JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 1, 2001

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[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): Welcome, colleagues and guests. I call to order the 41st meeting of the Standing Committee on Justice and Human Rights. Today, we'll be considering 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.

For the first hour of the afternoon, our witness is Grand Chief Matthew Coon Come, national chief of the Assembly of First Nations. I will leave the balance of the introductions to the grand chief.

On behalf of the committee, Grand Chief, let me say how pleased we are that you have given us your time. I know you have done this before, so it won't be a surprise that we're looking for an opening statement of around ten minutes, following which we will begin a process of dialogue with colleagues.

Grand Chief Matthew Coon Come (National Chief, Assembly of First Nations): Thank you very much.

With me today is Richard Powless, who is my special adviser to the Assembly of First Nations; and Joanna Birenbaum. I am National Chief Matthew Coon Come.

Honourable members of Parliament, I appreciate this opportunity to express the serious concerns of first nations peoples regarding the government's proposed anti-terrorism legislation.

First, I want to convey to you the sense of seriousness with which first nations peoples hold the September 11, 2000, events. This is our homeland. Our elders refers to it as Mother Earth, and when anyone harms our mother in whatever form, be it through the destruction of the environment or by the taking of human life that was put here, it hurts us. We feel for the families who senselessly lost their loved ones, for we too have known loss. We have been here for many generations, and we too have known terror in our homelands, but never on the scale recently experienced. Skilled Mohawk ironworkers helped build those buildings that were destroyed, and, in fact, were first on the scene to help with rescue attempts. Our people travel on both sides of the border because our homelands and our relatives are on both sides. Our ancestors are buried on both sides of the border, and we have many friends in the United States. With this unspeakable act, the world has changed. Our world has changed, and we are prepared to do our part to return to the sense of security that we formerly had.

First nations peoples believe in peaceful relations, harmony, and non-violence. We support the efforts of states like Canada to address the scourge of terrorism. First nations peoples have always responded quickly to humanitarian crises in Canada and elsewhere. In the two world wars, our people voluntarily enlisted and gave up their lives in disproportionate numbers.

The AFN has reviewed the proposed Anti-terrorism Act to the extent possible, with limited resources, in the short time that has been available. In this presentation, I want to emphasize only the core concerns raised by the bill, as well as the amendments to the bill that are necessary to address these core concerns.

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In order to understand the concerns of first nations with respect to the anti-terrorism legislation, it is essential to have a picture of our overall context, which unfortunately is one of continuing, systematic discrimination and disproportionate adverse impacts at every stage of the Canadian justice system. Across Canada, there are untold numbers of stories of unlawful arrest, police violence, abuse, shootings, and false convictions, including such recent cases as that of the native men in Saskatchewan who were abandoned by police in the middle of winter on the outskirts of Saskatoon, left to die of exposure. The crime for which they received this death sentence was that they were native.

Our people are over-represented in the prison populations, a matter about which the Solicitor General of Canada has stated that all Canadians should be deeply disturbed. Government study after study has noted the indicators of systematic discrimination suffered by first nations peoples in the justice system, including that we are far more likely to be denied bail, be unrepresented, spend more time in pretrial detention than non-aboriginal people, and plead guilty simply because our people are intimidated and alienated.

Within this context, the submissions of a number of organizations on the anti-terrorism bill, including that of the Canadian Bar Association, have expressed specific concern about the legislation, including its potential impact on first nations peoples. The AFN supports these expressions of concern, particularly with respect to the definition of “terrorist activity” and the proposed expanded powers of police and the security establishment. We know too well the potential scope for misapplication, misuse, and even abuse, that is inherent in these expanded powers. We are deeply concerned that first nations peoples will inevitably suffer such misuse and abuse disproportionately.

In 1995, a handful of unarmed native men, women, and children asserted their people's land rights to an ancestral burial ground by occupying a corner of Ipperwash Provincial Park in Ontario. They had notified the park superintendent of their intentions, and occupied the park only after it had closed for the season. Despite these facts, a huge and heavily-armed tactical police response was deployed to quell this lawful and non-violent protest. It now appears that the use of lethal force was ordered at the highest levels of the Ontario provincial government. The result was the police shooting of three native protesters, one of whom—Dudley George—was killed.

The federal and provincial governments justified this lethal use of force by immediately painting the events at Ipperwash as a terrorist-like incident. Hours after the shooting, the Ontario police informed the public that the demonstrators had been armed and had fired on the police, and that the police had returned fire. Weeks later, in late 1995, the federal government reported to the United Nations Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions, that armed natives in the park had fired on the police and that the police had merely returned fire. Six years later, even after a conclusive judicial findings that the native demonstrators were unarmed, the governments of Ontario and Canada have not corrected the record. They refuse to remove the slander of insurgency that was cast on first nations dissent in Canada.

Ipperwash stands as just one case study among many that demonstrate the risk posed to first nations by legislation that gives heightened powers to police, narrows the civil rights of those involved in legitimate dissent and protest activities, and limits or suspends the civil rights of those perceived by the government to be involved in “terrorist” activities.

I myself have in the past been termed a “guerrilla” by governments because of my people's use of the judicial process. The repeated characterization of first nations peoples as insurgents in the past justifies our grave concerns about the risk of anti-terrorism legislation harming our most basic rights. It points to the need to define “terrorist activity” in a much more precise and careful way, so as to ensure that the net of the expanded provisions is never too broadly cast. Although Canada is one of the more democratic and free countries in the world, its governments and law enforcement institutions are fallible and, as far as many of our people are concerned, sometimes mal-intentioned at high levels.

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As you well know, first nations peoples across this country suffer conditions of mass poverty and unemployment, ill health, and epidemic rates of suicide. As noted by the United Nations Committee on Economic, Social and Cultural Rights in its most recent review of Canada's human rights record, there exists a “gross disparity between Aboriginal people and the majority of Canadians”. The causes of these conditions—our landlessness and dispossession, in contravention of our aboriginal, treaty, and other human rights—go significantly unremedied.

As stated by the Royal Commission on Aboriginal Peoples, first nations people continue to be on the margins of Canadian society and “either excluded or positioned at the back of the line.” In 1999, the United Nations Human Rights Committee confirmed that the situation of aboriginal peoples in Canada is “the most pressing human rights issue facing Canadians.”

In this context of continuing social and political exclusion, and socio-economic marginalization, first nations demonstrations, protests, and even civil disobedience, often remain the only effective means available to us to defend and assert our aboriginal and treaty rights. The Royal Commission on Aboriginal Rights is an example of a direct and peaceful result of one such protest.

Yet many times when we exercise these rights, such as at Burnt Church or Ipperwash, the law is often used to punish or prevent us. One technique of intimidation and quelling of dissent by first nations peoples is the practice of systematically charging native peoples engaged in exercising their rights, with criminal or regulatory offences. This technique of charging entire groups of natives asserting their rights has not stopped even though, time and again, a great majority of natives accused in such demonstration contexts are acquitted of all charges. This was the story at Ipperwash, and at Oka and Kanesatake, where prosecution took on the appearance of persecution.

Justice Minister Anne McLellan has stated that native assertions of aboriginal and treaty rights are not intended to be captured by the broad definition of terrorist activity in the bill. We are not reassured. The actions of governments in the past lead us to fear that the strictest force of law is inevitably applied to first nations protest and dissent, including—we fear—the misapplication of the anti-terrorism legislation in the future.

If the legislation is not intended to cover assertions of aboriginal and treaty rights by first nations people, then it should say so explicitly. There is no reason not to make this legislative intent absolutely clear. The Assembly of First Nations therefore calls for this bill to be amended, so that the assertion by aboriginal peoples of their aboriginal and treaty rights is specifically excluded from the definition of “terrorist activity”. The AFN further joins the 37,000 lawyers and judges of the Canadian Bar Association in calling for the deletion of the entire item 83.01(1)(b)(ii)(E) in the definition of “terrorist activity”, so that civil disobedience—unlawful but legitimate dissent—by first nations peoples and others cannot be defined as terrorism.

Our people continue to face unlawful state and other encroachment on our lands, removal of our resources, and deprival of our own means of subsistence. We must have access to broader means of expression and protest as a matter of our cultural survival, without fear being of labelled or detained as terrorists.

The AFN also supports the calls for a three-year sunset clause in the legislation. The U.S. Patriot Act contains such a clause. The Canadian Bar Association and the Senate committee have stated that this is imperative. We agree. The curtailments on liberties in the anti-terrorism bill, and the potential for abuse of powers that it contains, must expire automatically in three years' time, and should be re-enacted only if substantial evidence is before Parliament to justify renewal of the legislation as as an effective anti-terrorism measure, as well as evidence that it has been used with the utmost restraint. We believe it is in the interests of all that the law should expire automatically.

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First nations' historical and modern experiences with the Canadian justice system lead us to believe this sunset clause is essential. A study by the Osgoode Society for Canadian Legal History has found that in the 19th century, disproportionate execution, purportedly mandated by law, was used by the Crown against our people as a means of colonial subjugation. In the 20th century and now, we face disproportionate imprisonment and selective prosecution. Professor Peter Russell, of the University of Toronto, has concluded that the

application of the rule of law, an essential element in the “liberal treatment of Indians,” can serve as a blunt instrument for the dispossession and subjugation of Aboriginal peoples.

We can only fear the misapplication of this anti-terrorism law to us. We are not alone in raising this fear. The Canadian Bar Association and others across the country have noted that the proposed legislation would appear to inhibit, if not prohibit, demonstrations and other forms of expression by first nations peoples asserting their rights.

In sum, as a result of these reasoned and, I believe, justified concerns about the risk of the misuse of the anti-terrorism legislation as proposed, the Assembly of First Nations urges that the definition of “terrorist activity” must include a paragraph specifically excluding from the definition the assertion of aboriginal and treaty rights by aboriginal peoples—and I have a suggested text for your consideration. Secondly, item 83.01(1)(b)(ii)(E) must be removed from the definition of terrorism. And thirdly, the legislation must contain a sunset clause, thus requiring a comprehensive parliamentary and societal assessment of the legislation in not more than three years before it can be re-enacted.

We also wish to be further consulted and fully involved in the process of further development of this legislation.

With that, I thank you very much. Meegwetch. Merci.

The Chair: Thank you.

I turn to Mr. Sorenson for the first seven minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Grand Chief Coon Come, I'd like to thank you and your delegation for being here today. We appreciate your testimony and your view of what this legislation would do for first nations.

For most legislation that we pass, we obviously take a look at the different groups within Canada that would be affected, and we always appreciate it when the aboriginal or first nations people give their input on legislation.

We appreciate the history of the first nations. Far too often, that isn't said. I think it is important that we do remember the times when first nations people served our country, and served it well. They served in the First World War and they served in the Second World War. Even while they were living in a period of time when discrimination was perhaps even greater than today—I don't believe they had the vote during the Second World War—many native people served. We realize their love for this land—which you drew attention to—is more than just love for Mother Earth, it's a love of the land itself. We respect that.

We also appreciate your commitment to help those of us in Parliament deal with the terrorist threat. It has been put to this committee many times that September 11 changed this world. It has changed our country. It has caused us to pause and to consider the world that we live in and the values that are so important, and it has caused us to bring forward legislation that would help us to become more secure. That would draw me to the question—and we have seven minutes in which you can respond—of how we are going to do that. How are we going to draw the line any time groups come in and say that perhaps there should be an exemption, that perhaps an inclusion in the law should be...?

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You're calling for the deletion of the entire item 83.01(1)(b)(ii)(E), and you are specifically mentioning aboriginal people. How do we exempt people from the Criminal Code, first of all? We've seen it before. For example, in Bill C-68, exemptions were made. I have a fundamental problem with any specific group being exempted. My feeling is that this can cause more discrimination toward the group than if they were just included under the equality of all. So my question to you—one of them—is on how we draw the line, how we exempt people.

The definition of “terrorist activity” as we read it in the bill talks about “a political, religious or ideological purpose, objective or cause”. What part of that specific part of the definition would you like to see amended?

As far as item (E) of the same subparagraph goes, it says:

to cause serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy.

I'm wondering why that specific part should be taken out of this bill.

Grand Chief Matthew Coon Come: Thank you very much.

The Assembly of First Nations definitely supports Canada's efforts to combat terrorism. We certainly understand that the intent of Parliament, in passing the bill, is not to target first nations peoples as we assert our constitutional rights. We understand that defining terrorism is a very difficult task. It must be done carefully and precisely. The request for explicit exclusion of aboriginal peoples from the definition of “terrorist activity” should assist Parliament, I hope, in redefining its definition.

You, yourselves, know that within the Constitution of Canada, there's a special relationship. Aboriginal peoples have a unique and constitutionally recognized aboriginal and treaty rights within the Constitution of this country. The federal government has a fiduciary responsibility and duty toward aboriginal peoples in this country. I think you can understand our concerns, because of our continued social and political exclusion and our continued social and economic marginalization. The only forum that we have for exercising and protecting our rights is demonstrations and protests, and we certainly wouldn't want to be classified as terrorists in exercising that right.

I'm afraid our right to exercise our civil rights could be limited or could be suspended. We often have been accused of insurgency. I've been labelled as practising a form of guerrilla warfare because I used the judicial process. I've been labelled a traitor by my separatist friends in Quebec. Attempts have been made to charge me with treason because I defend aboriginal and treaty rights. So I think you can appreciate our concern about exclusion. Even though the Minister of Justice stated that it's not intended to apply to people who block roads or engage in other forms of protest or assertion of rights, I don't feel any comfort. I am asking that you seriously look at our request.

The Chair: Thank you very much.

Madame Venne, for seven minutes.

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[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): I would like to know, Mr. Coon Come, if you have appeared before the Senate on Bill C-36. Did you appear before the Senate on Bill C-36 before coming here?

[English]

Grand Chief Matthew Coon Come: No, this is our first time here.

[Translation]

Ms. Pierrette Venne: Is it because you didn't ask the Senate to be heard or just because you refused to go?

[English]

Mr. Richard Powless (Senior Policy Advisor, Assembly of First Nations): We simply weren't aware of them. We found out on the last day of testimony that they were having simultaneous hearings. We weren't invited, and we weren't aware that they were being held.

[Translation]

Ms. Pierrette Venne: Okay. I understand.

We have in our hands the Senate report which is being released at this time. The press conference is now being held. Among the recommendations in the report, there is one that you should like because it deals with provision 83.01(1)(b)(ii)(E), which you would like to see deleted.

What the Senate recommends, however, is rather to eliminate the word "lawful", so that we would talk about activities "intended to cause serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest". So, the word "lawful" would disappear, which should satisfy you, I think. The section itself wouldn't be totally removed, as you requested in one of your two recommendations. I'd like to have your opinion on this and know whether you would be satisfied with the removal of "lawful", as suggested in the Senate report.

Referring to your first proposal that we should add a paragraph specifically excluding from the definition the actions you could take in the future to assert your rights, as far as I'm concerned, I think that it would be totally inappropriate, because that would be the same as allowing you to erect blockades anywhere and even to institutionalize them in a way. I don't think it is appropriate that a bill such as this one would authorize ahead of time any action you could commit to assert your rights, as you mentioned. This is my opinion.

Obviously, you're not in agreement because I know what your claims are. I believe however, that holding the population hostage, as it was done several times, is not the best way to make friends in this world.

So I'll come back to my first question: Would the amendment to item (E) be sufficient to meet your recommendation?

[English]

Grand Chief Matthew Coon Come: Thank you very much.

I have never felt that we, as the Assembly of First Nations, have held this country hostage. I have always felt we were always denied being included in participating in the economy of this country, and that is a denial of our rights. When the courts recognize that we have rights to fish, DFO sends its officers to ram boats against our people. When our rights are recognized, there is a continual denial of those rights when the government should instead be defending them. The government should be able to sit down with us in order to seek some meaningful avenue to settle our issues through proper mandates, proper budgets, and proper timeframes.

Certainly, we are not anti-development. Any blockades that we have erected have just been put up to increase public awareness that we are trying to assert our rights. At the end of the day, though, we want to participate in forestry development, we want to participate in mining, and we want to participate in the extraction of natural resources from our lands. Certainly, in regard to when we assert our rights, we have grave concerns that this could be deemed as unlawful activity by governments.

The question asked was a very technical question. May I ask legal counsel to address it, Mr. Chair?

The Chair: Yes.

Ms. Joanna Birenbaum (Legal Advisor, Assembly of First Nations): Thank you, Chair.

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Perhaps to assist the National Chief, could I clarify your question with a question? From what I understand, you have stated it would not be appropriate to include in the definition of “terrorist activity” an exclusion of aboriginal peoples and the assertion of their aboriginal and treaty rights. I understand you to say this would be inappropriate because it would essentially institutionalize blockades that have been set up. In order to assist in answering the question, are you saying blockades would be covered in this legislation and would fall under the definition of “terrorist activity”?

[Translation]

Ms. Pierrette Venne: Not at all. I am referring to your recommendation, which I have in front of me, in which you say that you want to add a paragraph saying that the omissions or actions taken by indigenous people to assert their rights would be simply excluded from Bill C-36.

I believe this would have the effect of institutionalizing a certain type of action which we clearly do not welcome. This is the reason why I say that by removing the world "lawful", your demonstrations could very well be included, as well as those of people who want to demonstrate, as mentioned in the section itself.

[English]

Ms. Joanna Birenbaum: Thank you for that clarification.

The reason the removal of “lawful” wouldn't be sufficient...to put it another way, the reason why it is absolutely imperative that the assertion of aboriginal treaty rights by aboriginal people be exempted from the definition of “terrorist activity” is that those sorts of activities are not considered terrorist activities under this legislation, as we understand it. In fact, we understand that the Government of Canada believes those sorts of activities, including blockades, are not terrorist activities. They are not the kinds of activities intended to be covered by this legislation.

This legislation was born because of an unbelievable, tragic event in which thousands of people were killed as a result of the actions a complex, highly dangerous, international terrorist network. That's the kind of terrorist activity that I understand—or that the Assembly of First Nations understands—the government to be targeting with this legislation. Roadblocks and the assertion of rights are not the kinds of activities this legislation is targeting. To the extent that the government or police believe certain activities by first nations people are unlawful, those would still be covered by existing criminal legislation. All we're submitting before you today is that the activity outlined by the AFN be exempted from this anti-terrorism legislation.

The Chair: Thank you very much.

[Translation]

Thank you very much, Ms. Venne.

[English]

Mr. Blaikie, for seven minutes.

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

First of all, I want to say the NDP shares the concerns expressed by Grand Chief Coon Come about the definition of “terrorist activity” and about the possibility that this definition might be used or abused to curtail not only the legitimate activities or legitimate assertion of rights by aboriginal people, but also the legitimate dissenting activities of many Canadians. Your own example is a good example, if you like, of what we're worried about in the definition of “terrorist activity”, but it may be that we will want to look at a way of changing the definition of “terrorist activity” that will be somewhat different from what you recommended. That is to say, as opposed to listing specific exemptions, we would try to frame the definition in a way that would leave out not just the activities of first nations peoples asserting their rights, but those of a whole lot of other people who are engaged in activity that, under no circumstances, would normally be regarded as terrorist activity, and never have been in the past.

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I think we'll have a judgment to make if we decide as a committee that we want to change the definition of “terrorist activity”. That certainly has not been ascertained yet, but I would certainly want to give the commitment, at least for my part, that we'll take your recommendation into account. If we can agree that we want to change the definition, your suggestion will be one of the suggestions on the table.

Also, I want to agree very much with your expression of concern about what happened at Ipperwash. The fact is that aboriginal people have good reason to be mistrustful of governments when it comes to this kind of thing. It's part of the backdrop of this legislation, if you like. That's what I tried to explain in the House when it was first brought in. For you, it's a question of trust, and the backdrop for you is Ipperwash, Oka, and other things. For others, again it's a question of trust, and the backdrop for them is Quebec City and APEC.

There have been a number of incidents in recent years in which governments of various kinds have not shown the respect they should have shown for legitimate dissent or the legitimate assertion of rights. In that regard, I just want to say we share your concern about that. It's an insight that I hope we can bring to bear on the need to amend the legislation when we get to that point in the committee process.

The Chair: Grand Chief, do you have a response?

Grant Chief Matthew Coon Come: I thank you very much for your insight. When one exercises a form of protecting your rights that is an acceptable form of expression, of demonstration, or of protest, that should not be perceived as a terrorist act. Certainly, there is a need to ensure that what happened in Quebec City, at the APEC meetings, and at the G-8 summit meetings, has to be taken into consideration in whatever definition can be arrived at.

Certainly, I appreciate your comments in understanding where we are coming from because of the way we have been characterized, and because of our past experiences and our concern about misapplication or misuse of a piece of legislation that will heighten police powers. Our fear is that you won't look at the definition of the term “terrorist activity” and what that definition could mean, so I want to thank you for sharing the idea that some form of change can be looked at.

The Chair: Mr. Blaikie, you have about a minute left.

Mr. Bill Blaikie: One of the other things you might look at in the definition of “terrorist activity” is the extent to which it talks about anything that threatens economic security. A lot of the disputes that aboriginal people have with governments—at least sometimes—have to do with big-time economic issues. With you here, the one that strikes me most quickly has to do with hydro development in northern Quebec, for instance.

Obviously that has to be combined with a lot of other things in the definition—and it is combined with a lot of other things—but we have had quite a bit of testimony to the effect that the whole notion of inserting this notion of threatening economic security or essential services, etc., into the definition of “terrorist activity” is something that should be taken out. I imagine that aspect of the definition would also be a concern of yours.

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Grand Chief Matthew Coon Come: Definitely. As you know, we have been involved in a campaign against the Great Whale River project, but that's not because we're anti-development. We're concerned about the way in which development takes place. Certainly, we used the United States because they were the ones buying the energy. We believed we should be heard, as the other public utilities did, in regard to the impact it will have on our rights and the impact it will have on our way of life. So I would certainly be very concerned, Mr. Chairman, that because of some of our activities, we would be classified as terrorists when we're trying to protect our rights.

The Delgamuukw decision recognized our economic rights. Many court cases recognize our hunting and fishing rights. Certainly, I hope we don't have to fight these out in a different country, or ask other companies not to buy products from first nations lands. I hope we can solve these here, that we can sit down, so that we are not socially and economically marginalized, so that we don't have to go outside, so that when courts.... Don't be selective in how you interpret our rights, sit down with us so that we can participate and stimulate the economy. We are not the terrorists. We are not anti-development. We want to participate and have a share in access to the land, in access to the resources, so that we can build upon our own institutions.

I'm tired of hearing—even from my own people—about roads being blocked, with us then seen as people who are against something. I think it's high time that this government should sit down with us. We're ready to solve our issues. A recent Department of Indian Affairs and Northern Development poll shows that 58% of the public think there is a form of racism against first nations. Out of that, 54% of the first nations agree there's a form of racism. We have to do something to eliminate that.

What are we going to do? Practise a form of inclusion. Involve us in the activities. Do not be selective about the rule of law and the decisions that come out. Sit down with us. I think we can avoid going out and campaigning in the States or elsewhere. We can deal with these back home, so that we can have participation and be involved in the economy of this country.

The Chair: Thank you very much.

Mr. Keddy, for seven minutes—and I was just kidding about the maritime extra minute, so it is just seven minutes.

Mr. Gerald Keddy (South Shore, PC/DR): Thank you, Mr. Chairman. I'd like to welcome Grand Chief Coon Come and his delegation to the committee.

Grand Chief, it's always interesting to hear your point of view. You always bring it to the table with a certain forcefulness of opinion that is well received.

As our justice critic from Pictou—Antigonish—Guysborough has said, the issue before us seems to be a matter of co-existence. And I'm not talking about a co-existence necessarily of first nations and non-native Canadians, I'm talking about the co-existence of basic human rights and justice issues with the matter of security and human rights that we take for granted.

Those human rights that we take for granted are certainly the ability to engage in peaceful protest, the ability not to expect to have your phones tapped if you're not engaging in illegal activity, or the ability to not be slotted into some type of group whose individuals the government suddenly says are dangerous or potential terrorists. That's not just a fear for first nations. I think it's a fear for all Canadians who are looking seriously at this piece of legislation.

It was mentioned earlier that the Senate report is out and that a number of recommendations have been put forth. I believe the fear is that this legislation can needlessly infringe on individual rights and freedoms. The amendments that our justice critic has put forth intend to look at those very things, including the issues of accountability, oversight, and sunsetting, so that this legislation somehow doesn't go on forever, so that we do see light at the end of the tunnel, if I may use that analogy.

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Even given the horrific events of September 11, hopefully we can bring in legislation that is not overly totalitarian legislation that doesn't allow for peaceful protest. It must be legislation that ordinary Canadians can live with. Somewhere down the road, when we get through this epoch of human history, with terrorist attacks going on not just in the United States, of course, but all around the world, then we can live and enjoy some of the freedoms we already have.

My question to you would be on the amendment that you put forth. For greater certainty, it reads that you would like to see added a paragraph (c) that includes the following words:

for greater certainty, paragraph (b) does not include acts or omissions by Aboriginal persons in the exercise or assertion of their Aboriginal and Treaty rights.

I can't speak for the rest of the committee, but I would like to know whether or not you would be interested in including the word “legal”. Your proposed paragraph (c) would then read:

for greater certainty, paragraph (b) does not include legal acts or omissions by Aboriginal persons in the exercise or assertion of their Aboriginal and Treaty rights.

Grand Chief Matthew Coon Come: I'll let the lawyers handle this one.

Ms. Joanna Birenbaum: First of all, the Assembly of First Nations really appreciates your comments and that suggestion. It is a good suggestion, and we understand it, but it would not be an inclusion that we would be comfortable with. Let me explain why.

The reason is based on a hundred years of history of the use of legitimate law in Canada against first nations people. The difficulty is that systemic racism means laws are interpreted in ways that aren't necessarily always appropriate, and legitimate actions and activities by first nations peoples are often deemed to be unlawful. Inserting “legal” in the legislation raises the risk of putting first nations peoples in a situation in which they have to demonstrate that activities were lawful. For example, in the case of Ipperwash, the occupiers of the park were deemed to be there unlawfully. Many of them were charged with trespassing. After the fact, of course, it has been recognized that they had call of right to be there. Most of them, if not all of them, were acquitted of the trespassing charges.

The difficulty of including “legal” in the legislation is who determines the lawfulness. The sad history in Canada has been that, too often, it has been an exercise of discretion that has been exercised improperly, in a racist fashion.

Mr. Gerald Keddy: I don't know if I have a question on that or not, but I would have a comment.

Given what you have said, the law is still the only law we have. There is not much choice but to work within the realm of it. I realize that's open to interpretation and open to abuse; it has been open to abuse for lots of individuals and groups in this country, not just first nations. Given that understanding and the fact that it is the law that we have based on the Constitution of this country, my fear would be that if we didn't put that in, you could actually legitimize unlawful protests. I don't think that is the intent.

Ms. Joanna Birenbaum: I agree with you. Perhaps my answer wasn't completely full.

Let's look at civil disobedience, for example. If “legal” is included in that definition, then civil disobedience by first nations peoples would be considered terrorist activity. The submission here is that perhaps even unlawful activity in the form of civil disobedience, for example, may be criminal activity that may be punishable under the Criminal Code, but it ought not to be punishable or categorized as a terrorist offence.

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The Chair: Thank you. We'll move on. You'll probably get another chance.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair, witnesses. I want to pick up on that last point.

We are assured by the Minister of Justice and the government that it is not the intent of this bill to take in the type of activity we have just been talking about, be it lawful or unlawful. If a person, for normal reasons of domestic dissent for whatever—an illegal walk-out or strike, contrary to labour regulations, for example—were involved in some activity, it certainly isn't the intent that this type of activity would be covered by this bill.

I realize that as I'm a member of the party supporting the government, my level of trust is perhaps much more elevated than yours is. That's why I appreciate your submissions and your recommendations. Your brief is very concise and very clear. We appreciate that, because it's very helpful to the committee.

One question I have is on the brief's reference to three amendments—one includes the insertion of a sunset clause—whereas the proposed amendments circulated only include two. Was that deliberate? Was the sunset recommendation omitted intentionally, or was that an oversight?

Ms. Joanna Birenbaum: We simply weren't proposing any specific wording for the sunset legislation, because we know others have done that.

Mr. Paul DeVillers: But it's still part of your recommendation that a sunset clause be included?

Ms. Joanna Birenbaum: Yes.

Mr. Paul DeVillers: Presently, the bill provides for a review at three years. There have been proposals...the Senate report, if I just look at it quickly, proposes the inclusion of a five-year sunset in addition to the three-year review. Is that something you could support?

Grand Chief Matthew Coon Come: I have not had the opportunity to look at what the Senate's recommendations were. However, we understand the need for the Government of Canada to combat terrorism, and we understand it is not the intent to aim that at our activities as the Assembly of First Nations. Nonetheless, we fully support the recommendations for a sunset clause. Three years was what was recommended, and I think that was supported by the Canadian Bar Association. We also certainly support that. But I did not read the report of the Senate, so I'm not familiar with it.

Mr. Paul DeVillers: Counsel, do you have an opinion on leaving the three-year review and adding a five-year sunset clause?

Ms. Joanna Birenbaum: Can you give us a moment? That's simply not a proposal we have considered.

Mr. Paul DeVillers: Okay, that's fine.

The Chair: If you feel a need to give yourselves more time, we would be prepared to receive a response at any time. Don't feel this is something you need to do on your feet, right at this moment.

Grand Chief Matthew Coon Come: Thank you, Mr. Chairman. I think all of us support the sunset clause, which would be better than nothing—and the sooner the better. But if the committee sets it out at five years with a two-year review, at least some form of a sunset clause is there.

Mr. Paul DeVillers: Thank you, Mr. Chair.

The Chair: Mr. Fitzpatrick, for three minutes.

• 1630

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Thank you very much, Grand Chief and your colleagues, for coming here today. It's a privilege to meet you and have the opportunity to dialogue with you.

If I understand the intent of your suggested amendment—and correct me if I'm wrong—I know your history, and you have been a believer in peaceful protest and activities to advance your cause and what you perceive to be your rights, and so on. I think that is well understood in a liberal democracy—I hope it is—the right to protest and dissent, and so on. You're very much concerned that the way this definition is set up, you could be caught by the letter of the law in terrorist activity. Even if government members say that's not the intent, you could still be caught in that type of definition.

I want to be certain—and I'm confident you'll agree with me—there can never be justification for acts of mass destruction, assassinations, or kidnapping to advance a political cause, or whatever cause. I'm quite sure, knowing your history and background, you would strongly support the idea that there can never be justification for that sort of thing.

I'd appreciate receiving your reaction to my leading questions.

Mr. Richard Powless: Terrorism has been here a long time in North America. People make choices as to how they want to effect change. Terrorism has always been an option for first nations. We haven't chosen it.

From day one, when we established initial contact, we set out to establish negotiated agreements called treaties. We held these agreements sacred, and hoped they would be upheld and implemented. That's where the problems started, because they haven't been. All treaties we signed have been violated. So all of the process we have been involved in over these years was to try to get those treaties respected.

I'll use one example. It's called the Two Row Wampum treaty, which is an Iroquois treaty—I'm Mohawk. We call it the Gus-wen-tah. It's two columns on a wampum belt, two parallel lines, and they represent our two peoples. In the same way they never connect, our nations were never meant to supersede each other or interfere with each other's affairs. That's been violated.

Today, everything we do, everything we thought was protected in those treaties, we're told is against the law. We can't go fishing, even though we win Supreme Court cases. We're told we can't go hunting. We're told that about everything we thought was protected. The real politics of it is we don't have much political power. Over half of our people just don't participate because they don't believe it's their system.

When things are imposed on us, as they are—it's happening right now with one of your ministers imposing new Indian Act amendments on us—the only legitimate form of protest, dissent and assertion of our rights is often protest, is often roadblocks. We're just afraid. We have a history of knowing that.

It's been discussed here that the rule of law is imposed very quickly and very harshly to an extreme, when it happens to be us doing it. So we totally agree with your statement. We have never done that. We have always gone to.... We just abhor what happened on September 11, like everyone. It's just not something that's even in the realm of our thinking, because we negotiate peaceful agreements so we can co-exist here.

Mr. Brian Fitzpatrick: Thank you very much.

The Chair: Mr. Maloney.

• 1635

Mr. John Maloney (Erie—Lincoln, Lib.): I think we all find your request that the definition of terrorist activity be exempted from assertions by aboriginal peoples respecting aboriginal treaty rights a little bit problematic, especially in view of Mr. Powless' last comment that terrorism has always been an option, although you've chosen not to take it.

On your reserves, in respect to your bands, you have certain rules and policies. Is it acknowledged, or would it be fair to say, a certain individual, individuals or segments of that band or reserve should be exempt from those policies?

Grand Chief Matthew Coon Come: That's a very tricky question.

As you know, across Canada there are 80 different nations. There's the Mohawk and the Cree from northern Quebec. There are the Nisga'a, the Ojibway, etc. We all have our different values and traditions, customs and beliefs.

When we sit down among ourselves to deliberate, we understand how to make changes to improve our deplorable living conditions, and to advance and promote our rights, either through the Constitution—that's not there right now—legislation, or policy changes. We certainly know we can use the judicial process. When we decide, we decide as a unit. We assert collective rights, as opposed to individual rights. So we do it in the interests of our society.

The only form of exemption we may have practised was because of the Indian Act that was imposed upon us, without our consent or our involvement. Perhaps you can allow us to strengthen our political institutions and our relationships, so we can coexist and be participants. Perhaps we can get assurances that we are going to be involved and have a say in what happens to us.

Certainly an open dialogue like this is welcome. All of us, I think, are for some peaceful protests. None of us has ever picked up arms. I agree, there's no justification for mass murders. There's no justification for picking up a gun and shooting someone. But certainly we have to lay down some rules that are in the interests of society. In that context, we agree it's good for the nation. What's good for the nation is good for everyone.

In this country you have a special relationship with aboriginal people. Even though I hate the Indian Act, you don't have an act for the Jewish people. You don't have an act for the French people. You don't have an act for any other immigrants who came to this country, but you do have the Indian Act. You don't have treaties with other nations that came to this country because their rights were violated. Their basic, fundamental human rights were violated. They came and found shelter in this country and established a relationship.

You signed treaties. Honourable men signed those treaties and reasonably expected that the governments would live up to their commitments. You established that relationship. You entrenched in your Constitution and mentioned aboriginal people.

• 1640

It's your loss that allowed for that to happen; therefore you provided an exemption. We only want to protect what's already in your laws, so our rights cannot be derogated or abrogated; so we can be assured that in asserting our rights there will be no real suspension or limitation of what we do, and our activities won't be classified as terrorist activities.

Mr. Richard Powless: I just want to clarify my remarks. When I said terrorism has always been a choice, an option, it's always been an option for everyone, every person on this planet throughout history. Some have chosen it; we haven't. That's my point. We've had over 400 years of contact with each other. We haven't chosen that option. We are not a terrorist people. That's the only point I want to make. It's always been an option for everyone.

The Chair: Thank you all, Ms. Birenbaum, Mr. Powless, and Grand Chief. Meegwetch. Thank you for being here.

I will suspend momentarily while our witnesses depart and our next panellist makes his way to the table.

• 1641

• 1643

The Chair: I'm calling back to order the 41st meeting of the Standing Committee on Justice and Human Rights. We're considering 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.

Our second witness this afternoon is James Aldridge, who is appearing as an individual. Generally, we try to keep the opening statements to around ten minutes, to allow opportunity for dialogue with the committee members.

So with that brief reference to the rules, we will hear Mr. Aldridge.

Mr. James R. Aldridge (Individual Presentation): Thank you very much, Mr. Chair.

I'd like to start by thanking the committee most sincerely for inviting me to appear before you today to present my views and concerns in respect to Bill C-36.

• 1645

I am a lawyer from Vancouver. I practise in the area of constitutional administrative law, and I've had the privilege of appearing before numerous parliamentary committees, both here and in my home province of British Columbia.

I should say at the outset

[Translation]

that I am sorry not to be able to make my presentation in French. Unfortunately, my French is not too good.

[English]

I have a presentation in writing. Unfortunately, I did not have time to prepare it in both official languages. It's only in English. But if members would like to obtain a copy of it subsequently, I'd be glad to deliver it to them, and I understand that the committee will make it available generally, once it has been translated into both languages.

There are three parts to my presentation: first, an introductory section, then I will identify and speak to two particularly egregious clauses in the bill, and then some proposed amendments. Certainly the latter two portions are somewhat technical. It's a technical exercise to review a bill, and I will ask the committee to indulge me, understanding that you don't have my written proposals in front of you, as I had hoped you would. But with the bill in front of you, I think I will be able to make my points quite clearly. I certainly will endeavour to do so.

By way of introduction, I'd like to indicate that I recognize that some of my concerns are very similar to those that have been brought before you by other witnesses, particularly the Canadian Bar Association, whose paper, that was delivered yesterday, I had the opportunity to read this morning for the first time.

I'd like to add my voice to the comments of those who have urged caution and restraint, who have argued that the events of September 11 and thereafter cannot justify the damage to Canadian freedoms and values that would be caused by certain parts of this bill.

Perhaps I should begin by recalling a conversation I had with my parents many years ago when I first learned the history of Canada's treatment of Japanese Canadians during World War II. I remember asking my parents how such a thing could have ever happened in Canada, how such an affront to the rights and freedoms of one group of Canadians could have occurred at the very same time that Canada was engaged in a war to defend our freedom and democratic ideals.

I remember very clearly my parents telling me that it happened because after Japan had attacked Pearl Harbor and war was declared against Japan, Canadians were afraid, and Canadians were prepared to believe the federal government when it told them that extraordinary measures were required to be taken against Canadians of Japanese descent.

Similarly, I recall, as we all do, the events of October 1970, when the federal government invoked the War Measures Act. How could those events, with the hundreds of arrests that followed, have happened in Canada at a time of a renaissance in civil rights and freedom of speech, at the time of the emergence of the just society? It happened because following the months of FLQ bombings and kidnappings and the murder of Pierre Laporte, Canadians were afraid, and Canadians were prepared to believe the federal government when it told us that extraordinary measures needed to be taken.

Since September 11 we have once again become afraid, and because of this fear Canadians are now contemplating the enactment of a law that strips away some basic legal protections, a law that will have dramatic consequences for the nature of Canadian civil society, a law that will, in my view, as surely as day follows night, be misused despite the best intentions of the Attorney General and other government representatives.

If we've learned nothing from history, we should have learned that fear can lead to overreaction. We should have learned that if overreaction leads to state powers that can be misused, then those powers will be misused. We should have learned that the legal rules that have evolved in our system are not mere luxuries to be tossed overboard at the first sign of trouble. In fact, I go so far as to say there's no time when our legal rules and freedoms are more important than when we are afraid.

I'd like to stress at the outset, so that there's no doubt about this, that I share the view that I believe is held by most Canadians, that the terrible events of September 11 and thereafter have highlighted the need for our government and police and security forces to effectively combat terrorism and terrorists within Canada. There can be no doubt of that. I also share the view that we have many laws already that can and should be used in this fight. If it can be shown, however, that the existing laws are inadequate, and if new laws are precisely targeted at the deficiencies that are shown to exist, then indeed such laws can and should be enacted.

However, like others who have appeared before you, I believe certain provisions of the bill simply go too far. Others have spoken to this committee about their concerns in respect of preventive arrest, the compelling of persons to testify at investigative hearings, and provisions that restrict privacy and access to information. While I share those concerns, I would actually like to focus on some other more fundamental provisions of the bill.

• 1650

As the committee will appreciate, and as you've heard from others, it's impossible to understand the implications of any of the provisions of this bill unless one first understands the meaning of the essential terms that are used throughout the bill. The terms that I would like to draw the committee's particular attention to, as have others, are “terrorist activity” and “terrorist group”.

There is no doubt that the single most important provision for understanding the scope of this bill is the definition of “terrorist activity”. There's also no doubt that the wording of the definition that you've been considering and hearing about from so many, like much of the rest of the bill, is highly legalistic and somewhat convoluted. It makes it difficult to summarize, understand, and debate. Many who have spoken about it don't understand precisely how the definition works. But unless the definition is understood clearly, I suggest that it will not be possible to understand the rest of the bill.

The first part of the definition incorporates as a terrorist activity a number of offences under a variety of international conventions. The problems I've identified arise in respect of the second part of the definition, in proposed paragraph 83.01(1)(b). You've looked at this and you've heard about it; I appreciate that. What I attempted to do in my paper was to parse out the section to try to break apart some of the subclauses from the operators, because, as you know, the various subsections are joined by a network of “and” in some places, and the word “or” in some places. With respect, I think it's a failure to see the way in which those operators work through the section that have led to confusion in understanding the actual meaning of the clause as written, as opposed to what the Attorney General and others have said was intended.

In particular—I'm conscious of time, Mr. Chairman—I'd like to ask the committee to refer to, in the definition of “terrorist activity”, page 13 of the bill, at least the version I have, proposed subparagraph 83.01(1)(b)(i). Proposed item 83.01(1)(b)(i)(A), as we all know, talks about “for a political, religious or ideological purpose,” but in proposed item 83.01(1)(b)(i)(B), I'd like to draw the committee's particular attention to the word “or” that appears in the fifth line of that item. In my paper I've actually broken it out, but the proper way to read proposed item 83.01(1)(b)(i)(B) is that a terrorist act is:

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

(i) that is committed

(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security,

That's the first part. Then the word “or” appears: “or compelling a person, a government”, etc., to do something or to refrain from doing something.

So the first notion, the notion of intimidation, does not flow through into the second part of the clause, as I understand people who have appeared before this committee said it was intended to do.

So what does all of that mean? Others have spoken about the now very famous proposed item 38.01(1)(b)(ii)(E). I've set that out, and I can come back to it in questions, if you would like. But if you read the whole thing together, I suggest that what it means is that an act or omission committed in whole or in part for a political, religious, or ideological purpose, committed in whole or in part with the intention of compelling anybody to do or not to do anything, and that is intended to cause serious interference with or serious disruption of an essential service, facility or system, can be a terrorist activity—and this is the point—even if it is not intended to cause and does not cause death, bodily harm, endangerment of life, or a serious risk to public health or safety—proposed items 83.01(1)(b)(ii)(A), 83.01(1)(b)(ii)(B), and 83.01(1)(b)(ii)(C).

It's true that there are key terms such as “serious disruption”, “serious interference”, or what is an “essential service” that are not defined in the bill. It's also true that proposed item 83.01(1)(b)(ii)(E) includes an exception of uncertain application for “lawful advocacy, protest, dissent or stoppage of work”. But I suggest that however these terms are construed, the definition of “terrorist activity” would almost certainly, despite the intentions of the drafters, include an unlawful strike by a trade union, as others have said, against a hospital or school, a blockade of a bridge or a road by a first nation or environmental organization, or the breaching of a security fence by anti-globalization protesters. The mere defying of an injunction or trespass on a road could convert an act from merely being an unlawful strike to being a terrorist activity.

The Attorney General—and I read very carefully the transcript of her testimony before this committee—has dismissed these suggestions, as has the Commissioner of the RCMP. That's not what they intend. They say that the definition intends that there be an element of terror involved in the activities and that the bill could not be used to stifle political dissent.

• 1655

Unfortunately, their assurances are simply not supported by the actual drafting of the bill. The concept of terror is not clearly expressed and the concept of intimidating the public, as I've indicated, does not apply to the final part of proposed paragraph 83.01.(1)(a), compelling a person to do something, or not to do something.

However, it's not difficult to formulate amendments that would make the definition of “terrorist activity” accord with what the Attorney General, her officials, and the Commissioner of the RCMP have said is the intention of the bill. And I will be delighted if a member asks me that question. I'll tell them what the answer is at that time.

By way of overview, I support the position taken by the Canadian Bar Association that the best solution about proposed item 83.01.(1)(b)(ii)(E) is to simply delete it altogether. I can come back and talk about that further as well.

Mr. Chairman, the other term that has received less attention than “terrorist activity” is “terrorist group”. “Terrorist group”, as members will appreciate, is defined as:

(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or

(b) a listed entity,

And it's that second part I'd like to address. The first carries with it the problems with “terrorist activity” I've already spoken to.

More ominous is the idea that a listed entity is simply an entity on the list of terrorists established under proposed section 83.05, and following. Under these proposed sections an entity, which could be a person or an organization of any sort, will be placed on the list of terrorists if the Solicitor General has, and the Governor in Council is satisfied that there are, reasonable grounds to believe that

the entity has carried out, attempted to carry out, participated in or facilitated a terrorist activity;

No charge is necessary; no trial is held. The individual or group is simply entered onto the list by regulation.

Moreover, no notice to a person is required before they're placed on the list. The only way of being removed from the list is to apply to the Federal Court Trial Division. After having considered reports provided by the Solicitor General, including secret reports that may not be disclosed to the individual or group in question, the court must only provide the person with a summary of the information available to the judge, not the information itself. The person will not necessarily have the right to see or cross-examine witnesses. They must receive a reasonable opportunity to be heard, without necessarily knowing what they have to address, what they have to be heard about.

Here is the crucial point, Mr. Chair and members of the committee. After having heard from the person replying to the summary, the judge must decide not if the person did engage in a terrorist activity, but only whether or not the decision of the Governor in Council is reasonable. It is not accurate to describe this procedure as an appeal, as some would have it; rather, it's a very narrow review not of the person's guilt, but only of the reasonableness of the Governor in Council's decision. This point cannot be stressed enough.

Inclusion on the list of terrorists does not require proof beyond a reasonable doubt. It does not even require proof on a balance of probabilities. All it requires is a judgment that there are reasonable grounds, which may not even be disclosed to the unfortunate party on the terrorist list.

Indeed, all of us who are legal counsel will appreciate this point, and many who aren't will appreciate it as well. A judge could even conclude, on a balance of probabilities, that the person probably did not commit the activity in question, but could be forced to conclude that the Governor in Council's decision was nonetheless reasonable. If so, the person would remain on the list and would continue to be deemed a terrorist group.

The test of reasonable grounds is well known at law. We're familiar with it. It's often used, for example, to authorize the laying of a charge or the issuance of a search warrant. It commences proceedings. Reasonable grounds will rarely suffice, however, for a final decision. However, the consequences of being on the list of terrorists are profound and final, subject to the review I mentioned.

For example, under proposed section 83.08, entitled “Freezing of property”, it will be an indictable offence for any person to knowingly deal directly or indirectly in any property that is owned or controlled by or on behalf of anyone on the list of terrorists. It will be an indictable offence to enter into or facilitate any transaction in respect to that person's property. An individual or group on the list will be economically immobilized.

All the other consequences of the bill flow from whether or not a person is on that list. Again, I have some suggested amendments for that provision. I agree wholeheartedly with those who say a sunset provision for some or all of the bill should be enacted. Others have spoken to that, and I can respond if people wish to ask.

• 1700

Let me conclude by simply saying that to pursue the legitimate fight against the evils of terrorism, the government has, in my view, presented a bill that, despite the best intentions of the drafters, may result in draconian measures being taken against political dissent in Canada. It will, in any event, subject Canadians to dire consequences, without even basic procedural standards.

I urge the committee to recommend amendments to the bill. I, as some others, have proposed others, not for the purpose of altering the legitimate objectives of the bill, but for the purpose of protecting our basic values.

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

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: Thank you very much, Mr. Aldridge, for attending our meeting.

To help me out here a little, what's your background? Are you a lawyer, or what's your area of specialty?

Mr. James Aldridge: I'm a lawyer by way of my background. I thought of mentioning this to Mr. DeVillers, who is, I understand, from Orillia. I'm from Collingwood, actually, so I'm from Simcoe County originally.

I've lived in British Columbia for the last 25 years. I have a master's of law from the University of British Columbia. I'm in private practice. I practise in the area of constitutional and administrative law. I've appeared in front of committees by virtue of my representation of the Nisga'a Nation and their treaty. I've appeared on general matters of constitutional law as well.

I hope that helps.

Mr. Brian Fitzpatrick: Yes, it does.

Certain members of the committee have been troubled by the other things in the definition and the political, religious, and ideological motivation of a terrorist. We've been trying to get some explanation that's satisfactory to us on why that's necessary in the definition. The closest answer I have is from the Attorney General, who has explained to us that this would protect people who might be in illegal strikes or in blockading roads and so on.

A grand chief was here a while ago. Clearly the grand chief would have a political agenda, I would think.

The Attorney General's argument seemed to be that this would remove any doubt from those sorts of things. I'm not exactly sure it does, and then there are problems of trying to prove what really motivates people.

If there are terrorists around and if you have them in hand and some act of mass destruction has taken place and they're not talking, they're not telling you why they did this thing, to me it's a lot of conjecture, conceivably. We could use our suspicions or whatever to try to arrive at why they did this, but if they're not talking or they don't give you any indication, I have no magical silver ball to get inside their mind and determine that. In court you have to prove beyond a reasonable doubt...unless they've changed that with this bill, and I don't think they have.

I look at that definition, and if we get a real living, breathing terrorist in this country, we're probably going to have to charge him under other provisions of the Criminal Code, like murder or so on, because this definition looks to me like an unruly horse. It's very vague and unclear. I certainly wouldn't want to be the prosecutor who would have the job of trying to prove all these points beyond a reasonable doubt.

There are two points on that: the vagueness of the whole proposed section, and the lack of clarity and whether or not this political, religious, ideological thing can be interpreted as some way of allowing people who want to get involved with illegal strikes or protests and so on not to have to worry about being classified as terrorists. They may be doing something illegal, but to my way of thinking, it's not mass destruction, assassination, or kidnapping in a major way to try to intimidate the public, which is my idea of what terrorism is all about.

I'd be interested in your comments on that.

• 1705

Mr. James Aldridge: Let me attempt to respond to each of those points.

First of all, on the general drafting of the definition, I agree that the drafting is very difficult.... Shall I put it like that? In my paper I said it's highly legalistic and somewhat convoluted. If I may say, that speaks to the act. It suggests, in all fairness to the professionals who I know worked very hard on this, that it was drafted in a short period of time. And we know that it was.

As far as the second point is concerned, I don't see that item 83.01(1)(b)(i)(A) referring to political, ideological, or religious purposes has anything to do with removing the scope of the act from illegal strikes, blockades, and protests. By definition, all of those sorts of things would be done for, at least in part, a political purpose, objective, or cause. I'm not sure what “ideological purpose, objective or cause” means. I suppose I understand what religious means in this context.

Let me say this. On the inclusion of that clause, I noted incidentally that the professional association to which I belong, the Canadian Bar Association, recommended that it be deleted. I reflected on this when I saw it this morning in the newspaper and when I read their brief. My reaction is that it's a crucial part of the definition in terms of the value that the entire bill is expressing. The bill seems to be saying, for all of you parliamentarians to consider, that an action is worse if it is done for these purposes than if it is done for plain old avarice, revenge, anger, money, or whatever. In other words, exactly the same action, if it's done for just plain old-fashioned crime reasons, does not trigger all of these mechanisms and all of these severe punishments.

That appears to be the fundamental value or one of the fundamental values being expressed by the entire legislation. Whether that's a good idea or not, I've nothing really further to say. That's the value all of you will be considering as you debate this bill. The same action is worse if it is done for these reasons than if it's just plain old-fashioned crime.

The Chair: Thank you.

Mr. Keddy, for seven minutes.

Mr. Gerald Keddy: Thank you, Mr. Chairman.

Mr. Aldridge—always a pleasure. It's nice to see you at a committee again.

I think there have been a number of issues raised and a number of concerns. As a lay person speaking on behalf of lay people and Canadians everywhere, legally.... You brought it up that the information commissioner and our privacy commissioner in Parliament have concerns with this, that the legal profession has concerns with this piece of legislation. Absolutely, it was drafted in a hurry to meet a very specific set of demands that have been thrust upon us. I don't think any parliamentarian is particularly comfortable with the legislation. There are a number of amendments that will need to be made.

But I'd like to move away from the definition part of it for a while if I could. And I will say that the PC/DR Coalition has serious problems with the definition. We're not in agreement with it. We think it's too broadly based and will tend to cast much too wide a net.

The other issue—and it may not have been the issue you concentrated on—that I'm very interested to have your opinion on is this. What does it do to the whole process of openness and transparency in government vis-à-vis the right of Canadians, and of parliamentarians by the way, to access to information and the right that this will give the government—ministers in particular—to keep that information from parliamentarians? I think that's a very serious issue. We're looking at a piece of legislation as yet without a sunset clause. It's been discussed that there may be a sunset clause somewhere in a three-year range.

You've got social activists and civil libertarians and the Canadian Bar Association; you have columnists who are coming out and saying “Listen, we've already got a Criminal Code. There are a number of things covered here that are already covered in the Criminal Code that really aren't terrorist activity.” Columnists such as Barbara Amiel, who certainly wouldn't be what we'd call left wing, have come out and asked, why are we doing this? Why are we putting these types of draconian measures in place?

• 1710

My interest in being at committee today is the whole issue of accountability, the whole issue of transparency. I don't pretend to be the expert on the bill. And in these early days of the legislation, I don't think there are many experts out there. But how do you read the clauses that define transparency, define openness, and define the ability of parliamentarians to access information?

Mr. James Aldridge: Thank you for those questions, Mr. Keddy.

In preparation for coming here today, I was fortunate enough to be able to read many of the transcripts of the committee's considerations to date. Specifically, I read the testimony given by Mr. Radwanski and Mr. Reid on the very questions that Mr. Keddy has just asked. They are, obviously, far more expert in those areas than I am, and my opinions on those subjects are largely driven by my reading of what those gentlemen said.

The area that I focused on and that is relevant to your question, Mr. Keddy, is the role of the Solicitor General and Governor in Council in determining whether or not there are reasonable grounds to put somebody on the terrorist list. The basis for that decision and the accountability for that decision is very limited. As I've indicated, the person is first of all put on the list. There's no provision for notice or a hearing or a right to be heard before they're on the list. The Solicitor General will base his or her opinion on the information that is received from their officials, no doubt, as well as that obtained from foreign sources. They will then make the judgment, not whether the person committed a terrorist activity, but whether there are reasonable grounds to think that they did. A judge will then decide whether those grounds are reasonable.

That will be the extent of the accountability, other than, at the end of two years, the Solicitor General has to review the list and decide whether or not there are still reasons to keep the person on the list. That puts the Governor in Council and the Solicitor General into the role of performing a quasi-judicial function—I'm not sure that they are doing this technically, and the courts may have to proclaim—in that they're making a decision that affects the rights of individuals. That's normally, as we all know, the hallmark of a judicial or quasi-judicial decision, if the rights of individuals are being affected.

The Attorney General said, when she was here, that there's no finding of guilt because a person isn't prosecuted for being on the list of terrorists. If they were going to be prosecuted for having committed a terrorist offence, of course then there'd be the normal procedural safeguards—proof beyond a reasonable doubt would be required.

But I've tried to indicate that there are economic consequences—quite aside from whether there are any charges—in the provisions of the act that are truly amazing in the sense that the person is economically immobilized. If it is a terrorist group—and that's part of the problem with the bill and why the definition of terrorist activity is so important.... Please don't misunderstand me. If it is a terrorist group of the sort that's responsible for supporting the events of September 11 and other similar events, then heavens yes, let's get to the root of terrorism and freeze their assets. I don't have any problem with that. But show that they are responsible. Before those consequences are visited on Canadians, in my view it should be shown at least beyond a reasonable doubt that they committed the activity.

The Chair: Thank you very much.

Thank you, Mr. Keddy.

Now we will turn to the honourable member from Simcoe County. I have to observe that as a maritimer, I love the idea that these connections need to be made. I thought we were the only ones compelled to do that.

Mr. Paul DeVillers: Not only do I have the privilege of representing Orillia in Simcoe County, but my hometown is Penetanguishene, right across the Nottawasaga Bay from Collingwood, so there's even a closer connection.

I was called out for a moment, and if no one asked you the question that you invited, I'd ask it, but I've forgotten what it was.

Mr. James Aldridge: The proposal that I have to present to the committee on the definition of terrorist activity really has two parts to it. The first is to take the Attorney General at her word—as I'm sure we must, and we all do—when she says to this committee that the intention is that any of the acts be motivated by terror, that terror runs through the entire definition. And it's on this basis that both she and the Commissioner of the RCMP—I read his testimony as well—dismissed any notion that unlawful strikes, dissent, and so on could fall within the ambit of the definition, because there's no element of terror.

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What I pointed out in item 83.01(1)(b)(i)(B) of the definition was that the word “or” separates out the notion of intimidation from the compelling of someone to do something. So in order to make the item read in the way that would have the effect the Attorney General intends it to have, I suggest to you for your consideration—if you're looking at item 83.01(1)(b)(i)(B)—to simply insert two short phrases.

In the first line, after “in whole or in part with the intention of”, insert the words “causing extreme fear in and thereby intimidating” and carry on. I looked up “terror” in the Oxford dictionary. Oxford says “terror” is “extreme fear”. So in case there's any question about whether “intimidation” is sufficient, put in “extreme fear”. So “with the intention of causing extreme fear in and thereby intimidating the public”—that gets the notion of terror in.

Then, in order to make sure it carries through past the word “or” and includes the notion of compelling, insert the following words immediately after the word “or”: “by means of such extreme fear and intimidation, compelling”, etc.

It wasn't enough. The first crack I took at it—I don't mind saying—was just to change “or” to “and”. That would have been the simplest thing to do. But the problem with that was that it then would have required compulsion in every case. If I can put it this way, without meaning to trivialize it, just free-floating terror wouldn't be caught. There would have to be an element of intending to compel somebody. It wouldn't catch an act that was—how do these people's minds work?—terror for its own sake. So in order to not change the meaning of the clause—to allow terror for its own sake to be caught—it's necessary to refer back again to the fear and intimidation.

So that's the first amendment that I would recommend to you: insert the words “causing extreme fear in and thereby” before the word “intimidating”. And add the words “by means of such extreme fear and intimidation” before the word “compelling”.

As far as item 83.01(1)(b)(i)(B) is concerned, the best and the easiest solution is to delete it.

It's really quite difficult for me to understand, in a bill obviously intended to target activities that cause death, serious bodily harm, the endangerment of lives or serious risk to the public health and safety—items 83.01(1)(b)(ii)(A), (B), and (C)—why are we even bothering with items (D) and (E)? Why are we having to have this debate? Well, (D) I can sort of understand—“serious damage to property”—but only if it's likely to cause (A), (B), or (C). That's what (D) says. So I guess an argument would be this: Do you even need (D)? If it's likely to cause (A), (B), and (C), you have it anyway.

By the time you get all the way down to 83.01(1)(b)(ii)(E)—and we're talking about “interference” with essential services and facilities that don't cause (A), (B), and (C)—it leads one to wonder why it's there. So the easiest thing to do is take it out. That's the best solution.

However, sometimes people get attached to having certain things in, for reasons that are difficult to understand. If there is an attachment to keeping the notion of “serious disruption of an essential service”—as I say, this is down the list of desirable options—then what I would suggest is to take (E) as it is but stop it after the word “private”. So it would say, “to cause serious interference with or serious disruption of an essential service, facility or system, whether public or private”. Delete the rest of the item altogether and add the words taken from item (D), “if causing such interference or disruption is likely to result in the conduct or harm referred to in any of clauses (A) to (C)”. It's exactly the same drafting technique as was used in item (D).

That way, while somebody might poison a water supply or somebody might shut down whatever that causes profound human harm, you still have the notion, because it's tied back to the purpose of the bill, which is what the Attorney General said she was attempting to do.

So choice one: take out (E) altogether. Choice two: tie it to (A), (B), and (C). If you do that, you don't have to start making exceptions for protests, strikes, and activities—because then you're driven to make exceptions to the exceptions, except for when it might result in (A), (B), and (C).

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Although nobody has asked me, allow me to just plunge ahead. You have that same problem if you take the world “lawful” out. I respect the fact that the Senate has made that recommendation—the Attorney General has mused publicly about it.

Then you've got this really peculiar drafting where damage to property has to be likely to result in the conduct or harm referred to in proposed items (A) to (C), but “disruption of an essential service” in item (E) has the wording “other than as a result” of activity, strikes, and protest: “other than”—so you've got exceptions to exceptions.

We all know judges will look for a meaning if there's a difference in the structure. Why have a difference in item (E) from what is in (D)? Taking the word “lawful” out would probably be the third-best solution: the best is to get rid of it; the second is to draft it as I've suggested; the third would be to take the word “lawful” out.

The Chair: Thank you.

I should point out that's probably your best question ever, Mr. DeVillers.

Some hon. members: Oh, oh!

Mr. Paul DeVillers: It didn't leave me any time for my second-best, so I want back on those.

The Chair: You have a minute.

Mr. Paul DeVillers: Oh, I have a minute left? Okay, my second-best question.... No, I remember that one.

Your concern about the listing I guess was the threshold or the standard of reasonable grounds. That process is subject to judicial review, again, on the same.... The judge has to—

Mr. James Aldridge: On reasonableness.

Mr. Paul DeVillers: On reasonableness. So does the fact it has judicial review still not alleviate your concerns that the standard isn't high enough respecting reasonable grounds?

Mr. James Aldridge: No, it absolutely does not, because of the consequences that follow. I suppose my approach to trying to determine what should be the correct burden of proof in any legal situation is to look at the consequences of the decision. The more profound the consequences, as a rule, the higher should be the burden of proof.

It occurred to me I could argue—and I think a good argument could be made—that given the consequences of being on the terrorist list, which are so profound in terms of the economic immobilisation and possible forfeiture of property and the crimes everybody else is committing if they deal with you and you're on the list, maybe the right test is “reasonable doubt”—the same as with the criminal standard. But in these circumstances and with the urgency, particularly if there's a sunset clause, maybe that is too high.

What I actually suggest in this context is that the test a judge would apply on review is whether the judge is satisfied—the burden being on the crown—on the balance of probabilities that the person described in the paragraph.... The amendment would be actually in—oh, these numbers read like the Income Tax Act—proposed subsection 83.05(6), paragraph (d). The judge would have to determine whether the person is a person described in proposed subsection 83.05(1) on the balance of probabilities; then it would be necessary to backfill into the other sections in order to make consequential changes.

The Chair: Thank you very much.

To Mr. Cadman for three minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I guess since it's going around, I have to make the B.C. connection here too, seeing I come from British Columbia and have a UBC connection. Although I didn't attend there, I worked at TRIUMF for four and a half years, at the nuclear facility. There's my connection.

Mr. James Aldridge: And you live only a handful of blocks from me, sir.

Mr. Chuck Cadman: Okay, that's good to know too.

Going back to the sunset clause, we had the policing folks in here this morning, and they expressed some concern about a sunset clause. I think most people agree there should be some form of review—something available, somewhere along the line, on this.

What they expressed to me privately was that they had a concern these investigations tend to be very long, sometimes encompassing years when they're investigating these activities and the people we're attempting to target here. They were concerned that if there were a sunset clause and the whole bill was shut down when they're halfway through an investigation, all of a sudden they would lose all their investigative powers.

Could you suggest some way to us, whether it's a sunset or a sunrise—we've heard all kinds of names for it—some way we could alleviate the fears in the policing community that as a result of opening a thing up or shutting it down, all of a sudden when they're in the middle of an investigation they've lost all their ability to do anything?

Mr. James Aldridge: I think it's a fair question and a concern both the Prime Minister and the Attorney General have raised in the press and in the House.

I have a little trouble, frankly, with understanding the logic. Number one—perhaps this is not even really number one, perhaps it's parenthetical—it makes the result of the review a foregone conclusion then. If we can't stop it now, in anticipation, by putting in a sunset clause, it suggests whatever the review is isn't going to change it either, because the police will be in the middle of an investigation.

However, whether there be recommendations coming from a committee such as this one—perhaps this committee, I don't know—under the proposed review procedure, or whether it be a year prior to the sunset date, whatever that is, one of the considerations parliamentarians will have to have is what about these ongoing investigations?

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There'd be any number of things you could consider. The obvious one that comes to mind is that it's just drafting: come up with some kind of grandparenting clause for actions that are under way. There are myriad details in the bill and the act. Find the spot and say “Things that have proceeded beyond this point will continue nonetheless.” That could be done. It's just drafting.

Or, as part of the debate at the time, depending what's happened in the next two years—I'm imagining a three-year sunset, with a debate starting a year in advance—see what's happening. See how many of these provisions are really needed for the ongoing investigations. Consult with the police community and security community. Say “Do you need all of these things still, for what's still on board?”

But let's face it, if the bill is going to last until there's no terrorism in the world, then it is going to last forever. The question can't be “When will this bill in Canada stamp out terrorism on the globe?”, because then the answer is “This is now a permanent part of our legal world”. The question must rather be “At what point will the existing emergent situation with respect to terrorism be sufficiently under control that extraordinary measures are no longer needed?”

I share the view of so many who have said, whether they be the Senate or the Bar Association, “Let's pick a date”—three, five years hence. Let's say “I think three years should be enough”. If the world is still—Heaven help us—in the state it is today, you will consider that when you decide whether to extend it. If the world has improved, as we all hope it will, it may well be possible to let many of these things go away and go back to the normal world. I certainly hope this does not become the normal legal world for us and our children to inhabit.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney: One of your comments there suggested “if terrorism is going to continue”. We've heard from witnesses almost unanimously feeling that it is a new world out there, that terrorism in some shape or form will continue. Terrorists seem to be escalating in their acts of violence. Certainly September 11 was the most horrendous example yet. Following from that, should this law not continue indefinitely, then?

Mr. James Aldridge: Well, perhaps it should. That is the question that, if there's a sunset clause, you will all consider, as I say, in two years, if you assume a three-year sunset. You will be considering it in lots of time two years hence. That may be the conclusion you reach.

Has the Criminal Code eliminated crime in Canada? Of course not. Nobody ever thought it would. You don't pass a law thinking it's going to eliminate the evil. You pass a law hoping it will reduce it, manage it, stop it, express our abhorrence for it when it happens, and punish the wrongdoers.

These are extraordinary measures that depart from our fundamental legal values. Everyone concedes that—that they're extraordinary measures in extraordinary times. So really the question is where should the burden lie? Should the burden lie with assuming the law will continue, or should it be with assuming it won't, bearing in mind you of course can extend it if the need still presents itself?

I add my voice to those who say the prudent course in our democracy is to assume the law will no longer be needed, and if it is, you'll re-enact it or you'll fix it: you'll have learned; you'll hear evidence; you'll fine-tune it; you'll get rid of the chaff and keep what you need.

Mr. John Maloney: Thanks, Mr. Chair.

The Chair: Thank you, Mr. Maloney.

Mr. Sorenson.

Mr. Kevin Sorenson: Just a very quick question.

At first I didn't like the sunset clause. Then I thought it might be a good idea. You know, after listening to the police today, I'm back to wondering about the strengths of putting a sunset clause in there.

Some people believe the whole bill could be sunsetted. Other people believe select parts of the bill should come under review or under a sunset clause, where perhaps preventative arrests or ministerial certificates or such things are employed. If there were to be such a clause, which provisions do you believe are the ones that should be sunsetted?

Mr. James Aldridge: It's a really good question. Because of the way in which the bill is woven together, if you start taking some out, the superstructure starts to wobble, if I can use that metaphor. There are so many parts of the bill that inform other parts of the bill, if you start yanking them out, there are some problems.

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This is what I would recommend. I believe—and I add my voice to those who say it—that the whole bill could be sunsetted. That is possible because Parliament has a number of tools still at its disposal. When you get two years down the road, you could say wait a minute, we have to keep something. You could then redraft the portions you need, with the structure intact. Do you see what I mean? You could do that, as opposed to trying to pull things out now and red-circle them.

There are two possible exceptions to that. Number one.... I don't have the expertise to judge the debate on the argument that it would be inappropriate to take out the provisions that relate to our international obligations. I have read comments from some people, including, I believe, the Attorney General, who have said no, that would be entirely inappropriate; we can't sunset, we can't say to the other countries with whom we have ventured into agreements that we're only entering into this agreement for two years, and then we'll see. I hear that argument. I've also read the argument by people who are experts in the field—and I'm not one—who say it's up to Parliament to decide how to fulfil our obligations from time to time. We have the obligation, and the obligation will continue. We're implementing it this way now, but we may implement it a different way later, so don't worry, we're going to implement it. Those are both very persuasive to me.

That is the first area where I am unsure as to whether or not there should be a sunset provision, namely the international obligations. The second would be the provisions relating to hate crimes. The provisions making it an offence to engage in hate crimes are, it seems to me, appropriate parts of our Criminal Code that aren't particularly tied to the current crisis. In fact—and I say this with respect—they are out of place in this bill. They're good ideas and I'm supportive of them, but it's hard to understand why they are in an anti-terrorist bill unless there was some sense of softening the overall blow. Maybe it's for political reasons, to soften the overall blow of the act by putting in some salutary features as well. I don't mean that to be cynical. It's something people might consider, but it's probably not appropriate to sunset those either.

Other than that, the legislative council shouldn't do it in six weeks, eating fast food late into the night, as the Globe and Mail reported, to put together a bill to respond to the emergency. Rather, give it a year. Give some real thought as to how to stitch the structure together to be able to keep any of it that is needed at that time.

The Chair: Thank you.

I want to thank you, Mr. Aldridge, for your appearance.

I am perfectly prepared to offer the question Mr. DeVillers opened his round with if you have anything further you wish to offer as an answer.

Mr. James Aldridge: I appreciate that, Mr. Chairman. I do appreciate it, and let me end with this. It's in the conclusion of my paper, but I would like to say it.

There is a kind of pattern that has emerged in the last year or so in the way we as a country are reacting to a number of evils that confront us. In order to combat evil, money laundering for example, Parliament has enacted a law that has been challenged by law societies for overreaching itself and affecting solicitor-client privilege. I understand that this matter will be proceeding into the courts on the alleged overreach of the money-laundering bill: a recognized evil and an overreach.

Last spring the House passed Bill C-24 on organized crime, which is now before the Senate. It recognized the evil of organized crime and the necessity to pass laws about organized crime, but that included provisions enabling designated police officers to commit acts and/or omissions that would otherwise constitute crimes. In my view and the view of many other people, that is overreaching the power needed to combat the evil. In order to pursue the legitimate fight against evils of terrorism, the government has now presented a bill that, despite the best intentions of the drafters, may result in overreaching, with draconian measures being taken against legitimate political dissent and potentially subjecting Canadians to dire consequences without basic procedural standards.

I suppose the general point I would make to parliamentarians is try to focus—if I may say this with the greatest of respect—on the precise evil you are trying to address and restrict the laws to those evils. I think that will result in a healthier evolution of our legal system.

The Chair: I think Mr. DeVillers would like the last word, and I would like to give it to him.

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Mr. Paul DeVillers: As a result of your insightful question, I have a supplementary.

We were told yesterday by one witness that the inclusion of a sunset clause would help in charter-proofing the bill. If the act were to be examined later and challenged, the court, in determining the act's compliance with the charter, would likely look favourably on the fact that it did have a sunset clause.

Do you agree with that assessment? What's your take on that?

Mr. James Aldridge: Well, it's interesting. Yes, I'm sure it would. That's the quick answer. I'm sure that in weighing it out the court would apply a charter section 1 test. Assuming that the court has already found that there's a prima facie infringement of a right, it would then turn to the question of whether or not it's demonstrably justified in a free and democratic society. Under section 1, one of the things the court looks at is proportionality, and the sunset clause would go to that. So if you want a strictly legal answer off the top of my head, it's that yes, I think that's right.

The reason I hesitated is this. To the poor person who's had their charter right violated, the fact that somebody doing the same thing three years hence might not be prosecuted would come as small comfort. If the court is turning to the question of the justifiability of the infringement of this individual's rights, for example the person on the terrorist list who can't make property transactions, I'm not sure how much that would weigh in those circumstances.

I think that the question is not so much whether it's charter-proof in the sense of can we make legal arguments to get judges to uphold it, notwithstanding the charter? Rather, it's the larger question of is it consistent with the legal values that gave us the charter in the first place? I look at the charter less as a mechanical thing and more as an expression of the values we have as a nation. On that count, with or without a sunset clause, I fear the provisions I and others have identified are sadly lacking.

The Chair: I don't want to keep anyone, you or others, here too long, but I'm curious about one thing. It's not something you would particularly claim expertise on, but one thing I've struggled with in listening to the witnesses to date.... I think it was the B.C. Bar Association that argued that the only justification for the limitation of rights is the protection of those rights against some risk. Therefore, the order of magnitude of the limitation would be commensurate with our assessment—or that of the person who passes the law—of both the likelihood of a risk and the gravity of the consequences. In other words, there should be some proportionality between the limitation we would place on rights and the protection of those rights against what might threaten them.

How do we, as parliamentarians, make that assessment? Generally speaking, of course we're going to call on the intelligence service, the RCMP, the police, and others who come and give testimony here. They come to speak to us about their need for these tools, and they offer some judgment on assessing the threat. Those who argue that there's an imposition in terms of liberties do not necessarily speak to the threat, or if they do, they quickly say that they're not experts. I'm curious about that. How do we assess it? If that's the way we would measure this—and I presume you remember the B.C. Bar Association; I only thought of the question after they left—how do we as parliamentarians assess the threat when faced with a very complicated and very serious question?

Mr. James Aldridge: I hadn't thought of this with that vocabulary before. I'll try to be insightful in response.

You speak of a threat of what? We're talking about the threat of the things that are referred to in items 83.01(1)(b)(ii)(A), (B), and (C)—death, widespread public fear, and mass murder—and that's how the debate has been presented in Parliament. We all have September 11 riveted in our minds, and will for as long as we live. So is it the threat of that? Gee, to avoid that happening again, maybe as parliamentarians, as our representatives, you'll say we're willing to actually push back some liberties in order to protect against that horrible risk.

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Look at item 83.01(1)(b)(ii)(E): interference and disruption of services and facilities. Gee, maybe that threat is a whole lot less. It could be severe and it might be unlawful, but it's a whole lot less severe in its consequences than what's described in items (A), (B), and (C), so you shouldn't push back liberties so much in order to respond to that threat.

It seems to me, if I may, that this is the weighing exercise you people will be going through. To the extent to which this bill restricts itself to what I will call genuine terrorism, you would have more latitude in passing extraordinary mechanisms that are time-limited. To the extent to which this bill spreads beyond what in my view is genuine terrorism, the more cautious you should be about pushing back individual rights and freedoms in pursuit of those goals.

The Chair: I thank you very much. All members of the committee appreciate the seriousness with which this is being debated and the constructive way in which you've responded to the invitation to be here. Thank you.

The meeting is adjourned.