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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, November 6, 2001
The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 44th meeting of the Standing Committee on Justice and Human Rights. Today we are considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime Act and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.
We have a group of witnesses from Amnesty International Canada, and we have as individuals Professor Errol Mendes, Professor Jamie Cameron, and Professor Bryan Schwartz.
We have some limitations in terms of the airlines' schedules, which members of Parliament are all very familiar with. As a result, we're going to go quickly to your presentations—first, Jamie Cameron.
Mr. Jamie Cameron (Individual Presentation): Thank you very much.
My name is Jamie Cameron, and I understand the committee is under time constraints. I thank them for the opportunity to make this brief presentation.
I have submitted a written presentation, which I do not believe has been translated yet. But in the ten minutes I have this afternoon, I will address three main parts of my submission. The first is the definition of “terrorist activity” under the legislation; the second is the consequences for terrorist groups under the legislation; and the third is the sunset clause.
First, on the definition of “terrorist activity”, here my comments are limited to proposed paragraph 83.01(1)(b), the part of the terrorist activity definition that is not concerned with implementation of international conventions.
My first point is more in the nature of an observation. The definition of “terrorist activity” is the building block for the listing, fundraising, and asset-freezing provisions, so its flaws permeate, infuse, and compromise those parts of the scheme as well.
My second point is that the key part of the definition is the criminalization of political, religious, and ideological causes, purposes, and objectives when, of course, they appear in conjunction with certain acts. This language is a constitutional red flag because it strikes at activities that are constitutionally protected and indeed are at the core of paragraph 2(b) of the Charter of Rights and Freedoms, which protects freedom of expression. As such, these constitutionally protected activities are only compromised by the commission of a violent act. My view is that there is plenty of artillery in this act and under the Criminal Code to punish criminal activity, so this part of the definition is an unnecessary and gratuitous interference with constitutional rights.
What, then, is its purpose? This brings me to a further point about the definition of “terrorist activity”. This part of the definition is a trigger. It tells the authorities who they can target, and the triggering language is individuals and groups who address or support certain political, religious, and ideological causes or beliefs. But these terms are not defined by the legislation, and as a result, law enforcement has extraordinary authority to decide who is a terrorist under this legislation and who is not. I see this statutory language as a race-neutral form of profiling, but a form of profiling just the same. I've been referring to it as “ideological profiling”. As a result, I think this language creates a high risk of selective enforcement against those who hold visible and controversial views.
The second part of my submission addresses consequences for terrorists groups through the provisions that deal with listing, fundraising, and the freezing of assets. These provisions permit serious interference with freedom of association, which is also protected by the Charter of Rights and Freedoms under paragraph 2(d). The process under Bill C-36 for the listing of organizations, prohibitions on fundraising, and freezing of assets is one-sided and unfair. There's little transparency and virtually no accountability. It is derivative of the definition of “terrorist activity”, and its focus is on outlawed causes and purposes—ideological profiling.
I have two problems with that. One, there is a high risk that mistakes will be made and legitimate organizations will be listed. Once they are listed, these organizations are stigmatized as terrorist groups, and once outlawed, these organizations will necessarily become defunct. I regard that as a serious problem with this legislation.
Two, these provisions also have the potential to silence and chill individuals and organizations from exercising their constitutional rights. Indeed, CSIS has already indicated to this committee that Ottawa's proposed anti-terrorism powers have already had a chilling effect on supporters of terrorist groups in Canada and forced them to wind down activities.
Immigrant and refugee communities are dependent on their organizations for a variety of services, including language and job training, and relocation services, and they are particularly vulnerable under these measures. I believe Bill C-36 threatens their political freedom and their political equality. Many of the individuals who belong to these organizations are visible minorities. They are afraid. They are afraid to speak to one another and to associate with members of their community. My fear is that once Bill C-36 is enacted, those individuals who are visible minorities will also become politically invisible in this country, and I regard that as a very serious problem.
Part three of my submission concerns the sunset clause. Like many others, I am not particularly in favour of attaching a sunset clause to this legislation. I guess the reason is that I take the view that you can't have it both ways. If the law is constitutional, a sunset clause is unnecessary. Adding a sunset clause to Bill C-36 is an admission that at least some parts of the legislation are unconstitutional. If that is true, I think one of two things should follow.
First of all, either Bill C-36 should be tested on its merits in the courts in the usual way, or Parliament should be required to rely on the override as a matter of democratic accountability. A sunset clause obscures the reality that placing an expiry date on Bill C-36 is a backhanded way of using the override.
Those are my remarks. I think I was less than ten minutes. Thank you very much.
The Chair: Thank you very much. That's very unusual. I guess that's what happens when you know there's an airplane waiting for you.
Mr. Errol Mendes (Individual Presentation): I think I'll use Jamie's extra minutes that—
The Chair: It doesn't work that way.
Mr. Errol Mendes: Thank you, Mr. Chairman. I will express my ideas in English but there is a French translation if you wish.
As has been said elsewhere, on September 11, 2001, the terrorist horror in the United States was an attack on freedom, but it was also an attack through freedom. The individuals who carried out the evil acts did what they did because they attacked from within a free society. I explain in my presentation how they used the aspects of a free society to accomplish their objectives.
If free societies have the right to protect themselves against such acts of terror that can destroy thousands of innocent lives, what are the limits of such a right? As has been said, to live in a free and democratic society is not an agreement to enter into a suicide pact, but neither can a society remain free and democratic if it undermines substantively the constitutional and human rights values that distinguish it from dictatorships of various sorts.
I suggest that the overarching guiding principle that should guide the Parliament of Canada as it examines the provisions of Bill C-36 is what I call “the law and justice of proportionality”. I say the “law” because the provisions of the bill may eventually have to pass the test in section 1 of the charter due to litigation that is almost inevitable. This section has been interpreted by the Supreme Court of Canada in many cases, but beginning with the Oakes test, which laid down the substantive interpretations of section 1.
As we all know, section 1 under the Oakes test first states that fundamental rights can only be limited by law. Those limits must be prescribed by law rather than arbitrary fiat of government or security forces. Secondly, there must be a pressing and substantial legislative objective to justify the overriding of rights. Thirdly, it has to pass the proportionality test, which is comprised of three parts: first, the means chosen to limit rights must be rationally connected to the pressing and substantial objective; secondly, the means chosen must be the least intrusive means of limiting those rights; and thirdly, there must be proportionality between the effects and the benefits of the limitation on rights.
The jurisprudence of the court has in some instances watered down some of these tests, but at least on one occasion the court has stated that in the criminal law context, when the state is the “singular adversary” of the accused, these tests should be applied rigorously.
The Government of Canada has wisely chosen not to use the override provision of section 33 to ensure the bill will pass the test in the courts. I very much approve of this, as someone who hopes and advocates that section 33 will eventually fall into disuse. But we must keep in mind that section 1 could become the very challenge on which the bill will have to face the test of the charter.
I only have a few minutes to deal with the most controversial issues, so I've chosen a few of the most critical provisions to focus on. But overall, I must state that Bill C-36 represents a fair attempt to balance security and human rights and to balance one set of rights against another. However, it is not perfect, and what we are all here to do is make sure we can do better.
My conclusion as to a fair balancing is reinforced if you look at the balancing as including not just security versus human rights, but one set of human rights against another set. Surely what is at stake here is the right to life—not just of Canadians against terrorist acts, but also the right to be free from the threat of these terrorists acts. But these rights must be balanced against the fundamental rights of equality, due process, and freedom of expression.
We should also keep in mind that if Canada is being used as a staging post for attacks on Americans across the border, we must also have their safety and security in mind, especially if we value the free flow of goods, people, and ideas between our two countries on which our economy and our society are very much based.
Turning to the most controversial aspects of Bill C-36, the definition of “terrorist activity”, there is little controversy in terms of the definition laid down by the 12 UN anti-terrorist conventions, but as my colleague has pointed out, there is more controversy about the alternative definition of “terrorist activity”. I won't go into the details because Professor Cameron has spelled out what those sections state.
It has been argued that this definition could include violent protest by anti-globalization protesters, strikers, and others who may engage in civil disobedience or interfere with essential service facilities or systems. You've heard testimony from Commissioner Zaccardelli that there is no desire to include such actions. If that is the case, then I think a clearer way to exclude such civil disobedience actions from Bill C-36 is perhaps called for, and I would be very much in favour of such a clarification.
I'm in agreement with other witnesses that perhaps the reference to “lawful” should be removed from the qualification of advocacy, protest, dissent, or stoppage of work. This is particularly so as “lawful” is problematic in certain contexts, such as those acts that are outside Canada—and I gather my friend Alex Neve was going to discuss that. What is excluded by customary and conventional international law is also very much open to debate and potential confusion. Therefore, there should be some attention paid to clarifying the proposed section.
I must note, however, the present definition would seem to catch only those acts of civil disobedience intended to result in death or serious harm, endangerment of life, or “serious risk to the health or safety of the public”. If that is the case, then perhaps it should be clearly spelled out that criminal intent is required not just for this definition, but for all the offences created under the act, as the Canadian Bar Association has also recommended. There should be a clear reference that criminal intent is needed and that one could not stumble into “facilitating” or into contributing to terrorist activity.
Turning to preventative arrests, the provisions in this section focus on the ability of peace officers to prevent terrorist activities before they occur. I won't go into the safeguards that are put into that section, such as the consent of the Attorney General and judiciary. Just applying the law and justice of proportionality in this case, before September 11 this provision would be suspect.
So what has changed since September 11? Well, justice is not static. Neither the Constitution nor the judiciary can exist in a vacuum. While there are pressing and substantial objectives to be achieved by this section, there are, however, issues that must go to whether or not proportionality has been achieved in this section in the way it has been crafted.
In my paper I suggest that in most instances attention has been paid to the first two provisions of the proportionality test; however, in terms of the penal provisions in proposed subsection 83.3(9), I think attention should be paid to whether handing out a 12-month sentence to those under preventative arrest could give rise to allegations of punishment being disproportionate.
Turning to proportionality, reviews, and sunset clauses, like my friend Professor Cameron, I am not as much concerned about sunset clauses as I am about reviews. I think it is absolutely essential to have annual reviews—not just a review at the end of three years—if we are going to satisfy that third part of the proportionality test, which focuses on the proportionality between the objectives of the provision and the effects—both salutary and detrimental—of those objectives. For that to emerge there has to be a clear idea of what is taking place on at least a yearly analysis, so as to provide Parliament with sufficient information that in future it may consider introducing a sunset clause. I suggest, for example, the introduction of an annual review followed, at the third, by an enhanced review to consider the insertion of a sunset clause.
My analysis, given the time limit that's left, is very similar in terms of the investigative hearings—that there should be an emphasis on the annual reviews to make sure there is proportionality between the objectives of that provision and its potential effects.
Turning to the list of terrorist groups, I also agree there is a grave danger this could be targeting certain parts of our society. For that reason again there is a great need to have annual reviews. A lot of damage can happen in the space of six months or one year. So again there should be careful attention paid to whether racial profiling is going on once this provision goes into effect. And that is why, again, I would recommend and urge you to adopt annual reviews for these provisions.
Turning, finally, to the amendments to the Privacy Act and the Access to Information Act, I think the testimony you received from the two commissioners, John Reid and George Radwanski, are very clear indications of the proportionality analysis. Their evidence goes to show that while they agreed with the objective and the pressing nature of it, they did not agree that the least intrusive measures had been used. And I would totally concur with them that the present provisions of the Access to Information Act and the Privacy Act would be sufficient. The evidence they provided would strongly suggest those provisions would probably not pass the proportionality test in section 1.
For these reasons, I suggest that while we should pay attention to past history and what history has taught us from events such as the October crisis and the treatment of the Japanese Canadians in the Second World War, we're into a new paradigm where we may be facing a protracted period of terrorism without a foreseeable end. In this case I think there is a need to constantly apply the law and justice of proportionality on a continuous basis, not only in the courts, but before this Parliament. That is why I strongly urge you to recommend the annual reviews.
The Chair: Thank you very much, Professor Mendes.
We're going now to Amnesty International, and I take it it's Monsieur Bossin.
Mr. Michael Bossin (President, English Section, Amnesty International (Canada)): Thank you.
My name is Michael Bossin. Thank you for inviting us. I'm the president of the English-speaking branch of Amnesty Canada. I'm here with my colleagues Alex Neve and Hilary Homes. I'm going to do a general introduction, and Alex and Hilary are going to address some more substantive issues in the bill.
I regret that our colleagues from Amnistie Internationale (Canada) are not available this afternoon. Nevertheless, if you ask us a question in French, we will answer you in French.
I'll start by saying that the issue of security is of great concern to Amnesty International. Security of the person, of course, is a fundamental right, as is the right to life. Clearly governments have both the right and the obligation to provide security to their citizens. The question is, of course, how is that best done?
In addressing security issues, Amnesty urges governments to follow what we would call a human rights based approach. And we've set out all of this in our brief, which is before you. It has not been translated yet, but it's there.
One key aspect of the human rights approach is to bring to justice perpetrators of human rights abuses. In that regard, we support this bill's focus on the launching of judicial proceedings against such persons who are in Canada, even where those crimes may have been committed outside our borders. In our view, putting people on trial is a far better approach than deporting them, which has been our traditional approach in Canada. As our brief explains, deportation has its own problems, often leading to other human rights violations being committed, or equally bad, no justice being done at all.
The other two speakers have addressed the sunset clause, so we will as well, very briefly.
In international law, when laws are passed in times of crisis, in times of emergency, often using that emergency or crisis to justify the derogation of certain rights, those laws are time-limited. A sunset clause, in our view, is not a justification to take away people's rights. It is simply a recognition that when you pass a law in times of crisis, in a hurry, that law needs to be reviewed. It's as simple as that.
Finally, a human rights approach to security means that in an effort to bring human rights violators to justice, governments must be mindful of not infringing on other fundamental rights—the right to peaceful expression, the right of association, freedom of association, and the right to a fair trial. As I've said, it is only in extremely rare and dire circumstances that governments are ever allowed to derogate from rights. The violation of one right in order to secure another is simply not acceptable, except in those emergency situations.
So part of our human rights approach means that in providing security measures, governments must act in accordance with international human rights standards. After all, it is the respect for all human rights that distinguishes us from the people who are targeted by this bill. That's what distinguishes us from them, after all.
I'm going to pass the microphone to Alex.
Mr. Alex Neve (Secretary General, English Section, Amnesty International (Canada)): Good afternoon, Mr. Chair, committee members.
My presentation will be in English, but I would like to begin with just a few words in French.
You must have heard a number of witnesses who have explained how complex and frustrating it is to formulate a definition of terrorism. This comes mainly from the fact that those acts are generally committed for a political, religious or ideological cause.
There is obviously a problem when a definition uses concepts that are that broad. How can we make a distinction between activism which is terrorism, activism which, in some way, is criminal but is not terrorist, legal activism which may be a bit agitated and aggressive and activism which is simply peaceful?
Certainly, everybody recognizes that the September 11 attacks were terrorist acts. Nevertheless, when we go farther and farther with our examples, it becomes hard and more controversial to make a judgment, and finally, it leads eventually to repressive decisions.
It is a concern by no means merely academic in nature. If protest activity is labelled “terrorist”, there are obvious legal consequences. The fair-trial restrictions included in this bill apply. A charitable organization may find its status in jeopardy. Harsher jail sentences follow. And those who assist, support, or advise may similarly be caught in the net.
Beyond the legal consequences, there is a dramatic stigma that comes with the label “terrorist”. Terrorism is a term charged with emotion, laden with rhetoric. It must be used and applied appropriately, responsibly, and judiciously. This bill must get it right.
That lawful protests might even possibly be characterized as terrorist would almost certainly be chilling, and quite dramatically undermine a number of fundamental human rights. It is vitally important, therefore, that this definition be crafted in such a way as to make that risk virtually non-existent.
But we are concerned that the proposed definition clearly poses this very risk. Most particularly, this arises in proposed item 83.01(1)(b)(ii)(E) of the definition, which would penalize and label terrorist activity as an act or omission that causes a serious interference with or serious disruption of an essential service, facility, or system. It's worth noting, of course, that none of those terms are defined in the bill.
This definition potentially captures the activism of countless groups and individuals around the world and in Canada, who work to defend and uphold basic human rights, promote social change, protect the environment, or assert indigenous rights. These are groups and individuals that Amnesty International regularly defends when they are arbitrarily arrested, detained, tortured, and even killed. Their activism frequently seeks to in some way interfere with or disrupt systems, services, or facilities that may be considered essential.
We have, of course, noted that the definition seeks to carve out and protect such activities by accepting lawful advocacy, protest, dissent, or stoppage of work, as long as it does not cause death, serious bodily harm or the other enumerated harms.
In our view, the exception is inadequate. Just what does lawful mean, when it comes to protest? To the extent that protest often challenges existing law, it is often not lawful, and the more repressive a state may be, the more likely that will inevitably be the case. Let us not forget that this is a definition that will be applied to activity around the world.
In Mexico, Rodolfo Montiel and Teodoro Cabrera's efforts to stand up to environmentally destructive logging practices have won them international acclaim, but have been deemed unlawful in Mexico, where they have been tortured and now imprisoned for over two years.
In India, peaceful opposition to the Maheshwar dam project has been criminalized by government authorities, who assert that completion of that dam is essential to the economy.
In Myanmar, or Burma, Paw U Tun, the chair of the All Burma Federation of Student Unions, has been in jail for 12 years because he spearheaded peaceful student opposition to one-party military rule.
Any of the efforts of these individuals could easily come within proposed item 83.01(1)(b)(ii)(E), and thus be considered terrorist.
This is also a definition that will be applied in Canada to Canadian activities. In the midst of the protest in Quebec City there was clearly much activity that was lawful, but other activity that was not. But was the unlawful side truly terrorist, or just plain criminal in nature? What if environmentalists or indigenous rights activists in Canada resort to what may be considered unlawful civil disobedience, in an effort to save a forest or assert a land claim?
Amnesty International has considered various possible amendments that might better protect dissent and protest. The qualifying adjective “lawful” could be replaced with “peaceful”, or could simply be deleted from the definition. Ultimately, we consider it to be too unwieldy and dangerous to define a category of permissible dissent.
We recommend the exception be taken out altogether, and the definition focus instead on more tightly defining the impermissible conduct. We assume the concern of this nature is with regard to serious violence.
We recommend, therefore, that proposed item 83.01(1)(b)(ii)(E) be redrafted as follows:
to cause serious interference with or serious
disruption of an essential service, facility or system,
whether public or private, when that is likely to
result in the conduct or harm referred to in any of
clauses (A) to (D).
My colleague had two minutes to add, with your permission.
The Chair: Go ahead. I was more interested in being sure she was heard.
Mr. Alex Neve: Thank you.
Ms. Hilary Homes (Youth and Student Program Coordinator, English Section, Amnesty International (Canada)): Thanks.
Regardless of whether or not the definition of a terrorist activity is narrowed and made more precise, we remain concerned about the process for naming and listing of any entity involved in terrorist activity. The decision to list an entity may have serious consequences on both the criminal law and charitable status level, not to mention the impact on the organization or individual's public reputation.
While a provision in Bill C-36 exists to challenge listing after the fact, even if the decision is reversed, irreparable damage may have been done to the entity in question. We recommend that there be a time-limited opportunity for the entity to respond to the evidence against it before the final decision is made.
In the area of fair and public trials, our concerns focus primarily on clauses within the bill that waive protection against self-incrimination in the course of what are termed investigative hearings, and the clauses that grant a Federal Court judge, the Attorney General of Canada, and the Minister of National Defence the authority to order the non-disclosure of information during any judicial proceeding.
Our concerns are grounded in the United Nations International Covenant on Civil and Political Rights, which Canada has ratified and is therefore bound by. It appears to contravene in these areas. Article 14 of the International Covenant on Civil and Political Rights recognizes a right against self-incrimination. It's notable that the Rome statute for an international criminal court also enshrines this right.
Bill C-36 notes that restrictions on a fair trial may be justified as necessary to prevent injury or to protect international relations or national defence or security. While the reference to national defence or security is consistent with the International Covenant on Civil and Political Rights as grounds for excluding the public from a trial, inclusion of the term “international relations” is not only rather vague, but exceeds the limits set out in international law. We therefore urge that this be deleted from clause 34 of Bill C-36.
The provisions in clause 43 of Bill C-36 regarding non-disclosure of certain information risks infringing on the right of an accused person to have the reasonable opportunity to mount a defence. The basic principles around this are also laid out in the same article 14 of the International Covenant on Civil and Political Rights, which I referred to before, and this includes the right to know the detail of the charges against oneself as well as the right to call and examine witnesses.
We recommend that the provisions allowing for certain information to be withheld, whether in part or in whole, be deleted from Bill C-36 and only introduced if and when they are in keeping with lawful derogation under article 4 of the International Covenant on Civil and Political Rights. This article sets the context for such derogation as “public emergency which threatens the life of the nation”, and we feel that this threshold has not yet been demonstrated.
Further details on this of course can be found in our brief, which should be available for you shortly.
That concludes our presentation. Thank you.
The Chair: Thank you very much.
Mr. Bryan Schwartz (Individual Presentation): Good afternoon. It's an honour to have been invited here.
I did submit to the committee a written brief, which because of delays in translation is not yet available. I'll only plead that I tried to make it as short and simple and as clear as possible, and if this honourable committee has a chance to look at it I'd appreciate it.
I'll make a few general observations and then I want to address three problems I see with the bill and suggest three specific solutions.
Generally, I think the bill represents a good-faith and reasonable effort to balance public security and civil liberties. It was necessarily drafted in considerable haste, and the problems themselves are very difficult. I think there are some areas that require immediate improvement. I did not address the issue of the sunset clause in my brief because to some extent it's a diversion. It seems to me the primary emphasis right now should be fixing what's fixable now. However, since the rest of the world is commenting on sunset clauses, I have a few points.
The U.S.A. Patriot Bill, the United States equivalent of our Bill C-36, does have a sunset clause. The Bank Act of Canada has a sunset clause. We're used to them, we know how to do them. I would be in favour of one, and of regular annual reviews.
I want to focus on three problems, because my time is short and the urgency is great in terms of Parliament reacting to this.
Unfortunately, this bill, like the Criminal Code, is generally getting to be more like the Income Tax Act. The Criminal Code used to have a biblical simplicity to it, full of simple “thou shalt nots”, and is becoming awfully complicated. There are things in this bill I have trouble with when I read it over, like the reverse onus clause on bail, which I think is problematic. But I just want to focus on a few core points.
I don't have to spend a lot of time on the first one because many people have addressed it. I'll only say I claim to be one of the first people to address it, when I did my CBC radio commentary the day after Bill C-36.
Quite simply, civil disobedience that doesn't involve serious acts of violence should not be included in the definition. Lots of folks have made that point, and I agree with it. You can have unlawful acts that are still not terrorist acts which form civil disobedience. They are criminal and should be dealt with in some way, but not by labelling them as terrorist.
My second point has to do with proposed section 83.02 in the proposed bill and the reference to customary and conventional international law. I think this definition inadvertently invites trouble, and you'll get trouble. I'm not just talking about trouble from the civil liberties standpoint, which is one of my concerns, but problems from the point of view of effective enforcement of the bill. I'm not just concerned about protecting civil liberties—which is very much a longstanding concern of mine—but making sure this bill works in practice.
Customary and conventional international law tends to be vague, uncertain, and difficult to interpret and apply in particular cases. It's particularly difficult when you're dealing with situations in other countries.
You're opening the way, with this definition, for somebody who's charged with being a terrorist to claim that what he or she is doing is in accordance with customary or conventional international law relating to a political situation. You're going to have people putting on trial how Turkey deals with the Kurds, how the Russians deal with the Chechens, and all situations like that. You don't need to do that.
A definition of terrorism should focus on the fact that no non-governmental group should be directing violence against civilians. I don't care what anyone's political grievance is, it should be possible to have an international consensus, and if not at least a clear definition in our law, that no one, whether they're on the side of the angels or not in terms of their end, can use the means of targeting civilians for violence, in order to achieve a political end.
I think you should clarify proposed section 83.02 so the focus is not on customary and conventional international law. It's vague, hard to apply, and invites complicated political show trials. I respectfully suggest you should focus on whether you are targeting acts against non-combatants.
My third point is that the definition in the current statute is not clear about whether it applies to government. It should not, in my respectful view. Governments do terrible things, but sovereign governments also have special responsibilities. Sovereign governments are routinely called upon to use violence. The Government of Canada has a duty to use violence to enforce the Criminal Code. The Government of Canada uses violence in just wars. NATO used violence in the war in Yugoslavia, and the United States is using violence right now.
The problems facing sovereign states, even democratic and liberal states, are different from any other category of entity. If the definition is interpreted as applying to states, you're going to get this kind of problem: people pressing politically and legally to label the United States as terrorist because they're engaged in this illegal war or that illegal conduct.
The United States may have acted illegally when they invaded Panama—some people think so—but whatever they did in Panama, it shouldn't be classified as terrorism. It's not a proper concern of legislation like this.
There are all kinds of states dealing with very difficult problems. The United Kingdom has sometimes acted in reprehensible ways in dealing with IRA terrorism. There's Turkey and the Kurds, and you can go on and on. My point is I don't want this bill to be used as an invitation for people with political axes to grind—even with legitimate human rights concerns—to start using the category of terrorism and the apparatus set up by this bill to go after governments, particularly democratic governments.
I want to emphasize in the strongest possible terms that I'm against all kinds of depredations on human rights. I'm just saying that this bill is not the appropriate place to deal with those concerns by sovereign states. The definition should clearly exclude them. There are other ways, means and forms for dealing with those concerns.
With respect, that concludes my submissions. I'd be happy to answer questions on any of those.
The Chair: Thank you very much, Mr. Schwartz.
Before the committee begins, I'd like to advise that I believe Ms. Cameron is leaving at 4:30 and Mr. Mendes at 5 o'clock, so people might consider that when directing their questions. The first person to do that will be Mr. Toews, for seven minutes.
Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.
I think we've heard quite a bit about sunset clauses and review clauses, not just from the panel here this afternoon but over the past number of days. It's nevertheless an important discussion to have.
It needs to be made clear, though, that a sunset clause or review clause is not simply a device by which one rescues unconstitutional legislation. I think our constitution and the charter of rights set a minimum standard. So the review process, or a sunset clause, is important to see how legislation is being implemented or whether legislation is effective, regardless of the issue of constitutionality.
Ineffective or poorly implemented programs have nothing to do with their constitutionality. An example is the long gun registry in this country, Bill C-68. It's clearly expensive, ineffective, and poorly implemented, yet the Supreme Court of Canada says it's constitutional. So reviews are not necessarily focused on the constitutional issue.
When we're dealing with this kind of issue, we need some kind of effective review process. I'm not particularly concerned whether that review process is a sunset clause or is motivated by a termination date of the legislation. I'm just very concerned that Canadian Parliament—and I don't want to accuse any particular government—has not been effectively reviewing legislation when it has undertaken to do so.
It is an important issue, and your comments have been very helpful in helping us determine where we're going to move on that. The police, of course, are very concerned about sunset clauses because of their potential disruption to ongoing investigation and the allocation of resources—all very legitimate.
I want to thank you for your comments. The real question I have to ask is on criminal offences. I don't know of the expertise of all of you, but perhaps Professor Schwartz can answer this as well. I believe Ms. Cameron or Mr. Mendes made the recommendation that the bill should clearly set out the mental intent required for criminal offences.
Is it not correct that our Supreme Court will insist upon a particular minimum standard of mental intent for any criminal offence, or else that provision is simply unconstitutional? There's either an inference that standard is there or it is there, but in any event there has to be some minimal mental intent required—due diligence—in order for there to be a successful prosecution.
I'm wondering if Professor Schwartz could start us off on that.
The Chair: Professor Schwartz.
Prof. Bryan Schwartz: Thank you.
Mr. Toews, I'll address that by adopting the first part of your remark. You didn't exactly put it this way, but I think we're simpatico on the general point that the first and foremost responsibility here is on Parliament to draft the laws. The fact that the courts might let something go by is no excuse for having legislation that is either oppressive or inefficient.
I'm not here to scare anybody about what the courts will do. Frankly, there's a very high chance that whatever you do the courts will uphold, because in the real world the courts don't want to get in the way of a government that's dealing with grave threats to public security.
History does not show that courts are very activist when governments are attempting to deal with emergencies. Courts are pretty sensible that way sometimes, because they know less about what's going on, in many cases, than the executive and legislative branches.
Because of that concern, if you can find places where you can identify things upfront, rather than waiting for the courts, that will help the cause of civil liberties, because you won't have a chilling effect of people being afraid because they're in grey areas. Also, from the point of view of effective law enforcement, you're not wasting the time of crowns and police going after issues that don't have to be identified.
So to the extent that it's possible to make things clear with respect to mens rea, it would be a useful addition from both the civil liberties standpoint and from the point of view of effective law enforcement.
Mr. Vic Toews: So you would suggest that wherever there is a criminal offence set out in the legislation there should be a specific adoption of the mental standard that Parliament views as necessary in order for there to be a criminal offence.
Prof. Bryan Schwartz: I wouldn't be that formulaic. A lot of times any lawyer could pick it up and say I know what the mens rea is here. Or people identify areas, such as facilitation, where they are scratching their heads and saying this is something new, and I'm not quite sure what the mens rea is.
The areas where there is likely to be a lot of head scratching by lawyers and lay people are the areas where you might want to take the extra trouble. I don't think you have to go through formulaically and identify it in every case.
The Chair: Mr. Mendes.
Prof. Errol Mendes: It was me who suggested that there be clear criminal intent. I agree with the presentation by the Canadian Bar Association that in some cases this is critical, for the reasons that Bryan mentioned, but also because in certain situations, especially in areas such as facilitation, there could be a grey area as to whether or not something is intended to contribute to a charity or whether something is intended to contribute to a hidden goal of that charity to promote terrorist activities.
As Professor Schwartz says, the clearer you can get, not only for the sake of the potential accused, but also for the sake of law enforcement agencies, the better it is.
The Chair: Ms. Cameron.
Prof. Jamie Cameron: I would just add to what has been said already that there are constitutional minimums for the mental element for Criminal Code offences, and the variables that determine what level of mental intent is required by the courts are the severity of the punishment and the stigma that attaches to a conviction. So when we're talking about creating new terrorist offences with severe penalties attached to them and a high degree of stigma, my suggestion would be that if the court would require a fairly high degree of mental element, that is something therefore that ought to be paid attention to in looking through the act and considering amendments.
Mr. Vic Toews: Would you then suggest that the mental element would have to be a specific intent, as opposed to a general intent, similar to the distinction between murder and manslaughter?
Prof. Jamie Cameron: Yes. Based on the criminal constitutional jurisprudence I'm familiar with, the court would be likely to require what we refer to as subjective mens rea or subjective mental element, which is a high degree of knowledge or intent.
Mr. Vic Toews: So you wouldn't consider due diligence then sufficient, as is set out in here?
Prof. Jamie Cameron: Not for these offences, no.
The Chair: Thank you.
Madame Venne, seven minutes.
Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Good afternoon.
You know that yesterday, Gerry Adams, the president of the Sinn Fein, the political arm of the Irish Republic Army, was welcomed here by our Prime Minister. On this occasion, the Prime Minister stated that he was happy to welcome Mr. Adams to Canada, since he had renounced terrorism.
We know, according to some sources, that the IRA which was at some point designated by the CSIS as a terrorist organization, could be on the new list of terrorist groups which would be established under Bill C-36.
The Prime Minister declined to make a comment on that aspect and he answered this and I quote:
We are examining all these aspects. We have a committee which is
evaluating all that. At this moment, they are not on that list.
He was of course talking about the political arm of the IRA. And he went on:
If I learn that they are on that list, that's where they will be.
I would like to know if the fact that the Prime Minister doesn't really seem frustrated by the fact that an organization which he does not think is associated anymore with terrorism could be on such a list does not make you worry about the preservation of the registration of a number of charities. This is my first question.
The Chair: Mr. Mendes.
Prof. Errol Mendes: That's a very interesting hypothetical. We could come up with all sorts of hypotheticals—Nelson Mandela, a whole bunch of other people—but I think this is where there has to be some attention paid to the theoretical possibilities, a list of horribles, and what will actually take place in real life. That's why the attempt to build safeguards into the listing, such as the consent of the Solicitor General and the judicial review, is important.
That being said, I also agree with the recommendation of the Canadian Bar Association that if it is possible to have a right of hearing before such listing, it should happen. I don't know whether it's feasible, given the time constraints there could be between the notification of a terrorist threat and a listing, but if it's possible, or if you have some sort of oversight before the name goes on the list, I think it would even be better.
The Chair: Mr. Schwartz.
Prof. Bryan Schwartz: In dealing with the IRA, the current definition might result in situations where proceedings, whether they're judicial review or trials, get into the whole history of the Irish question and whether Ireland has the right to self-determination—which includes Ulster—and so on.
I don't think the enforcements law should have anything to do with those questions. To me there's one issue: Does the IRA continue to target civilians for violence? That's the question that should be in the statute and the question the people interpreting the statute should be looking at. In practice, if the issue arose, one thing I would be interested in knowing, if I were the Prime Minister, is whether the IRA is still on the list of terrorist organizations maintained under the U.K. terrorism act. If they are, I would talk to the government of the United Kingdom and try to find out what they know and why they are on the list.
The possibility that we're meeting with people who are still doing nasty things and deserve to be classified as terrorists doesn't strike me as anomalous. In the international world sometimes you have to deal with repressive regimes. Sometimes you have to negotiate with enemies who carry out acts with unacceptable means. So whether prime ministers do or do not meet with the IRA, I'm still interested in knowing whether the IRA has abandoned violence as a means to its end.
The Chair: Mr. Neve.
Mr. Alex Neve: I would agree the question of the degree to which the IRA has or has not truly abandoned its past resort to violence is one that would need some consideration before making a decision as to whether it should appear on a list and that there would clearly need to be due process and fairness provided before the decision was made.
More importantly from our perspective here would be that anytime a country is emerging from a time of human rights violations—including acts we may deem to be terrorist, but human rights violations committed by the state as well—we should insist it is absolutely critical that those responsible for the abuses be investigated, and be brought to justice, and that there's a shared global responsibility to make sure that happens. We've made that recommendation with respect to the years and years of human rights abuses in Northern Ireland concering both abuses carried out by the IRA and abuses by the U.K government. This doesn't need to be under the auspices of this particular bill, but there needs to be a concerted global, legal effort to make sure it happens.
The Chair: Ms. Cameron.
Prof. Jamie Cameron: I'll just add a quick note, which is that, as I said in my main presentation, I have some problems with the provisions for listing terrorist groups. I think, number one, that because of the lack of process—or due process—there are significant risks that mistakes will be made and that legitimate organizations will find themselves on the list and find it awfully difficult to delist themselves, especially when they don't have access to the evidence against them.
Number two, an equally serious concern for me, is the chilling effect the prospect of listing will have on the legitimate activities of legitimate organizations. I think you just pointed out some of the problematics in determining which are and which are not terrorist organizations or groups at any given point in time.
Ms. Pierrette Venne: Bill C-36 talks about economic terrorism. I would like to know what you think about this idea of economic terrorism and if this concept should be taken into consideration in this bill.
The Chair: I can take probably one response inside the seven minutes. I understand Ms. Cameron has to leave. We thank you very much for your participation.
Prof. Errol Mendes: I was actually hoping someone wouldn't ask me that question, because frankly I looked at that section and wondered what it's doing here, because it is so broadly worded. I think the precise words are “if a trade secret or other subject matter of interest”—I think the words are “of interest to Canada”—“is communicated to a foreign entity without good cause...”. I think that's the wording. It's very wide wording, and frankly I'm not sure whether it should be in this bill or should be looked at in a separate entity and given much more scrutiny. When I came across that section I was quite surprised.
The Chair: Thank you.
I'm going to go now to Mr. McKay for seven minutes.
Mr. John McKay (Scarborough East, Lib.): Mr. Chairman, it looks as if I have just missed Professor Cameron, because my first question was going to be directed to her. Maybe I can ask Professor Schwartz to comment on it.
Her argument was that a sunset clause tries to have it both ways, and reflects a certain level of constitutional discomfort. Her preferred method would have been a constitutional reference.
My immediate thought on that is that if you go to a constitutional reference at this stage or immediately after passage in this House, in effect you're asking the Supreme Court of Canada to do Parliament's job. A reference would merely attract a whole bunch of interveners, many of whom would make the same arguments as would be made before a committee such as this. So I'll be interested in whether that is a legitimate concern.
The second question was actually one I was going to put to you directly and had to do with your tie-in to states that use violence. You seem to imply that by some means or another this bill could be applied to go after sovereign states. I'm a little hard-pressed to know how you could institute proceedings against the sovereign state—recognizing the ambiguities in “entity”, which is maybe your point. But even if “entity” is interpreted to include a sovereign state, how would you institute proceedings against that kind of regime?
Prof. Barry Schwartz: My response to your first question is that I agree with you. The primary responsibility here to ensure that civil liberties are respected is on the Parliament of Canada and the executive officials who are enforcing them.
In the charter era there's a tendency, and we academics tend towards it like other people, to focus on saying, “What would the court say? Can we get way with this?” The courts are probably going to say yes to almost anything if it's tested right now, and that still doesn't mean it's fair and still doesn't mean it's effective law enforcement.
Furthermore, to send this over to the Supreme Court of Canada now would be to invite the court to decide all kinds of questions in the abstract, without a concrete factual context. You'd get your 1,200-page judgment, but how it would actually apply in practice to any real situation you still wouldn't know.
On the second question, when I look at it and at the definition of “entity”, I don't see whether branches of a sovereign government are included or excluded. I don't know. I look at the fact that it says military forces are excluded, for greater certainty, if their actions are consistent with other international law that applies. I don't know what they're talking about, but the fact that there's even a reference to applying this to a military force of a sovereign state leads me to believe—or at least might lead an interpreter to believe—that military branches of a sovereign state can sometimes be caught by this legislation.
Can I tell you for sure it is or it isn't? I don't know, but it seems to me it's something we want to clarify. I think the real point of the question is that it's a nice theoretical concern, Professor Schwartz, but how is this actually going to arise in practice?
It could arise if you had what I would consider a hyperactive provincial prosecutor. I'm not being facetious here. There are prosecutors in various parts of the world who want to go after Henry Kissinger, who want to go after General Pinochet—and I'm not even sure that was the best idea after the general amnesty in Chile. Not that General Pinochet is my idea of a noble figure, but there was a practical resolution reached in Chile. But there are prosecutors who want to go after Henry Kissinger. There's a Belgian prosecutor who tried to go after Ariel Sharon. You don't have control, at the federal level, of what every provincial prosecutor is going to do.
Second, you don't know what kind of standing private individuals are going to get to challenge, say, the tax status that's given to other individuals. It was not so long ago the federal courts of this country decided—I have some doubts about this decision—that one taxpayer can challenge in court a tax decision made with respect to another taxpayer. The taxpayers are the ones who are commonly seen to be the Bronfmans. If that's the case, if we have courts that are so generous in allowing standing, how do we know political activists aren't going to go in and try to have some form of judicial review where they'd raise the question of why you aren't going after the United States, the United Kingdom, or Turkey, and so on?
I do agree with Amnesty International that rule of law should apply to state activity. I like the idea of the International Criminal Court. My point is that this legislation isn't the proper forum to deal with the actions of sovereign states. I can guarantee you, there are people out there who think Canada acted illegally when it participated in the action against Yugoslavia, when Canada was involved in action that involved bombing civilian infrastructure. Are those people right? I don't know if they're right or not. I think they're probably wrong; I think we were probably acting lawfully. But that's not the kind of question that should be invited, or even allowed, by this legislation to tie up the time of the courts and the resources of the Canadian government. This legislation should focus on non-governmental organizations that target civilians. That's my view.
The Chair: You have less than a minute, Mr. McKay.
Mr. John McKay: To go back to your example of an overly enthusiastic provincial prosecutor, of whom there might even be a couple here at this meeting, I find it a stretch, frankly, that even the most enthusiastic prosecutor would initiate what is essentially national legislation to go into an area of extraterritoriality. Can you march me through how our very enthusiastic prosecutor could actually, for instance, lay charges against the state of Israel, or something of that nature?
Prof. Bryan Schwartz: It wouldn't be against the State of Israel, but it might be against soldiers who participated in an action on the West Bank—blew up a house, or engaged in a targeted killing of a Hamas assassin. The person ends up in Canada—many of these jurisdictional grounds give you Canadian jurisdiction if the person becomes physically present in Canada.
Can I march you through all the possibilities? The honest truth is no, I can't. There are so many possibilities here, I couldn't even begin to draw you a road map. Maybe some people who have studied this longer and more could. But I do see a substantial risk there.
The Chair: Thank you.
Peter MacKay for seven minutes.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair. I would hope hyperactivity and enthusiasm could be put in a good context at times, too.
Along those lines, in my reading of this omnibus legislation, a crown attorney could be of federal or provincial jurisdiction, and presumably resources would factor into some of these decisions as well, in terms of how much enthusiasm is put into a prosecution.
I apologize for not being here for your presentations. There's a previously scheduled House leaders meeting every Tuesday at this time, yet these justice meetings are consistently scheduled at the same time. I look forward to reading your commentary and looking at your presentation further.
My question, with respect, and you have probably already answered this, is about your position on this issue of sunset. We've been hearing about the prime minister's ramrod flexibility on this issue. But if we are to take him at his word, he will entertain a recommendation from this committee, so if that hasn't already been put on the record, I would invite commentary.
I would like to hear, as well, particularly from your perspectives, about the potential harm here, whether it be for charitable organizations or individuals who might get caught up in this broad web.
As to oversight or mechanisms of appeal, they appear to be extremely lacking in a number of areas. There appears to be very little that can be done once the Attorney General has decided the cloak is going to be placed over information. So you have this horrible reality that somebody can be picked up with no charge, questioned without knowing what the allegation is, and there's no recourse. There are no mechanisms here in terms of appeal. There is nothing I read in this legislation that allows someone to after the fact say give me back my name—I've been listed, I've been drawn into this process, and I have no ability now to clear my name. It doesn't matter if it's a charitable organization or an individual who has been prosecuted under this process.
The Chair: Mr. Mendes.
Prof. Errol Mendes: I'll deal with the sunset, and I presume, Alex, you'll deal with the second part of the question.
Mr. Alex Neve: Sure.
Prof. Errol Mendes: On the sunset, I think I mentioned to the committee that I'm more concerned about having annual reviews, not just a review at the third-year level, because if there were abuse of the powers, a lot of damage could be done in six months, let alone three years. It is also critical for parliamentarians to have their oversight function in place to make sure the various agencies involved in enforcing this act are living up to the values underlying the principles, and making sure the balance between security and human rights is observed.
Frankly, I'm not sure why more attention hasn't been paid to the need to have annual reviews, as opposed to a sunset clause, because a sunset clause is, in a majority government, easy to deal with. Once you reach the three-year limit, you just pass it again. So I don't understand why there's been so much attention paid to sunset clauses.
My strong recommendation is to have annual reviews in the act to make sure these powers are being used properly and there is not a singling out of certain parts of our society, which could be a breach of the fundamental values of equality and non-discrimination in our society.
Mr. Peter MacKay: When you say an annual review, are you talking about an annual parliamentary review, a committee review?
Prof. Errol Mendes: Yes. I would strongly suggest an annual committee—maybe even a joint committee between the Senate and the House of Commons—of all the agencies. Bring the oversight commissioners, etc., before you, and examine on the record how these powers have been implemented to make sure there is proportionality between the objectives of these provisions and their effects. That also could be a form of dialogue between Parliament and the courts, because the courts would probably need such evidence also.
Mr. Peter MacKay: Thank you.
The Chair: Mr. Neve.
Mr. Alex Neve: I'll address your second question with regard to the impact of this bill on charitable organizations. It's a very real concern for many organizations, particularly because of the wide drafting of the terrorist activity definition and the potential that it could capture in its ambit many, many organizations involved in legitimate dissent and protest, as well.
We've pointed to the fact that there are many implications that flow from that, not only the question of charitable status, but obviously the possibility of criminal trials, the possibility that individuals who seek to support or defend those organizations in some way may also be caught in the net.
Thinking of that, one of our concerns has been that the approach to listing proposed in the bill does not provide organizations with an opportunity to respond to the allegations against them until after the Solicitor General has made his or her recommendation to the Governor in Council. Once that decision has been made, and likely publicized, then there is a right to seek review of the decision, but obviously that comes at a point after great damage, particularly great public reputation damage, may well have been done, and some miscarriages of justice, as a result.
We've said at the very least, therefore, it's very important to consider inserting some sort of opportunity to respond before that process begins, to have right at the outset a statutorily protected right giving that entity an opportunity to know what accusations have been made, full access to the evidence, and an opportunity to respond before a decision is made.
Mr. Peter MacKay: I don't know if Mr. Schwartz wanted to respond.
Prof. Bryan Schwartz: I just want to say very briefly, because it's not in my written brief, that I favour a sunset clause and an annual review. I didn't put it in my written brief because there's a potential distraction here. We'll be so obsessed with the sunset clause that there won't be enough attention on fixing now what is fixable immediately.
Mr. Peter MacKay: Mr. Schwartz, the provisions place a new onus, in particular on lawyers, to potentially disclose information about their clients—financial information or information that might link them to terrorist activities. That seems to go against some of the very fundamental principles of solicitor-client privilege.
I also have grave concerns about access to legal counsel. It seems to explicitly say there is still the right to counsel, but legal aid is currently in dire straits due to provincial underfunding. There is also the reality that new Canadians are less likely to know their charter rights and appreciate the necessity of having lawyers help them navigate in extremely complex situations, whenever constitutional infringements are prevalent.
The Chair: Mr. Schwartz.
Prof. Bryan Schwartz: The Canadian Bar Association produced a very useful review and addressed the point of right to counsel. My preliminary view is sympathetic with the position taken by the Canadian Bar Association on lawyer-client privilege.
With respect to access to counsel, one possibility—I don't know if it's provided for in this legislation—perhaps worth considering is an intermediate ground between allowing only the judge to see it and allowing the accused to see it. There is a possibility of an intermediate ground where credible counsel could be permitted to see information and respond to it, without sharing it with the client. I think there are some precedents for this in the United States, although I'm not absolutely sure.
If some thought could be given to ways in which more of the adversarial process could be permitted to take place, even without the information necessarily being shared with the client, that might be a step toward a more balanced equilibrium.
The Chair: Thank you, Mr. Schwartz. Thank you, Mr. MacKay.
Mr. Toews for three minutes.
Mr. Vic Toews: Thank you.
I noted Professor Schwartz's comments earlier that he's not convinced the courts would rule this bill to be unconstitutional, and I tend to agree with him. However, that doesn't mean this is good law or good policy.
We also have to remember, as I said earlier, that constitutional protections are minimum protections, and we have to look at the appropriate balance within the policy jurisdiction of Parliament. It has never been within the scope of solicitor-client privilege to allow a lawyer to facilitate a criminal act. If that's what this is intending to prevent, there is nothing new in that sense.
The other two issues specifically deal with the investigative hearings and recognizance with conditions. I've looked through those provisions and I know the concerns that have been raised. But specifically, I don't see how these are unconstitutional. Whether it's good policy, even from a prosecutorial or an investigative technique... I don't see the constitutional issues, for example, with respect to the investigative hearings. It's not dissimilar to the American grand jury system. All the protections seem to be there.
On the recognizance with conditions, we do this in domestic abuse cases where people are concerned about abuse. They're taken into custody and a recognizance is signed. If they refuse to enter into a recognizance, they can be sentenced for up to 12 months.
I'd like perhaps Mr. Schwartz and others to comment on that. Maybe I'm wrong on that.
Prof. Bryan Schwartz: We use investigative proceedings in a context that is often not considered when looking at this bill, which is public inquiries, of course. All sorts of folks can be called upon to testify on all kinds of things.
As you probably know, Mr. Toews, I'm sometimes a critic of public inquiries—that they are too intrusive on civil liberties. But that doesn't mean they're unconstitutional. I just think they have to be used with more restraint and with a finer focus than we tend to do. I share your view. I don't see the prima facie unconstitutionality of the investigative procedures here.
If you want me to I can comment on an area where I do have difficulty, even though I think the courts will go the other way, which is the reverse onus on bail. But I won't abuse your question by answering you on that.
Mr. Vic Toews: No, I'd like to hear from you on that.
Prof. Bryan Schwartz: It seems to me, on the idea that just because you're charged you can be kept in jail for a very long time—let's say it's on terrorism charges—you could be in jail a very long time before you came to trial, because of the complexity of the charge.
That's something you would want to use only in exceptional circumstances—the reverse onus for bail. It started by being upheld in drug cases. The Supreme Court of Canada said drug traffickers tended to belong to international organizations. It turns out, at least from the sociological research I've seen, that's not true. Most drug traffickers are actually fairly small fish. They're business people who go to Thailand, and so on, and do a little trafficking on the side.
In 1994 the Ontario committee on systemic discrimination in the administration of justice in Ontario found there was a lot of racial imbalance as a result of the use of the reverse onus clause in Ontario. They say “and weigh full disclosure”.
I defended the Manitoba Warriors, an alleged gang who were kept in jail for a couple of years awaiting a very complicated gang trial. I don't think it was fair that they had the burden of proving why they should be released on bail.
Mr. Vic Toews: Yet that wasn't unconstitutional.
Prof. Bryan Schwartz: It was not actually tested. I don't think it's necessary, except for perhaps a very brief period, to have the reverse onus. If the state, which has access to much more information, can't prove, given a couple of weeks, why this person should be jailed in the interim basis, I don't think the person should be there on the basis of reverse onus.
I think the courts would probably go the other way, but that's one area where a prudent Parliament might want to cut back a bit on what they're doing.
The Chair: Thank you.
Mr. Neve wants to answer this, and then Mr. Owen.
Mr. Alex Neve: We looked at the issues of both investigatory hearings and preventative arrests, not so much with a constitutional or charter hat on, but with an international law hat, looking at the international human rights obligations binding on Canada. They're both areas where international human rights bodies have been scrupulous in paying attention to state practice, because around the world there have been instances where there was real potential for serious abuses. In those kinds of contexts, torture and ill-treatment can occur very easily, and other forms of coercion.
We looked at the investigatory hearings. What emerged to be the primary concern for us there was the fact that individuals were no longer protected against self-incrimination in the context of those hearings. That is a serious concern, and at the international level it's a right that has been jealously guarded by international human rights bodies, as a hallmark of effective delivery of justice.
In the preventative arrest context, what was of concern was how quickly individuals would be brought before a judge. We noted that the safeguards there did seem to be quite adequate.
In both instances we're mindful that this legislation will be regarded and perhaps adopted by other countries as well. We need to be very mindful of the fact that a strong example needs to be set here, keeping in mind the real possibility that some of these provisions may also be adopted in countries where the likelihood of serious abuses in those contexts is quite real.
The Chair: Thank you.
I excuse Mr. Mendes. I think that's what I see.
Prof. Errol Mendes: Can I just make one final comment?
While I agree with Alex, I'm very concerned about the comments made that the courts will readily follow Parliament, etc. As an officer of the court, I have to defend the courts and say they will not basically follow anything the Parliament of Canada says.
I submit they would look very carefully at the three conditions of proportionality. They might have trouble in these provisions with the effects of the last condition of proportionality. I have to defend the courts here and say I do not think they would willy-nilly follow anything we put forward.
The Chair: Thank you.
Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you all for being here, including Professor Mendes. I hope he can stay for a couple more minutes. Time is short, and we could use many hours to gain from your experience.
I have a few comments that might attract some reply. Professor Cameron's ideological profiling is an interesting idea around ideological, religious, and political motivation. In fact, it's intended to profile people with those motivations who intend to intimidate by committing very serious crimes. So within that subset of perversity that would cause people to intend to intimidate through very serious crimes, you're trying to profile, but I can see that this causes anxiety, and I can understand that.
Sunset, not sunset, is it... does it perhaps... Professor Mendes, because the court sees justice as not being static, would the court perhaps be more likely to find some of the unique provisions constitutional at this time if they knew there were a sunset clause? That's a question.
The problem with lists and the unfairness that can occur, a problem we're all wrestling with and one you raised, is that the proceeds of or for crime, a real target of this legislation, requires, as we've heard, a lot about freezing. You have to have a process where you can both give notice and have an immediate effect, and that's something that will be a bit of a challenge.
From an international point of view, in particular with respect to the U.K., Amnesty International has often been very critical of security forces using pre-emptive killings of IRA operatives. One of the things about preventive arrest is that it's within the law, a very measured, overseen process, designed to avoid putting security forces in the position of facing imminent and very serious consequences by moving outside the law or even being instructed to move outside the law in those cases.
Professor Schwartz, in terms of customary and conventional international law, I think that the purpose—and you may have identified this—of that exemption was to exempt those involved in an armed conflict that might come within international law's definition of a just struggle against oppression. It might also come under the international law prohibition against targeting non-combatants, as you've mentioned, and that would apply to states as well as, I would think, to...
The Chair: Thank you, Mr. Owen. There are questions there for Mr. Mendes, who has to leave, so we'll go with him first.
Prof. Errol Mendes: Thank you, Stephen, for your question.
On the question of adding a non-discrimination clause to the definition of “terrorist”, I know that the definition was taken roughly from the British definition of terrorist activity. What confused me as to why we did that was because it kind of limits—I think Irwin Cotler made this point—
The Chair: There he is. Perhaps we can ask him.
Prof. Errol Mendes: Speak of the devil, as they say.
A voice: Now you don't get to misquote him.
Prof. Errol Mendes: That's right.
Irwin Cotler made the point that in some respects it limits the potential ambit of terrorism. For example, one questions whether or not being motivated by hate fits within “political, religious or ideological purpose”. Many of the hijackers on September 11 were motivated by hate. Where does that fit in?
I agree with my colleague, Mr. Cotler, that in some respects it could limit the ambit of the definition. I think it's perhaps better to either do as Irwin suggested, which is to use it as an inclusive aspect of it, or get rid of it completely. Without it, it's expansive enough.
I just want to say one more thing on the sunset clause before I leave. In some respects the urge for a sunset clause comes from a desire to follow precedents in the U.S. and elsewhere, but I want you to consider one thing. So far there have been over a thousand people arrested in the United States under their provisions. That could very well be a thousand or at least 900 people too many, and my suggestion is that a sunset clause three years down the road is not going to help in that. I think what's urgently needed is an annual review session, which could then prepare this committee and prepare Parliament as a whole to consider, maybe two or three years from now, bringing in a sunset clause with the benefit of the full information you will have available on the implementation of this legislation.
The Chair: Mr. Neve.
Mr. Alex Neve: First, quickly, on the profiling issue, we didn't take a position one way or the other as to whether it was appropriate for that requirement of ideological, religious, or political intent to be part of the definition. We've noted and very much share the concerns many organizations and individuals have raised about the possibility that it will lead to undue targeting of particular groups, namely particular ethnicities or religions.
I think the non-discrimination clause idea is a good one. Speaking off the top of my head, I guess it leads me to the second question as to how we would be sure that it was effective and enforced and whether it would need to be assigned it to the Canadian Human Rights Commission or some other like body. We would want to ensure that there's some kind of regular monitoring, perhaps almost of a judicial nature, of the application of the clause to ensure that there truly isn't discrimination in practice, not just in law.
I share with you, obviously, your assessment that preventative arrest is clearly preferable to preventative killing. In the comments we've made with regard to preventative arrest, we have not by any means opposed it and have noted that international law does not either. International law does of course require that all the other internationally enshrined safeguards that apply around arrest and detention do apply as equally to preventative arrest as to other forms of arrest.
Our concern here would be to ensure that the safeguards in place are scrupulously attended to. Again, as I say, part of it is that we must put an eye to the fact that Canadian law and Canadian practice are often a model in other jurisdictions. This is particularly true at a time when the global community is rushing to enact legislation of this sort. We have to set the very best example possible.
The Chair: And finally, Mr. Schwartz.
Prof. Bryan Schwartz: I'll try to be very brief.
I favour the profiling in the definition of terrorism. I agree with you, Mr. Owen. You can define all violent acts as terrorist, but you'd be overshooting the mark. You'd be creating confusion. You'd be wasting resources. It's not necessary to have an expressed non-discrimination clause, in my respectful view, because the Canadian Human Rights Act would automatically apply in the interpretation of this, and so would the charter. A sunset clause wouldn't make it more likely that the courts would uphold it.
There's a preventative principle the Supreme Court of Canada has recognized in another context, and that is environmental law, where sometimes you can do things that are a little more active when you don't have all the facts.
I continue to believe, with great respect, that the reference to customary and conventional international law is just inviting trouble and that you will get it. You may be clear in your mind, sir, that you can't target civilians. There are lots of terrorist organizations out there who aren't so clear about that in their minds. If it comes to trial, they'll take the opportunity to make the whole trial a forum for the Kurdish cause, the IRA cause, or the Palestinian cause and distract attention from what should be the clear, simple point, which corresponds to the definition the United States State Department uses: non-governmental organizations targeting civilians to achieve a political purpose. I think that ought to be the definition.
The Chair: Peter MacKay.
Mr. Peter MacKay: I just have a very brief question on a matter Professor Schwartz and my colleague Mr. Toews both raised. It is with respect to this situation where an individual, either at an appearance at an investigative hearing or under the preventative arrest provisions, decides not to give evidence. That is, they try to invoke their right to silence even though this has been abrogated, whereupon a provincial court judge says, all right, we're going to keep you in custody until you decide to talk or bring forward the evidence we're looking for.
Under the bail provisions, the judicial interim release provisions of the Criminal Code, there are mechanisms that will get the detainee back before a judge. Then, if they change their mind, if circumstances change, or if there's new evidence, there's at least some formal way you can review this decision to hold that person. I see none of that in the provisions that are before us in this legislation, nor is the test applied as to whether it's in the public interest or whether there's a flight risk, which is the traditional test that's applied. Does that concern you?
The Chair: Professor Schwartz.
Prof. Bryan Schwartz: It does. I think all your concerns are well taken. The historical precedent that comes to mind is from the United States, where there have been many circumstances where people were jailed for contempt because they invoked, say, journalistic privilege. In the Kafkaesque thing there was no limit to how long you could be kept in there.
I think the idea of a regular review seems a positive one, perhaps also with some timeline. If a person hasn't answered after x months, one year, or something, maybe there ought to be an end to just how long you can continue this process. The notion that someone could be there forever does not seem to me one that's within the limits of a civilized response to, admittedly, a very serious problem.
The Chair: Mr. Neve.
Mr. Alex Neve: In our brief we took quite a strong stance against the self-incrimination provisions. We're very concerned about anything that infringes upon that right, which at the international level we view to be one in need of very strong protection. Again, I come back to our bigger concern about the model and example this sets worldwide, where it is absolutely critical to avoid anything that lessens the protection of that right, which is a safeguard against all sorts of things, including ill treatment and torture in detention and custody.
Mr. Peter MacKay: I apologize if this question's already been asked, but I have a problem with respect to the current wording on the facilitation of terrorism. I don't know whether it was intentional or not, but looking at the reference to “whether or not” the person knew that they were facilitating terrorist activity, I seem to see an inconsistency. In proposed subsection 83.01(2) on page 15, it says that for the purposes of the act “a terrorist activity is facilitated whether or not”. Everywhere else there is that requisite mens rea—that is, requisite knowledge has to be proved. Yet this seems to leave it dangerously open to the prosecution of an individual who unknowingly facilitated terrorist activity.
The Chair: Mr. Schwartz.
Prof. Bryan Schwartz: As I interpret the legislation—it would be better if it were more explicit—what the bill is trying to do is to say that if I'm a member of al-Qaeda but I'm in a little cell and nobody's clued me in on everything, I don't have to specifically know what plane is going to be the next to be blown up for me to be implicated. I agree with that. I think affirmatively, whether it's implicit or explicit—maybe it would be better if it were explicit—you have to know that you are facilitating an organization that is a terrorist organization. I also agree that you shouldn't have to know all the specific details.
Now, if the drafting isn't clear enough in this respect—and it may not be—then I think that's a drafting challenge, and one that should be doable.
Mr. Peter MacKay: Thanks.
The Chair: Does Mr. Neve or anyone else want to respond?
Mr. Alex Neve: I don't have anything to add to it.
The Chair: Back to Mr. McKay.
Mr. John McKay: I wanted to ask the Amnesty International representatives if they've given any thought to a better way of doing this listing, given that the premise of the bill is that there will be a listing of terrorist entities. Frankly, given the design of the bill, I don't know how you could avoid that. But the point has been made over and over again that there will be mistakes made. This is not a remote possibility, it's a virtual certainty.
I think you alluded to a kind of, if you will, pretrial procedure before an entity goes on the list. I'd be interested in knowing how you would envision that, given that the state has a very legitimate interest in protecting its own information, intelligence sources, etc. How would you see that happening? What would be a better model than what we presently have?
Mr. Alex Neve: We have made the recommendation that there be some provision for the accused entity to respond to the allegations before a final decision is made. I know there are concerns that may limit the degree to which effective action can be taken with regard to freezing funds. I don't have a specific answer to that other than perhaps there could be some exception allowing for the provisional freezing of funds while the decision is being made. I'm not an expert on that part of the bill, and I don't know if that would work, but that might be one way forward.
With respect to the scope of information we feel should be made available to an entity when the allegation is being presented, our position has always been—and this isn't just with regard to this stage in judicial proceedings, but to all stages of all judicial proceedings—that the evidence should be as fully disclosed as possible. In many instances around the world, we've expressed concern about the degree to which national security concerns are used, often inappropriately and even repressively, to substantially limit the amount of information provided to accused individuals in trials.
That's not to say we are opposed to the notion of summaries being used if they are used responsibly and judiciously. Certainly in this context this would need to apply as well. If we're talking about information being provided to an accused entity before a final decision is made, as much information as can responsibly be shared should be shared, recognizing that some of it may need to be summarized to protect sources.
The Chair: Thank you.
Your turn, Mr. Cadman.
Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.
Going back to the idea of a sunset clause, which we've heard ad infinitum here around this table for the past couple of weeks, the front-line police have expressed a real concern. Mr. Toews alluded to it. They would be opposed to it. They're afraid that... The way they put it was these investigations take years and years to develop, and they are concerned about a sunset clause actually throwing their investigations right out the window as soon as it came into effect.
First of all, do you feel they have a valid concern there, that it could jeopardize their prosecutions and their investigations? And if so, how do we go about doing it so it doesn't?
Prof. Bryan Schwartz: The Bank Act right now actually says banks can't carry on business after five years unless new legislation is passed. The point isn't that Parliament is going to be so irresponsible as to let the banks all cease doing business. The point is to force the Parliament of Canada to keep up to date with the fast-changing world of international finance.
With respect to this bill, it's not within the realm of practical reality that Parliament wouldn't act to preserve essential elements of the bill. A sunset clause would have the salutary effect of actually forcing Parliament to look at it. It's a more effective way of getting Parliament to take the task seriously than just calling for a review.
I would think that prosecutions conducted while the law was enforced before the sunset clause would continue to be valid. Evidence gathered lawfully at the time would continue to be valid. It's quite possible, in the way you craft the second piece of legislation that tones it up after the sunset period and various doctrines that make things legal if they were legal at the time and so continue to be valid afterwards, that you would have a manageable situation.
The Chair: Comments, Mr. Neve?
Mr. Alex Neve: I'm fine, thanks.
The Chair: Mr. McKay.
Mr. John McKay: I'd like to go back, Mr. Neve, on the briefest question with respect to lists.
One of the ideas coming forward was almost a creation of a special class of counsel who would actually see the real evidence but not be able to share it with the client. I have trouble fathoming how that could actually work, given the traditional nature of a relationship between a solicitor and a client.
Do you have a reaction to that as an idea whereby your sources are protected but you can simultaneously try to provide a full and fair response to any listing that may go on?
Mr. Alex Neve: I believe it was Professor Schwartz who used this example. I'm not familiar with it. I think he offered it as one suggestion, as a possible middle ground, which it clearly could be.
I agree it does give rise to some obvious questions about the nature of the solicitor-client relationship once the solicitor's in the possession of information that he or she is not allowed to share with his or her client. What this experience has been in the United States, as to how it does or does not interfere with the relationship, would be useful to know more about. It's not a particular proposal we've put forward.
Certainly our position continues to be that the right to counsel and to have an effective, vibrant relationship with your counsel must be fully protected. I would be uncomfortable with the notion, therefore, of the solicitor having information that the client doesn't have. Instead, responsible summaries of evidence, which are perhaps clearly overseen by... In the United Kingdom model there's an independent committee of experts, eminent judges and others, who consider the issue of disclosure of information and look at it very carefully. Perhaps a model of this nature, which doesn't infringe on the solicitor-client relationship, would be another way forward.
Mr. John McKay: Has Amnesty International given thought to the application of this legislation to its own activities?
Mr. Alex Neve: Unquestionably, yes. And many organizations involved in human rights work or activism and campaigning with respect to any range of social issues, such as labour unions, have done so. This reason, among others, is why we're concerned with the definition of terrorism proposed at the current time.
Our activities don't generally involve protest of that volume or that nature, but certainly many other organizations we work with do use very visible public activities that could be seen to be that kind of a disruption with essential services, but which by no means from our perspective are terrorist in nature. This is certainly the case in Canada, and very much abroad. This is why we feel the definition needs to be dramatically improved.
The Chair: Thank you, Mr. Neve.
Mr. Peter MacKay: Thank you, Mr. Chair.
The issue with respect to the charitable organizations seems to provide at least some judicial discretion to appeal. At least it gives a mechanism to revisit a listing or an action that may have been taken. And yet this judicial discretion is absent throughout with respect to other mechanisms of oversight. For example, in the issuance of a ministerial certificate, the Attorney General may decide, for reasons of national security or for reasons of international reputation, not to provide any information whatsoever.
What other sorts of mechanisms can we provide for oversight, absent the officers of Parliament, whether it be the privacy or information commissioner, or in some instances the Auditor General? Do you favour the inclusion—or the invention, it would be here—of a parliamentary oversight committee, whether it be a joint parliamentary committee or the creation of a new office that would provide at least some recourse, some intervention, an ombudsman of sorts, to help someone who feels they've been wrongly caught up in allegations, explicit or otherwise, created by this bill?
Mr. Alex Neve: We started from a couple of perspectives, one being the power to withhold disclosure of information, that absolute, very wide-ranging power you refer to. We have some specific concerns about the grounds that may lead to the information being disclosed, and particularly the fact that international relations are included in this list.
We don't disagree that public security, national security, and danger to the public are valid grounds. They're grounds recognized in international law as justifying restrictions of rights in that way. International relations is a very vague and potentially quite amorphous term, which isn't recognized as a ground that would justify this kind of action.
Mr. Peter MacKay: It's not recognized in other countries? It isn't, for example—
Mr. Alex Neve: No. International legal treaties and human rights documents that lay out fair trial protections, for instance, guarantee the right to full disclosure of evidence, the right to fully respond to the evidence against you, etc., but do recognize that limitations of some of those rights may be justifiable in the name of public security, national security, or danger to the public. But they certainly do not refer to international relations as a ground that could justify those kinds of restrictions.
Mr. Peter MacKay: You're saying that you feel it's too broad.
Mr. Alex Neve: So our first recommendation is that it shouldn't be there. International relations should not be enumerated as a ground justifying fair trial restrictions.
Moving beyond this to the question of oversight, certainly we would welcome oversight. There are entities already created—the privacy commissioner, the access to information commissioner—whose powers, of course, are dramatically curtailed in many areas in this legislation. Perhaps it's simply a matter of reinstating, redefining, and reinvigorating the capacity and jurisdiction of some of those existing offices of Parliament to carry out exactly what you were referring to.
The Chair: Thank you.
Mr. Schwartz, did you want to respond to this as well?
Prof. Bryan Schwartz: Yes.
My preference—to the extent that there are more avenues of appeal and recourse—is that it be primarily the court, where if you are agreed, you can get a definite resolution. Ombudsman and oversight through committee would not have the ability to actually overturn an objectionable decision. It might have the uncomfortable blowback of creating the illusion of legitimacy, the illusion that there is a real effective review going into place, when in fact you're not getting a remedy.
So I'm not against additional recourses, but in many cases there's not an adequate substitute for having a decision-maker—that is, a judge—who can actually order the certificate quashed.
The Chair: Thank you.
Mr. Stephen Owen: Thank you to Professor Schwartz in particular, because you referred to the CBA brief.
One of the deep and enduring difficulties the CBA has is with the effect on solicitor-client privilege or relationship. Of course this isn't new in this legislation; it was in the money-laundering legislation previously and has now been extended to cover terrorism and proceeds of crime.
It occurs to me—and I'd value your comment on this—that the problem we're getting here is that the historical relationship between solicitor and client, or barrister and client, grew out of a judicial process, but the practice of law has broadened to such an extent that many solicitors are simply performing functions that some other financial officer might perform. Therefore, the bar is caught in the breadth of its practice, which is good, but the threat to a privilege that was meant to apply to a much narrower practice traditionally.
Of course, the difficulty with having this breadth of practice and having solicitor-client privilege apply to the whole thing is that it leaves a large hole in an attempt to stop money laundering or financing of terrorist activity. I wonder if you have an observation on this.
Prof. Bryan Schwartz: Yes. I don't claim to be fast enough or wise enough to have all the answers on this issue right now, but it does seem to me that some more creative thinking could be done along the lines you suggest of not just looking at practice comprehensively, but saying that when you are defending an alleged terrorist there should be much more protection for the relationship than when you are acting as a conveyance or a financial officer.
To reiterate an earlier suggestion I made, I'm not saying it's a traditional solicitor-client relationship when your lawyer can look at information without conveying it to you. But is that better than saying nobody on your team can look at it at all, only the judge? This isn't something we've done before, but as you're suggesting, extraordinary times may call for extraordinarily creative thinking. It may be there's a way we can have this balance between public security and the continuing role of lawyers that is a little bit better than the one we have in the proposed bill.
Mr. Stephen Owen: There are provisions with respect to intercepted communications where lawyers for accused can actually have access to the transcripts and such without sharing them with their client.
The Chair: Thank you.
Mr. Peter MacKay: With respect to the definition of terrorism, I suspected you had the feelings you put forward. The overwhelming evidence we're receiving is that the broad nature of the definition itself is troubling, particularly in the provisions at page 13 that speak of “in whole or in part for political, religious or ideological purpose, objective or cause”.
I suspect any prosecutor worth his salt would fastidiously avoid using that section and proceed under, for lack of a better term, more normal provisions of the Criminal Code. Charging somebody for murder, charging them for mischief, or treason, and proving the offence would seem to be a far more effective way and more in keeping with the current Criminal Code than adding this additional burden of proving the mens rea, proving the intent behind the act itself.
Although it looks good and it attracts a lot of attention and seems to give the appearance of doing more to combat terrorism, I suspect in practical terms it's going to have very little pragmatic use in the fight against terrorism. Why would you put this additional burden on the crown to prove?
Prof. Bryan Schwartz: I think I continue to think on this one that the profiling here actually is appropriate; that if you don't use a test of terrorism that is in accordance with people's general understanding and common sense, people are going to wonder why you're not using it against organized crime or against all kinds of things. I think the focus is actually useful here.
In practice, many times what happens when a section is difficult to prove—such as in the gang law—is that you charge people with it and it gives you a very powerful plea-bargaining technique.
Now, frankly, I don't approve of overcharging just with a view to intimidating a defendant, but it could be in practice there will be a lot of charges in which the additional sentencing-enhancement provisions and so on associated with being charged with a terrorist offence are going to promote more plea bargains.
If I could, very briefly and quickly, since you weren't here for part of it, at lightning speed I'll try to give my definitional concerns. I won't give the whole song and dance.
I was concerned about the civil liberties issue; about civil disobedience that isn't violent; about the reference to customary and international law, because I think it invites very complicated trials—just the concern you were expressing about political, ideological purpose. I am very concerned that customary and international law is going to divert attention from what ought to be the simple issue of whether a non-governmental organization targeted civilians in the name of some cause.
Thirdly—I'll try to say this very quickly—I think this legislation should be amended to make it clear it does not apply to governmental activities. Maybe it will; maybe it won't. I don't think it would do any harm at all to clarify that point. I can see a lot of mischief arising as prosecutors or political activists try to target soldiers from the United States or Israel or the United Kingdom who end up here, or try to target people who are raising money for the United Kingdom, the United States, or Israel, and then try to make a political trial out of whether those governments have acted illegally.
In a nutshell, those are my concerns.
Mr. Peter MacKay: Just on your first point, when you say “overcharge” or speak of the sentencing purposes that would attach, you're referring to the consecutive nature of sentences that can apply. I suspect if it's a murder charge or high treason charge you can't get any more than life in prison.
Prof. Bryan Schwartz: No, there are provisions about consecutive sentencing and limited eligibility of parole which would make it useful for a prosecutor to have the additional terrorism charge on top of the usual sentence.
The Chair: Thank you, Mr. Schwartz and Mr. MacKay.
Mr. Lee for three minutes.
Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.
This is probably a very narrow point, but since we have some legal talent here, I'm wondering if any of you have read carefully the judicial procedure used for a listing of terrorists. You probably have, and I would refer you to proposed subsection 83.06(2) in clause 4 and its paragraphs (a), (b), and (c), with particular reference to paragraph (b). That describes what the judge would do and would and would not consider in relation to information that came from a foreign state and should not be disclosed.
Proposed subsection 83.06(2) says that on certain conditions the information will be returned by the judge to the counsel for the Solicitor General and will not be considered by the judge in making the decision to not list. But its paragraph (b) says the judge won't consider that information if “the judge determines that the information is relevant but should be summarized” in the summary described in paragraph (b) of proposed subsection 83.05(6). To me that looks illogical.
If you haven't noticed anything odd about it in reading it, that's okay, but I'm raising it as much for the record, so we can clarify it, as for any other purpose. It seems to me this paragraph (b) should have a “not” in there, so it says “the judge determines that the information is relevant but should not be summarized in the statement to be provided under paragraph 83.05(6)(b)”.
I'll just ask you if you've read it and if you notice anything odd about the logic.
Prof. Bryan Schwartz: I'll give you a fast—and because it is fast, possibly quite entirely wrong—response. As I read it very quickly—and again, perhaps wrongly—the idea here is the judge might say, “Well, there's a lot of primary data here that I don't think the defence should see; but this should be summarized and the statement should be given.” So the information is relevant but shouldn't be shown in its original and uncloseted form; rather, a summary should be provided instead. That's how I read it.
Mr. Derek Lee: Okay, and that's quite reasonable. But then it says, in that same subsection, that it “shall not be considered by the judge” in making his or her determination. It “shall not be considered”.
A voice: Ah.
Mr. Derek Lee: How can you decide it would go in the summary given to the party but not consider it when you make your decision?
Mr. Alex Neve: It would, I guess, have to be interpreted to suggest that the broad information is not allowed to be, and that the judge, similarly, is limited to considering the summary that is going to be provided to the accused.
Mr. Derek Lee: But in the previous procedure the judge gets to determine everything, even beyond a summary. The judge isn't restricted to the summary. The party gets a summary so that the party has a reasonable idea of what is being alleged.
This is a rather precise drafting issue, and I'm pleased that we don't have a quick answer. I know that justice department officials will sort that one out later, since it's now on the record. Some judge is going to be happy we fixed it up, if in fact we have fixed it up.
The Chair: Thank you very much, Mr. Lee.
Thank you to all the witnesses for your patience and assistance as we deliberate over what is a very important piece of legislation. You can get some comfort in knowing that we're very aware of that. Thank you.