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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, October 30, 2001
The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good afternoon. I call to order the 37th meeting of the Standing Committee on Justice and Human Rights.
Today we are considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime Act, and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.
We have as witnesses today Professor Julius Grey from McGill University, Ken Rubin, a public interest researcher and access to information expert, and from the B'nai Brith David Matas, lead counsel.
I think everyone is quite familiar with the way business is done here. We will ask each of the witnesses to make an opening statement of around 10 minutes, and then we'll go to rounds of questions with the committee members. I thank very much the witnesses, who have very busy schedules, for giving us their time and expertise today.
I will go first to David Matas from the B'nai Brith.
Mr. David Matas (Lead Counsel, B'nai Brith Canada): Thank you for inviting us to appear.
We welcome this bill and consider it a positive contribution to the fight against terrorism. In many respects, it has provisions that we have hoped to see in the law for some time, particularly the provisions strengthening the hate laws, clause 10 of the bill, clause 12 of the bill amending the Criminal Code, and clause 88 of the bill amending the Human Rights Act.
There are other provisions in the bill that, in our opinion, go too far, and we would welcome a sunset clause in respect to some of the provisions, arrest without charge, the provision weakening the right to silence, the provisions ousting the jurisdiction of the Information Commissioner and the Privacy Commissioner.
The definition of terrorist activity is too broad. In particular, proposed item 83.01(1)(b)(ii)(E) is not to be found in the International Convention for the Suppression of Financing of Terrorism, and so should be either amended or dropped.
The main thrust of our submission is that in some respects the bill does not go far enough in combatting terrorism. We are preparing a written brief, which we'll file later, because there's consultation within the organization, but at this point we have 14 specific suggestions to make about ways the bill could be strengthened. I'll try to run through all 14 of those very briefly in the few minutes I have.
First, the offence of mischief against religious property that is added in clause 12 of the bill we welcome very much, as I say, but we would proposed adding to the listed grounds there that of sex, which is not there now and would strengthen the provision. We also believe the notion of religious property should be expanded to cover schools, organizational buildings, and cemeteries, which have often been the target of religious hatred.
The bill should have a non-discrimination clause, so that there would be non-discrimination in the listing of terrorist groups. The bill allows for the Governor in Council to list an entity as a group that participates in terrorist activity, and we're concerned that this power not be used in a discriminatory way to list some groups and not list others. There is some rhetoric out there that seems to justify some terrorist activity. We reject these distinctions, particularly as an organization that has a Jewish membership. We're particularly concerned about attempts to justify the terrorism of anti-Israel organizations, Islamic Jihad, Popular Front for the Liberation of Palestine, or Hamas, and to distinguish them from al-Qaeda. We would reject that sort of distinction, and it should not be allowed in the law.
We would say that the bill needs a retrospectivity clause, so that the offences that are in the bill will be criminal from the time they were offences at international law, not just criminal from the time the bill is enacted. The Canadian Charter of Rights and Freedoms allows that. The Supreme Court of Canada has said that sort of law is constitutionally valid in the case of Finta. The September 11 terrorists, of course, committed their crime before this bill reached Parliament, and they should, nonetheless, be accountable under it for offences that were crimes at international law at the time the acts were committed.
We would also propose a number of other changes in the bill. One of them is about disclosing information maliciously. There is an immunity in the bill for disclosure in good faith, but the bill should state the converse: where there is malicious disclosure of information, there should be a possibility of suit against the person disclosing.
When it comes to registration of charities, there is, of course, a possibility for deregistration, but there's also the issue of non-profit organizations that are not registered and what their status should be. There should be something in this bill dealing with non-profit organizations that are not charities, but are not subject to income tax, and what happens when they're involved in terrorism.
There's the issue of disclosure of confidential information to registered charities that could injure national security. The problem is that the existing language does not preclude protecting non-Canadians. The law should be amended so that it could protect non-residents who provide disclosure.
There's a provision in the law about penalizing a registered charity if it supports a terrorist activity. It allows for a material change in circumstances. We're concerned about that. Even if there's a change in circumstances, we would say that once a charity that supported terrorist activity is deregistered, it should stay deregistered.
There are no penalties against the directing mind of a charity involved in terrorist activities. The only penalty is deregistration. We believe there should be a penalty against the directing mind.
We also think other legislation should be considered in dealing with this bill, besides the charities law, the Criminal Code, and the other acts addressed. There are a number of acts that are not addressed. What we have in mind in particular are the Immigration Act, the Citizenship Act, and the State Immunity Act.
The Immigration Act needs amendment to allow the minister to keep people in Canada pending criminal investigation. The present act doesn't allow for it, but requires removal pending criminal investigation. Bill C-11 dealt with immigration reform, and it has now passed the Senate. It came into Parliament before September 11, and it doesn't really deal with the terrorist issues adequately, in our view. It's really too late to amend it anyway. This would be the proper bill to deal with that problem. Similarly, there's a problem with Bill C-11 in the absence of a definition of terrorism or terrorist activity, which is found in this bill and should be incorporated into the Immigration Act.
There's a problem in the Citizenship Act with the fact that you cannot revoke citizenship for terrorism, but only for fraud, false representation, or knowingly concealing material circumstances. So if you want to deport someone subsequently for terrorism, you have to do the whole proceeding over again. There's an unnecessary duplication and a dragging out of proceedings because of the fact that you can only revoke for false representation and so on. There needs to be an amendment to allow for revocation for terrorist activity.
Finally, and this is the last of my 14 points, the State Immunity Act needs to be amended so that a foreign state would not be immune from jurisdiction for participating in or sponsoring terrorist activity. There is a similar relaxation of immunity in the United States. There should be such an exception to the state grant of immunity in Canada as well.
So those are my 14 specific suggestions. Thank you very much.
The Chair: Thank you very much, Mr. Matas.
Next on our list is Mr. Rubin.
Mr. Ken Rubin (Individual Presentation): Thank you, Mr. Chairman, members of the committee.
September 11 has led to renewed examination of legislation that can be used to combat terrorism. The first quick effort, Bill C-36, is controversial and flawed. Its weaknesses cannot simply be addressed through amendment, and parts of the bill need to be entirely withdrawn.
While my main point deals with the severe damage Bill C-36 could do to the Access to Information Act, the Privacy Act, and the Personal Information Protection and Electronics Documents Act if enacted as is, there are several other concerns that I will address first.
First, Bill C-36 brings together matters that can only be adequately dealt with in separate legislative enactments. Its central thrust, to target terrorist activities as criminal actions, would still be there. However, providing a legislative basis for the Communications Security Establishment and the revamping of the Official Secrets Act should be subject separately to full public and parliamentary debate.
Second, Bill C-36 sets out to target and combat financing of and fundraising for terrorists, but in doing so, it proposes to set up new ground rules for charitable group deregistration and for the transfer of assets of questionable charities found in secret proceedings to be supporting terrorism. Such state intervention singles out and highlights the voluntary non-profit charitable sector in a way that could permanently affect this sector and that could broadly and unfairly target charitable groups. The parliamentary committee has to grapple with just how far Bill C-36 needs to go to deal with criminal terrorist use of charitable organizations.
Third, Bill C-36 is short on defining certain matters like international relations and public interest, and is in places so vague as to make terrorist activities appear to include dissident group actions. These areas require definition and clarity.
Fourth, Bill C-36 is expansive and increases the powers of the security intelligence agencies, and with detention, closed trial, and official lists provisions, it does this too much at the expense of basic human rights and independent review. In some areas there already are sufficient police powers on hand. The committee must do its own charter and human rights impact analysis of Bill C-36 and make changes accordingly. The government, if it did such an analysis, is keeping it secret. We'll probably never be able to get it.
The fifth point is that Bill C-36 creates the new criminal offence of economic espionage against Canada's interests, but the provisions are not restricted to terrorist economic espionage. Bill C-36 gives security intelligence agencies this added mandate. Already some security intelligence agencies, as part of their corporate business cost recovery plans, are advising Canadian companies how to combat economic espionage. Authorizing such espionage work has many drawbacks, complications, and potential conflicts. Creating such a new offence is premature and requires more in-depth review and public debate.
Sixth, Bill C-36 assigns a large number of new judges, 44 in all, to the existing federal court to assist in special reviews, given projected terrorist activities. However, assigning this role to the federal court, as opposed to a fixed-term tribunal body, is questionable. Such a potentially intense focus could dramatically change and negatively affect the basic operating and directions of the federal court. It would also be difficult to apply a sunset clause to such appointments made to the federal court. As well, the number of judges may be too great, in anticipation of a heavy workload that may not happen. Then taxpayers are left with too many judges on the payroll. The tribunal option, operating with an expiry date that could be renewed by Parliament for another fixed term, needs to be thoroughly examined.
Seventh, Bill C-36 legitimizes a great many more taxpayers' dollars going into the hands of security intelligence agencies. The Minister of Finance has already indicated that much of the millions of dollars in new spending in the upcoming December budget will be for security matters. Yet Bill C-36 has no special provisions, as it should have, for the appointment of a specialized auditor and a committee to review, curtail, and audit such expenditures and to deal with curtailing the extra costs these agencies incur in doing overlapping work and in not cooperating and sharing information.
Eighth, Bill C-36 is without sunset clauses or cut-off and revocation dates. All that is required is a one-time parliamentary review that may go nowhere. It would be more appropriate to tighten up the draft legislation and get it right now than to wait a few years for such a statutory review. Some provisions need amendment, others need deleting, and others are best dealt with in future separate bills, as I've said.
Ninth, better yet, what immediately needs to be added to Bill C-36 is a provision for the creation of a separate, permanent parliamentary joint oversight committee to review and audit security intelligence matters, including expenditures.
Now I move to the access and privacy side, the Minister of Justice issuing certificates to exclude security-related data. This provision should be dropped. It is in direct conflict with the justice minister's mandate to uphold information and privacy rights legislation. Bill C-36 gives the justice minister the power, at any time, under any circumstances, to issue certificates that declare records on undefined security, international relations, and national defence grounds beyond the reach of these acts. Certificates, as I say, are for indefinite periods, without an opportunity of independent review and without any revocation feature.
Minister McLellan told Parliament last week that such security-related certificates would only be used sparingly, but then again, we'll never know how often she uses this power and how many records or whole sets of agency records would be purged from public access. Yet Parliament is expected to act as a rubber stamp.
Almost two decades ago all cabinet records were excluded from public access for 20 years. A black hole of lost information was created, and it's deeply affected the access and privacy legislation. Legally excluding potentially a great deal of security-related data under secret certificates could be so harmful and intense—and I feel this strongly—that the access and privacy acts may have difficulty surviving. Making security data into excluded material is without time limits and much bigger, and it is done via the justice minister's office, which, by the way, is excluded from the acts.
Access and privacy officials would red-flag and have to spend a lot of time diverting data considered to be or labelled as security-related to Justice for consultation and likely certification, just as suspected cabinet confidences are referred to the Privy Council Office. But the internal review of potential cabinet confidences by PCO can hold up all the requested records you request, and it can be half a year before departments respond to requests that could or may contain cabinet confidences, thus effectively delaying release. Adding security-related matters to the list of consultations required will put much uncertainty into and aid in the clogging of access operations. It would also place access officials in conflicting positions, because many of them double as departmental security classification agents.
Without parameters, excluded security data could include, for instance, data I've obtained recently from Health Canada on emergency stockpiling. It could remove permanently data I've obtained on the mistakes, delays, and cost overruns I was talking about, the spending power, towards the modernization of the Canadian Police Information Centre that helps, among other things, track terrorists and other criminals. Government could decide its own records of poisonous pesticides it permits for daily use are a security concern. Records obtained for private citizens on dissident activities, job harassment, and security clearance problems could loosely be put under this certificate umbrella.
Corrective action, however, does not simply lie in defining security-related data, particularly if certificates can still be used to totally exclude such data, even if such certificates become subject to some kind of limited court review. Nor would the insertion of a sunset clause removing certificates three or five years hence end the damage that would certainly have been done to all these acts.
Minister McLellan indicated yesterday in the Senate hearings that maybe she would consider some review of her certification actions, but her terms would likely mean restrictive and in camera review, and her extraordinary certificate powers would remain intact. The certification power she wants to keep must be abandoned, as existing provisions in the access and privacy laws are more than adequate, and if anything, need to be more restrictive. And sticking with the current provisions of the access and privacy laws does not mean, as the justice minister said yesterday, that this allows a back-door route to releasing documents certified and declared as sacred under the Canada Evidence Act. This is a red herring and troublesome, coming as it does from the minister responsible for access and privacy legislation, who wants to do more than tinker with that legislation.
The security intelligence committee has never been particularly pleased with the exemption powers that exist under these acts, and it wants them expanded. But even under the current act they've been able to deny data, and they need to be made more accountable, because some of the records I've obtained have shown that. The existing access legislation and court precedents have been useful and have provided something of a check and balance. Records just didn't disappear forever.
Tremendous increases in secrecy and privacy invasion are sanctioned in this bill, and we are relying on the good faith of the government. We're relying on the fact that security bureaucracies are given war-like powers and much funding to operate, without necessarily having then respond to public information requests. The horror of one set of terrorist acts should not require sacrificing and excluding public access inquiries. Canada must have a permanent parliamentary oversight committee and an ongoing public vigilance into the finances, operations, and leadership of its security intelligence community. Bill C-36 would, as currently drafted, make that oversight impossible. Your committee must not succumb to pressure for the bill's quick passage without correcting its deficiencies.
Thank you very much.
The Chair: Thank you very much.
Professor Julius H. Grey (Law, McGill University): Thank you very much for giving me this opportunity.
I have circulated an essay I wrote last week before being invited, which, unfortunately, was in French only, but I hope it has been translated, so that you have it in both languages. I also have an outline of the points I wish to make today.
The Chair: For clarification, we have received it. It's in translation, but it hasn't been translated yet, that's why it's not available.
Prof Julius Grey: Fine.
The problems I think the tragic events of September 11 present are two. I'll first speak of a few general issues of philosophy, of the way in which things should be looked at under these circumstances, and then I will look at some of the specifics.
Generally, what I'd like to say is that the greatest danger to civil liberties always exists when three conditions are met: when there is unanimity, when there is a just cause, when there is great uncertainty. There's undoubtedly just cause here—there was an outrage committed against our friends—there is unanimity in Canadian society in opposing it, and there's great uncertainty in the Canadian public. Those three things together create a danger.
I'll give you two examples. There was no better case than with Adolf Hitler and the Japanese Empire for doing emergency things, and yet what Canada and the United States did to people of Japanese origin was unacceptable. The other example I'll give you is the Communist system, which, as practised by Joseph Stalin, was terrible, and yet the excesses the United States allowed itself—and fortunately our Supreme Court held out against them—went too far.
So I would say that it is particularly when there is a just cause and when there is unanimity that we must defend civil liberties. It's for this reason that I will not oppose the passing of a bill. I think a bill should be passed of some sort, but I think this bill goes much too far.
We ask ourselves, what are the risks in this kind of law? The risks are not that we'll get the terrorists—that's what we want. The risks, unfortunately, are the unintended consequences, that we will get many people who are not terrorists, that the mood will deteriorate to the point where protesters, people expressing sympathy for very unpopular causes, or maybe for terrible causes, and people who commit crimes that are serious, but are not terrorist, are going to get caught in this.
The second danger, equally great—and that's why a sunset clause would be useful, but is not sufficient—is a change in legal and law enforcement culture, getting people used to the fact that certain things can be spied on, that certain things can be opened, that courts can convict without necessarily hearing everything, because some evidence was excluded on the grounds of security. All these things change the culture we live in, so that even if we repeal the law in three or four years, it may take us a very long time to get back to the situation that existed before.
The third thing that's always possible is excesses against unattractive and unpopular causes. If we have special powers, and all of a sudden we have a cause that is really not terrorist, but rightly is very unpopular—for example, if vast numbers of totally false refugees from some particular country start coming—we'll be tempted to use them.
I want to add one more thing. Giving power to law enforcement officials is always dangerous, for the following reason, not that they are in bad faith, but that they are in good faith and they want to do their job properly. Policeman are promoted because they solve crimes, not because they miss them. If you give special tools at one point, especially if a crime is terrible enough, it will be in good faith that the law will be abused. That is the reason we have to be extremely careful, particularly in these times. We have to amend this type of legislation to take out certain things.
I will now go through a number of specific things. First, the definition, I think, is much too broad. Clearly, it could catch all sorts of lawful protests, or, for that matter, unlawful protests that stop short of terrorism. Remember, we have an exception now for lawful strikes, for lawful demonstrations, but a demonstration becomes illegal because it's too rowdy, it becomes an unlawful assembly. An illegal strike is a terrible thing that could be punished in many circumstances, but it is not terrorism. The definition, as it is broadly defined right now, catches all sorts of lawful activity, or activity that is illegal, but is not terrorist.
We must remember that all illegality cannot be terrorism. It was Gilbert and Sullivan who said, “In a society where everybody is somebody, nobody is anybody”, and if everything is terrorism, then nothing is terrorism. That is one reason we have to be careful.
But there is another more profound question. All sorts of economic things are included in the definition of terrorism. I think they should not be there. Take boycotts, for instance, that attempt to harm companies that enforce their patents against AIDS patients in Africa. All of these things are lawful. If you remember, a few months ago there was a trial in South Africa. A German company attempted to enforce its patents on drugs, and demonstrations in Munich forced the company to give up. Such demonstrations may be lawful, may be unlawful, may be approved of, may not be approved of, but they're not terrorism.
I think we should leave the economic side out of it, just as we should economic espionage, which Mr. Rubin mentioned. It may be a terrible thing that should be punished, but it isn't terrorism. And the analogy I would give for leaving the economic things out of the definition—hackers, all sorts of things we may disapprove of—is the reason economics, by and large, was left out of the protection of the charter under section 7. Economic rights are very important, they're important to Canadians every day, but they are not the sort of fundamental things that should be protected as forever enshrined things. Nor are economic offences the types of things that should be included in this. A tax on life, safety, property—because when you blow things up, clearly, property is damaged and people are injured—those things, yes, but purely economic interests should be left out of the definition.
There are a number of offences that don't involve mens rea. I will point out proposed sections 83.01 and 83.21. It's very dangerous to convict people for things they didn't know were there. If you don't know that it does it, you shouldn't be convicted criminally.
With lists of terrorists, I suggest to you that there should be a 10-year clause. Things that happened more than 10 years ago, people who once did things, would involve us in going back in the histories of people who are members of the African National Congress, people who were members of Likud or the Stern Gang, people who were once members of Arab organizations, but are now legitimate members of governments, people who were once involved in Kenyatta's movement and are now very senior and respected people in Kenya. What we're trying to get is people who are dangerous, not people whose life history at one point involved support for something that was reprehensible and we now understand better as reprehensible. We shouldn't impose our times on the past. So a 10-year list would be a very good safeguard against getting Nelson Mandela.
I cannot see why we don't trust judges to impose heavy sentences, why we have to have mandatory consecutive sentences. Surely, our judges will know who shouldn't get out, who should be given consecutive sentences, and who, on the other hand, should only be given an ordinary one. Why don't we trust the system of justice?
Investigative hearings, as far as I'm concerned, are fine if there is a precise thing you're looking for, but fishing expeditions are not. Calling people in smacks of what happened in the United States in 1950—tell us whom you know, tell us whom you met last year. That is not right. There has to be a very specific statement of what you're looking for, as in a coroner's inquiry, why you're being examined on this particular thing.
One of the main problems with this law is vagueness. A number of things are very vague. “Communicating information that the government is taking measures to safeguard”—what is that? “Harming Canadian interests”, part of the economic stuff, is also a very vague one. “Who are harbouring people likely to commitment an offence”. I once again repeat that in criminal law at least, vagueness is the enemy of human rights. It has to be very clear at what point you get into trouble—not, surely, if you keep somebody at home you know is a sympathizer of something, you have no idea what he's likely to do, but all of a sudden, they come up with a vague and uncertain thing. In other words, offences have to be crystal clear, and there are too many expressions.
In addition to vagueness, I would point to another problem with this law, and that is its complexity—the numerations, subsections, little clauses, exceptions. When a law touches basic and fundamental rights, it should be as simple as possible. The important sections in the charter go from 1 to 30. You don't have subsection 3 saying, nevertheless, in such circumstances, this happens. This bill is a sufficiently serious matter to need great simplification, so that a simple person reading it, who's not a lawyer and is not in the habit of interpreting legislation, will know when he may or may not run into trouble.
When it comes to preventive detention and telephone tapping, I think these are extremely serious matters. I think preventive detention is always a high risk, and there's no reason not to bring somebody before a judge. With telephone tapping, of course, there are circumstances where it's already permitted. My one comment about vast telephone tapping and going into the Internet is this. The technological revolution of the last ten years has put privacy at risk, not only from the government, but also from private sources. It's so easy to get into somebody's computer, to get into somebody's information. In general, we should be trying to limit ways of doing it, we should be enhancing privacy. The emergency we're all living with is getting us to go the other way, and I think it is something we should not do. We can already use the present rules about wiretapping. The police can get all the information that is justified by the present, and rightly stringent, rules that force them to get permission to do so.
I would call for a particular safeguard, nevertheless, especially if this isn't done. I would say that any information obtained by special means under this act should not be admissible, except on a charge of terrorism. In other words, you should not be able to use it to get other offences and other things.
I would like to give a number of alternatives. I think our rules should be specific. We should pass specific laws for airports, aircraft, government buildings, things of that sort. We should be very careful to make sure this bill does not prevent lawyers and doctors from treating people, because some of the sections, read that way, could say that advice given to groups about their property or whatever could amount to these things. So I would particularly ask you to look over proposed sections 83.08 and 83.18 to make certain that lawyers and doctors are not caught if they perform their duties.
One thing you could do, perhaps in a separate act, is abolish tax havens that have greater control over capital movements, and in that case, you don't have to say that it cannot be used for other purposes; there you could tax people if you found massive tax evasion.
One should clearly exclude from the law both lawful protests and things that are moderately unlawful, but do not amount to terrorism.
So I call for a more specific, simpler law that protects the fundamental liberties, but nevertheless, I think, would do a job against the terrorists.
The Chair: Thank you very much.
I go to Vic Toews for seven minutes.
Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, Mr. Chair. Thank you, witnesses, for your very detailed and informative presentations. I think keying in on some of the definitions is a useful task, and I think it can bear fruit in an improved legislative package.
I noted with interest Mr. Matas's comments regarding the application of the legislation in a non-discriminatory fashion. I certainly want to echo those concerns, that it not be applied in a discriminatory fashion, and that the criteria for listing individuals and organizations as terrorist should be based not on any particular racial or political or personal attributes, but on solid evidence of terrorist activity. I do, however, sympathize with the government in that the evidence isn't always available in respect of every organization or every individual. I know you're not suggesting that we waive evidentiary standards in order to condemn everyone equally, much in a Gilbert and Sullivan manner.
I am concerned with the definition of a terrorist act, in that a particular element of the offence is the proof of a religious, political, or ideological purpose. It appears to me that this definition is, in fact, inviting some kind of discriminatory practice by legally associating those types of purposes with terrorism. As one of my colleagues said in the House today—and I think it's instructive to repeat it:
An act of violence does not
become any more or less an act of violence because it
was committed for religious or ideological purposes, or
any purposes whatsoever. Our justice
system does not prosecute motives specifically in order
to preserve Canadians' rights of religious observation,
to belong to political parties, and to freely believe
what they believe. The law should be hard on those who
commit terrorist acts, but when we begin to prosecute
personal thought we erode the very freedoms that we are
seeking to protect.
I note that the American definition doesn't contain a reference to those kinds of purposes.
I asked the minister the other day—and she didn't respond—what the purpose is of creating this association with acts of terror, terror that is designed to destabilize government or instil fear in people. I don't care what the motivation is behind blowing up a building. I'm concerned about the act and the fact that it's intended to destabilize the country, or our economy, or people's safety.
I wonder if I could have comments on that issue from any of you.
Prof. Julius Grey: I would like to make one comment. I think it would be something very strange if one day somebody who, say, held up a bank or blew up a thing pleaded as a mitigating factor that he did it out of greed, because if it turns out he did it out of some sort of misguided idealism, that's much worse. If he did blow up some building because he wanted to depress the stock of a company in order to sell short or to buy it at a cheap rate, then that's okay, you were greedy—it's not okay, you get ten years, but you get life imprisonment if you had some other idea behind it. There is something bizarre about greed as a mitigating factor.
The Chair: Mr. Matas.
Mr. David Matas: I would agree with that comment as well.
I accept your point, Mr. Toews. Indeed, if you look at the definition of terrorism in the United Nations Convention on the Suppression of Financing of Terrorism, which Canada has signed—and this bill is legislated partly in order that Canada can ratify it—that particular phrase is not there. Most of the definition that's in the bill is there, but this particular paragraph is not there. So it does raise the question, why was it put in there?
Mr. Vic Toews: I note that the British act does have a similar kind of phrase, the Americans don't, and I'm just trying to understand what the rationale is.
Mr. David Matas: I think it's the colonial mind at work: Britain had it, we've got it. What's more, of course, aside from the notion of getting into motives, it narrows the working of the definition unnecessarily, because, indeed, somebody could plead their motives were different from what's there and they could in effect get out of an offence that in the UN treaty is the broader offence. So we are potentially not complying with that treaty by narrowing the definition in this way.
Mr. Vic Toews: Thank you.
The Chair: Thank you very much, Mr. Toews.
Mr. Bellehumeur, you have seven minutes.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you.
All the witnesses this morning seem to share the same point of view, the bill goes much too far, the definition is to vague, etc. I would like to go back to a part of your evidence, Mr. Grey, when you say that we should put limits, both in terms of time and space, to the measures adopted here and that it is may be possible to do something about security in certain specific places, like airports, seaports, government buildings and research centers. Those measures could be included in another bill that the one under study.
My question is for the three witnesses. This bill has been drafted in a hurry, the minister of Justice said so herself. Those who drafted it had good intentions, but this bill affects many rights, individual and collective.
Do you think we should pass this bill, or strengthen the enforcement of the Criminal Code, invest more in police services, increase our investigations, reinforce the protection of our border and airports? Should we pass this law and try to amend it, if that's possible, or should we vote against this bill and ask the government to put his efforts elsewhere?
Mr. Julius Grey: I think those two solutions are not mutually exclusive. I would say first that it is possible, probably, to draft a bill that would be useful but it would have to be much simpler. It will require much work and the bill would be more narrow. It would give some powers, powers over definition, but that would be under the control of course, of parliamentary committees, for a limited period and for limited places. It may be useful to have such a law, but may be it is not essential.
Having said that, I think that whichever solution you choose, whether it is not to pass the bill and reinforce the other statutes, or to adopt a bill which would be clear and easy to understand, you would have, I think, to review this bill and change its philosophy to try to target less things, so the bill is more precise, more focussed and so that everybody understand the rationale of each provision.
I share your point of view. The government has acted in good faith. It is probably horrified, like everybody else, by what happened. The people who drafted the bill have done it quickly, sometimes well, sometimes less well. It always happen when one tries to hurry. I think this bill should be studied again and it may be adopted, but in a more focussed way.
Mr. David Matas: In answer to your question as to whether you should vote against the bill or vote for it with amendments, our position is, vote for it with amendments. There is a lot that's good in this bill, and the fact of the matter is that we have to address the problem of terrorism as a result of September 11. We can't pretend things are the same as they were before, and this bill does a lot to address these matters.
I'd like to take advantage of your question to suggest one more amendment that I forgot in my list of 14, relating to something that has been a particular problem for our organization, a problem of false anthrax scares and malicious pranks, which have arisen as a result of the real anthrax scares. There needs to be, I would suggest, as one more amendment, an offence to deal with that problem of malicious pranks.
Mr. Michel Bellehumeur: Lets take an example. I think that everybody, including the three of you, think that the definition of “terrorist activity” is very wide. It refers, in its first part, to several international conventions and then, there is a part made in Canada, if I may call it that way.
Mr. Grey, how would you draft this section?
Mr. Julius Grey: I don't have anything against international conventions. Anyhow, we signed them. We are bound by international conventions.
I think that the other definition is much too wide. I would first say that the expression “economic peace” should be deleted. We should also include a paragraph that would state that any activity, demonstration or strike, whether lawful or not, is not a terrorist activity, if it does not threaten life or property, as opposed to economic interests, and is intended to do so. This would prevent events like those that happened in Quebec a few months ago to be considered, by a society that's become somewhat nervous, as terrorist activities, which they are not.
Mr. David Matas: I also would like to make a couple of suggestions for amendments. One is, as we talked about earlier, dropping proposed item 83.01(1)(b)(i)(A). The other is for proposed item 83.01(1)(b)(ii)(E) to parallel (b)(ii)(D), so that it would read:
to cause serious interference with or serious
disruption of an essential service, facility or system,
whether public or private, if causing such interference
is likely to result in the conduct or harm referred to
in any of items (A) to (C) and (E).
The Chair: Monsieur Bellehumeur.
Mr. Michel Bellehumeur: I would like to ask a final question.
You know that from the beginning, the Bloc Québécois has suggested sunset clauses. I'd like to hear you on that.
If the bill included sunset clauses for certain sections, would you feel better? Are you in favour of that? If so, how long should they be for: three, four or five years?
Mr. Julius Grey: Those clauses are better than nothing, but they are not enough. I would say three years. It would be a bit better, but far from perfect.
Mr. David Matas: We are in favour of sunset clauses for some provisions. Some of the provisions in the bill definitely should be there permanently, the anti-hate stuff. Three years is appropriate. What we have in mind is the arrest without charge, the weakening of the right to silence, the taking away of the jurisdiction of the Information Commissioner and the Privacy Commissioner.
The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Matas.
Mr. Rubin, did you want to respond?
Mr. Ken Rubin: Yes.
As I stated, I think there are certain sections where the sunset clause belongs. With the sunsetting versus review, without the monitoring mechanism of a permanent parliamentary oversight committee, it's not going to work. As I said before, do it correctly now. Delete certain things from the act, the economic espionage, the certification that affects the access and privacy acts and the communications security law. We went through the CSIS Act and had a great full public debate, while here it's just sort of wedged in there, and it's not going to be given all the consideration it needs.
There are certain things that will still make this bill strong. On the review basis of the public's right to know, I noticed one saying it goes too far and other one saying it needs to be stronger. I'm still saying, I'd delete certain things and I don't want to sunset things, when my right to know is totally taken away, your rights too are taken away, and the courts' rights are taken away—what are we buying into here? So certain things you just delete now. You don't just get into sunset versus review.
The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Rubin.
Mr. Blaikie, seven minutes.
Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you.
Mr. Chairman, with respect to the definition of terrorist activity, one of the suggestions that has been made to the committee—it was made by Professor Monahan from Osgoode Hall—is that to solve one of the problems in the definition of terrorist activity, you could, in proposed item 83.01(1)(b)(ii)(E), simply remove the word lawful. This would presumably get us away from the problem of having to deal with what is lawful and what is not lawful. I wonder if any of you have some comment on that recommendation, as to whether or not you think that would meet some of the concerns, if not all the concerns, you have raised.
Prof. Julius Grey: When you look at the word lawful—and I'm going to check it with the French version—one wonders if that word only applies to advocacy or protest dissent, stoppage of work. The French has “arrêt de travail licite”, which certainly means that in the case of a strike, if it was an illegal strike, it wouldn't help you, in which case, it should go. But I think a better solution is to get rid of proposed item (E). “To cause serious interference or serious disruption of an essential service, facility or system” is clearly already a crime. If you try to do something of that sort, you can be punished for it. I don't think you need it under this law. There is nothing that is added here.
serious... disruption of an essential service, facility
or system, whether public or private, other than as a
result of lawful advocacy, protest, dissent or stoppage of work
that does not involve an activity that...
I think this goes too far.
Mr. Bill Blaikie: By eliminating proposed item (E) altogether, does that make it possible for items (A) through (D) to be applied more broadly?
Prof. Julius Grey: No. If you intended to cause death or bodily harm, for instance, by cutting off a possibility of operating on people, by cutting energy off to emergency rooms, you could be caught anyway in a very serious offence that is punishable by at least 14 years, probably life imprisonment, under the present Criminal Code. So it seems to me that if you got rid of proposed item (E), you would probably have a safer definition.
Mr. Bill Blaikie: Mr. Matas, do you any thoughts on the matter?
Mr. David Matas: It's definitely an improvement. One of the problems I have with proposed item (E) is its convoluted nature. It's not very easy to read.
Mr. Bill Blaikie: I'll grant you that.
Mr. David Matas: The trouble with convoluted legal phrases is that they very often get caught up in the courts in interpretations, which can take a long time and end up frustrating the working of the law. I would prefer a formulation that doesn't, in effect, get you into a double negative and is a lot simpler to read, and therefore a lot clearer for everybody.
Mr. Bill Blaikie: Again I deal with the definition. It seems to me that this is a key problem in the legislation and the growing debate, the interesting question as to whether, when you use language saying that something has to be done for a political, religious, or ideological purpose, you're actually describing terrorist activity or creating a two-tier system of justice, as it were. Precisely the same act could be done out of personal resentment against a company or a government. All of us, if we've been around in politics long enough, know of people who feel they've been aggrieved by workers' compensation or unemployment insurance or something. Is that a political, or religious, or ideological purpose? I wonder whether we're creating more problems than we're solving by using this kind of language.
The very definition of terrorism in most people's minds, the conventional notion of terrorism, is something that's done for a political reason. So if you take it out altogether, you end up, not wanting to diminish it, with an ordinary criminal activity. So it seems to me that this is a genuine dilemma for all of us in trying to put this together, and anything more you can offer on this would be helpful.
Mr. David Matas: I don't think, if you take that out, you're ending up with an ordinary criminal activity, because if you look at proposed item 83.01(1)(b)(i)(B), it talks about intimidating the public.
Really, what terrorism is about is sowing terror. Even the September 11 people, who knows what their motivation was? One reading of their motivation is that they're just nihilistic, that they want to kill for the sake of killing, that they believe in death rather than life. If that's their motivation, maybe they don't even fit within this. They're not around to be tried, but some of the organizers are. Maybe they just think that humanity shouldn't live any more, or that everybody should be afraid.
Mr. Bill Blaikie: Maybe we should add “cosmological reason” or something.
Prof. Julius Grey: I'd like to say that with political, religious, ideological, I don't know what they mean. That's part of the vagueness.
Proposed item 83.01(1)(b)(i)(B) says “intimidating”. I agree with David completely, that's good enough. But then it says “including its economic security”, and that shouldn't be there, because if you combine “including its economic security” with “cause serious interference with... an essential service”, then all types of boycotts, demonstrations in front of corporate interests, or whatever could conceivably be caught.
So in order to improve it, I think you probably would be better of without proposed item 83.01(1)(b)(i)(A). I don't see why somebody, for instance, who uses terrorist means to bring down the value of a stock shouldn't be caught, if he wants to do it for himself. I don't see, on the other hand, why we should include economic security and have item 83.01(1)(b)(ii)(E). Economic security is precisely where, for instance, it could be applied to some protest movement.
The Chair: Thank you very much.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair, and I want to thank all the panellists for their valued input into this deliberation.
Picking up on that last point, the thing that occurred to me upon first reading this definition of ideological, religious, or political purpose is that the crown, in concert with the police, proceeding with a charge that has the new requisite element, the new mens rea requirement that has to be proved beyond a reasonable doubt, are setting themselves up to fail in some instances. As Mr. Matas has said, it's very difficult to infer motive in a lot of these types of offences. I suspect that what we might very well end up with, although there's a great deal of value in some of the investigative tools this legislation may grant, are charges, to use Mr. Blaikie's word, being laid under the traditional sections of the Criminal Code. Much of this may, in fact, be window dressing when it comes to the practical application of the law, in respect of where police may be going to lay charges against someone who has committed an act of mass murder or mass destruction.
To return to the questions on the wording, the elements of this particular legislation that grant police new investigative powers, the investigative hearings, the ability to take a person into custody, preventive arrest, are not subject to any sort of judicial review, nor are they subject, upon the issuance of a certificate, to any of the traditional means of disclosure. The minister, upon issuing a certificate, can simply say, look, this is a matter of national security, this is a matter that affects international relations. No one is any the wiser, because there is no oversight, no scrutiny, either by the judiciary or—perhaps more telling—the traditional watchdogs of the Privacy Commissioner or Information Commissioner. Those acts, those offices, are completely and utterly subverted.
I would be interested to hear further commentary from you as to ways in which we can either revisit or amend this. It seems to me that simply vesting that power back in those offices provides at least some certainty that there is no political purpose or abuse within the context of this legislation.
Prof. Julius Grey: Preventive detention should not be there. It was used in Quebec in 1970, and I do remember, as a student at that time on the anglophone side, how many people were carried away with the enthusiasm and the indignation. We know now it went too far and that innocent people spent time in prison for nothing.
If you keep it—and I think you shouldn't keep it—there is one way of creating a disincentive, and that is putting in mandatory compensation for people who are held. That way they will only use it when they have to use it. That's a disincentive. The purpose would be to have a disincentive for the use of that authority.
The other thing is, there has to be some sort of review. If you take somebody into custody, there has to be a reasonable and fair review, precisely as you mentioned, so that somebody is not taken in because somebody doesn't like them or through error of identity. Remember, you're dealing often now with people who have names that are strange or may resemble each other. You can get the wrong man in and keep him there for several weeks before you realize you've got the wrong guy. Review is absolutely necessary, and it is a disincentive to use. That type of clause should be built in.
Mr. David Matas: I'd like to pick up on your earlier comment about the definition.
We have to remember that when somebody is accused, they don't have to testify. There's a right to silence, there's a presumption of innocence. The crown has to prove the case. An accused can ask the crown to prove that there is an ideological purpose, and there may be overwhelming evidence that the person who committed the act may have said nothing, may have written nothing, and the only evidence is the act itself.
Mr. Peter MacKay: But Mr. Matas, if I could just interrupt you, I'm sorry, under the investigative hearings power they are compelled to give testimony. They are absolutely required to justify or to give evidence.
Mr. David Matas: Yes, I understand that, but there's an exclusion clause. You cannot use that evidence in criminal proceedings against the person. So it would be inadmissible evidence for the purpose of prosecution, and for the purpose of a prosecution, the court would not know whatever was said at this investigative hearing. So at the prosecution there would be no evidence whatsoever about purpose, and that's a real problem. This would be a problem even if the attackers of September 11 survived. We don't have statements from them about what their motives are, so they couldn't be prosecuted under this provision.
Mr. Peter MacKay: On the subject of gathering information, I find it somewhat of a contradiction and an anomaly that in the charities section there is judicial review. There's specific mention of the fact that judicial consideration will take place for the certificates that are issued for exemptions from charitable status. We all know that is not going to be a very effective tool in combatting terrorism, and it pales in comparison with some of the other powers. Within the wiretap and the interception of information sections that vest new powers in the Minister of Defence they talk about setting up a Governor in Council appointment of a supernumerary judge or retired judge of a superior court as commissioner, to provide this oversight that isn't there in other sections, and yet it is discretionary, in my reading of proposed subsection 273.63(1) on page 120: they “may” set up this office. Yet when you read further, about the powers that will be vested in the office, you see that the commissioner of the Communications Security Establishment “shall” review activities. So if it's discretionary on the part of the minister and these powers exist, I'm just concerned that the office may never be established.
The Chair: Mr. Rubin.
Mr. Ken Rubin: On the whole review thing, it's difficult in terms of the Access to Information and Privacy Acts, because when that review is done, there's no motivation that's attributable. Everybody's equal in right to know and right to privacy protection. But when you take away that review and you expand the powers of, say, the Communications Security Establishment into economic and other areas, you're creating a whole bunch of new secret personal information banks. You're creating a whole new collection and gathering of materials.
Back in 1983, when the acts were still on and when they did actually publish a directory of all the personal information holdings the Canadian government had on people for the civil liberties group, I calculated there were almost 300 million files. With technology and so on, there already are, under normal circumstances, a lot of files, and more will be created, but they'll be subject to no rules whatsoever.
There was quite an outcry when Human Resources Development Canada tried to create a longitudinal, massive file base. The gathering of information—and I appreciate that there may be good reasons for gathering it—is a matter where questions have to be asked. If you're going to create certification with no review, or discretions, or a commissioner without the parliamentary oversight for the Communications Security Establishment, you're creating things that, I think, will lead us to the wrong balance in this whole area.
The Chair: Thank you, Mr. Rubin.
Prof. Julius Grey: I would add one more thing to that. You absolutely have to be very careful they don't listen in on things for other reasons, on lives of political opponents, to get scandal, whatever. Somebody would sooner or later. I believe in the government's good faith here, but if this law remains forever, five or ten or fifteen years later who knows what situation will exist?
The first rule that should be there is that it must be supervised, and the second rule should be a rule of non-disclosure and non-admissibility, except for reasons connected with a terrorism offence. At least then, if they were to find out that somebody, for instance, was having an affair that might interest them, they could never disclose it and could never use it for any purpose.
The Chair: Thank you very much, Professor Grey.
Mr. Myers for seven minutes.
Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chairman. I wanted to begin with Mr. Matas.
In your 14 points you listed a couple I wanted to get further clarification on. The first is the Citizenship Act and the point you made that you can't revoke citizenship based on terrorism. I wanted you to explain that further and give some suggestions. I think I know where you're going with this, but for the record I want you to explain it.
You also expressed a desire, as I remember anyway, for an offence of malicious disclosure. I wonder how you think that offence would work. I assume it's under the Official Secrets Act.
Third, you added a point 15 with respect to the false anthrax scares, and there are two points to that. First, I wondered if you could explain further what you have in mind as to what we should do by way of amendment. Second, you seem to allude to the fact that it's prevalent, at least in your experience, and I wondered if you could explain a little further what experience you've had with that recently.
Mr. David Matas: As to citizenship, right now the Citizenship Act allows for revocation of citizenship for fraud, false representation, or knowingly concealing material circumstances, and that is all. We have gone through a number of cases recently where citizenship has been revoked, essentially, for war criminality. The way the cases go is that these people are war criminals, they've hidden that they're war criminals, they've lied, and therefore we revoke their citizenship for lying, not for war criminality. But then, of course, they're still in Canada, so they have to be deported. We have a situation where you can be deported for fraud once you've had your citizenship revoked for fraud, but then you can make a refugee claim. You can be excluded from the refugee definition if you are a war criminal, and you can also be declared not eligible if you're a war criminal. The war criminality in some cases has, in effect, already been proved in revocation proceedings, but the revocation proceedings formerly were fraud proceedings, not war criminality proceedings. So in the refugee ineligibility or exclusion proceedings it has to be proven all over again. What that does is drag out the proceedings. It's a double proof.
This was, in effect, a dodge that was invoked by Bogutin. About half the war criminals in Canada have died during the proceedings, because they take so long and, of course, they're all elderly. Luitjens originally tried to use the citizenship loophole, and Parliament shut it off by saying that fraud in citizenship is fraud for deportation, but then Bogutin figured out another way to get around it. There needs to be a reaction to what Bogutin did.
It came up in the war criminal context, but obviously, it can come up in the terrorism context as well. If you wanted to revoke the citizenship of somebody who lied about their terrorist activity, you would show that they lied, because they hid their terrorist activity, but all you've got at the end of the day is that they lied, not that they were a terrorist. To deport them, you'd have to show again that they were a terrorist, particularly if they tried to make a refugee claim, and it would just drag out proceedings.
The second point is about the malicious denunciations. Basically, what the law says now is that if you give information in good faith, you're okay. Proposed subsection 83.1(2) says:
No criminal or civil proceedings lie against a
person for disclosure made in good faith...
Our view is that there should be a converse provision for when it's made in bad faith, because there will be such things, and you have to defend against them. It's helpful to have an express provision.
When it comes to your third point about the malicious or false scares, indeed, the whole Jewish community has had a regrettable experience. Every major Jewish organization received a false anthrax scare once the real anthrax scares came about. We all had to evacuate our buildings and stop our operations, including B'nai Brith, but B'nai Brith wasn't the only one. This is a real problem, and we've seen it as a real problem. This is an appropriate bill wherein to address that problem, and there should be an offence dealing with the problem.
Mr. Lynn Myers: Thank you very much.
Professor Grey, I wanted to further explore the business about leaving economics out of the bill. It strikes me that when you're talking about charities and the raising of money, either wittingly or unwittingly, that is ending up in terrorists' hands, it's hard to leave economics out of it. It also strikes me that if you're talking about terrorism and the kind of disruption that could take place with financial institutions or organizations as a result of terrorism, it's hard to think about leaving economics out of it. But maybe you can persuade me otherwise.
Prof. Julius Grey: As to the first part, I agree with you. Raising funds is not economic, it's an issue of property or direct working of a terrorist organization. It's the same thing as happens with a criminal gang, a Mafia, in Canada. It's just as criminal to launder their money as it is to do the actual violent business they may be doing. That's not economics. It's the same with destruction of property. I don't object in that area, because when you destroy property, you may also destroy people—setting fire to something destroys both. That's not what I worry about.
What I worry about is disruption to people's economic interests, and there you're perfectly right. You're saying there could be tremendous havoc with our markets with all sorts of things. I agree with you, and I think these things can be prohibited. For instance, I don't know if you followed the case, but a 16-year-old hacker in Montreal did a tremendous amount of damage. A hacker can do a considerable amount of harm. Nevertheless, I think we must distinguish between that and terrorism. The reason I don't want activities that are intended, for instance, to harm the economy, so-called economic espionage etc., to count as terrorism is not that I think these are nice and proper things for people to do, but that I think they should be dealt with under the normal Criminal Code provisions. They do not deal with that type of intimidation, a threat to somebody's life or direct property, setting fire, throwing bombs, sending envelopes full of white powder, whether or not they contain the suspect substance. That is a different type of terror and a different type of intimidation.
I bring back my point. There are a great many things people do in our society that are terrible. If we classify too many of them as terrorist, we're basically undoing the whole idea, because they're no longer that exceptional and that special. So with the economic stuff, it's not that I wish to approve, for instance, harming markets intentionally, it's that I don't think they amount to terrorism, and there is a provision in the Criminal Code.
Mr. Lynn Myers: Like you, I was in university at the time of the FLQ crisis, so I remember it well. Are you saying, in answer to a previous question, that the laws as they were then under the War Measures Act are now being replicated here?
Prof. Julius Grey: The law was amended afterwards. Our emergency legislation is now much more subtle. I'm not the only one, the civil libertarians in Quebec now feel that the vast majority of the people who spent a few weeks in prison shouldn't have been there.
I always worry about imposing the values of one time backwards. I remember what it was like then, I understand why it happened, but I do not wish in the future to have situations where large numbers of people are picked up and held without being charged merely because an event has taken place. I personally, in retrospect, wish I had spoken out against it then, but even without that, there may be all sorts of explanations given, and it was a complex situation. In the future let's not have an incident like that again.
The Chair: Thank you, Mr. Myers.
Mr. Cadman, three minutes.
Mr. Chuck Cadman: Thank you, Mr. Chair.
Professor Grey, you eluded to the complexity of the bill. I think a number of us who have been dealing with the youth criminal justice system for the last four years don't want to get into anything more complicated.
That aside, you mentioned that there should be different laws governing different types of targets, a separate list. Airplanes, government buildings, and such are the obvious ones, but then I start to think about things like, as I come from B.C., electric transmission lines that send a lot of power into California, the hydroelectric dams, the pipelines. Are we going to come along with this huge long list and different ways these specific things could be targeted? I'm not so sure that's not going to get incredibly complicated. How are we going to define all that? Then what happens when we've left something off the list we didn't think about? Say for some reason reservoirs were left off, and then a whole town is taken out by a terrorist act, and we forgot to put it on the list. I'm a little worried about how complicated this list is you're suggesting.
Prof. Julius Grey: I wouldn't have a law for each place, a law for airports, a law for trains. I think you could have a secure areas law that lists the things and allows some regulations to include some other places if, for instance, somebody had it in for a particular spot in the country. Generally speaking, you would have a law whereby in those locations people know in advance that when you go in, you can be frisked in such and such a way, the following materials cannot be checked, there can be an armed guard on an airplane or on a train. All of those things are perfectly legitimate and clear, and they could be done in one act.
Mr. Chuck Cadman: Again, how would you go after something like a power transmission line? These are all through the wilderness in B.C. People can just go off into the mountains, and they are all over in isolated areas. You can't say, you can't go in here without being inspected, because there is nobody doing the inspection.
Prof. Julius Grey: You already have laws saying that harming or cutting that sort of line is illegal. You have the Criminal Code right now, and it's perfect on that. The person, if you find him, will be punished very severely under the present law.
Mr. Chuck Cadman: But you couldn't do it under this kind of legislation, with what you're saying, even if it were not necessarily British Columbia or Canada that was the target. It might be supplying the power to California.
Prof. Julius Grey: That's enough. This law allows that. Remember, under this law you first have to start proving his ideological, religious, or whatever commitment etc. You might be better off charging him under the Criminal Code for some sort of mischief or destroying property or interruption of services. There's a special law on these areas, and he'll be in front of a court on a very well-known and very orthodox offence.
The Chair: Mr. Cadman, thank you.
John McKay for three minutes.
Mr. John McKay (Scarborough East, Lib.): Thank you, all, for your presentations.
Professor Grey, I intend to steal your opening remarks and work them into a speech at some point or other. I thought you crystallized very well the nagging sense we all have.
I wanted to ask you about some of your essential points here, more the interaction of your central points, namely, the vagueness of the definition of terrorist activity, the interpretation of facilitation, and the financing of terrorism clause. How might these apply to charities, NGOs, not-for-profits, or even for-profit companies? To bring it down to a concrete example, should the World Visions of this world be worried about their activities abroad? Will this have an adverse impact on Canadian charities providing funds to legitimate agents who in turn unwittingly provide moneys and resources to entities abroad? Should NGOs operating in this country to provide refugee services be concerned about who they are providing refugee services to, again maybe unwittingly? I go back to the definition of facilitation. And, ironically, should Talisman be worried about the interaction of those three sections, terrorist activity, facilitation, and financing of terrorism? Should a company like Talisman, operating in the Sudan, be worried about these kinds of activities? I would be interested in your view and those of others.
Prof. Julius Grey: I had very little sympathy for Talisman, but nevertheless, I don't think this type of law is intended for that. The same applies to some charities. One has to remember that there are places in the world where most people will be hostile to certain things. If you are providing medical care etc. for groups in Palestine, you will have an awful lot of people who have different views about the existence of the state of Israel from that of most Canadians. The mere fact that you're providing help, medical help, social help, should not put you in a criminal position.
The same applies, for instance, when you start helping Afghanistan. We all know that the Northern League is almost as narrow and almost as hardline on some of these things as anybody else, and yet the fact that you may be providing food, comfort, or that sort of thing doesn't matter.
So the answer I have is the traditional answer of mens rea. If you intend to provide money for an organization whose business is blowing up people—what happened in Israel yesterday—then you're clearly doing something pretty bad—it's an international conspiracy to kill. If, on the other hand, your intention is to provide, for instance, for the education of women in Afghanistan, who are not being educated, and it has to go through a Muslim charity, because otherwise it won't get there, then it should be allowed. This law is not subtle enough to deal with it. By removing the mens rea, you can get a situation where if you work with a legitimate Muslim charity that wants to educate the women, you'll find that some of its members express views that would not be acceptable at the dinner you go to. We simply have to live with it in an imperfect world. That's why you need mens rea, a much narrower definition, so that you have to intend to do harm and be involved in terrorism, not merely work with people who have unpalatable views.
Mr. David Matas: The bill uses the word knowingly, and you use the word unwittingly. Those are contradictions. If it's unwitting, it's not knowing. So I don't read the bill as catching the unwitting.
The Chair: Thank you very much, Mr. Matas, Mr. McKay.
Mr. Bellehumeur, three minutes.
Mr. Michel Bellehumeur: I have a last brief question, because your comments are clear enough.
Mr. Grey, you talked earlier about paragraph (2) of section 83.01, about mens rea. Apart from the point you raised, do you see a difference between the English and the French version of the provision that deal with evidence?
Mr. Julius Grey: At 83.01—
Mr. Michel Bellehumeur: In the proposed subsection 83.01(2), on page 15, it says, in French: «faciliter une activité terroriste» which is quite wide, but in English, it refers to facilitating a particular terrorist activity.
Mr. Julius Grey: I think the French version is much wider which would open the door to a number of interpretations.
I know that in criminal law, a judge should normally say that both languages being of equal importance, the narrower interpretation is the better view because it protects more the individual.
Nevertheless, when there is a difference between the two versions, and you have pinpointed one of those cases, we should amend the version which has the wider meaning and therefore, is more dangerous. In this case, it surely would be the French version. In other cases, we should amend the English version.
Mr. Michel Bellehumeur: This section goes very far. You don't even have to prove the mens rea in—
Mr. Julius Grey: There are some places where the bill says whether the person knows something or not. This goes, I think, against our criminal law. Usually, this is allowed only for technical offences for which the penalty is not very severe. If you go through a red light, for example, whether you noticed it or not, you are guilty. Regrettably, here, there are provision that could take away the mens rea.
Mr. Michel Bellehumeur: Very well.
The Chair: Thank you very much.
Mr. David Matas: Mr. Chair, I wonder if I could add to that.
The Chair: Yes, Mr. Matas.
Mr. David Matas: Again, one cannot read that particular provision in isolation, because the actual offence, which is in proposed section 83.18 at page 28, talks about “knowingly”. So if you read that in conjunction with the definition of facilitation, as I understand it, what they're getting at is that a facilitator has to know they're facilitating terrorism or terrorist activity, but they don't have to know which particular building is going to be attacked. They have to know there are going to be buildings attacked, but you don't have to prove they know the address. That's what they're trying to say.
Prof. Julius Grey: Unfortunately, it says “directly or indirectly”.
In French, it's «directement ou non».
The Chair: Thank you very much, Mr. Bellehumeur and panelists.
Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Mr. Chairman.
I have a short question slightly removed from the subjects you have all given evidence on today.
Because you are all very involved on the legal side, I wanted to ask you about the provisions dealing with the creation of a commissioner for CSE. The proposed section requires that the commissioner be a supernumerary judge or a retired judge. I was wondering whether you might have any views as to whether or not that judge would have to resign as a supernumerary judge. A retired judge is one thing, a supernumerary judge is still a judge. I'm curious about whether or not that judge, being inserted into the public service as a commissioner, would still be a judge, and whether there would be a blurring of the line between the judicial function and the executive function in government.
Prof. Julius Grey: Judges do commissions. The Honourable Mr. Justice Dussault, for instance, of the Quebec Court of Appeal did a very well-known commission on native rights, but he wasn't sitting at the same time as he was a commissioner. He left the court. He was nominally a member of the court, but he wasn't sitting. Certainly, what he could not do is sit at the same time as he does this. What if something came out in front of him that indirectly touched on his work? I don't think he'd have to resign definitively. Once he ceased to be a commissioner, he could go back to being a judge.
Mr. Derek Lee: So an administrative severance would be sufficient to preclude any possible constitutional problems.
Prof. Julius Grey: Yes, given our tradition of judges acting as commissioners.
Mr. Derek Lee: Okay. Thank you.
The Chair: Thank you, Mr. Lee.
Mr. Ken Rubin: I'm not a lawyer, but the Communications Security Establishment has been around for many years, and very little has been known about it. All of a sudden, you're saying, let's expand its powers and let's throw in a commissioner with very limited powers. I don't think the issue is so much where he comes from.
I am very concerned that so many new judges are going to be caught up in this whole realm. Whether this is going to distort the system of justice or the resources and so on of the normal operation of the federal court is of considerable concern to me. That's one reason I felt there should be an alternative proposal of a special tribunal.
The Chair: Thank you very much, Mr. Lee, Mr. Rubin.
We'll go to Mr. Sorenson for three minutes.
Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I don't really have a lot of questions. We've been through many seven-minute presentations and three-minute presentations, but I have a couple of observations, not just from this meeting, but from the last two or three meetings.
One of the common concerns that comes back in the area of losing civil liberties is preventive arrest. In fact, Mr. Grey, I think you said today that preventive arrest perhaps should not be part of this bill, and if it is, there should certainly be a sunset clause dealing with it.
When I was a young man, my father used to tell me all the time that you can be guilty by association; if you're hanging around with the wrong crowd, you're guilty by association. It worked quite well, and I was very careful—at least I thought I was—about who I hung around with. It's a little different in the courts. We would hate to think anyone is guilty by association. But it almost seems we've moved another step to where we say, how dare we even question if someone is suspicious by association? We're not going to pronounce their guilt, but we may almost be very doubtful about pronouncing a suspicion by association.
This spring I spent two weeks with other members of this committee in a country where at the airports our bag were gone through meticulously. When we lined up to go into a mall, we passed through a metal detector. They checked our baggage, our backpacks, and everything else we had. We lost a great deal of civil liberty, we lost a great deal of freedom, but the reason we did was perhaps for our safety. I guess that would be the bottom line.
We're talking about preventive arrests. Let's say that isn't included in this bill. One of my concerns is that the outcome may be the fact that we still need security, we still need safety, we still need to feel in our country that we can go somewhere, so we're going to install all these other ways and means so that security will be attained.
Prof. Julius Grey: One of the things you may be saying quite correctly is that if you eliminate some of the proposed sections, you might use the others more, because that's one of the things that happens. If you don't have one power, you might compensate somewhere else.
But there are two things about arrests and things like that. First, nobody says you can't arrest somebody if you've got reasonable grounds. You can arrest him, bring him before a judge, and if the judge keeps him there, you keep him. The problem is these arrests where people are detained.
The second problem is, as you know yourself, for all your father's attempts to keep you in good company on the straight and narrow, if you and I were arrested for something, charged with it, and freed the next day—the police say, oops, we made a mistake—it would take us five years to live it down. People would still be thinking there was something behind it. So the effect of doing something like that to somebody is very great.
The final thing I would say is this. Remember that with civil liberties there is a price. There's no doubt that if we put a camera on every municipal pole in this country, if we had every bathroom scrutinized, if we tripled the number of policemen, if every telephone conversation were monitored and put through a computer that identifies certain key words, and so on, we would solve a lot of crimes, but we'd also have a little bit of “1984”. You can't only talk of civil liberties if they have no price. They have a price, but the question is where the balance is to be struck.
Mr. Kevin Sorenson: You say we may solve a lot of crimes.
Prof. Julius Grey: We may.
Mr. Kevin Sorenson: But we may prevent a lot of deaths. Solving crime is one thing. We look at 7,000 dead. Our Prime Minister says, yes, we know that al-Qaeda and the terrorists are here in Canada, but don't worry, they aren't here for us. I do worry. When they're here, I worry.
The Chair: Thank you.
Mr. MacKay is next, for three minutes.
Mr. John McKay: Let me go back to the dialogue between the two of you on this facilitation. As I understood Mr. Matas's response, it was that you had to knowingly facilitate, and as I understood Professor Grey's response, there was something fairly vague about facilitation here: facilitation for the terrorist group means whether or not you actually knew something was going on. Surely, good drafting means resolving ambiguities ahead of time. I'd be interested in both your comments as to whether facilitation could be tightened up, so that otherwise good and legitimate charitable works can be facilitated—sorry, poor choice of words—can be done in countries outside this one.
Mr. David Matas: I think it could be—and this is a general comment. In some ways the bill says things and implies the opposite, but doesn't state the opposite. This is true, for instance, of good faith-bad faith, which is an issue I was talking about earlier. It says you're immune if you communicate information in good faith, but it doesn't say you commit an offence if you commit it in bad faith, and it should. And it's the same here. The way I read it, it defines facilitation to say it doesn't matter that you know something, but the actual offence is a knowing offence. The bill would be clearer if it said there is no offence if the person doesn't know certain things or the entity or the group doesn't know certain things.
Prof. Julius Grey: I would say that if the law remains as it is—I hope it's changed drastically—there could be one section giving a proviso, and that would be dealt with to make sure it will not under any circumstances consider acts of lawyers or doctors who provide lawful assistance unless they participate in crimes, people who give to charities for purposes of food, education, health, etc., even if some members of the organization abroad may have at some time been or may be members of groups one doesn't want. I'm not drafting right now, I'm thinking out loud, but you can have a general section for exclusions, things that will not be subject to prosecution under this act. I certainly think you need something for lawyers and doctors, and you need something for charities abroad that give health, education, and food and water to people.
The Chair: Thank you very much, Mr. McKay.
Mr. Toews, I believe, wants a few minutes.
Mr. Vic Toews: It's on an issue that was already raised and, I believe, discussed fairly thoroughly. I'm struggling in my mind with the issue of whether there should be a sunset clause on some of these provisions, whether a review is sufficient. We know from the experience of this committee that many bills have had a review requirement and those reviews have not been conducted. I'm wondering, perhaps Mr. Matas, with some of your legal expertise, is there some type of mechanism you're familiar with that could not simply direct Parliament to review the act, but bring it directly back into the House of Commons and direct Parliament to consider it on the order paper?
The concern I have about a sunset clause is that I simply don't trust this government. I believe terrorism is an ongoing issue. I think the Israeli people have learned that terrorism doesn't end when you simply capture one terrorist. You have to have a system and laws that continue. So I don't want a gap created in the laws. I want a good set of laws, but I don't want a gap. I am mindful of the issue of Parliament having to review it, but I would like to see some kind of mechanism that brings it directly back into Parliament, that makes this government accountable for reviewing it and parliamentarians accountable for reviewing it.
Mr. David Matas: Thank you, Mr. Toews.
Parliament is the master of its own procedure, and it can do anything it wants in organizing its business. So of course, instead of a sunset clause there could be some sort of re-enactment clause, so that, in effect, you could have both a sunset and a sunrise clause.
Mr. Vic Toews: That's essentially what I'm getting at—I didn't want to get into the song, you know, Sunrise, Sunset. I am just concerned that we need to have something that brings it up, so that we can review it, and I was wondering whether that kind of clause would be preferable to or not as preferable as a sunset clause for your organization, Mr. Matas.
Mr. David Matas: As you can tell, our primary concern is strengthening the bill and the fight against terrorism, but we view the addition of a sunset-sunrise clause as helping that, as opposed to parliamentary review. What it does is get it back into this process, get Parliament thinking about it, and get the public thinking about it. It focuses the mind of the public on the fight against terrorism in a way that a parliamentary review never would. It increases the priority level of the issue three years from now, which I think is a helpful thing in the fight against terrorism.
The Chair: Thank you very much, Mr. Matas.
I think Mr. Rubin and Mr. Grey both wish to respond. Mr. Rubin, and then Mr. Grey.
Mr. Ken Rubin: I've seen a lot of statutory reviews, including those on the Access to Information Act and the Privacy Act, and they didn't go anywhere. We had an excellent non-partisan report back in 1987, and the government rejected it, whereas I've seen other reviews in other jurisdictions under access and privacy legislation in New Brunswick where they did hardly any work and there was no real process of review.
If there's no permanent committee of oversight, such as I'm suggesting, that's going to call the people you normally call for estimates etc. from CSE, CSIS, RCMP, and so on, do you really expect you're going to find out what's happening? One of the things I keep pressing for is that instead of sunset or sunrise there should be sunshine.
Voices: Oh, oh!
Mr. Ken Rubin: There simply isn't the openness here that allows for your real overview.
Let me just give an example through what I got today in the mail from Public Works. When we talk about the secret certification process, there is a certification process for the Privy Council Office respecting cabinet confidences. So Public Works, concerning a report on the reorganization of Canada Post Corporation, in response to my request, classified it as a cabinet confidence, and that was approved by the Privy Council Office. I discovered another applicant who went to court, and there they said the report is exempt, not excluded, under commercial confidentiality terms. They're basically saying to me, it's too bad that we goofed.
Under the process here for certification, there's no sunshine. If they say it's so, it's so, and that's that. There's no accountability, and this is, to me, the problem. You have to start now with the amendments, rather than wait three years from now. The Access to Information Act and the Privacy Act have been around for 18 or 19 years, and they get very institutionalized, very set in their ways, and there's usually a backlash and less information released, less disclosure. If you're going to wait three years, you must do it right the first time or not do at all.
The Chair: Thank you Mr. Rubin.
I give the final word to Mr. Grey.
Prof. Julius Grey: I think Mr. Toews' real fear is partisanship. What he pointed out is that he doesn't trust this government, and maybe the government doesn't trust him. That's normal in politics. The sunset clause, like anything else—I know it's not an answer, but it's a partial answer—would be subject to a majority government, whichever party has a deciding weight one way or the other. One way you could answer some of your concerns about partisanship is to say that prior to the reconsideration in three or four years, or whenever it is, there will be an independent report, say by a judge or by two judges or three judges, filed with Parliament, so that all the MPs will see how the law was used. You could specify what he must put in it, potential abuses, how often it was used, what the effect was, efficacy, and so on. That way, you won't do away with partisanship—that's a part of our political system, and probably a good one—but you will have a non-partisan basis on which MPs might be able to read the report in three years. Although I don't think it's a complete answer, it would be a partial one.
The Chair: Thank you very much.
Panellists, colleagues, I appreciate very much the debate that has been informed by your interventions. Prof. Grey, earlier today I was asked by the media what we were hearing, and I said, I think we've heard everything but a quote from Gilbert and Sullivan—I'll have to come up with a new line.
I want to give notice to colleagues that tomorrow I intend to seek consent to include all of the... If you recall, when the Information Commissioner was giving his testimony, we asked him to leap over a couple of pages of his written text, and we don't have numbers right now that would allow me to cause that to happen. I give notice that I intend to do that tomorrow.
Second, apparently at a meeting today of House leaders there's been a response to our request for two weeks extension on Bill C-15B, and I give notice now that I'll be bringing a motion tomorrow to the effect that we would change that request, subject to the approval of the committee, of course, to reflect the meeting the House leaders had earlier today.