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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 18, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Welcome to the 29th meeting of the Standing Committee on Justice and Human Rights. I invite the cameras, other than those that are stationary, to find their way to other parts of the building.

Thank you very much.

Our business today is the consideration of Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act, and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

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Our witnesses today are the Hon. Anne McLellan, the Minister of Justice, and the Hon. Lawrence MacAulay, Solicitor General. On behalf of the committee, we'd like to thank you for being here today—and very quickly, after our committee heard that we were seized with this bill. I will take no more of their time or yours and ask you perhaps to introduce officials and make your opening statements.

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada): Thank you.

[Translation]

Thank you, Mr. Chairman.

[English]

Let me introduce the officials for myself and Minister MacAulay. They are Richard Mosley, whom I think many of you on this committee know very well; Don Piragoff; Paul Kennedy; and Ian Blackie.

Minister MacAulay and I are pleased to appear before this committee as it begins its very important work and formal consideration of Bill C-36, an anti-terrorism act.

[Translation]

Mr. Chairman, members of the committee, I wish first of all to thank you for undertaking the review of this bill.

[English]

Before we begin our formal comments this afternoon, we would both like to state at the outset that if the committee would like us to return after you have heard witnesses in the coming days and weeks, both Minister MacAulay and I would be very pleased to return and provide what further commentary or elucidation you might find useful as you go about making your final recommendations and offering your final advice to the government in relation to what we all know is such very important legislation.

Since the introduction of the bill four days ago, it has received considerable attention from the media, the legal community, and parliamentarians. The quality of the debate in the House speaks to the real concern we all share about the threat of terrorism.

[Translation]

Before commenting on the various measures set out in this legislation, I would like to underline that the government is fully committed to fighting terrorism. We must bear in mind the fundamental importance of the overall goal in all of this.

[English]

Some aspects of the bill have received more attention than others. Some components have generated criticism. Minister MacAulay and I recognize that. This bill is obviously intended to respond to a serious threat to our society, and let me state at the outset that it does not shy away from confronting that threat directly.

There are many components to Bill C-36. These include such core elements as a process for establishing a list of terrorist groups; a definition of terrorist activity; comprehensive new terrorism offences; new tools, such as a preventative arrest and investigative hearings procedures; and new measures to deal with discrimination and hatred. There are also many other new measures, including amendments to the Official Secrets Act, the Canada Evidence Act, the Federal Court Act, and others. However, today I intend to focus my comments on the central elements of Bill C-36.

One of the fundamental questions posed this week is: why do we need Bill C-36? Why do we need new tools to fight terrorism? Yes, we have hijackings, sabotage, and murder offences already in the Criminal Code. They do remain available to us. But terrorism, ladies and gentlemen, is a special threat to our way of life. When dealing with groups that are willing to commit suicidal acts of mass destruction against innocent civilians, it is necessary to consider whether existing legislative tools are adequate to the challenge.

As the Prime Minister stated in the House of Commons:

    It has become clear that the scope of the threat that terror poses to our way of life has no parallel. We, in North America, have been extraordinarily fortunate to live in peace, untouched by attack. That has changed.

That is the end of the Prime Minister's quote.

The insidious nature of terrorism has dictated the need for new measures. These measures must have a preventative focus, because punishing terrorist crimes after they occur is not enough. Ladies and gentlemen, the way I very simply explain this is, if we don't stop the terrorists getting on the plane, it's too late.

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We must be able to disable organizations before they are able to put hijackers on planes or threaten our sense of security, as we have seen in recent days with the scare of anthrax. We must have mechanisms in place to go after terrorist organizations and put them out of business.

So, ladies and gentlemen, how does Bill C-36 accomplish this? As I have said, the bill does not avoid the tough questions. To do so would be irresponsible. A first step in disabling and dismantling terrorist groups is to identify them. Bill C-36—and I'm referring you to proposed section 83.05—sets up a distinct procedure to enable the Governor in Council to create by regulation a list of entities that have carried out, attempted, participated in, or facilitated terrorist activities or who are acting on behalf of such entities, at their direction, or in association with them.

This list supports the application of other provisions in the bill, including the new anti-terrorism offences, the new offences relating to the financing of terrorism, and provisions relating to the freezing, seizure, and forfeiture of terrorist property. I am the first to agree that this listing procedure must be carefully designed, and we will hear more from my colleague, the Solicitor General, in relation to this process in just a few minutes.

As well, I would like to emphasize that being on the list does not itself constitute a criminal offence. Where individuals are charged with an offence, each of the elements would still have to be proved beyond a reasonable doubt.

Another core element of the bill is the definition of terrorist activity. Many of the other elements of the proposed legislation are directly tied to the concept of terrorist activity, including the establishment of the list of terrorist groups and the new terrorism offences. There are significant legal consequences attached to terrorist activity, so it is important that we set them out clearly and that people understand what we mean by this term.

In fact, we've had a discussion in question period and elsewhere as to whether the definition of terrorist activity is sufficiently clear and precise. I look forward to this committee's deliberations not only today but as you hear from others as to whether this definition is sufficiently focused or perhaps sufficiently broad. Some might say it is too broad, others not broad enough, and I think that discussion needs to take place to ultimately assist us in making sure we are striking at the heart of that activity that endangers the lives of innocent Canadians, Americans, and others around the world.

The definition in this bill is detailed. We have directly confronted the challenge of defining the target of this legal regime. As I've mentioned, I am aware of concerns expressed by some, including some around this table, and therefore I would urge the committee to consider the definition carefully.

The definition first makes reference to offences that are set out in the 12 international conventions relevant to terrorism. This is one form of terrorist activity. However, we also provide a general definition. It covers acts that are committed “in whole or in part for a political, religious or ideological purpose, objective or cause”, that are intended to intimidate the public or force governments to act, and that are intended to cause serious harm. Harm includes causing death or serious bodily harm by the use of violence, endangering a person's life, causing a serious risk to the health and safety of the public, or causing substantial property damage likely to result in harm to persons. Thus, there is a clear connection to acts of violence, especially threats to the Canadian public.

The intended harm can also include acts intended to cause serious interference with or serious disruption of an essential service, facility, or system. But here it must be noted that we have added an important safeguard. This definition of terrorist activity does not apply to lawful advocacy, protest, dissent, or stoppage of work that does not involve an activity that is intended to cause other types of harm related to the violence to persons I have already described.

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The examples I have seen in the press of lawful political dissent being stifled are answered by the carefully designed criteria designed to exclude this interpretation. But as I say, I am interested—as I know Minister MacAulay is—in hearing if you think it is possible to achieve our goals. We must always keep that in mind, perhaps suggesting certain refinements of this language. We are very interested in hearing that, but always keep in mind the idea that the objective must be achieved.

The bill goes on to establish comprehensive new terrorism offences under the Criminal Code. There are distinct offences of participating, facilitating, instructing, and harbouring, as well as extensive offences with respect to the financing of terrorist groups. For example, with respect to participating, it will be an offence to recruit an individual to receive training with a terrorist group.

I would like to observe as well that various offences, including those relating to facilitation and instruction of terrorist activity, are specifically defined as crimes, regardless of whether the terrorist activity facilitated or instructed is eventually carried out. This goes back to my earlier point about the importance of this legislation having a preventative focus.

One of the elements of the bill that has received considerable attention is that of preventative arrest. Under this provision, if a police officer believes on reasonable grounds that a serious terrorist offence is about to take place and suspects, again on reasonable grounds, that the arrest of a particular person will prevent it, then that person can be arrested and brought before a judge.

The object of bringing the person before the court is for the court to consider whether restrictions should be imposed on the person's movements and associations. The court may impose such conditions or may release the person without conditions. If the person refuses to accept conditions, the court may commit him or her to prison for up to 12 months.

Some have inappropriately and unfortunately likened this power to those of the former War Measures Act. I would like to assure the committee that the preventative arrest measures we are proposing under this bill would only be available under strictly defined conditions and would be subject to numerous procedural safeguards. Save for emergency circumstances, the consent of the Attorney General would be required as a prerequisite. The person must be brought before a provincial court judge within 24 hours or as soon as possible, and a maximum further period in detention of 48 hours is allowed following an appearance before the judge. Under the War Measures Act, by way of comparison, a person could be detained for seven days prior to being brought before a judge and detention could continue for 21 days.

I remind colleagues that there are examples in other free and democratic societies, such as the United Kingdom and in all likelihood the United States when they pass their new legislation, where detention is allowed for up to seven days.

Rather than being similar to provisions under the War Measures Act, the provisions of this bill are more accurately compared to existing provisions of the Criminal Code relating to arrest without a warrant of a person who is about to commit an offence and release with a recognizance. We are extending and expanding these concepts under this bill for the special purposes of preventing terrorism. Again, I do remind members that this bill targets acts of terrorism.

Another widely debated element of the bill has been the provisions on investigative hearings. There are concerns about the power to compel testimony in these hearings. I wish to assure the committee that here again we have included numerous limitations and safeguards. While a person may be ordered to provide evidence by the judge, privilege and other laws relating to non-disclosure would continue to apply, as would the right to counsel. Also, the evidence will not be used against the person in future criminal proceedings.

I think, colleagues, it is important to note that there is an existing procedure under the Mutual Legal Assistance in Criminal Matters Act that already allows us to do this in Canada, namely to gather evidence for other countries. The United States has investigative grand juries that perform evidence-gathering functions. The power we are proposing is not unknown under the law of Canada or the United States. We are extending Canadian law in this area for the special purpose of terrorist investigations and, as I have said, subject to appropriate safeguards and limitations.

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Legislative changes would also be made under the bill to allow us to better address discrimination and the communication of hatred within Canada.

I want to emphasize the point made by the Prime Minister in the House the other day. Discrimination against persons of any religious or racial or ethnic background will not be tolerated. Bill C-36 introduces amendments to the Criminal Code that will allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site.

The Canadian Human Rights Act will be amended to clarify that communication of hate messages using new technologies such as the Internet constitutes a discriminatory practice, and the Criminal Code amendments would create a new offence of mischief, motivated by bias, prejudice or hate based on religion, race, colour, national or ethnic origin committed against a place of religious worship or associated religious property.

I would briefly like to highlight just a few other issues. Some have suggested that the provisions of the bill are not strong enough. It has been suggested that we create an offence of membership in a terrorist group. We are not proposing to do this.

As discussed during the debate on Bill C-24 dealing with organized crime, it would be exceedingly difficult to define membership. Also the charter risks of criminalizing membership would be high. Moreover, we question the necessity of a membership offence, given the broad ambit of the participation offence we have provided under this bill, similar to what we did in Bill C-24 on organized crime.

I now want to address the general question of respect for the Charter of Rights and Freedoms. I wish to assure this committee and all Canadians that this bill has been subject to a very thorough review on charter grounds and that its measures have been designed so that they will respect the values embodied under the charter. These measures have been developed with a concern for what has been referred to as human security—a concept our colleague, Irwin Cotler, has spoken eloquently on in other venues.

We have tailored specific measures to the objective of addressing terrorism and improving national security. We have taken into account international law and the laws of other countries such as the United States and the United Kingdom and we have adopted safeguards within individual measures.

Finally, I would point out a provision at the end of this bill concerning review of these measures. Section 145 requires that, three years after this bill receives royal assent, a comprehensive review be undertaken of its provisions and operation. A committee of the House or of the other chamber, or possibly a special joint committee, would have one year in which to complete this review.

Only after an appropriate period of time—we think three years—will we have some evidence of the effectiveness of these major new laws. Unfortunately, we cannot expect that terrorism will have disappeared in three years, but I have no doubt that a thorough review will be beneficial to all of us at that time.

However, I am aware of the suggestion that for some clauses, a sunset clause may be more appropriate, so I welcome the committee's review, not only of this specific issue, but of the entire bill. Its provisions are worthy of close scrutiny and of debate.

I also welcome consideration of possible refinements to the provisions you find in this bill. We must ensure that the bill is the most balanced and effective response possible.

At this point I will turn it over to my colleague, the Solicitor General, Lawrence MacAulay, but I certainly welcome your comments and questions at the end of our presentation.

Thank you. Merci beaucoup.

The Chair: Mr. MacAulay.

Hon. Lawrence MacAulay (Solicitor General of Canada): Thank you, Mr. Chairman. It's a pleasure to be here today with my colleague, the Minister of Justice.

It's clear to everyone here and to all Canadians that this is a very important piece of legislation. A great deal of work has gone into preparing this bill, but a great deal remains to be done. I know your workload is already quite heavy and I want to stress how much we appreciate the committee's quick review of the bill.

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The bill is especially important to our law enforcement and security agencies. They need this bill, because we need to stop terrorists from getting into Canada and we need to protect Canadians from terrorists. As a nation, we must be prepared to ensure our safety and security. We need more and more powerful tools to identify, prosecute, convict, and punish terrorists and those who support them. The legislation will give us, law enforcement and security agencies, and the courts, the ability to do so. And our allies need this bill.

If we truly want to be leaders in the international effort to deprive terrorists of sanctuary, to shut off their funding, and to leave them nowhere to turn, we need to have strong anti-terrorism laws. This is especially true for our common border. The free flow of people, goods, and services between Canada and the United States is absolutely essential for both of us. The border sees $1.3 billion a day in trade and 200 million border crossings each year. We must prevent the Canada-U.S. border from being held hostage by the terrorists, because if we don't, then the terrorists have won.

The Government of Canada has already taken significant measures to enhance our ability to fight terrorism and will continue to take any and all necessary measures to ensure this country remains safe and secure.

Last week the government announced a series of measures to improve airport security, improve RCMP capacity to fight terrorism—especially in joint operations with our neighbours to the south—tighten up our borders and immigration procedures, and freeze assets of terrorists.

A full $280 million in new funding has been invested already. Just last year we allocated $1.5 billion to the RCMP, CSIS, CIC, and other public safety partners to ensure they continue to have the tools they need to do the job.

Through the special committee chaired by my colleague, the Minister of Foreign Affairs, we continue our review of laws, policies, and procedures. As the Prime Minister has said, what needs to be changed will be changed.

The whole point of our anti-terrorism plan, which includes the legislation, is to deter and disable terrorists. In this regard, our efforts and those of the United States will be complementary.

Let me make a few remarks about three specific items in the bill that call for my personal intervention. The first is the issue of terrorist lists. It will be up to the Solicitor General to recommend to the Governor in Council that an entity be listed where there are reasonable grounds to believe it is engaged in terrorist activity. Let me be clear that there is a review mechanism to ensure the integrity of the listing process. I must review this list every two years, and the list must be subject to Federal Court review, thereby building safeguards against abuse.

To defeat terrorists, we also need to choke off their money supply. This bill goes a long way towards achieving that. We're going to designate certain terrorist groups, make it easier to freeze their assets, prosecute those who give them financial support, and deny or remove charitable status from those who provide resources to terrorist groups. We will cut off financial support for terrorists by making it a crime to collect or give money, either directly or indirectly, in order to carry out terrorism.

You will note that we intend to deny or remove charitable status from organizations that are making resources available to terrorists, as was the intent in my bill introduced earlier and now incorporated in Bill C-36.

Again, we have ensured that there are checks and balances. The Solicitor General must sign the certificate that is reviewable by the Federal Court, and decisions to deregister must be published in the Canada Gazette.

As well, Mr. Chairman, to help choke off terrorist fundraising, FINTRAC will be permitted to disclose financial information to both the RCMP and CSIS in respect of terrorist activities. It is crucial that we collect as much information as we reasonably can and that we make the best use of that information by sharing it both at home and overseas.

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It is the Solicitor General who must approve the application by CSIS for this information, and again, it is a process reviewed by an independent Federal Court judge. There is no doubt some of the measures we propose are extraordinary, and that's why we have indicated significant checks and balances.

Canadians want these measures, but they also want safeguards to ensure these measures are targeted to terrorists and those who support them. Yes, we will give police more tools to investigate and prevent terrorist activity. Yes, we will make it easier to use electronic surveillance against terrorist groups, take steps to protect security information, and detain terrorists. Yes, we will take measures against groups that abuse our registered charity system to raise funds for terrorists. Simply put, a nation must be prepared to protect itself, to ensure its safety and security, and that is exactly what we are doing.

The murderous attacks of September 11 show the world has terrorists who have no regard for the consequences for their victims or themselves. But if we are to prevent terrorism to save lives, we need the tools in this legislation. These methods are targeted directly at terrorists. But it's also important that the principle of judicial review and due process be employed and respected. I believe this bill has found that balance. It is consistent with the Charter of Rights and Freedoms, and it responds to the situation we face after September 11.

I hope all members will support this bill and provide our legal system and police officers with the important tools they need to carry out their duties.

Thank you very much, Mr. Chairman.

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

Mr. Ivan Grose (Oshawa, Lib.): Mr. Chairman, on a point of order, I find the name card for the leader of Her Majesty's official opposition to be completely inadequate. Inasmuch as we're on television, I think we should be able to do better. I hope we can.

The Chair: That's duly noted, Mr. Grose.

As members know, we'll now go to each of the parties for seven minutes in the first round.

Mr. Day.

Mr. Stockwell Day (Okanagan—Coquihalla, Canadian Alliance): Thanks, Mr. Chairman.

Through you, to the ministers, clearly they all recognize the world has changed since September 11, and in profound ways. We were all reminded of that, those of us who were able to be in Halifax yesterday, who watched the departing ships and saw the families obviously emotional at the departure of their loved ones. Also, for me, and I think for many others, it increases our resolve—and I think for you also, I won't question that—to make sure, as our faithful troops go to foreign shores or seas to defend our freedoms, that we are doing all we can domestically to fight against terrorism here.

That's why the Canadian Alliance, on September 18, tabled a number of provisions to do this. I recognize, for whatever reasons, that the government voted against those, but now you're moving ahead. Some of those things we'd suggested have been looked at and in fact are entertained in the legislation.

My concern—and I preface my question with these remarks—is that when a safety net is being constructed and it's designed to catch those who would abuse the freedoms we have, when you're weaving that net of safety, you cannot leave giant holes in it. Otherwise, the good material that's there will be all for naught because there will be holes. When I think of the government's own security and intelligence services repeatedly warning of the need for more rigorous and efficient immigration and refugee laws and the Criminal Code provisions to back them up—the government's own security people—then clearly I see our concerns are echoed.

That's why I refer to comments made Tuesday of this week at an international conference on money laundering in Montreal. Sergeant Philippe Lapierre of the RCMP's national security investigation section in the counterterrorism branch talked about this, about how terrorists actually do their work within Canada.

I'm looking to the legislation as we reflect on his remarks. I'll quote him very briefly. He wasn't referring to all people coming here, and neither are we, but he said, for those who want to abuse the system, “Some [of them] are sent here with a mission and some people come on their own and are recruited.” But he said they all have the same modus operandi. They fall into this means of operating.

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The first thing they do is claim—fraudulently—refugee status. That allows them to stay here. Then they apply for welfare and medical benefits. Then often they commit criminal acts such as fraud and petty theft—again, here's where our provisions need to be very clear—and then they often use legitimate business as a front to launder money for their own activities. I'll leave for background—although it's your own material—the names of a number of individuals who have done this, not the least of whom is, of course, Al-Marabh, a failed refugee claimant who was not deported or detained. He was facing criminal charges at the time in Massachusetts, and there's a possibility he was involved in these atrocities in New York. I can only imagine what may have happened or may not have happened had he been detained.

Quite rightly, as we look at the provisions in the act—rightly but unfortunately—there are some necessary but unfortunate restrictions on the liberties of law-abiding citizens and law-abiding claimants.

It seems to me there is a lack of balance, a real focus on the taking away of liberties, unfortunately, of those who are law abiding and law following. There seems to be a reluctance, which I don't understand, to detain and deport those who are here without proper qualifications or possibly here on a questionable basis, and that's my question. We're looking at the act. It's very detailed; there are many pages here.

Can either minister, Mr. Chairman, direct us specifically to the new clauses, the new provisions, that say the authorities have here what they've never had before—the ability through Criminal Code provisions or others to detain and if necessary deport those who are posing a danger to us? Could we identify that? And could either minister also reflect again on why there seems to be a focus—there needs to be some—on an increased police presence here, on the internal border, but less focus on changes for people coming in on the exterior or the perimeter border?

So first, the very specific provisions, can you direct us to those? The minister talked about tools needed to identify and detain. Let's start with these provisions here, under necessary Criminal Code backup, that will be required to identify, detain, and deport where necessary. Can you direct us to the specific clauses?

Mr. Lawrence MacAulay: Thank you very much.

There are clauses not in this bill that we're aware of, like pre-arrival information, that will be available. That's in the Senate Bill S-23. It will require pre-arrival information for people who are coming to this country. As you are aware, we've put scanners at the airport that are hooked to the databanks of the RCMP and the FBI. If the fingerprints or palm prints of anybody who has committed a criminal offence are in the databanks of the RCMP or the FBI, it will immediately come back on these scanners to our airport entry points. These are some of the provisions that have been put in place in the last month in order to upgrade our systems.

Mr. Stockwell Day: Mr. Chairman, the minister is referring to, and I commend—

Mr. Lawrence MacAulay: That is not this bill, but you asked what we were doing as the government as far as putting provisions in place, and this is part of the provision.

Other than that, of course, we have provided, as you are fully aware, $280 million to a number of different agencies. We're providing more funding for the RCMP, so they will be able to—

Mr. Stockwell Day: Mr. Chairman, with respect, I do appreciate these provisions, and there are added resources. We've asked for those, and I recognize that. The use of technology in this day and age is essential, and I commend the minister for wanting to be aggressive on those areas, but when the information comes up on the scanner to the authorities through fingerprinting or whatever method is used that we have a questionable individual here, where are the exact provisions that give the added power now and the backup of the Criminal Code for that person to be detained, for as long as it takes—two weeks, three weeks—rather than letting them walk around and if necessary deported?

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The Senate has indicated that those provisions may not be in what is sitting at the Senate. I'm asking right here on this, is there anything here?

Ms. Anne McLellan: First of all, Mr. Day, keep in mind that when we talk about deportation, for example, it is dealt with under our law in separate legislation. It's an administrative proceeding under the Immigration Act of Canada. It is not part of the criminal law, nor do you find deportation referred to in this legislation. It was never our intention to include the issue of deportation in legislation that is targeted specifically at terrorists.

Clearly, if one is in this country, we have the vehicle of preventative arrest now in this legislation, for example. Preventative arrest permits fingerprinting. It permits the taking of a photograph. It permits, under judicial authorization, the holding or detention of someone for up to 72 hours, if a judge thinks that's appropriate. During that time other proceedings could be commenced against this person, including any proceeding under the Immigration Act, including deportation.

Your question is obviously a reasonable one. It's one we are all concerned with, in terms of making sure we don't let those who are terrorists or who would support terrorists into our country. If they are here, we have the tools to deal with them before they cause harm to Canadians or our allies around the world.

We believe this package provides preventative tools. It supplements, in very important ways, existing Criminal Code provisions and procedures such as deportation in the Immigration Act.

The Chair: Thank you very much.

We will go, for seven minutes, to Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much. My questions are for the Minister of Justice.

Rest assured that I and my colleagues of the Bloc Québécois will be examining this bill very attentively, as we regularly do with all new legislation. We will be looking at this with the great seriousness the situation requires. I would urge government members to do the same considering the very particular nature of the bill.

Madam Minister, in the course of this past week, you have been invariably questioned on two very precise issues. The first is that of the annual review of the act. Considering the extraordinary powers provided in the bill and the exceptional nature of this legislation which, I would think, calls for an equally exceptional treatment, I believe the provisions of the act should be reviewed each year and not simply in three years' time. If the three-year review is intended to ensure that the provisions are indeed being enforced, and if we do in fact have to wait three years before knowing whether they are being properly enforced, there is a problem. We would then question the rationale behind the act. If there is some urgency in having such provisions enacted, it is because this new legislation will be quickly put into effect and we should therefore be able to see quickly if it is being abused or not. A yearly review would then, I think, be reasonable.

We believe that the other fundamental point concerns a time limit or sunset clause, for which we claim no credit since the United States have included such a provision in their own legislation. Madam Minister, you twice mentioned the United States in your presentation. You cited two examples of what they have done. One example that you might follow is that of the United States' subjecting their own legislation to a three-year limit, which can be renewed for a further two years but with an overall maximum of five years. If terrorism has not ended within five years, then they will simply start afresh with a new act.

France, another of Canada's allies, has just enacted legislation concerning day-to-day security. It goes beyond what the United States has done since it incorporates a sunset clause with a December 31, 2003 deadline. I might add that the provisions enacted in France are not as far-reaching and do not constitute special legislation to the same degree as the bill currently under review.

This is to say that I do intend to review this very seriously, Madam Minister, but I would also ask you to answer me with a corresponding seriousness. Why are you categorically refusing or in any case why are you allowing doubt to linger in that regard? I would like that doubt to be dispelled. And I would like you to give precise instructions in that regard because my experience with this committee goes back to 1993. If the political will is not there, we can share information, we can hear witnesses who come and tell us the opposite of what you are saying today, but if you have made up your mind on this, your thinking will not change in this matter.

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I could mention the example of the Young Offenders Act. None of the witnesses from Quebec was in favor of that legislation but you enacted it nonetheless.

Seriously, Madam Minister, why will you not agree to provide for a yearly review? Why do some of the clauses in the act, which provide special emergency powers, not include a sunset clause? I'm not speaking here of international conventions, for the clauses concerning them can remain as they are in the bill. Canada should have ratified them long ago, but why is there no time limit on these emergency powers? I can tell you that if such a clause were indeed included in the bill, many Canadians would rest easier because they are deeply concerned about the enforcement of the measures that are being put forward.

[English]

Ms. Anne McLellan: I have made it very plain that we in the government considered this issue very carefully. Our best advice was to go with the mechanism of a review, by either the House or a joint committee of the House and the Senate, at the end of three years. We think three years is a reasonable period of time to assess the ongoing threat of terrorism. I hope there's no one naive around this table who thinks terrorism will be eradicated within three years. It will provide us with an appropriate period of time in which to review the utility, effectiveness, and application of this legislation.

I have also made the point, Mr. Bellehumeur, that this is one of the issues on which I'm most interested in the committee's input. I hope you're not suggesting that the discussion in the United States around whether to sunset at all or do something less was an easy one. In fact, the Senate and the House of Representatives disagreed on that point. The Senate wanted a sunset clause and the House of Representatives did not. They passed two separate pieces of legislation. As you are aware, in the U.S. they now have to conference to try to conciliate them.

As far as we know at this point, there will be a compromise reached and there will be a sunset provision of some years; I understand it might be four years at this point. It only applies, interestingly, to those provisions dealing with electronic surveillance.

So I don't want anyone to be under the illusion that these are easy discussions anywhere. They're important discussions to have about how we best make sure that certain of these measures are not abused and that Canadians' rights and freedoms are not unduly restrained or limited through their application.

I take that point. That's why I'm most interested in you considering whether review is the best mechanism. You don't think so, Mr. Bellehumeur. You're going to hear from a lot of people who understand the parliamentary process and other processes, and I would like your advice. Is the review for some period of time the best approach? Is the best approach sunsetting? If so, for how long and of what provisions? As you yourself agree, Mr. Bellehumeur, we are not going to sunset our compliance with UN conventions.

[Translation]

Mr. Michel Bellehumeur: Madam Minister, if you still wonder what our position is on the issue of the yearly review and the sunset clause, there must be a problem since we have been very clear on that point. I hope that the advice that you have received is different from that which was articulated Monday by your deputy ministers. On the issue of why there was no sunset clause, we were simply told that this type of provision is not traditional in Canada. Well, I do not believe that special legislation such as this one is traditional in Canada and yet that is precisely the type of measure that is being enacted. Exceptional circumstances require exceptional measures and that is the way we should be going about things.

Let me give you one concrete example, and that will be my final comment. Mr. Chairman, this won't take long. There are many questions I would like to raise, but let me give one practical example.

Take the definition of “terrorist activity”. Say there's a labor union seeking, as a political objective, to intimidate a government in order to get it to do something specific: say sign an agreement or address a grievance. Say also this illegal strike, this illegal pressure tactic results in serious interference or the paralysis of essential services.

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To your way of thinking, if we apply literally the definition you have included in the bill, can that labor union be considered a terrorist organization? Is it committing terrorist acts?

[English]

Ms. Anne McLellan: No, and I've made that plain.

[Translation]

Mr. Michel Bellehumeur: How, then, can we avoid having that definition applied to it?

The Chair: Madam Minister.

[English]

Ms. Anne McLellan: No. I said, no. I have made that plain. I think one needs to understand the motivation that is at work here. This legislation is targeted at terrorist activity, and we have defined terrorist activity. That speaks to organizations or individuals who would carry out their goals through the use of terror.

If you are suggesting that some judgment will have to be applied by law enforcement authorities in relation to certain decisions at the edges, I would agree with that, although I don't think your example is one. Your example, it's clear to me, is not intended to be caught by this definition, and it is not terrorist activity.

Keep in mind, ladies and gentlemen, that law enforcement agencies apply that judgment every day in this country as to whether they charge and what they charge. We must be vigilant, I agree, but we must also understand the context in which we are operating.

As I have said, if this committee can offer refinements that still achieve our purpose, so we can strike at the heart of terrorist activity, and if it is possible to provide language of refinement, my colleagues and I in the Government of Canada would be delighted to consider that. We too want to make sure we do not unwittingly or unintentionally sweep up legitimate lawful protests, or even protests that may involve acts of violence, that should be dealt with under the existing Criminal Code provisions.

The Chair: Thank you very much, Madam Minister. You'll find the committee is also eager to participate in that exercise.

Mr. Blaikie, seven minutes.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman.

I agree with the Minister of Justice that this is not an easy discussion; therefore we shouldn't too easily accept the whole notion of the adequacy of a parliamentary review. I've certainly been here long enough to see legislation enacted, and I have been assured many times that a three-year parliamentary review and a five-year parliamentary review.... I've seen committees meet and conduct such reviews, make unanimous recommendations, and have them ignored forever by the government. I've seen other reviews that were to take place be delayed for many months or years. So it's hard for me to accept the notion that a parliamentary review is sufficient.

If you want to deal with one of the problems you have, as a government, with this legislation, that's a question of trust. Unfortunately, you're dealing with this legislation in a climate of mistrust. We've had incidents in the last few years where legitimate political dissent has—at least in the view of some—not been treated with the respect it was due. Whether you like it or not, you're dealing with this in a climate of mistrust.

It seems to me that the sunsetting alternative is one of the ways of creating trust. It's one of the ways of saying, “Look, we really mean it. We're not just trying to fob off a parliamentary review on you. We really want to demonstrate our sincerity in this.”

I think the minister's already open to it, and if I read the Prime Minister correctly, he is open to it. Certainly there seems to be openness on the part of all parties on the committee here to consider what aspects of the bill might be sunsetted. I agree with you, it can't all be sunsetted. We don't want to sunset our compliance with UN conventions. So I would urge the minister to consider the wisdom of sunsetting, not just as being sort of valuable in itself, but also dealing with that question of trust.

Second is the whole question—and it's related—of dealing with legitimate dissent. Perhaps this is not unlike the question Mr. Bellehumeur asked you, but I'm concerned, as are others, that when you talk about the bill, you talk about lawful advocacy, protests, dissent, or work stoppages. I think many people would like to see more clarity with respect to showing that this bill does not intend to deal with things that already can be dealt with by existing provisions in the Criminal Code. If violence attends not just lawful activity.... Let's say you have an illegal strike, for instance, or a wildcat strike, and something happens, or a blockade of a road protesting logging: that could be interpreted in some circumstances as a threat to the public or a disruption of an essential service.

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I think what people need to know is that this kind of activity is in no way going to come under the ambit of this legislation. It would help if you could explain why or whether that is so, or what maybe we could do to make that absolutely clear, because that's one of the real anxieties out there.

Ms. Anne McLellan: As I think I've said in response to Monsieur Bellehumeur, it is an issue that we addressed and took very seriously, I can assure you, in the committee on national security. We discussed the definition and how we would define terrorist activity at great length, because we have the same concerns. That is why the definition appears as it does. It is cumulative, so that one must meet these three various levels of requirement, if you like.

But I take your point that in spite of that you can probably come up with examples where, if you didn't understand the intent of this provision, you might on a superficial reading or application think these matters would be covered. But as I say, what one is dealing with here is those who would use terror. Blocking a bridge is not a terrorist activity. It is not motivated by terror. It is not the use of terror. An illegal strike is not. When one goes to the streets, even in an illegal work stoppage, it is not motivated by terror. While it may be disruptive for some period of time and may lead to charges, both criminal and civil, under provincial and perhaps federal law, it is not what this definition strikes at.

I think we always must return to the focus of terror. That is what we're dealing with. It is the use of terror to achieve one's end, whether it is the intimidation of the public or some part thereof, or to undermine or call into question or threaten the national security or public safety. I think those are important elements. Even an illegal strike does not call into question national security or public safety.

Mr. Bill Blaikie: Well, Mr. Chairman, in what time I have left I would certainly urge the minister and her officials to be open to ways that we might make that more absolutely clear in the legislation—

Ms. Anne McLellan: Oh, absolutely, I agree. I've expressed to you as clearly, I think, as I can—

Mr. Bill Blaikie: The bill is as clear as you've been.

Ms. Anne McLellan: —our intention. But if in fact there is language that you can think of that will still achieve our objective, please, we would like to see it, because we are open to trying to strike at the heart of terrorist activity and those who would use terror in such a way as to threaten our country and our public safety. If there is better language to do this without narrowing the definition so that we are not able to act effectively to ensure safety and security, we are open to consider it.

The Chair: Thank you, Mr. Blaikie and Madam Minister.

Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair, and I want to thank both ministers and their officials for their attendance.

[Translation]

We are happy to have you here.

[English]

I have a couple of questions. First, with respect to the necessity for these new tools, I don't doubt for a minute that this legislation is required. I have concerns, as do a number of people, about how, in the practical sense, the pragmatic application of these new sections will work to our benefit. As a former small-town prosecutor, if I had the choice to charge somebody for an offence, particularly one that resulted in a murder, for example, I would question whether it would be beneficial to proceed under these new sections. It would fall upon the prosecutor to prove the requisite mental element relating to the ideological, religious, or political intent behind the commission of the offence. I suspect that in the practical sense this motivation, this new mens rea element, would be very difficult to prove in some instances.

• 1630

The same can be said of less grievous offences: bombing, administering a noxious substance, or committing any form of mischief. This is a new requirement, one where the crown is obviously going to bear the burden of proof beyond a reasonable doubt. That is my first question.

With respect to two of the more controversial elements you have identified—preventative arrests and investigative hearings—are they related? Do preventative arrests lead to this exercise of investigative hearings? There is a question in my mind as to these restrictions that are being put in place under the preventative arrest sections.

Perhaps more importantly, with respect to the investigative hearing sections—and I've read through them a couple of times—you've said quite rightly that a person retains their charter rights. They retain their right to disclosure and their right to counsel. They do not, I submit to you, retain the right to silence. This individual taken into custody in an investigative hearing is compelled to give evidence. That evidence can't be used against them. According to my reading of the legislation, if the person comes in and gives a confession or a complete inculpatory statement, it can't be used against them. If they come in and say that they did bomb those buildings, you cannot subsequently turn around and use that statement against the person in a trial.

They may be compelled to bring physical evidence with them to the investigative hearing. Can that physical evidence then, if collected at the hearing, be used in a trial? It states that judges can't use it other than for the purposes of contradicting them or for a perjury charge that might subsequently be laid. There's question in my mind as to how these investigative hearings will work. If you could, you might walk us through that process of investigative hearings.

You've mentioned the grand jury system in the United States. This takes place before a judge. I would ask both you and the Solicitor General, given the element of backlog we currently have in the courts, will there be new judges appointed as a result of this new process that's being put in place?

Finally, on this tack of funding, the Solicitor General has referred in his remarks to the mandate for tracking terrorism and the necessity of using new means of tracking terrorism. Necessity brought about by this legislation will also require new equipment, satellite-tracking systems, overtime for officers, and more officers trained in this sophisticated type of communication. Sophisticated equipment requires a great deal of training to use.

We have heard a lot of numbers being thrown around by the Solicitor General about new funding, but what do we know about CSIS? They will be tasked with much of the enforcement here and with much of the legwork, if you will, for tracking terrorism, yet their budgets have been cut significantly: $74 million since this government came to power. Over 700 people have been let go out of that department alone, so there's a bit of a void. You can put this legislation forward, but there will have to be some resources that follow it up.

Finally, for the Minister of Justice, I have a question with respect to the extradition of an individual from this Al-Qaeda organization or, heaven forbid, of someone like Mr. bin Laden himself. If such a person were to make his way into Canada illegally and come to the attention of our law enforcement or security forces and he were taken into custody, he could not currently be extradited to a jurisdiction like the United States where the death penalty applies unless the minister were prepared to waive her jurisdiction.

• 1635

There has been a recent case before the Supreme Court of Canada the minister is aware of, the Burns and Rafay case. The minister would be in a position where she would have to waive jurisdiction under this precedent in order for an individual like Mr. bin Laden to be extradited to the United States or to any other country where they might face the death penalty.

The Chair: Thank you very much, Mr. MacKay. I just want to make the point so we recognize this—

Ms. Anne McLellan: Yes, there are lots of points here, and my colleague, the Solicitor General, will respond to the resource issues and the technology requirements for law enforcement and intelligence gathering.

Let me start with the extradition question. I want to be absolutely clear about this for people so they understand what the Supreme Court did say in the case of Burns and Rafay. The Supreme Court said that the Attorney General of Canada retains a discretion to extradite without assurances in exceptional circumstances. When we talk about “without assurances”, this is the assurance that the death penalty will not be sought. They acknowledged the fact that the Attorney General has that discretion and that he or she should exercise the discretion to extradite without assurances only in exceptional circumstances.

I or any future Attorney General makes those decisions on a case-by-case basis. I would determine the facts and the situation of an individual whose extradition was sought and on that factual basis I would determine whether there were exceptional circumstances I thought justified that person's extradition without assurances. One will do that in every case. It has to be a case-by-case determination.

I don't want people to misunderstand. The court gave that discretion to the Attorney General to exercise in exceptional situations, and that was an integral part of the case of Burns and Rafay.

With respect to investigative hearings and preventive arrest, as I mentioned in my comments very briefly, the investigative hearing is not new to our law. It is new in the context of the Criminal Code, but it is not new to our law. The investigative hearing exists in our competition legislation, and in fact, as I've already said, we carry out investigative hearings for other countries under our mutual legal assistance agreement. What we are doing is extending the investigative hearing process to the specific terrorism issues—focused on terrorism—within the context of our Criminal Code.

The investigative hearing involves a judge and in fact, as my official, Mr. Mosley, has pointed out to me, also requires the consent of the Attorney General of Canada as an additional safeguard. But it involves a judge, and yes, the person is compelled to testify.

Mr. MacKay, I would remind you that in our law as I understand it—but Mr. Mosley could speak more eloquently about this than I can—we do not in fact have rules or constitutional prohibitions against compellability. We have a constitutional prohibition in the charter against self-incrimination, but there's a distinct difference between this country and the U.S.A. You don't get to plead the fifth here, but you do get to be protected against self-incrimination, and that's a key difference.

The investigative hearing is something we believe can be an important tool in terms of prevention, that is, in the early breaking up and detecting of possible terrorist activities and threats so the terrorists don't get on the plane. If they're on the plane, it's too late.

Do you want me to talk about preventive arrests?

The Chair: Yes, if you could do it in a very quick answer, because we have a long list and this has been way over seven minutes.

Ms. Anne McLellan: Yes. I talked about it a little in my comments. Preventative arrest, again as I've said, involves significant safeguards. It is a matter that comes before a judge. It again requires my consent to proceed except in emergency circumstances. Within 24 hours you're before a judge. You're either released, with or without conditions, within 72 hours, or you're charged.

• 1640

Will this take additional judicial resources? We don't know at this point how many cases, how many investigations, will be based on this new legislation. However, we made provision in the legislation to increase the size of the Federal Court if the case can be made that in fact the workload is such that additional judges are required. We're very sensitive to that issue.

The Chair: Thank you very much.

Mr. DeVillers, you have seven minutes.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

Thank you, both ministers, for your attendance with your officials. It's not in my interest to cross-examine the ministers, and I'm not very good at buttering them up, so maybe I'd spend some time with the officials, if I could.

Ms. Anne McLellan: Okay, Lawrence and I will go now.

Mr. Paul DeVillers: While in the political theatre and in the media we're hearing that since the events of September 11, nothing was being done, obviously the officials have been very busy, and I'd like to commend them for the work they've been able to produce in that length of time.

I'd also like to start developing a legislative record for potential charter challenges, which I think we're likely going to see. So I'll address my question specifically to that aspect, and around the areas I can highlight—electronic surveillance, the pre-arrest and investigative hearings in particular—what work was done in reviewing those provisions through the light of the charter rights?

Ms. Anne McLellan: I am going to ask Mr. Mosley or Mr. Piragoff to deal with that in detail, but let me assure you that, as I have said elsewhere publicly, this legislation was subjected to the most rigorous charter analysis. In fact, we took our charter team, our unit, and in a way that we're doing more and more now but certainly in this case, integrated them with our policy people, with our drafters, so that there was an ongoing assessment and dialogue between our charter people in the department, our policy people, and our drafters so that each provision was carefully analyzed. In fact, the charter people sent back to my policy people any number of useful suggestions that you see incorporated here in terms of things like safeguards in and around the use of investigative hearings and preventive arrest.

As you're probably aware, this comes down to a section 1 analysis in terms of making the case that, if we assume there is a limit, the limit on the exercise of right is a reasonable one and demonstrably justified in a free and democratic society. That is our burden.

Mr. Paul DeVillers: Yes.

Ms. Anne McLellan: I have made and will continue to make the point that, as a general principle, to be and maintain a free and democratic society, one of the fundamental underpinnings of that free and democratic society is the fact that human beings feel secure.

Human security is integral to a free and democratic society. Without it, we are hard pressed to think about how one could sustain something we would want to call a free and democratic society.

So this is where I start from. Security is not in violation of someone's rights; security is absolutely fundamental to everything the charter seeks to protect and everything we value as Canadians. So one shouldn't see these things in opposition. There is a balance required, but they're not oppositional. My colleague Irwin Cotler can speak about this much more eloquently than I can, but I see that human security as so integral, and the maintenance of that, the preservation and enhancement of human security, as integral to a free and democratic society.

• 1645

Rick or Don, you might have some specific issues you want to put in the mix in relation to one or another of these items.

Mr. Richard G. Mosley (Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice): I'd be pleased to, Minister, and thank you for the opportunity.

First, this bill does not address electronic surveillance to any great extent. It does carry forward three measures that were first put into the criminal law code in 1997. They are extended in Bill C-24, which remains before the Senate, to the new criminal organization offences in that bill, and they are applied in this bill to the new terrorism offences. We'll have more opportunity to explain that at a later hearing of the committee.

But I want to stress that in working on the new proposals that are in this bill, specifically preventative arrests and investigative hearing, as well as all the proposals, the human rights council and the Department of Justice were integrated in the process from the beginning, so that in developing the policy options for ministers to consider and in drafting the bill, we were constantly considering what the charter implications would be for any of these proposals, and adjustments were made to reflect the need to respect the rights of the individual.

At the same time, of course, we applied an effectiveness criterion. If the measure was to be incorporated, it had to be effective; it had to contribute to the objective of this package of legislative proposals.

But as a note with reference to preventive arrest, for example, there are numerous safeguards: the consent of the Attorney General to initiate the process; judicial supervision of the recognizance process; a “reasonable grounds to believe” requirement that terrorist activity will be carried out; the requirement that an arrest without warrant can only be made where it is necessary to prevent the commission of terrorist activity; the requirement to bring the individual before a provincial court judge within 24 hours; the limitation of further detention up to 48 hours beyond that point; and the ability of the person to apply to the court to vary the recognizance.

Under the investigative hearing, there are also numerous safeguards. Again, there is the consent of the Attorney General. The standard where an offence has been committed differs from the standard where there are reasonable grounds to believe it will be committed. There must also be reasonable grounds to believe the person sought to be compelled to testify has direct and material information that relates to the offence, or reveals the whereabouts of the person who the peace officer suspects may commit that offence. Before this procedure is invoked, reasonable attempts must have been made to obtain the information from that person. The judge may, in the course of the hearing, impose terms and conditions to protect the interests of the witness or third parties. A person may refuse to answer a question or produce anything that is protected by existing privilege under Canadian law—that's not the point the minister addressed about the lack of something comparable to the U.S. fifth amendment.

The key protection in the context of this investigative hearing is against the use or derivative use of the evidence in further proceedings. Contrary to the suggestion that I think may have been left by one of the questions from Mr. MacKay, an arrest will only be authorized where the court has reason to believe the person is attempting to evade service of process to come before the court to provide the evidence. So this is not a situation where the officer will go out and arrest somebody and drag them before the court.

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

Now I'll turn to Mr. Toews, for three minutes. That includes both the question and the answer.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you—starting now.

I want to comment on the explanation given by the minister in respect to the Burns and Rafay decision. She leaves the impression that, with respect to these exceptional circumstances, her determination will be final. In fact, she knows it's the Supreme Court of Canada that will then review her determination.

So she has no discretion. All the discretion rests with the Supreme Court of Canada in making the final determination as to whether something is an exceptional circumstance. I think that needs to be clarified for the record. She continues to say that, and it's simply not correct.

• 1650

Secondly, in respect of the provisions that my leader, Mr. Day, referred to, it was indicated that there are other provisions that deal with the deportation issues. The bill, I believe it was Bill S-23, was referred to.

What I would like is an undertaking from the minister. Perhaps the minister or the Solicitor General will undertake that his officials will provide those provisions to me at their earliest possible convenience, so that I can review those particular provisions. If there are any provisions in this bill, or in any other bill, I would like to see them, so that we know exactly what are the provisions they're talking about, because I find that things are always going around in a circle. Whenever we go to a bill, they say it's in another bill. I want to see the bill, and I want that undertaking from the minister. I assume I have that undertaking from the minister.

Lastly, in the course of these very brief three minutes, I want to say that I'm very concerned about this definition of “terrorist activity”. Specifically, I refer to the provision on page 13, which is an integral part of this definition. It states:

    (b) an act or omission, in or outside Canada,

      (i) that is committed

        (A) in whole or in part for a political, religious or ideological purpose, objective or cause,

I have grave concerns, not only from a prosecutorial point of view, because what does a prosecutor do? Does he bring evidence to show that a particular religious group believes it's all right to bomb, or this is the objective the person had? Wouldn't one think it is sufficient that you plant a bomb for the purposes of causing terror, no matter whether it's motivated by religious, philosophical, or other purposes?

I'm very concerned about our government, and our agencies, and our courts, looking at the personal views of individuals, religious views, because I don't want our courts to go on religious witch hunts or ideological witch hunts.

I don't care what a person believes. That's the person's business. What I am concerned about is how he carries out those beliefs. If they plant bombs for the purpose of destabilizing our democratic country, that's sufficient terror.

I need to be advised as to why we have that clause as necessary.

The Chair: Thank you, Mr. Toews.

Ms. McLellan.

Ms. Anne McLellan: On the extradition point, obviously, as with most decisions of ministers or other government agencies and officials, it can be subject to review. In this case one presumes it is subject to review ultimately by the Supreme Court, because if I were to exercise my discretion to extradite without assurances the individual would not be facing the death penalty in all likelihood, that person would exercise their legal rights to the full extent of the law.

I hope you're not suggesting we would deny that person the right to seek this review. But I don't think I need to remind you, Mr. Toews, that in fact the Supreme Court would not, I should think, substitute their decision for mine. They would simply determine whether I had acted reasonably in the exercise of my discretion, and if they concluded that I had, then this would be the decision that stood. They're not going to be in the business of substituting their decision for mine, as long as they believe I exercised my judgment on the basis of reasonableness.

I believe you had other questions in relation to Bill S-23.

Mr. Vic Toews: I just want the answer—

The Chair: Mr. Toews, you're well over three minutes.

Mr. MacAulay.

Mr. Lawrence MacAulay: I can assure you, Mr. Toews, in regard to Bill S-23, that in terms of the advance passenger information, we will get that information for you through Immigration and provide it to you.

Mr. Vic Toews: Thank you.

Mr. Lawrence MacAulay: Through Revenue, I mean.

The Chair: Thank you very much.

Mr. Myers, three minutes.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chairman.

First of all, I wanted to thank both the Minister of Justice as well as the Solicitor General for being here today.

I thought, Madam Minister, that you set the right tone when you said you would be willing—both of you actually said this—to reappear at this committee, because I think what it does is underscore the gravity of this situation we're in. I think it underscores your commitment to bring forward solid and good legislation that goes in large measure to counter the exact circumstances we find ourselves in as a result of the terrorist activities.

• 1655

When I take a look at some of the tough measures, as you've referred to them, I think of the preventative arrest measures in proposed section 83.3 and the investigative hearings in proposed section 83.28, and, in some respects, I think it's fair to say, and correct me if I'm wrong, these are new measures actually to Canadian law, in some respect, and they are quite extraordinary. But I think given the circumstances that we find ourself in, they are in fact needed and I think they're required, and I think they underscore what Canadians want to have at this point in time. So I congratulate you for bringing in this legislation. I think it's very important.

I wanted, though, to ask you the following question. Given some criticism that the government has taken over the last little while in terms of getting the legislation to this point in time, i.e. today at the justice committee, can you give me a sense of what went into the planning and the drafting of this legislation to bring it to this point? Can you give me a sense as well of the kind of thinking that went in to ensuring that it will stand charter challenges, which I'm sure was a major consideration? And can you give me a sense of where you think this should go and how quickly?

I'd be very interested, Madam Minister, in knowing that because I think Canadians are interested. Certainly, people I talk to are. I think it's fair to say they think we want to be very clear in what we do, we want to be very thorough in how we've drafted and looked at the legislation, we want to indicate precisely where we're going to go, but I think they want us, too, to act expeditiously. So I'd really like to hear from you a flavour, if you will, a sense, of how this all came about and where you think it should go from here.

Ms. Anne McLellan: It's going to take a lot longer than three minutes, but I think—

The Chair: You only have one minute.

Ms. Anne McLellan: Some of that I think Mr. Mosley responded to in response to a question from Mr. DeVillers in terms of the process undertaken in the charter analysis. In fact, as I have stated publicly, some parts of this legislation were already well along, not only in the planning stage but in the drafting. For example, there is our implementation of the UN convention on terrorist bombing. We had largely drafted those provisions and were planning to bring them forward in the fall for parliamentary consideration before the horrible events of September 11. We had every intention of moving this fall on the suppression of terrorist financing.

So policy work was well along in relation to that and is related, to some extent, to the work done by Minister MacAulay and others on Bill C-16, the charitable registrations law. So some work began before.

Also, we've been talking for many years and in many governments in this country about reform of the Official Secrets Act and possible changes to the Canada Evidence Act. Indeed, September 11 I think provided a sense of urgency for some of the work that was already afoot, but it also provided the focus for us to take important steps, such as for the first time defining “terrorist activity” and “terrorist entity”, and for the first time putting in place a process that permits us to designate and create lists of terrorist groups or organizations.

So in fact, after September 11, not only was there a sense of urgency, but it spoke to the fact that we knew, as of that day, that there were people who would do things I think we did not believe they were capable of doing before September 11. And that speaks to why you see this legislation in the form it is, with some of the provisions that are here in terms of our desire to prevent terrorist organizations from recruiting, from getting a foothold, from financing. As I say, I think the simplest way for me to understand what we're trying to do on the preventative side here is that when they're on the planes it's too late.

The Chair: Thank you very much, Madam Minister.

Monsieur Bellehumeur, three minutes, please.

[Translation]

Mr. Michel Bellehumeur: Madam Minister, when I gave the example of the labor union a little earlier on, your answer focused entirely on terror. That is what is on your mind today but that is not necessarily what stems from the definition included in the bill.

• 1700

Personally, I'm not sure that six months after the enactment of this bill, the police, or whoever is called upon to enforce this legislation in the heat of the moment, will have the same understanding of its provisions as you have and will be focusing, as you are currently doing, on acts of terror since the distinction is not that clearly made.

I understand that you are open to amendment suggestions. We will therefore be suggesting a number of amendments.

Earlier on, I mentioned that I intend to approach the issue with the utmost seriousness. Do not construe this as a criticism because I know that at question period it sometimes happens that a person will answer with a bit of a political slant. Yesterday, however, Pierrette Venne, member for Saint-Bruno—Saint-Hubert, questioned you on the new powers you would have under the Access to Information Act. You answered by saying that if those powers were granted to you rather that to the privacy commissioner or to a judge, as the act presently provides, it was simply to protect the information you might receive from Canada's allies.

Well, section 15(1) of the Access to Information Act is there for precisely that reason. Let me read it out:

    15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied—

The act already provides for that. Madam Minister, why are you trying to go beyond the act? Why are you giving yourselves new powers? I would like to receive a serious answer on this since yesterday you did not give the Bloc Québécois a serious answer. Yesterday, you were simply engaging in politics.

[English]

Ms. Anne McLellan: Monsieur Bellehumeur, yesterday I gave a very serious answer, and that is, if we are going to fight terrorism, terrorism is global. It's not local, it's global.

[Translation]

Mr. Michel Bellehumeur: What about section 15(1)?

[English]

Ms. Anne McLellan: No, section 15 in fact leaves open and creates a loophole in terms of the possibility of disclosure of information that may have been provided to us by our allies.

In fact, we know—

Mr. Michel Bellehumeur: No.

Ms. Anne McLellan: —that in relation to these sensitive matters where one must work with one's allies—one gathers intelligence, one shares intelligence—much of this speaks to the national security of not only this country but other countries, and to the very lives of perhaps informants and others. Unless we can guarantee to our allies that this type of limited, exceptionally sensitive information will not be subject to public disclosure, we will not get that information and we will not be able to fight terrorism as effectively as we should.

Mr. Chair, I believe that under existing access legislation there is a loophole created, because it permits the access commissioner to make certain recommendations, but as far as we're concerned, that is not sufficient for our allies. We must do what is necessary to ensure that we have the best information and that we are protecting that exceptionally limited, yet exceptionally sensitive, information.

The Chair: Thank you very much.

Madame Allard, three minutes.

[Translation]

Mrs. Carole-Marie Allard (Laval East, Lib.): Madam Minister, since terrorism poses a very real threat to the security of Canadians, and considering what happened last September 11th, would it not be possible to institute a specialized terrorism tribunal instead of resorting to existing courts? I see here that a Quebec Provincial Court judge will be able to order the release of someone who is under arrest. I see that judges from the Quebec Superior Court will receive new investigative powers. And if I am not mistaken, you seem to increase considerably, in this bill, the powers of the Federal Court. Am I right on that point?

I wonder why this is being done instead of creating a special terrorism tribunal—as, I imagine, other countries have done, and I think that idea could perhaps be considered—which would be called upon to judge that type of matter. I cannot really see how a judge of the Quebec Provincial Court could rule on a release application filed by an alleged terrorist. Seeing that the judiciary does not always seems to have a very clear idea of what the Charter implies, I wonder whether the security of the population might not be better served by a court expressly tasked with such matters.

• 1705

[English]

Ms. Anne McLellan: I think the idea of specialized tribunals or special units within courts probably has some merit. If you look at organized crime, for example, I think there is some merit. I know in some provinces within the superior court, for example, there is a group of judges with particular expertise in this area and with expertise in handling complex multi-party trials. It is not unreasonable to think that we would want the same kind of specialized knowledge in relation to dealing with terrorist offences and the challenges of national security.

As you know, this legislation basically establishes the principle of concurrent jurisdiction in a superior court of the province or federally, although there are some matters that would be dealt with by the Federal Court of Canada.

The basic idea, and not a bad one at all, is that we need highly specialized judges to deal with and understand the complexities and the modern reality of national security issues and terrorism in particular. I think we can develop that expertise. I hope the courts would be open to developing that expertise, whether it relates to organized crime or terrorism. Both are highly complex, specialized areas of criminal law.

The Chair: Thank you very much, Madame Allard.

As I understand it, the ministers have to leave but the officials can stay. We'll be here until 5:30, continuing the discussion—if committee members wish. I presume they do. Both ministers, I believe, have offered to return to see us as we would require.

Ms. Anne McLellan: If I may, on behalf of Mr. MacAulay and me, I'd like to first of all thank the committee. You are involved in what the government truly believes is one of the most important legislative parliamentary review processes that we—in my eight years in Parliament, at least—have been charged with. I know you understand the seriousness and the urgency of this.

On behalf of Mr. MacAulay and me, I also want to underscore how important it is for you to provide us with your best advice in some of these areas. We believe that we have struck the appropriate balance and that the provisions here are effective and fair. But reasonable people of good faith can disagree on some of these matters. Balance is not a scientific inquiry. Therefore, it's going to be very important for you, in terms of the work you do, to help us make sure that we do have the most effective and fairest law. I know you will take up this challenge expeditiously and seriously.

I thank you for your attention today.

The Chair: I can assure both ministers that committee members are very aware of the importance of this exercise and are very eager to offer our judgment to what we will receive.

I thank the ministers, who I understand have to leave.

Mr. Fitzpatrick, for three minutes, to officials.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): I just want to mention an unintended consequence of an event. In my home province of Saskatchewan, we had a general illegal health strike about three years ago. Many people really thought their safety and health were at risk. We were transporting people to North Dakota, South Dakota, Alberta, and other provinces to deal with them.

I just want to point that out, because I think the minister said an illegal strike could not really affect health or safety or concerns along that line, and I think people in that situation definitely felt they were at risk.

The minister said prevention was far more important than trying to react with something after the effect. The minister also said this is a global, international threat. I agree totally with her.

• 1710

To me, this means there has to be tremendous cooperation and coordination between all branches of government to deal with this matter. I think the U.S. has recognized that. They've created this position for homeland security, and people are going to wait to see how much power and coordination he has, and so on. But I only raise it because of...“Man wanted in U.S. over terrorist links released on bail today”. He's tied with Hezbollah, and they wanted him in North Carolina. Quite honestly, I didn't like the response today, saying that's over in the immigration department.

We have to break down the barriers between all these departments, and we don't need buck-passing here. Terrorism is a global threat, and we have to deal with it on all fronts. That matter concerns me quite a bit. We have to work together and attack this thing in a coordinated way. Throwing it back into the immigration department isn't the answer here.

I'd like to see this act extend into those areas so that we have a seamless system in dealing with this thing and we aren't looking at immigration laws to deal with this sort of problem, because, quite frankly, this disturbs me. This isn't what we want, a person out on bail who could be a real terrorist here. We don't need that right now.

One other question I'd want addressed is, is there a provision here to take intelligence reports from other countries such as the U.S. or Great Britain, and so on, and accept them as evidence in these proceedings, bypassing the hearsay rule? I think that's very important. If we have good intelligence on some of these people, we don't want to get caught up in all the technicalities of the hearsay rule in dealing with these individuals.

Those are some of the concerns I have.

Mr. Richard Mosley: First, I don't think the minister meant to suggest that an incident like a strike by public health workers could not have serious consequences. She did mean to point out, however, that an action such as that is not intended to cause serious harm or risk to the health of the public. It wouldn't be a terrorist act within the context of this definition.

On your second point—you mentioned a case, and I'm sorry, I didn't catch what that particular case was—we, in the Department of Justice, are responsible for extradition matters. We work with our foreign partners such as the United States. We have a unit within the department called the International Assistance Group, and we provide assistance to them and to other countries. They reciprocate when we are seeking the return, or they are seeking the return, of an individual who is charged with serious offences in those countries or who has escaped from lawful custody. So those arrangements are well established. Parliament updated the Extradition Act just a few years ago, and it is working well, from all accounts that we hear.

That is distinct, of course, from the matter of persons who are inadmissible in Canada, who may be subject to deportation. The minister was pointing out that this is the responsibility of the Minister of Immigration and is not the subject matter of this bill. There's certainly a lot of debate at present over the issue, but this bill is addressing the criminal context in relation to terrorism.

Finally, on your point about intelligence reports, I would simply note that, yes, there is provision in this bill for the information obtained from intelligence reports, including foreign intelligence, to be used in certain of the proceedings. In some of those proceedings, the court may, for example, make a summary of the information available to the person who is the subject of the proceedings, rather than the report as a whole. There are other provisions that serve to protect from the disclosure of information that could have a harmful effect on our international relations.

Mr. Kennedy may wish to add to that, because that is also addressed in relation to charities registration.

• 1715

Mr. Paul Kennedy (Senior Assistant Deputy Solicitor General, Policing and Security, Department of the Solicitor General of Canada): Yes, I will.

I want to speak to just a couple of issues. One is whether or not there's seamless cooperation amongst federal enforcement agencies.

There is increasing cooperation. There are a lot of joint force operations with customs, immigration, justice colleagues, and federal, provincial, and municipal police officers. That has increasingly become the approach we've used in dealing with organized crime and is clearly the approach we're using in this area. So we have fostered that cooperation, also in terms of use of tool, what is the most effective way to deal with this problem, whether it's extradition or deportation. So that kind of dialogue goes on regularly.

I chair, at the assistant deputy minister level, at least, a committee of public safety departments where we ensure that kind of dialogue occurs and that we in fact are adjusting our behaviours to be effective.

As to the other thing, we won't talk about any particular case, but there is currently provision under the Immigration Act—I think you'll have the Minister of Immigration appear later—to allow us the use of classified hearsay information to have people removed from the country if they are suspected of being terrorists. If there was evidence to indicate that a person was a terrorist, that's one of the grounds that could be used to justify their detention.

I believe there's a provision in Bill C-11, which is currently before this Senate, for us to extend those kinds of provisions to the Refugee Determination Board so they as well could have the benefit of classified information that they could hear. So I think we're working on that issue.

The Chair: Thank you very much.

Mr. Bryden, you have three minutes.

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): Thank you.

Do the United States and the United Kingdom have the same legislated, unlimited exclusion of information pertaining to international relations, defence, and security as provided for in clauses 87, 103, and 104? These are the exclusions of the Access to Information Act and the two privacy acts. Do they have the same provision for this unlimited exclusion?

Mr. Paul Kennedy: I haven't looked at their legislation, so I can't answer that. I think the American legislation has some of those things in it, but I'd have to verify that. I don't have it in front of me. I don't know if Mr. Mosley can respond to that question.

Mr. Richard Mosley: I believe the U.S. legislation does contain similar provisions. We'll have to find them for you, and we'll be pleased to.

My understanding about the U.K. situation is that none of the information held by their security agencies is subject to their equivalent of the Access to Information Act—that issue was reviewed recently in the context of another matter—the difference being that they may have provisions for access after 20 or 25 years.

In the historical context, the argument has been made by some scholars—and in fact, this was addressed by Professor Wark in one of his reports or studies recently—that the difficulty with our system is that, while it may work reasonably well with contemporaneous information, it doesn't work all that well with historical information.

Mr. John Bryden: Yes, but remember what we're doing with clauses 87, 103, and 104. We're not only eliminating all oversight; we're eliminating any timeline for eventual disclosure. My question is whether these other jurisdictions are doing this completely.

We can look at that later. Let me move on.

Also, that clause says the Attorney General issues a certificate in order to order the information withheld. What do we mean by issuing a certificate in this context? What does the minister have to do? I can't get that out of the legislation as I read it.

Mr. Richard Mosley: Do you mean the formal process of issuing a document?

Mr. John Bryden: Yes. Does she have to consult with anyone, or can she or he do it unilaterally?

Mr. Richard Mosley: It can be done unilaterally, as framed in this.

There is provision in the Australian legislation for the issuance of certificates with respect to national security, defence, or international relations. If issued by the responsible minister—and my understanding is that it's not just the Attorney General—that establishes conclusively that the document is exempt from the operation of their statute.

• 1720

Mr. John Bryden: But if I understand—I don't want to lose my time. I don't mean to interrupt the witness but I'm just concerned. You answered the question. You can do it unilaterally according to this legislation.

Mr. Richard Mosley: Unilaterally, yes.

Mr. John Bryden: My final question is—

The Chair: That was your final question.

Mr. Bellehumeur.

Mr. Richard Mosley: With reference to the U.S. legislation, if I may, under the U.S. Freedom of Information Act, normally decisions made by the government can be challenged directly in the courts as opposed to our process where the information commissioner reviews the decision. But under the act, the President can issue an executive order establishing criteria to keep secret matters in the interest of national defence and foreign policy, and documents that are classified under such an executive order are exempted from disclosure under that act. So it follows an executive order by the President.

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

Mr. Bellehumeur, three minutes.

[Translation]

Mr. Michel Bellehumeur: It appears, upon reading this bill, that it was drafted in English and then translated. I imagine that the people from the Department of Justice are presently rereading both versions. I would ask you to read section 83.01(2) which appears on page 15, and where I detect a difference between the English version and the French version.

The French version of the paragraph on facilitation reads:

    (2) Pour l'application de la présente partie, il n'est pas nécessaire pour faciliter une activité terroriste:

You can see that they speak here of terrorist activity in general, whereas the English version is concerned with a terrorist activity in particular.

I see a difference. Do you not? It appears, from your expression, that you see no such difference.

[English]

Mr. Richard Mosley: It's not surprising to find in Canadian legislation differences between the English and the French, precisely because they are not translated. I would invite members of the committee who may some time wish to observe how this process is done to come to watch some of our legislative counsel. The way it works is they sit side by side with two separate computer screens so that they can see each other's work while they're doing this. The instructing counsel—people such as my colleagues and myself—sit on the other side of the table and we have our own screens. But the two versions are written simultaneously. Each team has a French-language drafter and an English-language drafter. Differences, though, do result. They relate more to the genius of the language than to any translation, as suggested by Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I am not perfectly bilingual but several members of my party who are have looked at both versions. There is a difference. You say both texts were drafted at the same time. I accept that this is so, but can you not see that there is a difference and that the standard of proof would not be the same under the two versions?

If you tell me that they both say the same thing, we will bring in people who will argue otherwise. You were saying that if both texts are not identical it is simply because of the very nature of the French and English languages, but in this vast and beautiful land of ours, which version might a court apply?

[English]

Mr. Richard Mosley: Let me say that we have in the past brought forward motions to amend where differences have been identified in the bills presented to Parliament. In the legislative services, jury linguists are employed whose job it is to compare the two versions to ensure that they mean the same. That's not to say that we can't find, from time to time, differences in meaning.

I would be pleased to take this particular point back to my colleagues, and we'll review whether in fact there is a different sense from the two language versions.

The Chair: Thank you very much.

Mr. Grose.

Mr. Ivan Grose: Thank you, Mr. Chair.

My questions were for the ministers and I'll pass.

The Chair: You'll be very popular, Mr. Grose.

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I was interested in the comments of the minister that security is one of the most fundamental rights that you can have in a democratic society. Just a word of caution on that. I think history would show that certain regimes sold security in exchange for freedom and liberty. The Soviet regime was based on the analogy that we'll take care of you and you'll have security. Some important people in the past have made comments that security without liberty is akin to tyranny and slavery and so on. So I have a couple of words of caution on that. They're not totally compatible all the time.

• 1725

My own view of a democratic society is, yes, security is important so that we can freely live in a democratic society. That's why it's important. There is a balancing between those interests.

What's going on with this anti-terrorist act in terms of putting resources in place to make this thing work? All the laws in the world don't mean anything if we don't have the resources and manpower and womanpower and so on to make this thing work. That's very important here.

We have a concern too that you might be passing it on to the provinces once you're finished with the thing. Terrorism is something special. This isn't something that should be passed off to the Attorney General of British Columbia or some such person to deal with. It should be dealt with by the federal branch in its entirety.

The Chair: Mr. Kennedy.

Mr. Paul Kennedy: Maybe I can answer that. I know Minister MacAulay had a response here. It was to be in response to Mr. MacKay's question. So I'll pass it along to you as if I'm the minister in this particular instance.

The minister would have indicated to you that they've just recently announced $280 million with respect to anti-terrorism. Within that amount there was $90 million to increase security at Canadian airports and $10 million that went to the RCMP for things such as fingerprint scanners.

I'd like to stop for a minute to show you how important that is to us in terms of this particular area. One of the challenges, if someone arrives at our customs point at an airport, is they may have false documentation. They may be people whom you look at and you're a bit concerned about, but they'll give you false names and things of that nature. The only thing we have available to us at this time that will really identify them would be fingerprints.

Traditionally, the problem is if you take a fingerprint you have to mail it and do a comparison check on CPIC. What we want to do is install the electronic scanners at those airports and points of entry in 50 major centres within Canada. So when people come in, they can be referred to by the customs office in the first instance to immigration. Immigration can take their fingerprints electronically at that time. They're automatically compared against a fingerprint on CPIC. So if there are people who we know are of concern internationally and so on, hopefully, we'll have that.

As well, we'd also like to be looking at visual recognition technology. We have photos that will match them up. The key thing isn't just the documentation and the person you're looking at and the name they're giving you—all of which frequently are false—but it's also to be able to verify in fact that the individual is who we're talking about. That, at a very practical level for us, is going to be key, as well as the interoperability of our technical systems.

There was $54 million as well for the RCMP in new technology and increased staffing. There was $49 million for citizenship and immigration. That's important as we go back to the question about the connections. We view each of these parts of the public safety community as having to be supported in order for us to have an effective net to address this challenge. If we strengthen our capacity in terms of the borders, immigration, CSIS, and the RCMP, all that is the total effort we have.

Mr. Rock as well has announced $12 million to improve our operational readiness. That's to address the concerns about biological attack. I was in Washington yesterday on Capitol Hill and saw the effect on that particular institution of some of the problems they're encountering. We've encountered them as well. That amount is in addition to the $2 billion that in fact had already been addressed in Budget 2000.

I can indicate on behalf of the minister that there will be additional announcements to come. But more importantly, in terms of long-term budgetary problems, the government is looking at what this means with respect to what the actual resource base should be in the long term. Those numbers are for the current fiscal year. We have to look at what's to be done longer term.

The Chair: Thank you very much.

Mr. Owen, you have three minutes.

• 1730

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Mr. Chair.

This is for Mr. Kennedy or Mr. Blackie, with respect to the charities registration part of the bill, and perhaps more widely as well. I guess the simple way to pose the question is, given the other provisions of the bill, is that part of the bill necessary to comply with the International Convention for the Suppression of Financing of Terrorism?

Mr. Paul Kennedy: I certainly believe so. Otherwise, it would not have been here as part 6 of this particular legislation.

The International Convention required us to address a whole range of problem areas, in terms of terrorist financing, and certainly if you read the preamble to that convention it identifies charities as one of the sources. We still have the problem that if you are designated as a charity you have a certain cachet in terms of legitimacy. The government obviously has seen fit to afford you this status. You have the advantage of tax receipts you can give to other people to encourage it. So the answer is, yes, it is still a current problem, and it's something we have to do.

We're looking at a full range of techniques that the state has to have at its disposal to address this problem. There are administrative actions that can be taken; there are civil law actions, involving civil forfeitures, that can be taken; and there are criminal law actions that can be taken. Each of these is a tailored regime in terms of the kind of response you'd want to give.

The charities legislation, in fact, gives the government a scope of movement that may not be available if you just looked at the part 1 provisions dealing with seizing and forfeiture of assets, which can call for the entire forfeiture.

You may very well have a charity that has been subject to abuse by executive directors and people like that, but which is otherwise serving a valuable social function within a particular community. The provision we have in part 6 allows the state, by taking away the charitable status, to then provoke a series of actions that are called for under the Income Tax Act. These would allow those assets to be repositioned or transferred to another bona fide charity. You may have an institution carrying out a religious or social function that is important within Canada. This allows you to have that function continue, but to remove the evil, if you can call it that, of people there who are misdirecting those funds, maybe to the disadvantage of the majority of the members of that particular community.

So it gives you a range of options short of saying, “There it is: you're on a list; we're going to seize and forfeit everything to the state”. It allows a measured response, and I think what we want in this country is a series of responses. Clearly, we may have other charities that are heavily committed—knowingly, and on the part of all players—to this particular activity. Then the appropriate action may be to move in and seize in entirety the assets. I think all these things are needed.

As well, with some charities there are additional advantages where we're concerned—and people have voiced to us their concern—about the reputations of some charities that are perhaps being abused by individuals. The vehicle we have is that once we have the certificate signed by two ministers, there's an opportunity for the charity to persuade a judge to bar publication of the proceedings until such time as a determination has been made as to whether or not they are involved in that activity. So there's a range of options.

Mr. Stephen Owen: Okay. If I could have a brief supplementary, the concern I was trying to address was that it seems to me the things that would trigger the deregistration of a charity would also amount to criminal offences. I have a concern—I want to think this through, and maybe you can help me—that we might be using an administrative procedure to do something that should properly have been done through the criminal procedure.

Mr. Paul Kennedy: The difference is that if you're a charity, and your objectives, in terms of what the money can be used for, are very specific—you could almost call it a strict liability—and it's used for other purposes, you can lose your charitable status. Clearly, the Criminal Code provisions require a knowledge requirement “beyond reasonable doubt”, because you're stigmatising behaviour, possibly, with penal consequences. That's not what we're doing here.

What we're saying is, “You're a charity....” As a matter of fact, any charity, if we could have used this information publicly—a charity right on its face whose money was being used for a purpose other than its proper mandate would stand a risk of losing its status. Knowledge isn't a factor. You have a positive obligation to ensure that those moneys are used for a particular purpose; so take care how you're doing it. If you're careless and they're not being used that way, you can lose your status. So there's a knowledge requirement that you find in the criminal process—“beyond a reasonable doubt”—that doesn't exist here.

• 1735

Our handling of that is consistent with how charities are generally treated under the Income Tax Act. We have a regime, though, to protect the classified nature of our information so that decisions can be made.

The Chair: Thank you very much.

We're on borrowed time now. I have three questions left. I'd like them to be very brief, if officials don't mind, and then we'll have satisfied all of the inquiries.

Monsieur Bellehumeur, three questions.

[Translation]

Mr. Michel Bellehumeur: In that case, I will stick to a topic I've already discussed. Since we have to go quickly, I'll not raise any new issues.

To one of my questions concerning terrorist activities and to the example I gave of a labor union, the Minister answered several times that terror had to be involved. I've reread several times the section concerning terrorist activity or defining what a terrorist activity is, and nowhere is it stated that such an activity must involve terror. I see nothing here that has to do with terror.

Would you indicate to me where in the bill terror would be mentioned? If it is not in the bill, might the Minister consider including that in the definition?

[English]

The Chair: Thank you, Mr. Bellehumeur.

Mr. Mosley.

Mr. Richard Mosley: Certainly. I think what the minister was referring to is that when you're looking at the definition of “terrorist activity”—at paragraph (b) under the definition “terrorist activity” within proposed subsection 83.01(1), on page 13—the total effect of the motivation in items (b)(i)(A) and (B) and in subparagraph (b)(ii) of that definition is what is commonly understood by “to terrorize”. The motive is contained in item (b)(i)(A) of the definition, but item (b)(i)(B) adds “with the intention of intimidating the public”,

[Translation]

“with the intention of intimidating the public”.

[English]

The word isn't there. I'm not suggesting that the word is there—

[Translation]

Mr. Michel Bellehumeur: It most certainly is not.

[English]

Mr. Richard Mosley: —but the effect is.

[Translation]

Mr. Michel Bellehumeur: But could we add it in? There is a difference between intimidating and terrorizing someone.

[English]

Mr. Richard Mosley: No. With the greatest respect, if you look at just about any country that has attempted to define the concept of terrorism—whether they use “terrorism”, “terror” or “terrorist activity”—they have used these elements to describe what terrorism is. It's the same thing in the United Kingdom statute. It's in the United States statute. It's in the proposals that are.... That is the problem, because that concept is very wide.

If you look at the United Kingdom definition, it could encompass an enormous amount of conduct. They say terrorism means:

    (a) the use or threat is designed to influence the government or to intimidate the public or a section of the public

    (b) the use or threat is made for the purpose of advancing a political, religious or ideological cause

They go on then to define “action”. In effect what they've done is define “terrorism” very broadly and then “action”. In our definition, we've rolled everything together, but in an effort to limit the scope of what “terrorist activity” is.

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

Mr. Richard Mosley: Also, let me draw the committee's attention to the financing of terrorism convention itself, which in article 2 refers to what is in effect “terrorism”. It is “Any other act intended to cause death or serious bodily injury to a civilian....” It goes on: “...intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”

These are commonly understood as the elements of terror.

The Chair: Thank you, Mr. Mosley. Thank you, Mr. Bellehumeur.

I think we're imposing on the time of the officials. They agreed to be here until 5:30 p.m. It's now 5:40 p.m. I have two short questions left—Mr. Bryden, Madame Allard, and then one comment that Mr. Paradis has asked to make.

Please, Mr. Bryden.

Mr. John Bryden: The word “security” is used throughout this bill but it's not defined. Am I to assume that you mean by the word “security” financial and economic security as well as physical security and safety?

• 1740

Mr. Richard Mosley: There is an express reference to economic security in the amendments to the Official Secrets Act.

Mr. John Bryden: Then let me refine my question.

The Chair: This is your last comment.

Mr. John Bryden: I'm referring specifically to the use of the word “security” in clauses 87, 103, 104, and proposed paragraph 273.65(2)(d), which is the interception of private communication section. All those clauses use similar if not quite exactly the same wording.

The Chair: Thank you, Mr. Bryden.

Mr. Richard Mosley: I'll refer you back to the definition of terrorist activity on page 13. At line 37, it refers to “with regard to its security”—this is the public—“including its economic security”. I think their intent was to include economic security.

The Chair: Thank you very much. Madame Allard, very quickly.

[Translation]

Mrs. Carole-Marie Allard: I do not know whom my question should be directed to, but in view of the principle which would reduce as much as possible the paperwork imposed on businesses, I would say that section 83.11, as drafted, would require corporations, banks and the various organizations listed in paragraphs (a) through (g), to check whether they might have, among their clients, persons whose name appears on the list of terrorists. They would also be required each month to report to the principal agency or body either the fact that they do not have—

I wonder if we could not simply have them do an audit and require them to report only in cases where they do have such people among their clients. If you require them to report each month, you are creating for businesses too heavy a paper-burden.

[English]

The Chair: Mr. Mosley.

Mr. Richard Mosley: There certainly will be an audit requirement on these companies, there's no question about that. This was developed very much in conjunction with the Department of Finance and the Office of the Superintendent of Financial Institutions. I think the view was that these companies are already auditing the transactions they're involved with on an ongoing basis, but certainly there will be an additional demand put on them to do this. But that's part of the price I think Canadian society is going to have to pay in order to have an effective response.

These ideas were developed not just in the sense of the effective implementation of the financing convention, but also the most recent Security Council resolution on this subject, 1333, I believe of 2001. I would urge the committee to pay close attention to the language of that resolution. It does require the member states of the United Nations to take effective means to freeze terrorist property. In trying to determine how to do this effectively, the only way we can take action against terrorist property is if we're aware that it is being possessed somewhere in the country. Although the burden may be onerous on the private sector, it's necessary in our view in these circumstances.

The Chair: Mr. Paradis, a last comment or question.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Thank you, Mr. Chairman.

I would like, first of all, to congratulate the people who have put so much effort in drafting this bill.

Before we finish, there is a comment I would like to make. I would like to get back to the example, on page 13, which Mr. Mosley referred a little while ago. Paragraph (b) of the English version as drafted states as follows:

[English]

    an act or omission, in or outside Canada,

      (i) that is committed

        (A)in whole or in part for a political, religious

[Translation]

But you don't find in the French version this idea of

[English]

“in whole or in part”.

[Translation]

I urge someone from your department to have a quick look at the English and French versions just to make sure, since we are dealing here with a criminal law provision, that everything that you have in the English version is also found in the French and vice-versa.

The Chair: Thank you, Mr. Paradis.

On behalf of the committee, I would like to wish happy birthday to Hélène Regimbald, our translator extraordinaire.

[English]

The meeting is adjourned. We'll see you next week.

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