily better than a lawyer's training.

I would like to go back to questions asked by Mrs. Lalonde and by several other members. You say that the amendment you propose “will make clear, for greater certainty, the existing authority of the RCMP”, and you also say that it does not affect the powers that the RCMP otherwise has under common law. I fail to see the usefulness of a section or sections of the act amending something which you say is unchanged. What will be made clear for greater certainty?

[English]

Mr. Paul Kennedy: We do have to fire up on occasion. As I indicated, one issue we're clearly trying to address is dealing with access to and egress from particular sites. It has become an issue. We thought we would try to address that. But as you heard with reference to the common law, it's very complex. We don't want to have sit and try to articulate, because we would have to foresee all instances when it would come up. It's quite flexible in terms of how an officer responds and what measures are appropriate to any given circumstance that may present itself.

But there are other instances. There's an amendment to the Criminal Code dealing with organized crime in Bill C-24 that has similar wording. I think there are provisions there that say this doesn't affect the common law. So that kind of wording is not magic, in the sense of not appearing anywhere else. There are other instances when that kind of thing appears.

All we're trying to say is we have this piece. We're trying to articulate that they can do it in this particular instance, but we're not going to try to codify everything that would be there. If you look at the Criminal Code, it's a codification as well, and it's that thick in terms of powers and so on. What we're saying is the police in any given instance can do things. They may very well have an instance like that. They may do something under the Criminal Code—get a warrant and do something like that—or do something that's incidental to what their execution of the powers are.

So all we're saying is we've picked out the one piece and here's the piece. It was a bit contentious. We're clarifying that one piece, but we're not seeking to address the totality of everything that is there.

• 1045

One of my colleagues has just given as an example section 749 of the Criminal Code. I don't have that in front of me right now. I think the U.K. terrorism act has similar provisions. All I'm saying is it's a drafting legal formula that appears elsewhere in terms of not affecting other powers that may exist at common law. So all we are trying to do is address one tiny little piece.

I made an earlier reference to Bill C-24, which is the organized crime provision that is currently before the Senate. Their clause 2, proposed subsection 25.1(12), provides that

Nothing in this section affects the protection, defences and immunities of peace officers and other persons recognized under the law of Canada.

—which includes the common law.

I don't know if that helps you in terms of response or not.

[Translation]

Mr. Pierre Paquette: I would also like to draw your attention to the fact that the two versions of subsection 10.1(1) proposed do not correspond exactly. It says in English:

[English]

The Royal Canadian Mounted Police has the primary responsibility to ensure the security for the proper functioning of any intergovernmental conference...

[Translation]

But in French, it only mentions “la sécurité lors du déroulement d'une conférence”. There seems to me to be a slight difference in meaning which could be clarified. On the one hand, the RCMP must ensure that the conference takes place whatever happens, and on the other end, it must ensure security during the event. I would like some clarification on the meaning of those words.

I will give you another example which perhaps does not come as much under your purview. Just above the proposed paragraph 6(5)a), it reads: "au bureau d'une subdivision politique canadienne dans cet État". The 1867 Constitutional Act talks of the division of Canada into four provinces, not of subdivisions. Therefore, unless there is a constitutional technicality here that I have missed, we should limit ourselves to terms already used in the Constitution.

I have a last question concerning alcohol imports. You know that in Quebec, we are very protective of the SAQ's monopoly in this regard. It is perhaps one of the last remaining State monopolies. A concern in relation to the importing of alcohol had been raised by the International Civil Aviation Organization. I believe a broker was used to import alcohol.

Given the present text of proposed section 11.1, is it clear that only people or organizations having diplomatic immunity or diplomatic privileges can import alcoholic beverages and that agents cannot be used for this purpose.

[English]

Mr. Keith Morrill: You've raised a number of points.

Your first comment was the concordance between the two official languages. In fact, we noticed this a short time ago when we were speaking to the drafters, because this is a change that came through the legislative editor. We've gone back to them and suggested that it's not a good change. I think we have to go through a process as to what to do about that to make sure they concur closely.

[Translation]

Mrs. Francine Lalonde: I suppose that the correct version is the English one, as usual.

Mr. Keith Morrill: No, you are wrong.

[English]

Regarding your second comment, on political subdivisions, I think the language used is actually the language of the State Immunity Act, which deals with similar issues in relation to political subdivisions. So I think the view was to be consistent in and among different parts of federal legislation.

• 1050

Concerning your third question, as to whether it is clear that this applies to persons with privileged immunities, I think it is. The provision relates in fact to the privileges contained in the Vienna conventions and also in certain headquarters agreements that are brought into force by Orders in Council under this act. A common provision is to be able to import goods for personal use duty-free. So it is a right to import.

The difficulty flows out of the fact that—as I understand it, because I'm not an expert in alcohol law—under existing federal legislation, the authority to import or bring alcohol into a province is placed uniquely in the hands of the provincial authority dealing with alcohol. You have on the face of it a conflict between two pieces of legislation, one that says the provincial authority has the sole capacity to do, and another that says clearly that individuals have the right to do so. Therefore, this simply makes clear that when one arrives at such a conflict, individuals and organizations with the right to import will indeed have the right to import, notwithstanding the words in the federal legislation dealing with alcohol.

[Translation]

Mr. Pierre Paquette: We will certainly investigate this aspect, among other things because we would not like to see it used to break the SAQ's monopoly on the import of “intoxicating liquor”, as it is called.

The Chair: Thank you.

[English]

I have a couple of quick questions myself I'd like to put.

This is rather technical, but with respect to CWC inspectors, when we did the Chemical Weapons Convention in this committee, there were some concerns expressed, it seems to me, among the witnesses about the rights that were being granted to inspect and as to whether or not the charter would prevail. There were some complications about inspections under the treaty. Clearly, for the treaty to work, it requires a fairly stringent inspection regime.

However, the provisions you are talking about don't give the inspectors any additional powers. It just means that in the course of performing their duties, they get something similar to diplomatic protection as diplomatic agents. Do inspectors come from other states, or do they come from an international agency? I can't recall. Can they come from a country that is not a signatory to the convention? For example, could an American inspector come here, given the fact that the United States has not signed the convention? Who gets all this stuff?

Ms. Colleen Swords: I believe the convention itself sets up an organization or an agency. I don't think it predetermines what the nationality of those people would be, because you're looking for experts.

The Chair: So it doesn't matter as to their nationality, just so long as they're mandated by the international agency that's in charge of it.

Ms. Colleen Swords: That's right. This does not change what they are inspecting. What it does is it ensures that there's no problem if they're bringing in testing equipment or whatever. We don't apply duties, for example, to that testing equipment for them. It also ensures that they're not subject to any prosecution for what they do when they're here.

The Chair: Right.

Then there have been a lot of questions around proposed subsection 10.1(1), about the primary responsibility of the RCMP, but what about subsection 10.1(2)? It seemed to me the thrust of what you've been telling us is that this does not expand or in any way restrict the previous powers of the RCMP. I was always trained that when you put adjectives in statutes, you are inviting the courts to interpret those adjectives. When it says in subsection 10.1(2) that the police may take “appropriate measures”, does the word “appropriate” in any way possibly restrict what the RCMP might do, as opposed to expanding it? It could well be that you'll subsequently find that a court will judge that a certain decision was not appropriate. Do you see a large discretion?

Mr. Paul Kennedy: Any action by the police is subject to judicial review and comment. If our actions are inappropriate, which is the converse of “appropriate”, then clearly we have difficulty. They always have to be reasonable and proportionate. Those are the kinds of concepts you'll see flowing through cases in terms of the response by the police. They have to be reasonable and appropriate in each of the circumstances. So it does on occasion have difficulty—

• 1055

The Chair: So basically it neither expands nor restricts it.

Mr. Paul Kennedy: No.

Ms. Aileen Carroll: Mr. Chairman, I have a point of order. Reasonable and proportionate already exists; it's part of the status quo ante to this legislation. So one could sit and discuss whether “appropriate” is different from “reasonable and proportionate”.

The Chair: That's the kind of thing that would come up before a court in the event that some action was challenged ex post facto.

Mr. Robinson, you're next on the list if you want to take it up.

Mr. Svend Robinson: Before I ask my questions, I did ask Mr. Kennedy if he could provide to the committee the New Zealand and Australia legislation. I think it would also be helpful if we could get, as a committee, a copy of the Tremblay decision, the Security Offences Act, and also whatever case law forms the basis for the current common law governing this area.

Mr. Paul Kennedy: I thought my colleagues had provided you with some of the leading cases, the Dedman and Godoy cases.

Mr. Svend Robinson: I have some cases myself, but I think for all members of the committee it would be helpful.

This is a technical question for Ms. Swords or Mr. Morrill. These privileges and immunities extend to members of international organizations and members of their families. Does that include common-law partners and same-sex partners?

Ms. Colleen Swords: It can or it does.

Mr. Keith Morrill: The definition of “marriage” is a little difficult, because there are countries that have, for instance—

Mr. Svend Robinson: It doesn't say marriages, instead it says family.

Mr. Keith Morrill: I understand that. Excuse me, on the definition of “family”, one has a number of issues, like multiple spouses, etc. Therefore, there's a process, basically, to ensure that the structures in place are roughly reflective from country to country. The short answer is there are members of family who are same-sex spouses or common-law spouses in Canada.

Mr. Svend Robinson: And they would be covered by these provisions.

Mr. Keith Morrill: Yes, they are.

The Chair: Do we get similar reciprocal protection for same-sex or other common-law spouses in foreign jurisdictions? Because obviously there are some Canadian diplomats in that situation.

Mr. Keith Morrill: That's why it becomes a little complicated. In some countries they say no, and then the issue becomes an issue of reciprocity and proper treatment of our people abroad. The short answer is we seek that treatment for people with common-law spouses or same-sex couples. In some countries it's not legally possible, that's what they tell us. They simply won't do it. Then we get into the question of reciprocity and potential restrictions on things we do to them.

Mr. Svend Robinson: It would be interesting to follow this up in the future, but in the interests of time I have two other brief questions.

First, on the front page of The Hill Times newspaper this week we see a headline saying that the foreign affairs department asks for military help at the G-8 Summit. I wonder if Mr. Kennedy could perhaps clarify the role of the military in protecting internationally protected persons, as opposed to the role of the RCMP.

And secondly, perhaps you could clarify for me what powers the bodyguards and security officials who are accompanying internationally protected persons have in Canada. In other words, President Bush, for example, has a huge contingent, presumably, of bodyguards and security people with him. Canada says we will provide security, but are they allowed to, for example, carry weapons in Canada?

Mr. Paul Kennedy: We can separate that between what I feel a little comfortable responding to and what I have no competence responding to.

On the first one, we actually have agreements in place that allow the RCMP, if they require military assistance to supplement their activities, for instance, to make a request through the minister, the chief of staff, with the approval of the Minister of Defence, if there's any requirement for military assistance to supplement the police in terms of carrying out their duties. That normally would pertain to equipment, which might be specialized equipment and things of that nature. It might be, in a rare instance, as well, additional personnel that are brought in, but normally we try to approach this as being a police function, and it's there to supplement their capacity. A simple example might be if you need a particular car, particular equipment, transport. In Canada we're great for sharing things to avoid overlap and duplication.

• 1100

So I'm not familiar with the specific request that was made there, but I indicate there are procedures in place that allow that request, with the appropriate military and ministerial control, to supplement the process.

Mr. Svend Robinson: And you can get copies of that to this committee, presumably?

Mr. Paul Kennedy: I think those are public documents. Just let me verify that.

We should be able to give you the directives that deal with that. I don't pretend to be able to speak to the issue of U.S. bodyguards and things of that nature.

Mr. Svend Robinson: Mr. MacCallum may be able to.

A/Commr Dwight MacCallum: When our Prime Minister travels abroad he's accompanied by a security team and an RCMP security team. In some countries, it is desirable for our personnel to carry weapons. In that particular case, as Mr. Morrill talked about earlier, it involves the whole issue of reciprocity. Likewise, when Mr. Bush or whoever from one of these other countries comes to this country, they make application, as well, for their close-protection people to carry firearms.

In consultation with the Department of Foreign Affairs and the Solicitor General, we from time to time authorize people to work with the RCMP and to carry firearms. It is very few in number; however, it does not take away the primary responsibility of the RCMP to protect those people.

Mr. Svend Robinson: I understand. What is the statutory authority for allowing, for example, Bush's security people to carry weapons?

Mr. Paul Kennedy: They designate a special constable for that purpose and that authorizes them to carry firearms.

Mr. Svend Robinson: Designated under...?

A/Commr Dwight MacCallum: Under the RCMP Act. I swear them in as supernumerary special constables and authorize them. It's not a blanket authorization. We don't do that just because someone requests it. We do not authorize that to many countries.

Mr. Svend Robinson: Is there a list of countries where you actually do authorize that?

A/Commr Dwight MacCallum: No, there isn't. It's an individual judgment at that time, and we would work—

The Chair: You swear in the individual, not a class of people.

A/Commr Dwight MacCallum: No. Exactly.

Ms. Marlene Jennings: Don't they have to be Canadian citizens to be sworn in as a special constable under the RCMP Act?

A/Commr Dwight MacCallum: No...not as a supernumerary special constable.

The Chair: Okay, we're running overtime and members are being tolerant of that.

Perhaps you could ask your questions, Mr. Pallister.

Mr. Brian Pallister: I think it's been a very good exchange of information this morning, and I appreciate you being here and your forthrightness in most cases.

The issue that concerns me, as you can tell, is the issue of extending diplomatic immunity beyond its intentions, or at least beyond what the Vienna document ascribes to staff, when full diplomatic immunity should not apply to staff. There are numerous examples, I believe, where that has been done. So my questions relate to that specifically.

We know this bill gives the minister greater power. We know it applies to a broader group of people. We know all that. Does it give the minister latitude to grant diplomatic immunity broader than the Vienna document to staff?

Does the minister have the ability, under this bill, through these documents he refers to here, to give greater diplomatic immunity to staff—that is, complete diplomatic immunity to staff? Or is it going to be the practice in the future, as it has been the case in several cases in the past, that this will just be done by customary behaviour? In other words, does the minister have the right? And if the minister doesn't have the right, is it just going to be the practice to extend greater diplomatic immunity than the Vienna accord requires?

• 1105

Ms. Colleen Swords: Just for clarification, the privileges that are granted to diplomats and their families and to consular officials and their families are already in the act, and nothing—

Mr. Brian Pallister: No, that's not in dispute. I'm talking about staff. I'm talking about—

Ms. Colleen Swords: But that's in the two conventions; those two conventions do deal with staff as well.

Mr. Brian Pallister: But they don't grant the right for staff to take young women, put anaesthetic-soaked rags in front of their faces, and then let them go—

Ms. Colleen Swords: No, of course not.

Mr. Brian Pallister: We don't do that, yet we let those people go without prosecution when we have the right to prosecute. Am I right?

Ms. Colleen Swords: It depends on their status within Canada.

Mr. Brian Pallister: I'm talking about—

The Chair: If we're going to argue about these things and use cases, you're going to have to use accurate cases. I understand in the Ukrainian case—

Mr. Brian Pallister: Let's talk about 1991, then.

The Chair: —the person was a diplomat.

Mr. Brian Pallister: In 1991 Kenyan diplomatic staff claimed immunity after being questioned for allegedly assaulting four teenage girls at knifepoint. They claimed immunity, but they were staff. Now, staff don't have the right to—

The Chair: Let's get this clear. Was the person in the Ukrainian case...? You're making a distinction between staff at the secretarial level—

Mr. Brian Pallister: My understanding is that the Ukrainian consular employee in the 1996 case claimed immunity. Did that consular employee have the right to claim immunity, or was it just extended beyond the normal requirements? I guess that's what I'm getting at.

The Chair: Mr. Morrill.

Mr. Keith Morrill: In relation to the particular case you're talking about, you're dealing with an individual who was a consular official and who had functional immunity as a consular official, but—

Mr. Brian Pallister: So he had full immunity.

Mr. Keith Morrill: No, he had limited immunity, but was also—insofar as I'm familiar with the case—the husband of a woman who was a diplomatic agent at the Ukrainian embassy.

Mr. Brian Pallister: Let's not deal with that case, then. Let's deal with a hypothetical case if that helps this. Let's take a staff member whose immunity should be limited to matters relating to the performance of their specific duties.

Ms. Colleen Swords: Not diplomatic staff. Diplomatic staff have full immunities.

Mr. Keith Morrill: Maybe we have a semantic problem here, because you've been referring to the members of the staff of the mission, which is essentially the largest group and includes all the other groups. The staff of the mission includes diplomatic agents, but it also includes other people who aren't diplomatic agents.

Mr. Brian Pallister: Right.

Mr. Keith Morrill: I think you're asking the question—I don't want to put words in your mouth—about the people who aren't diplomatic agents.

Mr. Brian Pallister: I'm asking about them, yes. I also want to know if we've been extending greater latitude to their conduct than is required of us and if we have been allowing those people to stay or leave without consequence under Canadian law. That's my first question.

Mr. Keith Morrill: The changes to the act have no effect on that. I think you're asking about the issue—

Mr. Brian Pallister: I'm asking about practice versus theory. That's what I'm asking.

Mr. Keith Morrill: I think you're asking the question, who is a member of diplomatic staff?

Mr. Brian Pallister: No, I'm not. I'm asking what practice has been. Has practice adhered rigidly in the past to the Vienna document? Are you going to tell me that it has, or are you going to tell me that it hasn't? One of those two.

Mr. Keith Morrill: Under the existing provisions of the act there is the authority to extend diplomatic immunities to members of administrative staff—

Mr. Brian Pallister: Beyond the Vienna document, right?

Mr. Keith Morrill: —and as I said, we have a treaty with the United States that does that.

Mr. Brian Pallister: I understand that.

Mr. Keith Morrill: That is the one situation where we have extended diplomatic immunity to members of administrative staff under the 1991 statute.

Mr. Brian Pallister: You're telling me we're following the Vienna document rigidly.

Mr. Keith Morrill: The Vienna Convention deals with different classes of people. There are diplomatic agents, administrative and technical staff, and service staff. Each of those classes of people at a diplomatic mission—not at a consular mission or elsewhere, but at a diplomatic mission—has a different level of immunity.

Mr. Brian Pallister: I understand.

Mr. Keith Morrill: The question is, how do you decide who falls into which class? To my knowledge, we do not give anyone who is accredited as administrative and technical staff immunities other than those the administrative and technical staff are entitled to. There may be—

Mr. Brian Pallister: In theory, we don't do that. What I'm asking about—

Mr. Keith Morrill: In practice we don't do that.

Mr. Brian Pallister: In practice we don't do that. That answers that question.

• 1110

Mr. Keith Morrill: The question, as I understand it, is how do we decide who's a diplomatic agent? In other words, if France tells us Mr. So-and-so is here as a diplomatic agent, and we have no reason to doubt them, then they're accredited—

Mr. Brian Pallister: No, you've answered my first question. In the interest of time, Keith, I'm sorry to interrupt you, but I'll just quickly ask you the second question.

If we've been following this pretty rigidly, is there anything that prevents the minister from granting more diplomatic immunity, on a broader basis, than has been the case in the past?

Ms. Colleen Swords: I guess the difficulty is when you use the word “broad”. We are broadening to the extent we're now covering international meetings that weren't otherwise covered because they're not—

Mr. Brian Pallister: Let me be clearer then. I understand what you're saying.

Ms. Colleen Swords: We're not changing the immunities that would be granted.

Mr. Brian Pallister: No. Is there anything that prevents the minister from giving a broader latitude of behaviour and conduct to individuals, in what the Vienna Convention would say is a lower class of immunity, allowing them to behave in a way that was somewhat less acceptable to Canadians in a broader way, and be treated as if they were in a higher class? Is there any way to promote diplomatic immunity from a lower class to a higher class by the minister? Is there any way to stop the minister from bestowing a greater degree of diplomatic immunity, if he so chooses?

Ms. Marlene Jennings: I don't understand your question, Brian.

Mr. Brian Pallister: Ms. Jennings, I'm trying to clarify. I apologize if I'm not making myself clear. I'll do my best.

Ms. Francine Lalonde: We don't understand your question.

Mr. Brian Pallister: Is there anything that stops the minister from extending diplomatic immunity, as would be the case for a higher diplomat, to someone lower down the chain? That's what I'm asking. I don't see why that's so complicated.

Ms. Colleen Swords: If I understand your question correctly, the amendments don't change the existing act. The existing act implements the two Vienna conventions and the UN convention on diplomatic immunities for the UN. So we're not granting the minister any authority to go beyond the international agreements we're party to.

Mr. Brian Pallister: That's my question.

Ms. Colleen Swords: We're just making sure he can grant the privileges they would otherwise get to organizations—

Mr. Brian Pallister: Up to that level, but not greater.

Ms. Colleen Swords: Yes, that's right, if I understand the question correctly.

Mr. Brian Pallister: You do; that's what I was asking.

The Chair: Thank you very much.

We went overtime, but at least we got answers to questions. Remember, we'll be dealing with the immigration aspects on Thursday.

We want to thank you all very much for your helpful evidence this morning.

I have one more announcement. Mr. Pallister has given us his witnesses and Mr. Robinson has given us a list. We'll do our best, as usual, to try to accommodate as many as we can.

[Translation]

Mrs. Lalonde.

Mrs. Francine Lalonde: Some names will be provided tomorrow morning.

The Chair: Tomorrow morning.

[English]

We'll need to have witnesses in by noon tomorrow, to give the clerk and the researchers a chance to put together the witness list.

Thank you.

We're adjourned until Thursday.