Skip to main content Start of content

JUST Committee Meeting

Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.

For an advanced search, use Publication Search tool.

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

Previous day publication Next day publication

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 20, 2001

• 1619

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 50th 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 (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism.

I've had interventions from a number of members to the effect that they'd like some time to look at a very large number of amendments. Many of these amendments we're received since noon. As a result, I would suggest to the committee, with their concurrence, that I will make those amendments available to everybody.

• 1620

In a moment I'm going to ask Richard to explain the package so that it's as easy to understand as possible, and then, unless there's serious objection, I will suspend.

Richard Dupuis will explain to members the package so that you know what you have in front of you.

[Translation]

Mr. Richard Dupuis (Legislative Clerk): Hello.

In package number 1 in your binder, you have all the amendments that we received before noon. In a second package you have all the amendments that we received after that time. As well, from time to time, there were changes to certain amendments and we will be distributing these as we go along. So there you are.

[English]

The Chair: Questions? If there are no questions, we suspend till 5 o'clock.

• 1621




• 1702

The Chair: I call the 50th meeting of the Standing Committee on Justice and Human Rights back to order. As I mentioned when we originally convened, 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 (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism.

Now we will proceed to an opening statement by the government and officials of the Department of Justice. I should advise members of the committee that gathered with us are a large number of officials representing various departments who have an interest in this legislation. From time to time, the officials who are at the table are invited to call upon any of them, as would be appropriate according to the subject being discussed.

I also want to implore members of the committee to pay particular attention to the details of this process because it is going to be complicated. The better everyone is paying very close attention to the process, the better off we'll be.

I'm going to take the opportunity now to commend, on behalf of all members of the committee, the staff of the committee, who have really had to pull together this information in record time. On behalf of everyone, I want to say to the support staff who are here, thank you very much. I'm aware of how much effort has gone into this.

Some hon. members: Hear, hear!

The Chair: Would the witnesses like to proceed now, please?

• 1705

Mr. Stephen Owen (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada): Thank you, Mr. Chair.

I think we will take our opening remarks, those of the officials, as reflected by the statements of the minister this morning, although the officials who are with us—Mr. Mosley, Mr. Piragoff, Mr. Bartlett from the Department of Justice, and Mr. Kennedy from the Solicitor General—are here to answer questions at the outset on the general approach to the amendments, given the testimony we've heard. So they're available for that purpose before we start the clause-by-clause, but we do not intend to add anything by way of introduction to what the minister has already presented.

The Chair: Thank you very much.

Mr. Toews.

Mr. Vic Toews (Provencher, Canadian Alliance): Mr. Chair, I have a point of order. I just find it somewhat curious that a person sits as a member of this committee and then appears as a witness. I'm just wondering whether that isn't somehow inappropriate. I'm not going to make a large issue of it, but I find it a somewhat unusual process that a committee member now presents evidence. I just find it somewhat contrary to the rules of natural justice, Mr. Chair.

Thank you.

The Chair: We're off to a good start.

To have the parliamentary secretary represent the minister in this circumstance is in fact quite customary. I'm sure, Mr. Toews, in your greatest dreaming, thinking, planning, hoping, or fantasizing, whatever—I'm trying to be as non-partisan in this as I can—you would imagine yourself there at some point.

I'm open to questions. Everyone's had the opportunity to look at the package of amendments. I would be prepared to entertain questions around the package in terms of how we are going to proceed—and I will refer those questions to staff—or questions having to do with the substance of the amendments we see here—and I will refer those questions to our learned panel.

Mr. Blaikie, and then Mr. MacKay.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Just on a point of order, Mr. Chairman, I hope the member from Provencher has a much richer fantasy life than what you've attributed to him. But it might also be the case, Mr. Chairman, on another day, to reflect on the role of parliamentary secretaries on committees, because there are some contradictions built in here that various committees on parliamentary reform have commented on in the past. But I shan't bore the committee with a history of that particular issue.

The Chair: Was there a question, Mr. Blaikie?

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair.

I'm wondering, while we have the drafters of some of these amendments, if I can ask for the correlating page number to the amendment that will invoke the sunset clause, or the lapsing of the sections dealing with investigative hearings and preventive arrest.

The Chair: This is a question to staff.

Could you repeat the question for Mr. Dupuis?

Mr. Peter MacKay: Yes. I'm just wondering if you could give us the page number to locate the amendment that invokes the sunset clause for preventive arrest and investigative hearings. Where is that amendment?

Mr. Richard Dupuis: It is in my package.

Mr. Peter MacKay: I know it's in the package.

The Chair: In addition to the amendments that are available in packages one and two, there are additional amendments that will be distributed, and the amendment you speak of now will be distributed... Mr. Dupuis?

Mr. Richard Dupuis: Oui, maintenant.

Mr. Peter MacKay: Okay, because I just spent the last 40 minutes looking for it, and it's not there.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: On a different point of order, Mr. Chairman, I would just like to register my concern about the process. I don't say this in any particular criticism of the chair, and I understand the timeframe within which the government wants to work and which to some extent the committee has set for itself, but I would just say that on the face of it, this process is woefully inadequate.

• 1710

To hear from the minister today... I appreciate we've had this 45 minutes, but imagine, Mr. Chairman, we have all these amendments. We haven't seen each other's amendments. We've had an opportunity to hear the substance of the government's amendments, but we haven't had a chance to actually look at each other's amendments. And here we are, we're going to commence clause-by-clause. When we think of other less important or minor pieces of legislation for which we've spent all kinds of time in committee on clause-by-clause, and here we are, we're going to go through this in this way, it's really quite shameful. It's not something we should be particularly proud of. And I don't think any of us can really do our jobs properly in the context we've been given.

The Chair: Your comments have been noted, and the chair will be using reference to them in future in terms of doing this process better.

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): I just wanted to raise a point too.

I practised law for 25 years, and I don't know how many times I ran into people who blame the legal profession for defective laws, poor laws, and so on. But today, we are making law. We are going through this thing clause by clause and making a very significant statute here. If there are defects and problems in this law, please do not blame the legal community for it; it's the parliamentarians who are the ones to blame for it.

The Chair: Are there any questions specific to our witnesses or specific to the process, to ensure everybody understands it clearly?

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I asked two questions of the minister earlier today with respect to “entity” and with respect to the issue of the defence of due diligence. I've since had private conservations with officials, and I'd appreciate it, since these do not form part of the amending process, at least at this stage, if they could give an on-the-record response to both of those inquiries, particularly with respect to “entity”, as “state” is included in the definition of “entity” in a couple of acts that are referred to in the bill itself, but not in this bill as it presently stands, and also with respect to the second issue of due diligence as a defence for charitable organizations.

The Chair: Mr. Mosley.

Mr. Richard G. Mosley (Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice): I'll tackle the “entity” question, and then if I may, Mr. Chairman, I'll ask Mr. Kennedy to answer the question about due diligence.

As mentioned to Mr. McKay, there are definitions of “entity” in the bill. I'll also thank Mr. Narvey, who very kindly wrote this out for my benefit.

The amendment at page 12 in the Criminal Code, which deals with the new part II.1 respecting terrorism does not cover “states”. At pages 53 and 54, the amendments relating to the former Official Secrets Act, now to be called the Security of Information Act, refer to foreign entities and do include states. In the Money Laundering Act, page 90, the definition of “entity” there does not include states. And at page 119, with respect to the Communications Security Establishment, states are included.

There are different reasons for the choices made in drafting each of these provisions. Mr. McKay's question arose in the context of the first definition applying to part II.1 respecting terrorism. There “entity” is used for the listing procedure. Terrorist entities can be listed by the Governor in Council, and that may include any manner of person, individual or corporate... and by reference also to the definition of “person” in the Criminal Code, it would cover a broad range of types of persons—corporeal and non-corporeal, including public bodies.

• 1715

But this part of the bill is not aimed at state action. It's not intended to serve as the basis for any action against foreign states. It's intended to deal with persons, organizations, or groups who are operating within Canada, who hold property within Canada, and are generating finances to support terrorist activities from within Canada.

I hope that assists Mr. McKay with the understanding of the bill in that regard.

The Chair: Was there a reference to Mr. Kennedy on the second piece?

Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, Solicitor General Canada): With reference to the due diligence issue, I just want to put on record that currently all charities in Canada cannot, none of them, avail themselves of the due diligence defence. All charities are responsible for ensuring that moneys they have and resources they possess are used and disbursed in strict adherence with the stated charitable purpose of that charity.

To introduce the concept of due diligence here would be to extend to a charity whose assets are being used in support of terrorist activity a standard of care, a hurdle, or a defence type of thing, that doesn't currently exist for charities writ large.

Therefore, what we are seeking to do here is treat charities under part 6 exactly and in the same fashion that charities are currently generally treated under the Income Tax Act.

Does that...

The Chair: Thank you very much.

Peter MacKay, keep the questions general because we're going to get into the specifics here a little bit later.

Mr. Peter MacKay: Well, this is fairly general, but it's a specific question I have related to proposed subsection 273.63(1). This is dealing with the powers of the Governor in Council to:

    appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office

This is found on page 120 of the bill. That to me reads as “may”, so it's conditional. The minister “may”.

Now I refer you two pages forward, page 123, proposed subsection 273.65(8), wherein it sets out what the commissioner shall do:

    shall review activities carried out under an authorization issued under this section

So it vests powers in this commissioner, and yet my reading of the wording as it currently appears in the bill is that this office may never be set up. It's “may”. That appears to me to be quite an anomaly, and it does not provide much reassurance to me that this office will in fact ever take effect.

So that would nullify all of these powers that are there to oversee the particular activities in granting wiretaps.

The Chair: Mr. Mosley.

Mr. Richard Mosley: As the committee I believe knows, the commissioner, Mr. Bisson, has been in office now for I think five years. The Minister of National Defence, in his appearances, if not before this committee, then before the committee in the other place, indicated that there is every intention to continue the appointment of a commissioner. The reason for laying out the mandate of the commissioner, including the section to which Mr. MacKay has referred, was to provide a legislative framework for the office of the commissioner.

The difficulty with proposed section 273.63 is it is a discretionary provision given to cabinet. The practice in drafting federal legislation is not to impose obligations on the Governor in Council. That's not to say there's any intention not to continue the office of the commissioner or to appoint further commissioners when Mr. Bisson's term expires.

• 1720

The Chair: Thank you very much. I'd like now to proceed, if members are in agreement—

Mr. Brian Fitzpatrick: Can I just raise a matter for clarification?

The Chair: On a matter of clarification, Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: Then when we get to the point I won't be holding it up, if I get a satisfactory answer to it.

It's proposed section 83.11 on page 21. My reading of this bill is that once an entity is listed and anyone finds they have assets that are on that list, it's incumbent upon them to contact the Commissioner of the RCMP and the Solicitor General's office and notify them of that fact and those assets will be frozen. There are also provisions dealing with money laundering, which are fairly onerous and tough too.

I've been looking at that section. Somebody said we've raised $150,000 so far with seizures and so on. I'm going to estimate there are 20,000 businesses and entities in this country that are going to have to start filing monthly audits. If that runs $100 a crack, my math tells me it's going to cost those businesses something in the order of $25 million a year to do this sort of thing.

I haven't found anybody who has explained to me what these regulatory agencies are supposed to be doing with all these monthly audits, but it seems to me if you find one of these people in your records, you're going to report that to the RCMP and the Solicitor General's office, and bingo, these people should be dealt with.

I'm not exactly sure what this whole provision does, except try to defeat terrorism with a whole lot of government bureaucracy, without much purpose to it. I would just like some preliminary explanation of why this section is in there. The economy is suffering under this thing as it is. I don't think businesses need more bureaucracy.

The Chair: Mr. Fitzpatrick, I assume you're considering an amendment; therefore you're looking for clarification.

Mr. Brian Fitzpatrick: I want an explanation of why that provision is in there.

The Chair: But I would remind members that we're going to get to that particular provision in the course of clause-by-clause.

Mr. Stephen Owen: We do have, Mr. Chair, an official from the Ministry of Finance who would like to address this topic.

The Chair: Thank you.

Would you introduce yourself, please?

Mr. Richard Lalonde (Chief, Financial Crimes Section, Department of Finance): My name is Richard Lalonde. I'm from the Department of Finance.

I apologize if I did not hear the question completely, but what I did understand was a particular concern regarding the provision requiring the reporting of frozen assets and the duty to determine whether or not a financial institution has frozen assets.

Mr. Brian Fitzpatrick: The monthly reporting requirement.

Mr. Richard Lalonde: As far as I understand, we will be seeking an amendment to provide flexibility, that is, regulation-making authority, that would allow us to adjust the reporting frequency from time to time so that we could, on the basis of experience of the reporting of different financial institutions, subsequently adjust whether or not they have to do so on a monthly basis, or perhaps maybe a semi-annual basis, to the respective financial sector regulators. I think in that sense we can address that particular concern.

The Chair: Let me make the point too that we should proceed perhaps to clause-by-clause, because the very issue that has been raised is going to potentially see a government amendment.

Monsieur Bellehumeur, a general question, if that's the case.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Mr. Chairman, I would like to say that I am getting more and more concerned about how we are doing this. For example, the sunset clause is nowhere to be seen, and Peter Mackay asked about that. This is a very concrete example that we may run into time and time again during the evening.

I had a sunset clause among my amendments. It is on page 45 in the second group of amendments. While I do not want to criticize the clerk, a motion that is supposed to deal with the sunset clause has been distributed to us, but this one is slightly different from the one in the second batch of amendments that I have. Is that because the department forgot something or for some other reason? On this one issue, we have a second amendment even before we have voted on the first one.

• 1725

What I find unacceptable is that we seem to be going very quickly. I will not talk at length and you will see that. I am not interested in staying here until 5 o'clock in the morning. But I want us to take our work seriously, and it seems obvious that the department is not doing that and the way that you are working shows that you are not either.

[English]

The Chair: The point that needs to be made is that in the course of clause-by-clause, nothing deters a member from making an amendment at any time. So the fact that the government has made available amendments, withdrawn those amendments, and made available other amendments, even twice, is completely within the rules of this place. Anyone can submit an amendment to any provision of this bill as we go through it. Consequently, it is not inconceivable that later on this evening when we're doing clause blank, someone will bring forward an amendment at that time. It is the nature of the process we're engaged in. The exercise of providing this information as soon as possible is actually intended to try to be helpful to the process. As anyone can bring forward an amendment as we go through the process, it is not at all unusual for an amendment to be brought forward at this point or even subsequent to this point. I just wanted to make the point that that's exactly what's happening, and, ultimately, there's nothing anyone can do about that.

[Translation]

Mr. Michel Bellehumeur: On that point, Mr. Chairman, I understand that it is not highly unusual, but it does not happen often either. Moreover, in the case of special legislation that is as important as this is, I believe that the way we are going about things tonight will cause us to cut corners. At the last minute, the government may change or withdraw anything it wants, and no one will be able to check. Even they could make mistakes in good faith in special legislation like this. I find this unacceptable.

[English]

The Chair: We've heard comments on the process and the general questions.

We're now going to go to clause-by-clause.

(On clause 2)

The Chair: I will bring your attention to government amendment G-1, which is in the original package. It'll take us a moment. I would ask the government to offer an explanation. As we go through this exercise, I think it's going to be more clear from a practical standpoint.

Mr. Bill Blaikie: By the original package, do you mean this one?

The Chair: Yes.

Mr. Owen.

Mr. Stephen Owen: Mr. Chair, as is obvious, there are a large number of technical amendments. Some are changes to the translation of the English to the French, some clean up language that has been made apparent during the testimony and the deliberations of this committee, and some are on the ongoing refinement of the bill.

We have officials here, and Mr. Mosley will be speaking most commonly to those types of amendments. I will from time to time address the substance of some of the policy amendments that are being recommended.

The Chair: Mr. Mosley.

Mr. Richard Mosley: Mr. Chairman, this amendment is to the French version. It would add the word “procédures” to the definition of “procureur général”. It would replace the word “poursuites” with the word “procédures” in proposed paragraph 2(1)(f). The amendment is necessary to cover proceedings other than prosecutions, such as forfeiture, in proposed paragraph 2(1)(a) and to reflect the fact that the proceedings in proposed paragraph 2(1)(f) are not in fact prosecutions.

(Amendment agreed to)

The Chair: I refer the committee now to amendment G-2 in the first pack.

Mr. Owen or Mr. Mosley.

Mr. Richard Mosley: This is to correct an error. It currently refers to section 83.11, and it should have been 83.12.

(Amendment agreed to)

The Chair: Next is amendment G-3.

Mr. Mosley.

Mr. Richard Mosley: This motion adds the offence referred to in subsection 7(3.71), the offence against United Nations or associated personnel, to the definition of Attorney General. This is to ensure that the Attorney General of Canada will have concurrent jurisdiction with the provincial attorneys general to prosecute an offence referred to in subsection 7(3.71).

• 1730

The Chair: Is that agreed?

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: So are we on amendment G-3, on page 4?

[English]

The Chair: We're on amendment G-3.

[Translation]

Mr. Michel Bellehumeur: The problem is that it is difficult to compare the English and French texts; I do not understand why the English text has sections beginning with a small i and the French does not. And I am wondering whether there is something wrong with the procedures or something.

Finally, I do not understand why there are separate paragraphs in English but not in French.

[English]

The Chair: Mr. Mosley.

Mr. Richard Mosley: Mr. Chairman, the French doesn't require the part on the use of the term

[Translation]

“soit”:

    soit pour toute infraction visée au paragraphe 7(3.71), soit pour toute

[English]

The genius of the

[Translation]

langue de Molière

[English]

and not, unfortunately, in English.

[Translation]

Mr. Michel Bellehumeur: I will have to take your word for that, sir.

[English]

(Amendment agreed to on division)

The Chair: Next is G-4 in the same package. That amendment is being distributed now.

Mr. Richard Mosley: I can provide an explanation while it's being distributed. It adds references to the proceedings under the investigative hearing provisions, sections 83.28 and 83.29, and the recognizance with conditions provisions in section 83.3 to the definition of Attorney General in proposed paragraph 2(1)(f).

Proposed paragraph 2(1)(f) gives concurrent jurisdiction to both the Attorney General of Canada and the provincial attorneys general over proceedings relating to terrorism offences and terrorist activities. The amendment would not change the distribution of jurisdiction over matters involving terrorism. The matters at issue are currently covered in proposed paragraph 2(1)(c) in the general reference to proceedings in relation to a terrorism offence, although there is no explicit reference to those sections.

This is a technical change related to the proper placing of proceedings of this kind that do not involve prosecutions, and they properly belong with the other non-prosecution-based proceedings in proposed paragraph 2(1)(f). It also accords better with the French terms used for the matters at issue in the various proposed paragraphs in the definition.

The French version of proposed paragraph 2(1)(f) refers to “procédures” rather than “poursuites”, which is the French term for prosecutions.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: Mr. Mosley said it doesn't change the provincial or federal jurisdiction. It does not delineate which jurisdiction will prosecute terrorism.

(Amendment agreed to on division)

The Chair: I've asked staff to distribute amendment PC/DR-1, which is an amendment Mr. Peter MacKay will speak to. That is not part of the kit. This is one of the amendments we are receiving now. For clarity, this is PC/DR-01.

As everyone has it, go ahead, Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

Essentially what this amendment does is in fact insert into this bill a definition of terrorism. The definition draws heavily from both the American and U.K. acts pertaining to terrorism. It specifies exactly what would constitute terrorism under this bill, rather than the current provisions in this bill, which speak only to the activities that would constitute terrorism. I would suggest that it is easier to prove a specified act of terrorism when it is defined.

• 1735

This particular definition I have presented—and I won't go through it in its entirety—specifically delineates violence against a person or property, endangering a person's life, risking health, safety of the public, and designed to seriously interfere with or disrupt government activities. So this is a specific definition of terrorism.

Just to reiterate, it is essentially a combination of the two definitions that appear in both the American and U.K. acts. I suggest that it would inject greater ease of prosecution if it were properly defined and accepted into this bill.

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

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I would just like a clarification. If this amendment were to be passed, would part (b) of clause 83.01 be dropped? Does this replace the made-in-Canada definition of "terrorist activity," as it was called during study of the bill?

[English]

Mr. Peter MacKay: Of course, it wouldn't affect the UN provisions that are incorporated here. Yes, it would be for the purpose of replacing the current activities that are deemed to be terrorism.

The Chair: Thank you very much.

Mr. Toews on the same point.

Mr. Vic Toews: I'm just wondering why you're advancing as part of the definition that it “is made for the purpose of advancing a political, religious or ideological cause”.

Mr. Peter MacKay: I'm not advancing that. I'm saying this would replace the...

Mr. Vic Toews: I'm sorry. It says here:

    “terrorism” means the use or threat of action where the use or threat... (c) is made for the purpose of advancing a political, religious or ideological cause.

Mr. Peter MacKay: That is consistent with the current legislation.

Mr. Vic Toews: I'm asking why you need that there.

Mr. Peter MacKay: You don't. If you want to suggest a subamendment to this, I have no difficulty with that whatsoever.

Mr. Vic Toews: I would certainly support the deletion. I'm going to be advancing an amendment to the government's definition to try to convince members opposite to get rid of that proposed paragraph, and I think I should be consistent with regard to your definition as well.

Mr. Peter MacKay: That's fine.

The Chair: Mr. MacKay is going to interpret that as a friendly amendment. Understand that we are allowed only one subamendment to an amendment. Therefore, Mr. MacKay, if you accept that as a friendly amendment, that's it.

Does everyone follow exactly what just transpired? We've eliminated the reference to “political, religious or ideological cause” so that Mr. Toews will be consistent later on in this exercise.

Is there anything else? Mr. McKay from the Liberal side.

Mr. John McKay: Directly to the mover, if you put in this definition that terrorism means violence designed to influence, which is the nub of it, what does that add to the bill that is not already there? Are you creating a contradiction between the definitions of “terrorism” and “terrorist activity”?

Mr. Peter MacKay: I'm just suggesting that from a prosecutorial perspective, it's much easier to prove an act of terrorism if in fact you have evidence to suggest that it was done for the purpose of influencing. As opposed to suggesting a terrorist act that involves the act of influence, this defines it. This gives you a specific definition of terrorism that is broad enough to include acts intended to influence. Therefore, it follows that the police and the crown have to produce the evidence to sustain that categorization of it being a terrorist offence.

• 1740

The Chair: Thank you very much.

Mr. John McKay: By doing that and by accepting Mr. Toews' amendment, don't you make terrorism only a slightly more heinous offence than just ordinary criminal activity?

Mr. Peter MacKay: With the greatest respect, Mr. McKay, isn't that what this entire bill does? It makes it slightly more heinous. If a murder is committed for ideological, religious, or political purposes or for reasons of pure hatred, it's still murder. We can deem it terrorism and categorize it as an aggravating circumstance at the sentencing hearing, but you still can't get more than life imprisonment. It's going to accomplish the same thing in terms of securing a conviction.

I think the concern with this definition of the mens rea behind it is that it is going to be more difficult to prove, and you're going to see very few prosecutors rely on this particular definition for that reason. I would far rather have this definition clearly defined and prosecutors no longer required to go into the mind of the individual to find out what motivated them to commit this act, other than to prove it was for the purposes of influencing or intimidating.

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you, Mr. Chair.

I have a few general comments, and then I may ask our officials to be more specific.

It seems to me that, first of all, if we change the definition of “terrorist activity” to “terrorism”, I'm not sure if Mr. MacKay has amendments to cover every other reference in the bill to terrorist activity.

Another difficulty with approaching it in this way is that the definition around terrorist activity is separate from terrorist offence, which catches more activities, for instance with regard to funding of terrorist activities. So there isn't a congruence between the definition of “terrorist activity” and “terrorist offence”, which this would seem to merge in a way that might not be helpful.

Another thing I think we should keep in mind, and we've had it in submissions before us, including by justice officials, with regard to the religious, ideological, and whatever the other one was—

The Chair: It's “political, religious or ideological”.

Mr. Stephen Owen: —is that what we're contemplating there is something that actually takes it in a quantitative leap and order above ordinary criminal activity, heinous though it may be. It's the perversity that is done to those motivations by applying them to the very serious crimes.

The nature of ideology or religion when it takes a perverse turn, because of the spreading of that throughout large numbers of people perhaps, takes it into a different category of just a single person motivated by hate perhaps committing the same crime but not within a network of perverse ideology or religious motivation. So it actually assists us to limit and distinguish these very serious crimes within this net of terrorist motivation, which that adds an addition to.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Mr. Owen, with regard to this motivation and this new requisite element of proof, short of a confession or the evidence of a party working with this individual charged under this definition of terrorist activity, can you give us a practical example of how you would go about proving that?

• 1745

Mr. Stephen Owen: Take the one most dramatically and tragically in front of us. A court certainly has the power—in fact, the duty—to infer this type of ideology, for instance, from the context of the day-to-day coverage in the news. Osama bin Laden has been on tape proselytising, taking responsibility, and condemning various aspects that he sees targeted by the network under his ideology or religion—perverse as it is—that is motivating these terrible crimes. So a court, in any prosecution, would have the ability to infer from the public record.

I would suggest that when it's an individual or a small group conducting a horrible crime such as this simply out of hatred, and when it's in the nature of something that is proselytised, networked, spread, or attempting to be spread, then almost by definition they're advertising the fact. They're trying to spread their influence. They're trying to intimidate, but they're also trying to gain followers, believers, or whatever, in their perverse crimes and motivation.

It's not difficult for me to imagine that it will always be very obvious to the court and to us when we see this type of crime committed with this type of motivation.

Mr. Peter MacKay: It may be very obvious, but it's essentially circumstantial evidence that has to be proved beyond a reasonable doubt, and potentially before a jury, not a judge.

Mr. Stephen Owen: It has to be accepted by the court as inferred by the public record and the public context in which it has happened.

The Chair: Thank you, Mr. MacKay, Mr. Owen.

I think I'd like to call the question. I would first call the question on the subamendment. I think everybody is aware that it removes (c), which would remove “is made for the purpose of advancing a political, religious or ideological cause” from Mr. MacKay's amendment, which is PC/DR-01.

(Subamendment negatived)

The Chair: The friendly amendment has been defeated.

Mr. Vic Toews: On a point of order. Can the witness vote?

The Chair: Yes.

Mr. Vic Toews: I've never seen a court of law that would ever allow that to happen. Holy smokes!

An hon. member: The law has changed.

The Chair: Mr. Bellehumeur would like a recorded vote.

[Translation]

Mr. Michel Bellehumeur: If I counted correctly, Mr. Chairman, there were 8 for and 8 against, because there was one abstention.

[English]

The Chair: A recorded vote.

(Subamendment negatived: nays 9; yeas 8)

The Chair: We now go to the amendment as it was originally presented, that being PC/DR-01.

(Amendment negatived—See Minutes of Proceedings)

(Clause 2 as amended agreed to)

(Clause 3 agreed to)

• 1750

(On clause 4)

The Chair: I now bring to your attention a group of amendments referred to as G-1.1, NDP-1.2, and G-1.1.1. Those three amendments are the first three amendments that would be considered under clause 4, so you can make that change in your scorecard. Those amendments are in the package indicated as package 2.

I'll turn to Mr. Mosley for an explanation of the first one on that list, that being G-1.1.

Mr. Richard Mosley: This is to clarify the French version in the definition of “activité terroriste” by providing clear indications of whether the elements are linked by “or” or by “and” en français. It would also replace the word “prévues” with the word “visées” in proposed paragraph 83.01(1)(a), and “international” would follow “règles de droit” at the end of proposed subparagraph (b)(ii). The amendment is purely for clarification of the French version.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On NDP-1.2, we'll go to Mr. Blaikie.

Mr. Bill Blaikie: I'm awfully sorry, but I'm going to have to ask your... I think I have a different numbering system. Which amendment are you referring to? This amendment was withdrawn as far as I know.

The Chair: Okay, amendment NDP-1.2 is withdrawn. I refer, then, to G-1.1.1.

Mr. Mosley.

Mr. Richard Mosley: This is again to clarify language. It removes the words “or threatened” from proposed paragraph 83.01(1)(a) of the definition of “terrorist activity”. The concept of a threat appears at the end of the definition, and the reference at the beginning is unnecessary surplusage.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: The next amendment to clause 4 is amendment CA-1, which was included in your original package. For an explanation, I believe I'm going to Mr. Toews.

Mr. Vic Toews: Mr. Chair, this relates to a similar motion that I moved on Mr. MacKay's proposed amendment that was defeated. Essentially, this removes the prosecution based on political, religious, or ideological motives.

The Chair: We've heard the discussion around that.

Mr. John McKay.

Mr. John McKay: Your amendment says 37 to 41. I want to make sure we're talking about the same thing here, because CA-1 says “that is committed in whole or in part with the”, and it makes reference to page 13, lines 37 to 41. I don't understand how the explanation is consistent with the amendment.

The Chair: Mr. Toews.

• 1755

Mr. Vic Toews: The explanation that was given by the draftspeople is that clause 4 would be amended by replacing lines 37 through 41 with simply the following:

    that is committed in whole or in part with the

and then deleting in its entirety the phrase, “political, religious or ideological purpose”. That's what the draftsman advised on this.

The Chair: Is that satisfactory?

Mr. McKay.

Mr. John McKay: I understand what he's saying, but I don't quite see how this fits into lines 37 to 41. I think what he's saying is at line 30—I think that's what you're amending—“that is committed in whole or part for the”.

The Chair: Mr. Toews.

Mr. Vic Toews: In essence the amendment I asked to forward is the deletion of “political, religious or ideological purpose”, so that as far as I'm concerned, the (A), that paragraph, would be deleted.

Mr. John McKay: Everything moves up, then.

Mr. Vic Toews: That's correct. I think that's what they're trying to do here with this amendment, but I'm not a draftsman and it is your amendment.

The Chair: I think we understand both the concept and the strategy being employed to do that and I would call the vote on Mr. Toews' amendment, CA-1.

(Amendment negatived)

The Chair: Next on the list you have in front of you is NDP-1. It is also withdrawn.

The next amendment, BQ-1, actually moves down because of the changes in other things that have transpired here and follows NDP-1.1. The next amendment we'll be discussing is amendment PC/DR-1.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

This amendment affects the same section that Mr. Toews' amendment would have deleted. Barring the ability to delete this section, which I feel is quite limiting, this amendment seeks to broaden the application and to include, as part of this amendment, along with the basis of “political, religious and ideological”, the words “philosophic, racial, ethnic or other similar nature”. As well as broadening this definition, it would make it a condition rather than a prerequisite of proof under the Criminal Code. It would in fact allow the crown to quote this section, if it were to be attached, as an aggravating circumstance rather than a requisite element of proof.

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Chair, it seems to me that by adding such concepts as “racial” or “ethnic”, we would be going beyond systems of belief or thought into systems of fact, someone's ethnic or racial characteristics. We're not converting people through a perversion of an idea or thought that might be religious or ideological into acts of violence, but we would actually be putting in a condition that is a matter of fact, someone's ethnicity or race. I think that could cause some very widespread concern among our communities.

• 1800

Also, with respect to the phrase “other similar nature”, I'm concerned about the breadth that might invite. I would say only that I think a lot of the concern we've heard from minorities in Canada would be aggravated by this extension.

The Chair: Thank you, Mr. Owen.

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: History is full of ethnic groups with their belief systems causing harm and danger to other people. We have tons of examples of that sort of thing. Need I mention anything more than Yugoslavia? Or there is culture and so on. I think it expands the meaning quite well.

The Chair: Are there any other comments?

Mr. MacKay.

Mr. Peter MacKay: Similarly, “philosophic” can expand this definition to include motivations of pure hatred or visceral acts of violence against an administration. As I said, it's still required by the crown to prove all of this beyond a reasonable doubt, and this is intended to ensure that if we are going to leave this section in, the crown has the ability to prove motivation based on any of these elements.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: I don't want to prolong the debate, Mr. Chairman. I'm just somewhat confused as to how it is that people who would like to get rid of this altogether at the same time can support making it broader. It seems to me to be a bit of a contradiction, but maybe I don't understand it. The problems that exist with trying to establish political, religious or ideological motivation would exist with a longer list, so therefore I wouldn't be inclined to see the list extended.

The Chair: Peter MacKay and then Mr. Toews.

Mr. Peter MacKay: Mr. Chair, there's absolutely no contradiction. It's a long-standing practice that if you can't get rid of something you can try to improve it, which is exactly what I've tried to do with this particular amendment.

The Chair: Mr. Toews.

Mr. Vic Toews: Just as a matter of clarification, I don't think there was any intent on the part of any member from the Canadian Alliance caucus to in fact support this amendment. There was some discussion on the clause. I just want the record to reflect that.

Mr. Brian Fitzpatrick: I was the one who raised it. I'd say it just underscores the problems with this sort of thing. Where do you stop and start with it? If you're going to rule out “ethnic” or “cultural”, it just shows the problems with the whole blaming thing.

The Chair: We have votes, everybody. We'll have the opportunity to proclaim ourselves on this. In fact, we'll do that right now.

(Amendment negatived)

The Chair: I will turn now to the amendment NDP-1.1.

Mr. Bill Blaikie: This would amend the definition of “terrorist activity” on page 13 of the bill in item (B) at the bottom of the page, basically to incorporate a recommendation made before this committee by Mr. Aldridge, who made certain recommendations. As you can see, the amendment would replace the language on lines 42 to 45 on page 13 with the following:

    intention of causing extreme fear and intimidation in the public with regard to its security, or by means of such extreme fear and intimidation compelling

It basically ups the ante, if you like, in terms of describing terrorism and it also takes out the concept of the words “including its economic security”. That's the other effect of the amendment.

The Chair: Thank you, Mr. Blaikie.

Mr. Owen.

Mr. Stephen Owen: I have a comment, Mr. Chair, thank you.

I think our concern, or certainly my concern, would be that “extreme fear” and its conjunctive as well, “and intimidation”, would raise the bar very high, perhaps higher than is intended, certainly higher than is intended by the bill in the sense that we as a general population may be under the intimidation of the terrorist activities of September 11, but we may not be in the extreme fear that people living close to the World Trade towers in southern Manhattan might be.

• 1805

In addition, you might have an act of intimidation that's immensely effective, by these terrible crimes, an act that has a broad intimidation of the society but doesn't reach the level of extreme fear, which would then knock it out of these sections.

With respect to the economic aspects, a lot of the debate I'm aware of and have been involved in over the broadening of the definition of human rights to include social, economic, and cultural issues captures the concept of economic security as part of human rights for individuals and societies. That certainly is one of the intentions of the act: to include threats to or actions against the economic interests of society. I think the bill would be much poorer for its absence.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I look forward to the day when economic security is regarded as a human right or a matter of human security, but it's funny that all kinds of things that don't apply elsewhere seem to apply when it comes to anti-terrorism legislation.

The Chair: Thank you, Mr. Blaikie.

(Amendment negatived)

The Chair: Now we go to the Bloc, with BQ-1.1.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, the wording is slightly different from amendment NDP-1.1.

The minister said that she wanted to hear from the witnesses. I listened to her very carefully when she appeared here. Every time she mentioned this clause, she used the word “terrorize” people; she never talked about “intimidating” people. There is a clear distinction between the two.

In particular, it refers to economic intimidation, among other things, a few lines further on. A definition like that might apply to a certain country not too far from us, that we know has a protectionist mentality, even though such a terrorist might not meet the definition in Bill C-36.

So I am proposing, Mr. Chairman, that we simply adjust the minister's vocabulary so that the message is very clear, by saying that it is with the intention of “terrorizing” the public or a segment of the public and not just “intimidating” people.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: I'll just observe, Mr. Chair, that the concept of intimidation is already in the Criminal Code and we know what that means. “Terror” isn't in the Criminal Code.

I'd also go back to my comment with respect to Mr. Blaikie's amendment, that is, terror as we may conceive it, without it having been defined, is perhaps too high a bar as well. We could have general intimidation of the public that may not reach the level of terror but could simply be immensely influential in behaviour or in its damage to systems or people, as described in the offences.

[Translation]

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: I think that the member, the parliamentary secretary to the minister, has just answered my question and my concern about how this legislation would be implemented. He is basically saying that we should avoid the term “terrorize” because it would place the bar too high, and that we should keep the word “intimidate” so that we can catch as many people as possible. That is the potential for abuse that we see if we maintain such a broad definition.

In keeping with the vision and the purpose of Bill C-36, and in particular to reflect the testimony of the Minister of Justice, we need to replace the term “intimidate” by “terrorize” or else the bill is not consistent with the Minister's DECK. That is what is troubling.

And this is of concern not only to the Bloc Québécois; all the witnesses that I heard here are, if not nervous, at least very concerned about how that definition might be used. What you have just heard will not reassure anyone, but will instead confirm people's fears.

• 1810

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Chair, with respect, we're talking about building a definition here of “terrorist activity” that has a number of different attributes to it, including the concept of intimidation, which is existent in the anti-terrorism UN conventions. That's the concept of intimidation that's used.

We're also, remember, building something. We have heinous acts of killing or maiming or serious property damage or damage to systems. We have this concept of motivation—ideological, religious, political. And we have this intention to intimidate, which is a term that's known in our criminal law and used in international conventions. So it's really building all of those aspects, and not just taking intimidation and trying to have it stand alone. It's the concept together that creates the terrorist activity.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I now turn to NDP amendment number 2. Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, this amendment would simply take out the words “economic security”. So it's in the same spirit as the amendment that was already defeated.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I turn now to amendment G-1.2. Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: You are probably more intelligent than I am; I have no doubt of that. That is why I would like you to tell me exactly what page we are on. It is because, really—

[English]

The Chair: Okay, thank you. I'm not as convinced, Michel. G-1.2 is in the second pack, page 11.

[Translation]

Mr. Michel Bellehumeur: That reassures me; you are not more intelligent than I am, Mr. Chairman.

[English]

The Chair: Monsieur Bellehumeur, while the panel searches...

[Translation]

Mr. Michel Bellehumeur: I have another amendment on page 13. And we are now on page 14.

A voice: Amendments BQ-2 and BQ-3.

A voice: Amendment BQ-2 is on page 9.

Mr. Michel Bellehumeur: You are taking for granted that my amendment will be defeated.

Voices: Oh! Oh!

Mr. Michel Bellehumeur: It may be a correct assumption, but I would like to have a chance to debate it first.

[English]

The Chair: One moment, please.

Monsieur Bellehumeur has brought to the attention of the committee a problem in the order. Again, I alert everybody to the fact that we've added many of these. The changes are not his, but others that would... So I refer everyone to amendment BQ-3. It is in the second pack, page 10.

• 1815

If I may ask the indulgence of the committee, the way the lines are affected from time to time makes it difficult to put these in order, because they overlap and so on. I'm advised that the way we would like to proceed is with BQ-3 first and BQ-2 second.

Do you have a difficulty, Monsieur Bellehumeur?

[Translation]

Mr. Michel Bellehumeur: Yes.

[English]

The Chair: BQ-3 is page 10, package 2, and BQ-2 is page 9, package 2.

[Translation]

Mr. Michel Bellehumeur: The three amendments, BQ-1, BQ-2 and BQ-3, must be considered together, but I still want the committee to vote on each of them. You have kept the word "intimidate". In my opinion, it should be dropped because, with respect to economic impacts among other things, it is inconsistent with the spirit and purpose of Bill C-36, which is to combat terrorism. There are various aspects to the economy. There are securities; there are ways of monitoring the stock market; there are ways of monitoring and checking. There are other parts of the bill that will cover those things. I believe, however, that this line should be dropped and that the text should read as follows:

        (B) with the intention of intimidating the public, or a segment of the public, with regard to its security or compelling a person...

We simply need to put that into the wording.

[English]

The Chair: That's BQ-3.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I now turn you to BQ-2, which is page 9 in the second pack.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, I may be able to predict what will happen to amendment BQ-2, since its purpose is the same as that of the first amendment. It is based on the minister's comments and testimony, since I come here to listen to the witnesses. I heard the minister talk to us about “terror” and “terrorize”. That is different from intimidation. I am trying to be consistent with her testimony. I want to help her by amending her bill and including the word “terror”.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: Now I turn to government amendment 1.2. It's the second packet, page 11, and page 12 for the French.

Mr. Stephen Owen: Mr. Chair, I'm going to ask Mr. Piragoff to take us through this, because there are three major aspects that fit together in a set, and he can provide the most coherent explanation.

Mr. Donald K. Piragoff (Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chair.

There are four major issues in this proposed amendment. The first is to insert the words “the public or” in line 3 and line 4. This is a technical correction to include a public, whether the public is inside or outside Canada. Currently, the way the text reads it only talks about the government organization in or outside Canada. But if one looks at item (B), it also talks about intimidating the public. We should be clear that terrorist activity also includes terrorizing publics outside of Canada.

• 1820

The second amendment would delete the words at line 5, “that is intended”, and would replace them by the words “that intentionally”. Also, in each of items (A), (B), (C), (D), and (E), the verbs, which are currently in the infinitive, would be changed into the present tense. This would have the result of actually requiring that harm be caused, that intentional harm be caused.

There were some witnesses who were concerned that the definition of terrorist activity might be construed as a definition of intent and not of one causing harm. This makes it clear that there has to be a causing of harm, or an attempt to actually cause harm. I say “intent”, because if one looks at the tail part of this at the bottom of page 14, it talks about “conspiracy, attempt or threat”. So this addresses those concerns of witnesses who were concerned that there were too many intents in the definition and not enough action.

The next issue is in item (D), to delete the reference to item (E) at line 18. That would make it clear that item (D), talking about property damage, is separate from item (E), which talks about serious interference with or serious disruption of an essential service. In other words, the two items should stand on their own. One does not have to have a link between the property damage and the essential service. Some witnesses, again, were concerned about the circularity of going around between items (D) and (E).

The next two issues are in item (E). Both of them were referred to by the minister this morning. The first is the deletion of the word “lawful” before the phrase “advocacy, protest, dissent or stoppage”. As the minister indicated this morning, or at noon hour, the focus should be on whether or not conduct meets the entire definition of terrorist activity, and not whether the conduct might be lawful or unlawful according to some other law, such as a trespass law, or whether it violates some minor property damage.

The other aspect that the minister alluded to earlier this afternoon was that she wanted to tighten the definition in response to concerns raised by various witnesses that acts of a few protesters not taint the lawful protest of the majority of protesters who might be on the street, for example. That has been achieved by deleting at line 25 the phrase “involve an activity”.

So it is clear then that in order for protest activity or dissent or advocacy to become terrorist activity, it must actually intend to result in the harmful conduct in (A) to (C), which is that it must intend to cause death, intend to endanger a person's life, or intend to cause substantial property damage that is likely to endanger life. Making that direct link would ensure that the actions of a few—that is, an activity involved in a larger activity—do not taint the lawfulness and the legitimacy of democratic protest.

Those are the amendments contained in this large amendment. They address many of the concerns raised by witnesses in the other place, as well as before this House.

The Chair: Thank you.

Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I would like to clarify something. Again, we heard from a lot of witnesses. I listened to them carefully. The wording of item (E) in subparagraph 83.01(1)(b)(ii) as proposed worried them, and I am not sure that the new version will reassure them. I want to ask you a question.

• 1825

I am going to give you a concrete example. You added the words “advocacy”, “protest” and “dissent”. That is clear and precise. However, the wording is as follows:

    ...other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C).

It is not cumulative. Someone can take action that is covered by one of the three clauses, by two of the three clauses or by the three clauses. If we look at clauses (A), (B) and (C), and nurses or doctors decide to go on strike—whether the strike is legal or not is of no importance according to this wording—and must delay a series of open heart surgeries or chemotherapy treatments, doesn't this stoppage of work endanger the life of a person and, consequently, would it not be considered an act of terrorism?

[English]

Mr. Stephen Owen: It's not, I think, in that case; looking to the first amendment, it is not intended. The intention is not to cause the serious damage—“serious risk to the health or safety”.

It seems to me as well, Mr. Bellehumeur, as we look at incidents such as you described and how they play themselves out in Canadian life, we have essential service agreements. There may be an unlawful strike that varies from that. Certainly, from my observation of how these things occur and how they play out, there are immediate injunctions or applications for rulings and injunctions, either before labour boards or the courts. We also have, in the case of hospitals—in fact it's become, sadly, quite common—shifting of services between hospitals in emergency situations or overload.

So I think our system is flexible enough in its entirety to protect against the coming into effect of the situation you describe. But it's the intention that's critical to the triggering of these items (A) to (C).

The Chair: Mr. McKay, and then Mr. Blaikie.

Mr. John McKay: Just going through item (E) again, it causes “serious interference”—Mr. Blaikie's concern about economic interests—“whether public or private, other than as a result of... protest”. But I can't quite connect here. Should it read, “and is not intended to result in the conduct... referred to”? Should I read it that way?

Mr. Stephen Owen: The qualification applies to the protest, the advocacy.

A voice: Read it as it would be amended.

Mr. Stephen Owen: It's laid out as it is amended on page 11 of the second package.

An hon. member: Does it have a “not” there?

Mr. Stephen Owen: Yes, a “not” is added: “is not intended to result in the conduct of harm referred to in any of clauses (A) to (C).”

Mr. John McKay: Let me understand this. You have to cause serious interference; it has to be other than a protest or a strike or something of that nature. But what is the connection to causing death or endangering a person's life? What's the point of that?

Mr. Stephen Owen: Well, if your advocacy, for instance, or your protest might be unlawful, in the sense that it was civil disobedience—which might be covered by mischief or trespass or something such as property damage—that exclusion would not apply if the intention of that unlawful act of protest was intended to cause (A), (B) or (C). So we have an offence, we have an exclusion, and we have a qualification of the exclusion.

Mr. John McKay: So if my advocacy results in death, am I charged under item (E)?

Mr. Stephen Owen: You would only be if you intended it to have that consequence.

Mr. John McKay: So if my advocacy “intends to”... All right.

• 1830

Mr. Stephen Owen: I think this speaks as well to Mr. Bellehumeur's former comment that the nurses on unlawful strike would have to intend to harm people.

Mr. John McKay: I don't wish to stretch the point other than to say that it's not apparent to me on the face of it what you mean, and if it's not apparent to me, it's possibly not apparent to somebody else in this world—I don't know; it's hard to believe. Possibly Mr. Myers will be there to explain it to everyone.

Some hon. members: Oh, oh!

Mr. John McKay: Having said that, there is a certain inelegance in this language that may result in some unintended consequences. I leave it at that.

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance): Mr. Paradis.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): I would like to go back to clause (E) again. It reads as follows:

        (E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in...

Would it not be a good idea to add the word “intentionally” after the words “to result”? The word “intentionally” is used at the start of subparagraph 83.01(1)(b)(ii). I think we should specify that we mean to result intentionally in one of the situations mentioned in clauses (A) or (C), because it is possible that during a strike, a person's life may be in danger, as Mr. Bellehumeur pointed out earlier. We could add the word “intentionally” after the word “to result in” in English.

[English]

Mr. Stephen Owen: The qualification to the exclusion requires that it be intended to cause (A) to (C). Or is it different in the French?

Excuse me, there may be a distinction in the... You're right, there may be a distinction in the French. The French apparently translates to “for the purpose” rather than to “intended”.

The Chair: Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): Let me see if I understand it by putting it all together. The definition would ensure that protest activity, whether lawful or unlawful, even if it causes serious disruption to an essential service, would not be considered a terrorist activity unless all the following would apply: (A) it is undertaken for political, ideological, or religious purposes and intentionally causes death or serious injury, and (B) intends to intimidate the public or compel a person, etc. In other words, you'd have to have all those “intends” in order for it to qualify.

Mr. Stephen Owen: Correct.

The Chair: Mr. Bellehumeur, does that answer your intervention? No?

[Translation]

Mr. Michel Bellehumeur: No. You have used the expression “other than” in drafting clause (E), which I feel is important. However, is there not another problem? Couldn't clauses (C) and (D) apply to demonstrations like the one at the Quebec Summit? A group could want to cause considerable material damage, but not intend to cause bodily harm or endanger a person's life.

In my opinion, the fact that the clarification you have made to clause (E) is not included in clause (D) may mean that the act will apply in the case of demonstrations that accidentally endanger a person's life, or cause a serious risk to the health or safety of the public or any segment of the public. To my mind, these are not terrorists. That is unacceptable. We have a Criminal Code that is applicable. These offences are currently punishable. I do not want to make excuses for them, but it seems to me that the objective of the wording is to have it apply to action taken by these people, and it is drafted in such a way that it may apply to this action.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you, Mr. Chair.

One of the critical amendments, Mr. Bellehumeur, is to remove the words “involve an activity” from (E), with the consequence that there could well be a small group, or one or two people, with all of the intentions that have been mentioned, but who would not want to affect the whole group.

• 1835

So if there were one or two people with a terrorist intent, meaning the accumulation of all those other intentions, then, yes, they would be caught.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: My question is very simple. If Bill C-36 had been in force, could demonstrators at the Summit of the Americas have been arrested?

My other question is this. Even if you are making a distinction, do you think police officers will make a distinction when they put these people in the paddy wagon?

[English]

Mr. Stephen Owen: I'll make two comments, Mr. Chair.

First, for any terrorist offence—hence for a terrorist activity—we have to have the permission of the Attorney General. One police force in one corner of the country, or one prosecutor or prosecution service, would not on its own be able to prosecute. There's a personal requirement of the Attorney General to charge under this act.

The second observation would be that I don't know all the circumstances of Quebec City, but I doubt it, because I'm not aware of anybody having been charged with any of the major offences listed here.

[Translation]

Mr. Michel Bellehumeur: I will finish my comment. Maybe you do not want to answer my question. I'm talking about the arrest, not charges. That is a different step. If this definition had been in force, could police officers have arrested three quarters of the demonstrators at the Quebec Summit?

[English]

Mr. Stephen Owen: If you're asking my opinion, my opinion is no.

[Translation]

Mr. Michel Bellehumeur: What are you basing that answer on? It is very clear that everyone who is demonstrating in Quebec could have been arrested, put in a paddy wagon and interrogated. We will be considering other clauses later, but the wording is so broad that it can apply to everything.

[English]

Mr. Stephen Owen: We've already been through the various steps that have to accumulate to constitute a terrorist activity, and I'm not aware of any incident—maybe it occurred, but I'm not aware of any incident in Quebec City—that would comply with that accumulation of intentions and activities.

The Chair: Thank you, Mr. Owen.

Mr. McKay.

Mr. John McKay: Why does the sentence not end at “stoppage of work?” It seems to me “that is not intended to result in a conduct” is superfluous. Really, if this is a terrorist activity, you have met (A) and (B). You've hit on intention; you've caused serious interference—other than anything to do with a strike or a protest. That is in and of itself a terrorist activity. I don't quite understand why you would include that last part, since if there is death, or if there is endangerment of people's lives, or if there is a risk to health or safety, those are freestanding offences. I don't see why you're qualifying “causes serious interference” with (A) through (C).

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: Thank you, Mr. Chairman.

If you were to stop item (E) after the words “stoppage of work”, that would then mean that any protest would be an absolute exclusion. If you are involved in any kind of protest, then it would never amount to terrorist activity, even if all of the other intents, all the purposes, all the intents to intimidate the public were there, and you caused a serious interference—you brought down all of Air Canada's air traffic control system, for example—but as long as it was a protest or work stoppage, then it would not be covered in the definition.

What this does, as Mr. Owen said, is make an exclusion with a qualification. Protest is excluded, but protest could be included in a terrorist activity if it is intended to cause harm or death to individuals and all of the other requisites of the definition, such as the political or ideological purpose and the intention to intimidate are there. If you just simply say “protest”, that means it doesn't matter how serious the disruption of essential services is, and it doesn't matter that all of the other requisites of the definition are met, such as political purpose, intent to compel; if it was a protest, then the persons are basically off scot-free. So there has to be some qualifier on “protest”.

• 1840

Mr. John McKay: Why not phrase it so that you then stop the sentence at “private” and start up another sentence that says “Protest which results in (A) through (C) is not excluded”?

Mr. Stephen Owen: Does that change the meaning of it?

Mr. John McKay: If you want to include “cause serious interference... of an essential service, facility”, but you want to qualify it, then qualify it in the positive instead of a double negative.

Mr. Stephen Owen: My question is only, at this stage, does it change the meaning? I don't see the difference in the meaning.

Mr. John McKay: I guess the point here is, we love clarity, especially on this side of the table. If there is an opportunity to provide clarity, why not do it now as opposed to trying to phrase things so that everyone is left wondering what it is exactly that you mean.

Mr. Stephen Owen: I don't want to be misunderstood here, but I'm not sure if everyone does misunderstand. I think the action that constitutes an offence or an activity that would be an offence, with an exemption, but with a limited exemption, is a fairly logical way to step through it.

The Chair: Ms. Venne has been waiting for a bit here.

Ms. Venne.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): I think we could solve the problem that we were discussing earlier regarding the Summit of the Americas. We would need to add the part of the sentence in bracket (E) that reads as follows: “other than as a result of advocacy, protest, dissent after the word” or in item (D). We feel that would solve the problem. What do you think?

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you.

I think that would duplicate, Ms. Venne, what you already have. You've already got “damage is likely to result in the conduct... (A) to (C)”. I don't see how that would add anything to it.

[Translation]

The Chair: Ms. Venne, you have the floor.

Ms. Pierrette Venne: That wording is in item (E), but not in item (D).

[English]

Mr. Stephen Owen: You want to add the exemption—

[Translation]

Ms. Pierre Venne: I am talking about the part that reads as follows: "other than as a result of advocacy, protest". I mentioned it earlier. It should be added to item (D).

[English]

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: Thank you, Mr. Chair.

Item (D) has the qualification that substantial property damage must be linked to a degree that is likely to result in harm, death, or endangerment to life.

Item (E), which talks about causing “serious interference with or serious disruption of an essential service, facility or system, whether public or private”, does not require, in all cases, that there be a likelihood of harm to individuals.

• 1845

I'll give you an example. If terrorists were to insert a virus into the banking system of the Bank of Canada and all the five major banks' computer systems were down for two weeks because of a virus, that would seriously affect the economic security of Canada. It would be done for a political purpose. It would cripple the economy in this country for at least two weeks. It would intimidate the population. Bringing down the banks would not necessarily endanger the lives of individuals, but it would clearly intimidate the population and have an impact on the security of this country.

That's the reason why item (E) does not have the qualifier that bringing down an essential service must always endanger life.

Another example could be disrupting the pipelines across this country. Again, there might not necessarily be a direct link to the endangerment of life if all the pipelines were cut off, but that would clearly be a terrorist activity that could meet all of the other parts of the definition.

That's the reason why harm to human individuals is not a prerequisite of (E) but it is of (D), because (D) would be the situation where you don't want to simply catch... blowing up an empty building in the middle of nowhere is not a terrorist activity.

The Chair: Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman. I appreciate your giving me the floor. I know that I am not entitled to vote, but I am happy to be able to participate in the debate.

We are simply asking you to add something. Please realize that we are doing so to settle the question of the Summit of the Americas and the demonstrations that took place in Quebec City. There may be others. There may be demonstrations here, in Ottawa, during the G-20 Summit.

I think we have solved the problem with item (E) in a good way, and in a way that reflects our questions and comments in the House. The minister, by striking the work “lawful”, wanted to allow demonstrations. We maintain that people are entitled to cause interference or disruption. The purpose of the act is to deal with terrorists. So what a terrorist is must be defined.

Now, let's look at items (D) and (C). I will ask my question again. The part that begins with the word “other” must be added. I will read item (D):

        (D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or

During a demonstration, like the one at the Summit of the Americas, people could intentionally cause these problems.

        (c) causes a serious risk to the health or safety of the public or any segment of the public,

Contrary to Mr. Owen, I feel that demonstrations like the ones in Quebec City could have been covered by this act.

Our views are in fact different. If we add the words “other than as a result of advocacy, protest, dissent or stoppage of work”, what we wanted to protect by amending item (E) will also be protected as part of items (D) and (C), because all of these items can cover demonstrations.

If we really want demonstrations like the one at the Summit of the Americas, the G-20 or the G-8, which will take place a little later on in the West, to be protected, items (D) and (C) should be clarified so that people can finally express themselves. The words “other than as a result of advocacy, protest, dissent or stoppage of work” should be added.

You could add the wording right to the end of the sentence, I don't mind. Adding this to item (D) is not redundant. It does not mean the same thing. It will protect what we want to protect.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: I'll address this. I'm sure our colleague is not suggesting that we should exempt protesters who are endangering... or causing the things set out in (A), (B) or (C). We would not want to exempt them from that. I don't see where that takes us.

[Translation]

Mr. Robert Lanctôt: You consider them terrorists. These young people are, in your opinion, terrorists. That is what you are telling me. You are telling me that the demonstrators in Quebec City were terrorists.

[English]

Mr. Stephen Owen: What I'm saying is if people were intentionally causing death, endangering life, causing serious risk to health or safety, yes, they would be terrorists.

• 1850

The Chair: Thank you.

Mr. McKay.

[Translation]

Mr. Michel Bellehumeur: No, no, that is not right!

[English]

Mr. John McKay: If we can't get clarity, maybe we can go for some consistency.

If I am a terrorist and I cause substantial property damage, why is that greatly different from causing serious interference with a public service? In (D), apparently if I cause that substantial property damage as a result of advocacy, I have a problem because I don't have an exemption. But if I cause a serious interference as a result of my advocacy, I have an exemption. I don't understand why, in trashing a public building, which would be causing property damage as opposed to causing serious interference, one should get an exemption and the other shouldn't.

Mr. Stephen Owen: If you take a building and conceive of someone throwing a Molotov cocktail into it, and the building is empty, that would not be a terrorist activity. If we can conceive of it, take the building full of such equipment that blowing it up, although there are no people, would cause a serious disruption to essential services. That would constitute... in the way Mr. Piragoff mentioned earlier, the whole banking system or whatever.

Take a third example, where the building has people in it and the consequence causes serious danger to life or kills people. That clearly would be terrorist...

Mr. John McKay: Why don't you merge (D) and (E)? There's no material difference between causing substantial property damage and causing serious interference. What is the difference?

Mr. Stephen Owen: The example Mr. Piragoff gave was the banking system.

Mr. John McKay: But that's damage to property. If I'm the Toronto-Dominion Bank and you interfere with my network, you are causing me serious, substantial property damage. It may be intellectual property or it may be intangible property, but it's still property.

Mr. Stephen Owen: But (D) is cumulative. Causing the damage to the property alone doesn't amount to terrorism. It has to add the consequences of (A) to (C).

Mr. John McKay: I understand that. The simple point is there's no substantive difference between causing substantial property damage and causing serious interference or “disruption of an essential service, facility or system”. If I ruin the Bank of Montreal at Sparks Street, that is (D), but if I somehow or other completely trash the Bank of Montreal's network, that's not substantial property damage.

Mr. Stephen Owen: I guess the only distinction is the very one that (E) makes, which is that it causes a “serious disruption of an essential service, facility or system” rather than just property.

Mr. John McKay: Going without my bank card is serious.

The Chair: Thank you, Mr. McKay.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I have two questions about this clause, which are not necessarily related to the same aspect.

First of all, with respect to items (D) and (E), Mr. McKay's comments are somewhat similar to the questions we were asking. Let us take the example of the Quebec Summit and let us say that a demonstrator were to be there and that it happened in the middle of winter. Heaven knows that the summit was not held in the winter, but let us assume it was. The demonstrator is walking beside a hospital and decides to break the windows, as happened in Ottawa, where the windows of a McDonald's were broken. Demonstrations are not controllable. In my example, the temperature outside is 30 below 0 and elderly people in the hospital are dying because of the cold.

According to the definition we have here, the demonstrator in question intended to cause substantial property damage. An action of this type in a hospital would probably cause people to suffer, but in this case one or two people actually die. If I understand correctly, to your mind, this person is a terrorist.

A voice: Yes, yes.

• 1855

[English]

Mr. Stephen Owen: On the question of how substantial the foreseeable damage and consequences of the damage would be, take for example breaking a window in a hospital. Could that be so foreseeable that it would create the requisite intention to cause death or serious bodily harm? I don't think so.

But if it were so obviously foreseeable... remember, we're throwing in other things. We're throwing in the motivation—religious, cultural, or ideological. We're throwing in the intention to intimidate the public, or a large section of the public. We're throwing in these items as intentional consequences. So it's the cumulative aspect again of all of the conditions of this definition, which I think would eliminate the activity you've described: unlawful, criminal, subject to being charged and prosecuted, but not terrorist activities.

[Translation]

Mr. Michel Bellehumeur: And my other question, which is very short, is—

[English]

The Chair: That's the last question, and then we'll go to the vote.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Earlier you spoke about damage caused to the Bank of Canada network, for example if a virus were introduced into the computer system. Mr. Donald Piragoff gave this example. Are you familiar with Mafiaboy in Quebec? Under this bill, would Mafiaboy, who caused considerable damage to the computer system, be a terrorist? Are you trying to target people of that type?

[English]

Mr. Stephen Owen: He doesn't meet the other conditions, the cumulative conditions we've talked about.

[Translation]

Mr. Michel Bellehumeur: Oh, no.

[English]

Mr. Stephen Owen: Not ideological, religious, or political. Mischievous, yes. That's a serious case of mischief that is punishable by sentencing of up to 14 years in prison.

The Chair: Mr. Cotler.

Mr. Irwin Cotler: I was satisfied before with the whole network of cumulative intentions. I understand also the distinction Don drew between proposed items (D) and (E).

I have only one question. Is it possible, is it linguistically prudent, to delete proposed item (E), and after the words “to cause substantial property damage” in proposed item (D), or where it says “causes serious interference with or serious disruption of”, add the words “seriously interfere with or seriously disrupt an electronic system”?

That would catch what is distinguishable in item (E), put it in item (D), and you could delete all of item (E), and clean it up a bit. I don't know. I just add that as a possibility.

The Chair: Monsieur Piragoff.

Mr. Donald Piragoff: Thank you, Mr. Chair. I'll respond to the question.

If one were to include disruption of essential services in item (D), with a qualifier, then you would capture only disruptions of essential services that are also likely to result in harm to individuals. Bringing down the banking system in this country for a week or two weeks would not likely result in harm. That's why they're disjunctive. The same would apply to destroying the trans-Canada pipeline in 10 or 12 places across the country. It would also not meet the test.

If one were to refer at the end of item (D) to only electronic systems, you might capture the computer systems, but then you could miss other types of critical infrastructures like pipelines, hydroelectric lines, etc.

That's why the government has tried to keep the two concepts separate, to make it clear that there are gradations. Depending on whether it's actual physical property or intangible property of economic value, like services, they have to be treated differently.

So under item (D), it's clear that if activity involves minor damage, it's not caught there. If it causes substantial damage, it is not caught there. It's caught there only if there's substantial damage and it is likely to result in death or endangerment.

Under item (E), it will be caught if it causes serious interference with or serious disruption of an essential service. It will not be caught there if that serious disruption or serious interference is caused by a protest, whether lawful or unlawful, save for one exception, which is if that protest is also intended to kill or endanger people. A protest that intentionally tries to destroy all the power lines going into Montreal, like the ice storm did, could amount to a terrorist activity, because that would be a protest activity that disrupts an essential service and is intended to harm people by cutting off, for example, electricity to hospitals and other essential places of residence.

• 1900

That's why the government has kept the two separate.

If one looks at the U.K. definition, they treat damage to property separately from damage to essential services. If one looks at the definition that was adopted, I understand, just last week by ministers of the EU, they also treat destruction of property separately from disruption of critical infrastructure services.

The Chair: I was going to call the question. I bring to the attention of the committee that the passage of amendment G-1.2 will mean amendments PC/DR-2, NDP-3, BQ-4, NDP-4, and NDP-5 cannot be put, as they are consequential to amendment G-1.2.

Does everyone understand?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendments PC/DR-2, BQ-4, NDP-3, NDP-4, and NDP-5 cannot be put.

I now refer the committee to amendment NDP-6.

[Translation]

Mr. Lanctôt.

Mr. Robert Lanctôt: To clarify, when I made my comment, I asked whether it was possible for an addition to be an amendment. I thought it could be considered a subamendment, but I do not know how you designated it, so that we can vote on the amendment before we vote on the motion as a whole.

[English]

The Chair: I apologize. I heard a rhetorical reference, but I did not hear an amendment to amendment G-1.2. Did you in fact intend to place an amendment?

[Translation]

Mr. Robert Lanctôt: On amendment G-1.2, when I asked my question, I would have liked us to add—

In fact, when Ms. Venne was here, I asked her to move this change. Then I came back and said I would like to clarify something and move an amendment to add the words "other than as a result of advocacy." I think that would solve the problem.

[English]

The Chair: Mr. Cotler made a similar reference, so have others, and I didn't accept that as an amendment. I saw it as a point of debate. I go now to amendment NDP-6.

Mr. Blaikie.

Mr. Bill Blaikie: Just on a point of order, Mr. Chairman, perhaps you could explain why this is. I understand, I think, why amendment NDP-5 would be eliminated by the passage of amendment G-1.2, but I'm not sure why amendments NDP-3 and NDP-4 would be—

The Chair: I'm going to call on our procedural resource, Mr. Dupuis.

Mr. Richard Dupuis: It's because your amendment touches the lines of the amendment that were agreed to. We are proceeding the same way we do at the report stage.

Mr. Bill Blaikie: For instance, I wanted to move an amendment that would have added language to proposed item (E), and I don't understand why I can't do that. I would be adding language that is not there now, even after the amendment.

The Chair: Mr. Dupuis.

• 1905

I'm advised, Mr. Blaikie, that this amendment would have had to have been put as an amendment to G-1.2, rather than the original bill.

Mr. Bill Blaikie: Mr. Chairman, how could I have possibly known that when no one said anything from the chair? We were debating G-1.2. Then after G-1.2 was passed, in the context of which I'm now told that's when I could have moved my amendments, I then get told that I can't move my amendments now because I didn't move them before. But nobody said anything about my amendments being out of order when I had the opportunity to move them. It doesn't sound like fair ball to me.

The Chair: Mr. Blaikie, I had asked consent to entertain the motion referred to as...

Mr. Bill Blaikie: You could be here for ages and not know what they're going to rule up there. It's a crap shoot.

The Chair: The addition to G-1.2, Mr. Blaikie, which of the NDP amendments was that?

Mr. Bill Blaikie: For instance, NDP-4. Now NDP-3, which was removing (E) altogether, and NDP-5, which I have withdrawn anyway, because after listening to the minister I knew the government was going to remove the word “lawful”...

But what I wanted to add to the amendment known as NDP-4 was on the list that would now read not “lawful”, but “advocacy, protest, dissent, stoppage of work” or peaceful... I wanted to add something where it says “as a result of”; in front of “advocacy” I wanted to put “peaceful civil disobedience” as well as “advocacy, protest, dissent or stoppage of work”.

The Chair: I think we have consent, Bill. Mr. Blaikie, please proceed with NDP amendment 4 in advance of NDP amendment 6.

Mr. Bill Blaikie: Then the amendment would be that Bill C-36 in clause 4 be amended by replacing lines 22 to 28 on page 14 with the following:

    whether public or private, that involves an activity that is intended to result in the conduct or harm referred to in any of the clauses (A) to (C), but does not involve an act of peaceful civil disobedience, advocacy, protest, dissent or stoppage of work.

So the only intent there is to add to the list, which is now a list that includes “advocacy, protest, dissent or stoppage of work”, the notion of peaceful civil disobedience.

The Chair: Mr. Owen.

Mr. Stephen Owen: It seems to me, Mr. Chair, that this might create the same problem we had with “lawful”, in that we're qualifying civil disobedience, but I suppose the rest, with “peaceful”... what does “peaceful” mean? That's even less precise than “lawful”.

Mr. Bill Blaikie: That was the problem with “lawful”; it was too precise. But “peaceful” is only meant to qualify “civil disobedience”, not “advocacy, protest, dissent or stoppage of work”.

The Chair: Any response, Mr. Owen?

Mr. Stephen Owen: No, other than my comments.

The Chair: That being the case, I think it's understood what it is Mr. Blaikie is attempting to do.

(Amendment negatived)

The Chair: Before we go to NDP number 6, I think we can prevent what happened the last time. I'm going to bring to your attention in advance of discussion around the amendment any consequential amendments that might be attached. That gives you the time to make sure your consequential amendments might be considered. My mistake.

NDP amendment number 6 in the original package.

Mr. Bill Blaikie: Yes, Mr. Chairman. I'm not sure, I thought we had communicated this to the table, so to speak, but NDP-6, and the next one, NDP-1.3, both were withdrawn after listening to the minister.

The Chair: So NDP-6 and NDP-1.3 are withdrawn.

I go next then to G-5.

An hon. member: Page, please?

The Chair: It is page 17 in the first package.

Mr. Richard Mosley: Mr. Chairman, it's another technical amendment adding the words “soit” at the beginning of paragraphs (a) and (b) in the definition of “groupe terroriste”. We clarify that a group that falls within either (a) or (b) is a terrorist group.

The Chair: You've heard the explanation.

(Amendment agreed to—See Minutes of Proceedings)

• 1910

The Chair: The next amendment is inserted. It is amendment G-1.3, second package, page 14. It's page 15 in French.

Mr. Owen.

Mr. Stephen Owen: Thank you.

This addition to the definition of “terrorist activity” is put in for greater certainty, as it says, but not to remove the assertion that the words “political, religious, or ideological” are not in any way unconstitutional or are meant to target a particular group other than with the cumulative definition of the section. We did hear some concern, some disquiet, expressed, that someone might be targeted or might fear that they might be targeted, and this amendment would ensure that it separates the motivation in those words from the consequences of the intention and the actions. It's a matter of having something for greater certainty, for clarification, and for extra confidence of the people who might have felt some disquiet about the use of those words previously.

The Chair: Any questions?

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: The next amendment is BQ-5.

[Translation]

Just a moment, Mr. Bellehumeur.

Mr. Michel Bellehumeur: It is complicated, because there is government as well.

The Chair: Just a minute.

[English]

Mr. Bellehumeur, I am prepared to entertain BQ-5, however, only because I've made a commitment that we would know in advance if there were consequential amendments, and BQ-5 is actually a consequential amendment to G-6. If you'd still like to proceed, because I made that commitment, we can, although I think I know what the outcome will be because it is consequential to G-6.

[Translation]

Mr. Michel Bellehumeur: Yes and no. I understand... Naturally, I am seeing the clauses at the same time as everyone here. However, what we wanted to achieve with amendment BQ-5 was greater similarity between the French and English versions.

From what I understand, you are going to move this provision to another part of the bill. The same thing will happen; in other words, the English version refers to a very specific terrorist activity, while the French version refers to a terrorist activity without quantifying it or qualifying it in any way. So, regardless of what the government does, I think that in order to make the French version more consistent with the English version, we should add the words "a particular terrorist activity" to respect the beautiful language of Molière.

Since we have a Molière specialist among us, he will certainly help us to do this.

[English]

The Chair: Is there any response? If none, I'll go to the vote.

Mr. Owen? No.

I'll call for a vote on BQ-5.

(Amendment negatived—See Minutes of Proceedings)

• 1915

The Chair: I go now to PC/DR-3. That is page 20 in the first package. Mr. MacKay.

Mr. Peter MacKay: This particular amendment is intended to essentially take out or omit the words “whether or not” at line 7 and then leave the rest of that section intact. By omitting those words, I would suggest that it brings it in line with other sections within this particular act, mainly, 83.19, 83.18, 83.03, 83.04, that is, it injects the requisite mental intent.

It puts in place the intention to prove that there was actual knowledge of the facilitation of the terrorist activity, and it is more consistent with, I would suggest, paragraphs 2(a),(b), and (c). Taking those words “whether or not” out, I would suggest, makes this particular section much more consistent throughout the entire act, and in fact, by leaving it in, it could very easily be a dangerous section in that persons could be charged, essentially be brought in under this section, without knowledge that they had in fact facilitated... I can't see it applying to participated in, but the facilitating section, I would suggest, is very precarious with those words included in the section.

The Chair: Thank you, Mr. MacKay. Mr. Owen.

Mr. Stephen Owen: Mr. Chair, the purpose of this is the same as our considerations over Bill C-24 in the spring, in that we are trying to deal with the reality of both organized crime and terrorist activity being perpetrated in cells. Often some of the distinguishing characteristics of this criminal organization activity, terrorist or economic crime, is that there is a very limited need-to-know basis, and you have different cells, particularly operating internationally.

What we're trying to catch within the terrorist activity and the offence is where someone knows that something is planned, although they may not know exactly what, and they know they're involved in contributing towards its commission but they may not know, because of the particular structure of the organizations, the international aspects of it, who exactly is involved, and how exactly the terrorist act is going to be carried out. But they do know and they do intend to contribute by facilitating and financing while participating in what will build to the consequence of a terrorist act. It's the same issue we dealt with in Bill C-24.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

But with the greatest respect, Mr. Owen, this casts a very broad net when it comes to knowledge, when it comes to individuals who might contribute, for example, information, or contribute monetarily to a group, not knowing they were engaging in terrorist activity. Those words are extremely unsettling when one considers that a person can actually be charged for facilitating a terrorist act without knowledge, without knowing. Those words very clearly indicate to me they can be charged for participating in a terrorist activity or facilitating without knowledge, whether or not they know.

Mr. Stephen Owen: The point is that we're not talking about the offence here, but there is a purpose here. Perhaps Mr. Mosley had a point.

The Chair: Mr. Mosley.

Mr. Richard Mosley: Thank you, Mr. Chairman. I think the committee must understand the difference between this interpretive clause, which does not in fact create any criminal liability... No one will be charged under the particular provision that Mr. MacKay's motion addresses.

• 1920

The offence of facilitating terrorist activity is found in proposed section 83.19, which is at lines 19 through 23 on page 29 of the bill. That very clearly makes the point that I believe his motion is aimed at: “Every one who knowingly facilitates”. The element of knowledge is an essential element of the offence, and a prosecution could not be brought against someone for facilitating under that offence without the crown proving this knowledge element. The motion addresses merely an interpretive clause that does not constitute the definition of one of the offences.

Mr. Peter MacKay: With the greatest respect, Mr. Mosley, my fear is that it may not be the actual section under which a person is convicted; it may be the section under which they're charged. What it allows the police to do is to insinuate that a person facilitated something, whether or not they knew. When it comes to actually proving the charge in court, you're right. By necessity, in the wording in section 83.19, the burden is on the crown to prove that, beyond a reasonable doubt, they knowingly facilitated. But this section leaves open the interpretation—as it is an interpretive clause—that they facilitated it, whether or not they knew. Why are those words necessary? It's inconsistent with proposed section 83.19 and others, including 83.18, 83.03, and 83.04.

Mr. Richard Mosley: As Mr. Owen has suggested already, the importance of the interpretive clause is that it makes it clear that although you must know you are facilitating a terrorist activity in order to be found guilty of an offence under 83.19, it is not necessary that you know which terrorist activity it is you are facilitating. That is key, because of—as Mr. Owen has noted—the cellular structure of terrorist organizations. They rely on people who know they are contributing to and/or are facilitating the commission of terrorist activity, but they're never told what the exact plan is.

The Chair: Mr. Toews.

Mr. Vic Toews: I think you might have addressed my concern in your last answer.

If I understand it, this interpretive clause interprets the substantive charging section. The purpose of the interpretive clause is to make clear that it is not important whether the individual, the terrorist, or the suspected terrorist knew he was committing or facilitating a particular terrorist activity, as long as he knows it is some terrorist activity that he is facilitating. In that sense, if I can use an analogy, if you commit a criminal act and are reckless as to whether or not that causes death, you're guilty of manslaughter. Is that...

Mr. Richard Mosley: You can draw that analogy, yes. You don't need to know you are going to cause a particular death, so long as it is reasonably foreseeable that you will.

I should have added that for greater certainty, because we do understand that the placement of these provisions in the bill has caused some confusion, some misunderstanding. A government motion yet to be discussed would move the interpretive clause and place it within 83.19, so that for greater ease of reference, people could find it in the same section.

• 1925

Mr. Vic Toews: But you're telling this committee that in order to be convicted under the substantive charging section, there must still be the appropriately constitutionally required degree of mens rea for a conviction.

Mr. Richard Mosley: Absolutely.

The Chair: Thank you very much.

Mr. MacKay, and then Mr. Blaikie.

Mr. Peter MacKay: I would strongly suggest, Mr. Mosley, that for greater clarity, we should remove that particular wording, “whether or not”. That still leaves open this question that still exists in my mind about whether the mens rea is necessary for the charge. I'll concede it is necessary for the actual conviction under proposed section 83.19.

By removing the words “whether or not” and removing from proposed paragraph (a) the phrase “that a particular terrorist activity is facilitated”, that does away with any misinterpretation, because then you can still charge a person for facilitating an act of terrorist activity. Rather than saying “a particular terrorist activity”, the individual could be charged with facilitating a terrorist act. But this is an attempt to go around any kind of wilful blindness type of defence.

Mr. Richard Mosley: With the greatest of respect, it would defeat the intent of this interpretive clause. In fact, it would require that the crown must prove that the person who is facilitating a terrorist activity knew a particular terrorist activity was facilitated by his contributing conduct. That would make it very difficult to convict those who are operating within a cell, and the crown would be unable to prove that they did not know their supply of material essential to the commission of the act was going to result in a particular terrorist act.

The Chair: Thank you, Mr. Mosley.

Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, the debate around Mr. MacKay's amendment is somewhat similar to the debate we might have around the next amendment, which is the NDP amendment. That amendment has the same intent, although the means are somewhat different. I think I know what the government is getting at here, but I think what we were both trying to get at was this concern that was raised over and over again, that being that there had to be this “knowing” dimension to facilitation. For instance, in the amendment I was going to move that will probably be subject to the same fate, I wanted to remove proposed paragraph (a), which says “the facilitator knows that a particular terrorist activity is facilitated”.

I think I'm now beginning to get what the intent of the legislation is. But how does your moving this into another section of the bill—if I understood you correctly—address the concern that was repeatedly raised by a number of organizations, that they not be vulnerable to the charge of facilitating terrorism if they didn't know they were doing so? The minister was very clear that she was trying to meet that concern. Is it only met by moving this section, or do other amendments address that concern as well?

Mr. Stephen Owen: I think the government has recognized that there is an awkwardness and a potential for misunderstanding—and that a fear is therefore arising out of that—because of the placement in different parts of the bill. The government amendment to come will bring those together as a part one and two that are together as a whole, in order to avoid that awkwardness or misunderstanding.

To go to the substance of the importance of ensuring that to be guilty a person must knowingly contribute in some way but not know of the particular people involved exactly, or not know the exact terrorist offence, I just repeat that the cellular nature of organized crime and terrorist groups means few people have full knowledge of the crime being concocted and then perpetrated. You have people who are on a need-to-know basis. They know only partial bits, while knowing they're part of this organization building toward this crime, but protecting the overall perpetrators of the crime from having it foiled by the police by catching only some members or contributors to it.

• 1930

So that's the intention. It's an immensely important one with this type of crime. And moving the interpretation section into the offence section should eliminate the concern about whether there has to be knowledge that a terrorist activity is being contributed to.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: What about the concern that people had, not that they could be charged without knowingly contributing or facilitating a particular terrorist activity, but facilitating terrorist activity in general? If I remember the testimony correctly, there was also concern about that. Where does the government address that concern?

Mr. Stephen Owen: I think the simple answer is that the government does not address that concern because it goes to the heart of the type of group activity we're trying to stop, where people contribute to different parts of it without necessarily knowing the exact final target, the exact final perpetrators.

The Chair: Mr. MacKay, last question or last comment.

Mr. Peter MacKay: I'm still struggling with this concept of knowledge, where a person doesn't have knowledge that a particular or even a general terrorist activity is going to be facilitated. Isn't that the whole purpose? Isn't that the danger here, particularly for charitable organizations—that their contribution would be used to facilitate a terrorist activity, with no knowledge that it was going to be used for that purpose?

The Chair: Mr. Piragoff, please. Then we'll go to the question.

Mr. Donald Piragoff: Let me give two examples.

Suppose a person trains pilots to fly. The person knows that they are training pilots to fly to enhance the ability of the terrorist organization to undertake its terrorist activities. Suppose the person assumes they're training these pilots to fly so that they can hijack a plane, fly it to some country, and hold the passengers hostages, which is what has happened many times. The person knows that they are facilitating or contributing to enhancing the capabilities of a terrorist group to commit terrorist acts like hijacking planes by training these pilots and that something is going to happen in September 2001.

The person does not know the full details. He does not know that it's not just going to be hijacking a plane, taking it to a foreign country and holding the passengers hostages, as has happened many times before, but that they're going to drive the plane right into the World Trade Center. That person would get off, because he'd say “I did not know they were going to drive this plane into the World Trade Center, so I'm not guilty of killing 4,000 people. I thought they were just going to do a hijacking.”

This would say “No. You knew that it was a terrorist group. You knew that you were helping them to commit a terrorist crime, and what happened is that you didn't know what the ultimate goal was. You are still guilty.”

The purpose of this is to capture everyone in the cell—that they are guilty for helping the terrorist commit a terrorist activity, even though it's not the one they actually knew or thought was going to happen.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I go now to NDP-8. Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I think there's no sense in reliving the debate. It has the same intention, although I think there's some confusion here between the concerns that were expressed by groups who were concerned that they would be accused of facilitating terrorism—not in the sense of training pilots or actually contributing to terrorist activity in that direct way, but rather financially. They wanted the legislation to reflect that they knew they were doing this, that they would have to know they were doing this before they could be charged with something.

• 1935

It may be that these amendments are misplaced in the sense that they're trying to address that concern in the wrong part of the bill. However, I didn't get any assurances from the government that they are trying to address that other concern, one we are trying to address in perhaps an incorrect way here, as to whether that concern is being addressed somewhere else in the legislation. If it isn't, then certainly the concern I was trying to address here remains.

That being said, perhaps the government would like to respond. I understand now why the concern I was really trying to get at can't be addressed, or perhaps it is inappropriate to address it here. But it's not an inappropriate concern to try to address; it's just that perhaps this isn't the part of the bill in which to do so.

The Chair: Do I take it NDP-8 is withdrawn, Mr. Blaikie?

Mr. Bill Blaikie: We could do that, sure.

The Chair: I go, then, to BQ-6. It is page 17 in the second package.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, since this amendment is exactly the same as amendment NDP-8, I too will withdraw it, but for different reasons. In light of the explanations we have just heard regarding an upcoming government amendment, we will have to vote not only against a paragraph but against the clause as a whole. I think the government members have convinced me to vote against the whole clause, not just one paragraph.

[English]

The Chair: Thank you very much.

I'm now going to PC/DR-4. This is a stand-alone amendment, so it does not cause a consequence in other amendments. PC/DR-4 is in the first package, page 22.

Mr. Peter MacKay: Thank you, Mr. Chair.

This particular amendment is, again, one that deals with consistency. I note that in proposed section 83.02 we use the language “wilfully and without lawful justification or excuse”, but the language “knowingly” is absent from that particular section. The intention is, again, to ensure that the requisite mens rea be present in that particular section. I believe it's important that these sections be consistent with one another. Other sections do use this particular language, referring directly to “knowledge” or “knowingly”, and so I would respectfully submit that this is a necessary amendment to ensure that these sections flow and are consistent.

The Chair: Is there any response while they're pondering this, Mr. Blaikie?

Mr. Bill Blaikie: It seems to me, Mr. Chairman, that it's here that this other concern, one some groups were raising, can be met by the government accepting this particular amendment. We're just waiting to see whether they will or not.

Mr. Stephen Owen: I'm struggling with this, Mr. Chair, but we have an amendment coming that will address that.

The Chair: Mr. Piragoff.

Mr. Stephen Owen: I do note that in that proposed section Mr. MacKay is referring to it says “knowing that it will be used, in whole or in part”. Would we not be doubling up on the knowledge?

Mr. Peter MacKay: I would suggest that it's more appropriately placed in the second line, after “wilfully”, to read “wilfully, knowingly and without lawful justification or excuse”. That seems to me to be a very common-sense rendering of that particular section. I don't think it would cause any harm. It doesn't change it in any way, and it doesn't add any additional burdens. It is simply a common-sense approach to that particular section.

The Chair: Mr. Toews.

Mr. Vic Toews: Just for the purposes of clarification, I know this is very difficult legislation to read, but doesn't the word “knowing” apply to the actual commission of the offence?

• 1940

Proposed section 83.02 says:

    Everyone who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out

I'm not sure I know what the difference is between “intending” and “knowing”. Does the section say intention is required for the purposes of proposed paragraphs 83.02(a) or (b), or is it “knowingly” for proposed paragraphs 83.02(a) or (b)? I'm not quite sure what it means.

There seems to be a lot of mens rea in there. I think it would be very difficult for a judge to say there is strict liability here, given the terms they use here—“wilfully”, “intending”, “knowing”. It just seems to me to make sense. I think it's poorly drafted perhaps in the rush of things.

The Chair: Mr. Owen.

Mr. Stephen Owen: Perhaps I can add some clarification.

I'm advised the wording comes from the United Nations Convention on the Suppression of Terrorist Bombings. We've used that language here.

Mr. Vic Toews: Well, that would explain it.

Mr. Stephen Owen: I agree with you, Mr. Toews, the mens rea is throughout this. That's not to say that Mr. MacKay's amendment would cause any harm. But I don't think it would add anything.

Mr. Vic Toews: Is it a case of, you know, a belt and suspenders then?

(Amendment negatived—See Minutes of Proceedings)

The Chair: Now, I go back to amendment G-6, which was the amendment that would have made the last three unnecessary, but we missed it. Amendment G-6 is in the first package, page 18.

Mr. Stephen Owen: Mr. Chair, I just want to say, as was previously mentioned, this is intended to resolve any confusion or doubt in people reading the sections separately. It's simply moved forward into the offence section.

The Chair: Are there questions?

Mr. McKay.

Mr. John McKay: I have a couple of questions arising out of the previous discussion.

When the Canadian Bar Association came before us, they raised at page 59 of their recommendations doing what you suggested, namely moving it out of the definition section and putting it into the offence section. But for some reason—and I don't quite understand it—it says that the facilitation offence would be clarified by moving the definition to proposed section 83.19, but they refer only to paragraph 83.01(2)(c).

Now, you've moved paragraphs 83.01(2)(a), (b), and (c), which I think is actually a better idea. Was the government's mind directed to that issue as to why the CBA would only consider moving paragraph 83.01(2)(c) as opposed to all three?

The second question is, by moving it to proposed subsection 83.19(2), where does that leave the definition as such? Is it still in the definition section as well?

The third question has to do with the area of questioning that Mr. Blaikie is most concerned about, the unintentional facilitation, particularly the charities, the concern that they may facilitate unknowingly. Can you again put on the record that this particular concern has been addressed, because we heard it from a variety of sources?

Mr. Stephen Owen: Thank you.

• 1945

There are two points, Mr. McKay. The top part of this amendment, the underlined part, “facilitation shall be construed in accordance with subsection 83.19(2)”, flags in the interpretation section that it's going to be referred to later, so it's not left without a trace in the interpretation section. And then we go forward.

The Canadian Bar Association suggestion, if I recall, was that they didn't accept (a) and (b), so they were addressing (c). But really, the intent of this legislation is to include all three.

Mr. John McKay: And the final question, with respect to the charities.

Mr. Stephen Owen: Well, they must knowingly contribute. I think the replacement of the interpretive clause with the offence makes that much more difficult to misconstrue. But certainly the mental intent is necessary for a facilitation through funding or financing offence.

Mr. John McKay: That's extremely important for the record.

The Chair: Thank you very much.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Mr. Piragoff, earlier you gave an example regarding some other amendments that I think also applies to amendment G-6. So, let's have a another look at the example of an instructor who gives lessons on how to fly a Boeing or any other kind of airplane to certain people, to some Arab people for example, without knowing that they are planning to hijack a plane and use it as a bomb in a building.

The amendment reads as follows:

    (2), For the purposes of this Part, a terrorist activity is facilitated whether or not

      (a) the facilitator knows that a particular terrorist activity is facilitated;

    (b) any particular terrorist activity was foreseen or planned at the time it was facilitated; or

      (c) any terrorist activity was actually carried out.

I certainly would like to believe you when you say that more details than that are necessary, that is to say, the instructor giving the lessons must know that he's dealing with terrorists who want to use an airplane, take it over, and so on and so forth, even if he does not know where the plane is going to land, how it will all play out at the end and for what purposes.

This is not what the clause says, the clause says that the person does not have to know that he is facilitating a terrorist activity. So I would like to believe that the instructor in this example would not come under this clause if he did not know that his student was planning to carry out a terrorist act, but I'm not sure that the judges will interpret the clause that way, and above all, I'm not sure that the police officers who will have to enforce this legislation will interpret it as you do.

[English]

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: Thank you, Mr. Chairman.

I want to be clear, if I wasn't clear the first time, that simply teaching someone how to fly a plane does not make a person guilty under this legislation. You have to know that you are teaching a person how to fly a plane in order to enable that person to commit a terrorist activity. What you do not need to know is the actual specific terrorist activity that is going to be committed. If you think they are simply going to fly a plane, take some hostages to a location in another country and hold them hostage, that is a terrorist activity. If instead they turn around and drive the plane into the World Trade Center and kill 4,000 people, you do not have a defence by saying “I did not know that was the particular terrorist activity that I facilitated”. But the person did know that they were facilitating a terrorist activity; it just turned out to be plan B, as opposed to plan A. But whether it's plan A or it's plan B, both of those plans are terrorist activities.

The Chair: Thank you very much.

• 1950

I would like to put the question on government amendment number 6.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I'll go now to amendment G-7, which is again a stand-alone amendment, and it is in the first package on page 23.

Mr. Stephen Owen: Mr. Chair, this is a stand-alone amendment, as you mentioned. This is addressing solely the concern that was expressed to us as a committee that there was a stigma attached to the use of the word “terrorists” with respect to lists, and this would replace the title “List of Terrorists” with “List of Entities”.

This is not meant to be put forward as a substantive amendment, but it was a sensitivity that was brought to our attention that the government has respected.

The Chair: Mr. Toews.

Mr. Vic Toews: So we're going to replace “List of Terrorists” with the phrase “List of Entities”. If, for example, the government decided to put FACT on the list, our finance minister would not have been having dinner with terrorists, but simply an entity. That's really the purpose of this, to save the government some embarrassment, because sooner or later they're going to have to put FACT on the list, and they don't want our finance minister to have been eating with terrorists. This way he can say “Well, I was simply having dinner with an entity, a criminal entity but certainly not a terrorist entity”. This is a bit of a sham.

The Chair: Any response?

I'll put the question on G-7.

(Amendment agreed to)

The Chair: I go now to government amendment G-8, which is consequential to NDP-9. If Mr. Blaikie wants to make an amendment to G-8 to accommodate NDP-9, I'm giving notice.

Mr. Owen.

Mr. Richard Mosley: If I may, Mr. Chairman, this is a technical amendment to insert the words “of Canada” after the first reference to the Solicitor General in this section. It's just to clarify which Solicitor General it refers to. The second is the obverse. It removes the words “of Canada” after subsequent reference to the Solicitor General in this section.

The Chair: We've heard that explanation.

Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, perhaps I can move a subamendment then that would have the effect of replacing lines 32 and 33 on page 16 with the following:

    eral, the Governor in Council is satisfied that, on a balance of probabilities,

This would change the language from “reasonable grounds” to “balance of probabilities”, which is an amendment that was suggested to us in the course of our testimony and which I found persuasive.

The Chair: Mr. Blaikie, is your subamendment identical to NDP-9 for purposes of the committee?

Mr. Bill Blaikie: Yes.

The Chair: So essentially Mr. Blaikie is proposing that NDP-9 be first dealt with as a subamendment to G-8.

(Subamendment negatived)

The Chair: We go now to G-8.

(Amendment agreed to)

The Chair: I go now to G-9, a stand-alone amendment. It's in the first package on page 28.

Mr. Mosley.

• 1955

Mr. Richard Mosley: This simply clarifies that an entity has to knowingly carry out a terrorist activity in order to be listed. This was a concern that was actually raised in the Senate committee. Senator Fraser in particular was concerned that the interpretation or the reading of the listing procedure might result in an entity being listed who had not knowingly carried out but had inadvertently... So this is to clarify that and to make sure it's...

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: Knowingly for who? The officers of the organization or front-line people? Who?

Mr. Richard Mosley: It's a subjective test. The entity would have to knowingly carry out... It's the person the government is proposing to put on the list.

Mr. Brian Fitzpatrick: But what if it's not a person?

Mr. Richard Mosley: If it's a group or association, their knowledge would be attributed to those who are leading that group or association.

The Chair: Thank you very much. I'll put the question on G-9.

(Amendment agreed to)

The Chair: I now go to Bloc amendment number 7. Bloc amendment number 7 is consequential to government amendment number 10. It is in the second package on page 18.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: In my opinion, Mr. Chairman, this really isn't consequential, that is to say, the two amendments could coexist without any problem given that their ultimate purpose is not the same. The government wants to say “knowingly” whereas I just want to remove from paragraph b) the words “or in association with” since the objective would not be specific and could give rise to all kinds of interpretations. Consequently, I move that the paragraph read as follows:

      (b) the entity is acting on behalf of or at the direction of an entity refered to in paragraph (a).

That would be all.

[English]

The Chair: Mr. Bellehumeur, first I want to deal with the question of whether or not Bloc amendment number 7 is consequential to G-10, so we can move on it.

[Translation]

Mr. Dupuis.

[English]

Mr. Richard Dupuis: I would tend to agree.

The Chair: So it's not consequential?

The Clerk of the Committee: No.

The Chair: Mr. Bellehumeur, we're now dealing with Bloc amendment number 7. Then we'll deal with government amendment number 10.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: My amendment comprises five words. I just held forth on the value of 15 words. I suppose that everyone who can read, particularly those who specialize in the language of Molière, had to understand that I merely wished to remove the words "or in association with".

[English]

The Chair: Thank you. We've all heard the explanation.

(Amendment negatived)

The Chair: I go now to government amendment number 10. It is in the first package on page 30.

Mr. Owen.

Mr. Stephen Owen: All we're doing again in this clause is inserting the word “knowingly”.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I note that the government is very much in favour of the word “knowingly” now when it's their motion.

I want to get a response from one of our experts here on this particular issue of association or “acting at the direction of or in association with”. How would the political movement Sinn Fein fall within this definition, where they are acting in association with or at the direction of the Irish Republican Army? Can you give us an interpretation of that particular association and how they would be affected by this particular section? This does have direct application in Canada.

Mr. Stephen Owen: I think if our colleague wants to put a hypothetical question, that's one thing, but—

Mr. Peter MacKay: Well, it's not a hypothetical question at all.

• 2000

[English]

Mr. Stephen Owen: No, I know it's not. If you'd like to ask a hypothetical question, that's fine. But I don't think it's appropriate to be answering—with respect to this legislation—questions about specific groups.

Mr. Peter MacKay: Why on earth not, Mr. Chair? This is a piece of legislation that's going to come into law in fairly short order. We have a situation now in Canada where members of Sinn Fein have come to this country, and we know—at least I think we know—they are directly involved or acting in association with a group I would strongly suggest is carrying out terrorist activities. Why is it inappropriate to pose a direct example of a current situation in this country that could be caught up in this particular clause?

The Chair: Mr. Owen.

Mr. Stephen Owen: The question is whether we are prejudging the information that is coming in its entirety before the Solicitor General and before cabinet that might be then reviewed by a court. We are not in a position—I'm certainly not—to assume or presume all of the facts that might be coming forward. We do know that Sinn Fein is a member of the government of the United Kingdom at the moment, but we don't know all of the other circumstances that may be brought forward, so I don't think that's an appropriate question to answer.

The Chair: It's not part of the United Kingdom. It's part of Northern Ireland.

Mr. Peter MacKay: It's not the U.K. government, that's for sure.

Mr. Stephen Owen: Northern Ireland is part of the U.K., the last time I heard.

The Chair: We will put the question on government amendment number 10.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: The next is NDP amendment number 10. It is stand-alone. It's in the first package on page 32.

Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, this amendment would add, after line 9 on page 17, the following words:

    Before a recommendation referred to in subsection (1) is made

—that is, having to do with listing—

    the Solicitor General shall notify the entity that it is being considered for listing and shall give it a full and fair opportunity to be heard in respect of the matter.

In other words, Mr. Chairman, I'm just trying to insert a little natural justice here so that if people are going to be listed as a terrorist group they would have an opportunity to know this was coming and say something in their own defence, if they thought there was something to say in their own defence.

The Chair: Mr. Owen.

Mr. Stephen Owen: This is the difficult issue we've all been grappling with, which is how to effectively freeze, seize, or forfeit assets of a listed entity, and the challenge we've got is of course to both treat people fairly and have some due process without giving notice that would allow people to dispose of those assets before the freezing could take place. I admit it's a difficulty, and the only way the government feels it can be resolved is to list and then provide due process for being taken off the list, to enable us to all achieve what we need.

The Chair: John McKay.

Mr. John McKay: This has to do with listing, though. It doesn't necessarily have to do with seizing and freezing and things of that nature. Isn't the application of this section limited only to the listing?

Mr. Stephen Owen: Without finding the exact section, the freezing is automatic once the entity is on the list, so it has that immediate impact.

Mr. John McKay: So if in fact you freeze the assets of the entity, you have effectively pre-empted any discussion.

Mr. Stephen Owen: What you've pre-empted is the divesting of the asset.

The Chair: Mr. Toews.

Mr. Vic Toews: Given that the freezing and seizing follows upon the listing, I can understand why one would not want to provide prior notice. However, it does leave the unfortunate situation where innocent people could be affected by the listing and then the freezing and seizing of their assets, and the damage is caused.

• 2005

Is the government considering any amendments—or has it any amendments in the bill that I may have missed—that would compensate innocent victims of this government action?

Mr. Stephen Owen: Mr. Piragoff is considering the second part of that question.

I would like to address the first part as relevant to our consideration of this whole legislation. We're talking about risk management, of the combination of the likelihood of something happening—where we've got some reasonable grounds to believe it might—and the consequences of its happening, which in a terrorist situation, we've seen, are or can be catastrophic.

It's the mixing of the likelihood, on reasonable grounds, with the consequence of its occurring that requires that the legislation in its whole thrust be preventative or have preventative tools. This is one of them, and that's one of the minor consequences. I'm not suggesting it may not have a severe impact, but that's one of the consequences that is out of proportion to the potential catastrophic consequences of not acting to stop participating in—or in this case, financing—terrorist activity.

Mr. Vic Toews: Mr. Owen, subject to what Mr. Piragoff may find, it appears to me that if the fight against terrorism is a societal response and for the benefit of society generally, isn't it then incumbent upon society to address the particular adverse impacts on innocent victims—innocent victims in the sense of suffering severe economic loss?

I can understand—and we have seen particular examples in the newspapers recently—a small businessperson whose assets have been frozen. I'm not going to comment on whether or not he in fact should legitimately be on that list, but my understanding is he appears to be a small businessperson. If that person is innocent, think of the damage our societal thrust has inflicted upon his individual rights. I'm wondering, isn't there some way we can address that, either through a compensation scheme or otherwise?

Mr. Stephen Owen: That's a very important concern, but I think we have to recall that this is criminal legislation. We do not have as part of our criminal law a system of compensation for people who are acquitted after being charged with crimes and prosecuted—often at great damage to their reputations, potentially, and certainly there's an economic consequence to them. Once we start down this slope in criminal legislation, I think it may lead to a lot of other consequences that have never been part of the criminal law.

The Chair: Thank you. Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, given that Mr. Owen has acknowledged there's a problem here—and I see what he's talking about in terms of not wanting to telegraph what the government may be about to do—I wonder whether the government has given any thought to how this could be dealt with in ways other than my amendment, because it does seem to be a rather unsatisfactory situation.

Is there any way—I'm just thinking out loud here—in which you could seize, or freeze—perhaps not seize, but freeze—then list, and then have an appeal procedure, so that if the government's judgment as to whether or not an entity should be listed was sustained by that process, you would then go on to seize? Why does it have to be either the way it is in the bill now or there be no change?

Mr. Stephen Owen: Quickly, in terms just of the order of a sequence of events, it's important that the listing and the freezing be as coincidental as possible.

Maybe Mr. Mosley can give more detail for your consideration.

• 2010

Mr. Richard Mosley: On the practical effect of freezing following a listing, I'm trying to direct this to Mr. Toews—

Mr. Bill Blaikie: It's my amendment. You can address it to me.

Mr. Richard Mosley: My apologies, I thought the question came up—

Mr. Bill Blaikie: No, he just talks a lot.

Mr. Richard Mosley: Where the government is actually moving to seize or restrain property, under proposed section 83.13 and following in the bill, this part of the bill incorporates by reference, on page 25, those provisions in the Criminal Code that already deal with property that may be the subject of seizure, restraint, or forfeiture. Included are provisions for returning property and the use of property for living, legal expenses, and the like. It mitigates some of the consequences of the property being frozen pending a decision as to whether it should be forfeited or not. It has been part of our criminal law for some time.

On the more general question, I think Don has further comments to make.

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: Thank you, Mr. Chair.

There is another government amendment. I'm not sure what the number is, but I think it's two or three away, and it does make an amendment to proposed section 83.08 to provide that persons who act reasonably in freezing property have a defence to civil liability, which means that if people do not act reasonably when they freeze property and therefore cause harm to an individual, then those people might be subject to a civil lawsuit.

For example, a bank, a mortgage company, or someone who's holding property and does not act with due diligence in determining the true nature of the identity of the account holder, for example, could be liable to a civil action for damages. If people act reasonably and exercise reasonable care in identifying the names of the people on the list with the names of their clients, and in identifying the property and ensuring that the property is terrorist property, then they are doing what they are required by law to do. Not only section 25 of the Criminal Code but a specific amendment would provide this.

I'm trying to find the number. It's G-13 on page 38. Mr. Toews was asking for the page number.

Thank you, Mr. Chair.

The Chair: Will I call the question?

Mr. Blaikie and then Mr. MacKay.

Mr. Bill Blaikie: Mr. Chairman, I just want to say that I still don't think I've heard a good argument for why you couldn't have a process whereby organizations would have their assets frozen at the same time as they were listed and then have some kind of appeal procedure before there is any seizing of assets.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. More to the point, in keeping with Mr. Blaikie's amendment, I think what's envisioned here is this.

And correct me if I'm wrong here, Bill.

We're looking for a process to pre-empt this listing, seizing, freezing, which has, we all acknowledge, potentially severe implications, both financial and in terms of reputation. Is there a concern on the part of the government if some notice is given that a person is about to be subjected to this cascading process of being listed, frozen, having their assets seized? Is there a concern if they're tipped off and not given an opportunity to say, hold on a minute, you have the wrong person, this is why I was involved in a certain activity outside the country or this is why those assets were diverted to this group?

Is there not a way we can envision the insertion of a process prior to putting these consequences in motion, which essentially result in an inability to put the genie back in the bottle, even if they then have open to them civil remedies and the ever-present ability to sue the government for being wrongfully accused or, in this instance, listed?

• 2015

Surely there must be an innovative way in which we can put in place a process of sorts to allow, as Bill quite rightly said, some form of natural justice where they can come forward and at least face their accusers. Of course, this is doubly complicated by the fact that if the minister invokes a certificate, the person doesn't even have to know the reasons why or even know about the fact that he or she has been listed in the first instance.

The Chair: Thank you, Mr. MacKay.

Mr. Owen.

Mr. Stephen Owen: I'm not sure what more I can say than what I've said. I don't know that process. I'll certainly give the justice officials an opportunity to conceive of one, and perhaps they've thought about it.

The dilemma we face is that the consequences of giving notice may frustrate the attempt to seize or freeze assets that could be entrained to be used in a terrorist activity. That's the thrust of it. That's the dilemma.

The second problem is that we're talking about criminal law where there are frequently negative consequences for people who are accused and tried and subsequently acquitted. If there's negligence involved or improper conduct with respect to police and prosecutors, then there can be civil liability on officials. There could be in this, outside of the indemnity section that's been mentioned, but I will give the officials an opportunity to answer that question.

The Chair: Thank you, Mr. Owen.

Mr. MacKay wants to make another point, and then we'll go back to the officials. Then I'll call the question.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

The difference, Mr. Owen, you have to admit, is that in the criminal process you at least have a trial. Here, there's no trial. There's simply the listing and the process of freezing and subsequent seizing, but prior to there being a determination of whether the person should or shouldn't be listed and whether the assets are going to be frozen or eventually seized, there's no ability to respond.

The Chair: Thank you.

Mr. Owen.

Mr. Stephen Owen: The point is that in being charged and prosecuted prior to a trial, you don't have a trial either in a criminal case. The fact of being charged and publicly brought before a court before the trial can have tremendously negative consequences for someone, and in the criminal law we have never provided compensation for that exposure. I suggest that trying to import it into the criminal law at this stage for this purpose may complicate the whole thrust of the criminal law.

The Chair: Mr. Mosley.

Mr. Peter MacKay: But, Mr. Owen, on a proportionality scale—

The Chair: Mr. MacKay.

Mr. Peter MacKay: —that you spoke of when you said—

The Chair: Mr. MacKay.

Mr. Peter MacKay: —what we're trying to do is prevent money going to criminal acts—

The Chair: Mr. MacKay, Mr. Mosley is about three questions behind.

Mr. Richard Mosley: Very quickly, if I may, let me say that as a practical matter, some thought was given to this issue in advance of the bill being finalized. The fact of the matter is that we simply don't know where the property of a particular person who may be listed is or if it's located in Canada where it's located in Canada. Finding some mechanism to get in ahead and freeze the property before giving notice so assets are not removed from the country is just practically not feasible.

The second point is that for some of the people who are on the existing lists, under the United Nations Act and based on the UN Security Council resolution and the list compiled from that, and who do have connections with Canada, we have no way of reaching them because they may well be in Afghanistan. In particular, one gentleman with a Canadian passport was last heard of in Afghanistan. With respect to a person of that nature whom we want to put on the list to ensure that if he has assets in this country that are being used to support terrorism they will be frozen, we can't give him notice.

The Chair: Thank you. I want to put the question.

One more comment, Peter, please.

Mr. Peter MacKay: Mr. Mosley, there's the requirement now that you serve somebody or you at least attempt to serve somebody with notice in many civil and criminal procedures. To suggest that because somebody is in Afghanistan and that that somehow gives you carte blanche to go ahead and list them just doesn't hold water.

• 2020

Mr. Richard Mosley: It becomes farcical to publish a notice to Mr. X, formerly of such-and-such an address in the city of Toronto, who was last heard of in Afghanistan.

Mr. Peter MacKay: It's not farcical when the consequences are that he's listed as a terrorist and he's not.

The Chair: I think we've exhausted the debate. I'm going to put the question on NDP-10.

(Amendment negatived)

The Chair: I go now to Bloc amendment 8.1. It's a stand-alone amendment. It has just been distributed, so it's not part of either package.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, you skipped over our amendment BQ-6.1 which should have been discussed earlier because it is on page 16.

Again, I find it odd—

[English]

The Chair: Mr. Bellehumeur, just one moment, please.

[Translation]

Mr. Michel Bellehumeur: This is a real farce.

[English]

The Chair: Okay, it's Bloc amendment 6.1. It is stand-alone. It has already been distributed to all of you. It is on clause 4, which is amended by replacing lines 30 to 33 on page 16.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, I understand that the system works this way. I understand that this is our way of proceeding. However, you cannot evaluate the content of amendments on the basis of a single amendment that changes part of a very important chapter.

To be consistent, there are about a dozen amendments that should follow the amendment I'm introducing and that are related to it. And there are some amendments that may only be two lines long and that don't mean anything if they are not considered as part of the whole package.

That is why I think that what is happening here tonight is a real farce. Even if someone around this table had the best possible solution for improving this act, he would not have an opportunity to prove it, because we are proceeding one small clause at a time, without thinking about the bigger picture. All of the amendments are being defeated one after the other without the opposition really having an opportunity to make any arguments. I'm going to save my voice, Mr. Chairman. I am going to give you the numbers of all of our amendments and you can defeat them all with one vote, because they are all along the same lines. Their purpose is to make the bill more transparent.

Some people are laughing, but I do not find this funny at all.

I want to make the part covering terrorists more transparent. I want people to be informed before their names end up on the list. I want it to be possible to revise a list. If the government still wants to put the name on the list, I want it to have to appear before a judge to do so and I want procedures in place for review.

I want to add transparency to respond to concerns raised by the former Solicitor General of Canada, Mr. Warren Allmand, among others, who said here that his group, which advocates for rights and democracy, is already on a Canadian Security Intelligence Service list of so-called terrorists.

• 2025

Mr. Allmand is not my buddy—he's yours—but I do not consider him a terrorist, nor should he be considered one. Amending the bill clause by clause as you are doing, and considering the government's open-mindedness on bill C-36, we have literally been wasting our time today and this evening.

Mr. Chairman, to save some of the committee's precious time, I will point out that I am talking about our amendments BQ-6.1 and BQ-8.1—I will list them all together, and you could defeat them all together, that will solve the matter: BQ-8.2, BQ-7.1, BQ-7.2, BQ-7.3, BQ-8, BQ-9, BQ-10, BQ-11, BQ-12, BQ-13, BQ-14, BQ-15, BQ-16, BQ-17, BQ-18, BQ-19, BQ-20, BQ-21, BQ-22, BQ-23, BQ-24 and BQ-25. They are all there because I listened to the witnesses who appeared before us, as the minister invited us to do and she should do.

I introduced amendments. I know what will happen to them. So let's save some time. I want to group them together so you can defeat them as a package.

[English]

The Chair: I am advised that that is procedurally acceptable, so I put the question on amendments as Mr. Bellehumeur has articulated them. They are Bloc amendments 6.1, 8.1, 8.2, 7.1, 7.2, 7.3, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25.

(Amendments negatived—See Minutes of Proceedings)

The Chair: I will go now to Mr. Blaikie and amendment NDP-11.

Mr. Bill Blaikie: Mr. Chairman, NDP-11 is just an elaboration of NDP-10, which was defeated by the committee. We can either go through the formal exercise of defeating it or I can withdraw it. It's a more elaborate version of amendment 10.

The Chair: Mr. Blaikie, that is at your discretion.

Mr. Bill Blaikie: I'll just withdraw the amendment.

The Chair: Thank you.

Government amendment 11 is a stand-alone amendment in the first package, page 34—page 35 in French.

Mr. Owen.

Mr. Stephen Owen: Mr. Mosley.

Mr. Richard Mosley: This amendment would allow greater flexibility in admitting evidence by authorizing a judge to receive evidence if the judge is of the opinion that the evidence is reliable and appropriate. This would include foreign information. A similar provision exists in subsection 32(1) of the Extradition Act. It is also currently in the proposed Charities Registration (Security Information) Act, clause 113, proposed section 7.

The Chair: We have Mr. MacKay, then Mr. Fitzpatrick.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

Mr. Mosley, could you give us a practical example of a situation where the judge might deem evidence appropriate to be admitted into a hearing, even though it might not otherwise be admissible under Canadian law? Are you talking about affidavits perhaps that haven't been properly sworn, or physical evidence? What is an example that wouldn't be otherwise admissible?

Mr. Richard Mosley: Under the continental legal system, the investigating judge... we read about Judge Garzon in Spain over the last few days who is conducting an investigation and is compiling a record of the case. That record of the case that a judge in that system is compiling would not meet our normal standards of viva voce testimony, where you have to call a witness, examine, and cross-examine, but it does meet the standards of a free and democratic justice system.

• 2030

So having access to information of that nature would greatly assist in the determination of the issues before the Canadian court.

Mr. Peter MacKay: Okay. So it's unsworn testimony or potentially police reports that may come from outside our jurisdiction that would be of assistance to the court.

Mr. Richard Mosley: The court could rely on it... Let me be careful here. It may well be sworn evidence, but the way it is compiled would be different from the way we normally deal with evidence. So it would not meet our standards. And the court would have to be satisfied that it is reliable and appropriate to accept the evidence. So if it were mere speculation, for example, on a will-say kind of... then the court would be entitled to disregard it. But if the court was satisfied that the source of the evidence was reliable, trustworthy, and credible, it could admit it and use it in this context.

Mr. Peter MacKay: Thank you, sir.

The Chair: Mr. Toews.

Mr. Vic Toews: Mr. Mosley, isn't that in fact what is happening in our courts anyway, that the courts are moving more and more away from the formal laws against opinion or hearsay and simply looking at the reliability of the evidence, and subject to the judge being satisfied that the evidence is reliable, it's admissible?

Mr. Richard Mosley: There's a lot of movement in that direction.

The Chair: Thank you very much.

Mr. McKay.

Mr. John McKay: Absent this amendment, is it your view that evidence in a hearing such as this would otherwise have to be admissible in Canadian law? In other words, it would have to meet Canadian standards.

Mr. Richard Mosley: It may well. The court may impose a more rigorous standard of what is admissible.

My colleague was just reminding me that this would apply to both parties in these proceedings, on behalf of the government but also to the person who is challenging the decision to be listed. It would give them as well the opportunity to introduce such information as evidence.

Mr. John McKay: So not to put too fine a point on it, but this is the dumbing down of evidence—both sides.

Mr. Richard Mosley: No, I wouldn't accept that characterization, if I may, Mr. McKay. Clearly, there would have to be a standard maintained as to the quality of the evidence, but not necessarily in exactly the same form in which it is customarily received in our courts.

The Chair: Thank you very much. I want to put the question on G-11.

(Amendment agreed to)

The Chair: Amendment G-12 is a stand-alone amendment. It's in the first package, page 36, page 37 in French.

Mr. Owen.

Mr. Stephen Owen: Thank you. This amendment adds an additional safeguard, meaning an entity can just apply to the Solicitor General, and eventually the Federal Court, for a review of the grounds leading to the entity being listed. This is adding safeguards, Mr. Chair.

The Chair: Ready for the question on G-12?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We're on G-13. If the amendments are technical in nature, they're in front of everyone.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Mr. Chairman, I had a question about something, just before we get to this amendment. It is on page 19, in proposed subsection 83.06(2). That subsection describes the the criteria a judge will use in making a determination under the section. I have not been able to figure out the logic and the sequencing of paragraph (b) of subsection (2), and that is the section that deals with return of information. It is on line 27, paragraph (b). The subsection says the judge shall not take into consideration certain evidence that will have been returned to the Solicitor General if “the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 83.05(6)(b).

• 2035

I don't understand why, if that information is relevant and if it is summarized in the 6(b) procedure, a judge would be prohibited from taking it into consideration, because the party to the procedure is going to know the summary of the evidence. The only thing I can think of is that the word “not” has been left out of the sentence, so that it would read “the judge determines that the information is relevant but should not be summarized in the statement to be provided under 83.05(6)(b)”.

Mr. Richard Mosley: I could take a shot at it.

The Chair: Mr. Mosley.

Mr. Richard Mosley: As I read this, the practical effect is that—and I may need some help from my colleague, Mr. Kennedy, who has worked with similar language in other statutes—what the judge would rely on is the summary. The information as a whole is returned, but if he determines that the information is relevant but should be summarized in a statement to be provided under paragraph... etc., that is what he would continue to rely on, not the information writ large.

Perhaps Mr. Kennedy might assist.

Mr. Paul Kennedy: Yes. I have to confess I was catching up because I was looking at my own notes when my issues come back.

The challenge we have is that information the Canadian government receives from other governments may be on the stipulation that the information not be made public at all, that it not be disclosed. So that leaves us with the following situation. When we start a proceeding, we don't know what the judge's ultimate determination is going to be.

The judge may take the information, look at it, and say, yes, it's relevant and therefore I should consider it under the proceeding. It is information the disclosure of which would damage national security and I cannot disclose it, and the judge agrees with that. The judge then can consider it as part of his determination.

However, the judge may also come to the conclusion that the information is not relevant, in which case we say, fine, give it back to us if it's not relevant. If he says it is relevant but I feel in this case for the fairness of the proceedings the information should be summarized and disclosed to the other party, of course that puts the state in a dilemma because the nature upon which we've received the information is that it not be disclosed in a summarized form or otherwise.

So what you want to do at that stage then is to say, thank you, can I have it back, please. Disabuse your mind of it, Judge, and then carry on, and we will try to make our case minus that piece of information. We'd rather go with a case that's slightly weakened rather than jeopardize our information-sharing agreements.

If you look at what can happen, because you say that's unusual, you can have the case weakened by the crown in other cases. I'll use an example, and my friends can correct me if I'm wrong. We might have a wiretap case where we've applied for a wiretap and in the wiretap would be evidence obtained from a human source. There's an application as well to summarize information. It may very well be the court says your application on the wiretap trial is going to fall unless this piece of information is there. That piece of information may be something that identifies a human source, a source of confidentiality of the government.

That privilege is the privilege of the individuals, not the police officers, not the state. And if you go and the individual says, sorry, I will not consent to its disclosure, that again leaves the crown with a weakened case. What will happen in a wiretap case sometimes is a wiretap order is knocked down and you can't use the evidence.

So that's the dilemma we're confronted with here, and that's the tradeoff you make, because in the long term the state has to maintain its information-sharing arrangements with other agencies in the world. Sometimes we can't take action. Sometimes we take prophylactic action. Sometimes we use it for investigation. This is what that is trying to put in place. It's what the solution is when the court says, I have to summarize it and disclose it, in which case we'd say, then give it back to us; we won't use it, and we'll proceed in the absence of it.

• 2040

The Chair: Assuming this inquiry is to inform you whether or not you wish to put in an amendment—

Mr. Derek Lee: Well, Mr. Chairman, I'm just trying to pick up on what I think is an error. We've just had a description of why a judge feels that information is relevant, but it should not be used in the decision and it should not be summarized. This proposed subsection precisely says it should be summarized and made available under proposed paragraph 83.05(6)(b). If it is so sensitive that it should not be summarized, why is the subsection saying it should be summarized and made available?

Mr. Paul Kennedy: The judge in that particular case is weighing the interest... It is “summarized” in the sense that if we're alleging an individual is a terrorist and has been involved in terrorist activity, it is relevant and pertinent to that allegation. The only one in this particular case who's going to be disadvantaged by withdrawing that information is the state, and the state is saying, “We would rather weaken our case here vis-à-vis this particular individual than weaken our ongoing relationships where we get that information. Otherwise, in the future, we may not get such information; we won't have the dilemma because we won't have the information.” And that information has many uses beyond this particular case.

Mr. Derek Lee: Okay, but you agree then that the sensitive information under this procedure is summarized, it is relevant, and it is made available to the party and the judge because it is summarized. That's what the section says, sir.

Mr. Paul Kennedy: This is at the stage where you are in camera dealing with the judge, and the summary is following submissions of counsel in camera. The other party is not there. The judge looks at it and says, “Okay, I've got the entire package, I've looked at it, and I've prepared a summary. And this is the summary I would propose to give to the other side.”

The other side has nothing at this stage. When you're at this stage, that's when you, as a representative of the state, are confronted with this dilemma. You'd say, “Okay, Judge, I've seen your summary, and I cannot live with this. It would breach my confidentiality agreement with another government; therefore, please return the entire information to us, so that the other side doesn't have it yet.”

The Chair: I think Mr. Lee is satisfied, so I don't think we want to help this.

On that note, we'll go to government amendment 13. It's a stand-alone amendment. It's in the first package on page 38.

Mr. Stephen Owen: This is the indemnity amendment that was mentioned earlier by Mr. Piragoff, which would protect those acting reasonably from civil liability.

The Chair: Are you ready for the question?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We're on government amendment 14.

Mr. Richard Mosley: This is a technical amendment, Mr. Chairman, to modify the description of financial intermediaries that are required under this provision of the bill to continuously determine whether they are in possession or control of property belonging to a listed entity. It ensures that all Canadian insurance companies, and only the Canadian insurance operations of foreign insurance companies, are subject to this provision.

Indirectly I believe it excludes the reinsurance companies that really would have no direct involvement with property that may be held on behalf of a terrorist organization.

It also adds a regulation-making authority allowing the Governor in Council to exclude certain classes of institutions from the reporting requirements in proposed subsection 83.11(2) and to specify a reporting period other than monthly—which I think was the point made earlier by Mr. Lalonde about the intention to relieve the burden of reporting on a monthly basis for some institutions that would be reporting a nil return on a regular basis.

(Amendment agreed to—See Minutes of Proceedings)

• 2045

The Vice-Chair (Mr. Denis Paradis): Now we're on amendment G-15,

[Translation]

on page 42 of the first package.

Mr. Owen.

[English]

Mr. Richard Mosley: This specifies that the proposed subsection is an exception to the rules of the Federal Court, just for greater clarity.

The Vice-Chair (Mr. Denis Paradis): Are you ready for the question?

Mr. Vic Toews: What is the impact of this?

Mr. Richard Mosley: If you look at page 23, proposed subsection 83.13(1.1), it says:

    An affidavit in support of an application under subsection (1) may be sworn on information and belief

It goes on to say:

    and no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.

My understanding is the Federal Court rules require that affidavits be sworn on personal knowledge.

The Chair: Mr. MacKay.

Mr. Peter MacKay: What particular rules of the Federal Court is this in contravention of?

Mr. Richard Mosley: It's just that requirement that affidavits be sworn on personal knowledge.

Mr. Peter MacKay: So this permits—

Mr. Richard Mosley: —“information and belief”, which is a common affidavit standard and frequently used in a wide variety of legal contexts. But in the particular context of the Federal Court rules—this was drawn to our attention by our litigators after the fact—those particular rules require the affidavits on personal knowledge.

The Chair: Mr. Toews.

Mr. Vic Toews: Just on a technical point, when are rules of the court ever superior to the rules of Parliament?

Mr. Richard Mosley: It might not be necessary to do this, but it's for greater certainty, so the issue does not come up such that there appears to be a conflict between what this says and what those rules say.

Mr. Vic Toews: It's so that we want to make it clear to any judges who might read this transcript that Parliament does not take a back seat to the rules a court may pass?

Mr. Richard Mosley: Right.

The Chair: Are you ready for the question on G-15?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We're on amendment G-16, and again I suggest if there are technical amendments in front of us, please... G-16 is a stand-alone amendment in the first package, at page 44.

Mr. Richard Mosley: Mr. Chairman, this is another technical amendment. The bill currently refers to “subsection 462.33(3.01)”, and the amendment is to remove that reference, as that subsection is unnecessary in this context.

The Chair: Are you ready for the question?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: The next amendment is identified as G-17. It's a stand-alone amendment. It's in the first package, on page 46.

Mr. Richard Mosley: This is again a technical amendment to remove paragraph (c) from proposed subsection 83.14(1). The general substance of paragraph (c) was caught by paragraph (a) as a result of the definition of “terrorist group”—an entity which ends up including an individual.

The Chair: Thank you. I'll put the question.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: The next is Canadian Alliance amendment number 2. It's a stand-alone amendment in the first package, on page 48.

Mr. Cadman.

Mr. Chuck Cadman: Thank you Mr. Chair.

I think this is pretty self-evident to anybody who reads it. It deals with the disposition of funds that flow from forfeited property. If I may, I'll just read it in:

    Any proceeds that arise from the disposal of property under subsection (5) shall be used to compensate victims of terrorist activities and to fund anti-terrorist initiatives in accordance with any regulations made by the Governor in Council under subsection (5.2).

• 2050

Really what we want to do here is direct the funds towards the fight on terrorism and to victims, and the decision on the disbursal of those funds is to be made by the Governor in Council.

The Chair: I will put the question on CA-2.

Mr. Toews.

Mr. Vic Toews: I have a comment to make here. I think my colleague has brought forward a very good amendment. It doesn't compel the government to pass regulations, but it certainly provides a fund from which the government can compensate victims. I think it's important, as I indicated earlier, that we have a societal response to terrorism. There are innocent people who may suffer from this. This is an opportunity for the government to establish—and it's discretionary, not required—a fund to take the money out of those terrorist funds and compensate victims. It doesn't cost the treasury. It costs terrorists. I think for that reason it should be supported.

The Chair: Peter MacKay.

Mr. Peter MacKay: Mr. Chair, I'm wondering if the mover, Mr. Cadman, might entertain a friendly amendment, because my reading of this particular amendment is that it “shall” be used to compensate victims. Therefore, it would be mandatory if it were passed in its present form. I don't know if that was the intention, but if that would make the difference between the government accepting this particular amendment or not, I would request that the member contemplate accepting a friendly amendment to substitute “may” for “shall”.

The Chair: Mr. Cadman, the ball's in your court.

Mr. Chuck Cadman: I'm okay with that, Mr. Chair.

The Chair: First we will vote on the subamendment to change the word “shall” to “may”.

Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): I'd like to hear from Mr. Mosley before we do this.

The Chair: Mr. Mosley.

Mr. Richard Mosley: If I may have a moment?

The Chair: Mr. Myers.

Mr. Lynn Myers: I just want to be clear that there's no technical conflict in replacing, in the English version line 16 on page 25, which is in effect replacing lines 19 to 23, and the French version is slightly different. I just want to make sure that is not a conflict. That will give me more ease to perhaps vote for this. I underline the word “perhaps”.

The Chair: I think that was implicit, Mr. Myers.

First of all, I have to respond to Mr. Myers and the question both. My presumption here is that if we amend “shall” to be less compelling by making it “may”, that would mean we would do the same thing in the French text. Absolument, and we take that from our expert in the language of Monet, Mr. MacKay.

• 2055

Mr. Owen.

Mr. Stephen Owen: After serious consideration, Mr. Chair, I would suggest that we propose an amendment to change the word “shall” to “may”.

The Chair: Mr. Owen, the amendment has been made by Mr. MacKay to Mr. Cadman's amendment.

Mr. Stephen Owen: In that case, it's only left to me, Mr. Chair, to commend Mr. MacKay for that amendment.

The Chair: I see that Mr. Lee is in a state of some panic.

Mr. Derek Lee: It's a quasi-panic in the sense that the initial amendment moved by Mr. MacKay was to turn a “may” into a “shall”.

Some hon. members: No.

The Chair: No, it's the other way around.

Mr. Derek Lee: I'm sorry. That's okay. Thank you.

The Chair: That's it. We have an amendment presented by Mr. Mackay to change “shall” to “may”.

(Subamendment agreed to)

The Chair: Now we deal with the amendment, which is amendment CA-2, on page 48 in the first package, as amended.

(Amendment agreed to—See Minutes of Proceedings)

Mr. Lynn Myers: I have some further points, Mr. Chair.

The Chair: Okay. Let's just establish the fact that we've passed CA-2 as amended.

Mr. Toews.

Mr. Vic Toews: I'm withdrawing CA-3 in view of the earlier amendments that were made, which I think satisfy me in that respect.

If I can collect my thoughts, I'll see what others I can now withdraw in view of the very cooperative spirit that members opposite have conducted themselves with.

The Chair: On that happy note, we will go to government amendment number 18. It's a stand-alone amendment. It's in the first package on page 50.

Again, if it's a technical amendment, please indicate that.

Mr. Richard Mosley: I have the same explanation as previously. Again, this relates to information and belief in the Federal Court rules.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Now we will go to G-19. It's stand-alone and is in the first package on page 52.

Is it technical, Mr. Mosley?

Mr. Richard Mosley: Yes. Again, it is a proposed amendment to the French version. In the French version currently there are the words “de confiscation” that qualify the order. The amendment would make the French version consistent with the intent of the provision.

There are two orders made under proposed section 83.14 that can be appealed, a forfeiture order and an order that declares that the property is not related to a terrorist group or terrorist activity.

The Chair: Thank you very much.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Now we will go to G-20. It is a stand-alone amendment in the first package on page 53.

Mr. Richard Mosley: This is, Mr. Chairman, to delete the words “au Canada ou à l'étranger” in the French version. The words do not appear in the English version and are surplusage in the French.

The Chair: Thank you.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Next is G-20.1, a stand-alone amendment in the first package on page 54.

Mr. Richard Mosley: This is, Mr. Chairman, to replace the word in the French version, “quiconque”, with the expression “d'un groupe terroriste”, and it would add the following:

[Translation]

    à son profit ou sous sa direction, ou en association avec lui.

[English]

The object is to make the French version more consistent with the intent of the provision.

(Amendment agreed to—See Minutes of Proceedings)

• 2100

The Chair: The next is identified as amendment CA-4. I understand, Mr. Toews, that one has been withdrawn.

Mr. Vic Toews: No. There were a couple I wanted to keep. I will identify the ones I want to keep. All the other ones I will withdraw, as I indicated to one of my colleagues across the way.

I'm wondering whether we can deal with amendments CA-4, CA-5 at page 101, and CA-6 at page 103 altogether, if we can vote on them at the same time. The other ones I believe at this time... well, let's deal with these and I believe I can withdraw the other ones.

The Chair: First of all, I have to find out whether your proposal is in order.

Yes, it is.

So amendments CA-4, CA-5, on page 101, and amendment CA-6 on page 103.

Mr. Vic Toews: Amendment CA-6 is the substantive one. Amendment CA-5 is consequential on that substantive CA-6. So if I can quickly summarize and we can vote on those...

The first one, that is the one found on page 55, essentially creates the offence of membership in a terrorist group. I understand the government's position is that they want something more than simple membership in a terrorist group. My position is that if there is a proven terrorist group, there is no purpose to the membership, other than participating in a terrorist group, and for that reason it is sufficient that it be an offence on that basis. Other free and democratic countries have the same offence.

With respect to amendment CA-6, which is essentially no parole for any person receiving a life sentence for a terrorist act, it is I think contrary to the rule of law and respect for human life that terrorists convicted of mass murders would be eligible for parole after 25 years. Accordingly, the amendment removes the eligibility for parole for those who have committed these acts of terrorism.

The consequential amendment simply follows on that one. I think we can vote on those three then.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I have a couple of quick questions, just practical ones.

I'm concerned about the suggestion that we can convict somebody of membership in a criminal group or organization when there is no definition in this particular legislation. So I don't know how we could insert this amendment or accept this amendment without there being a definition of a terrorist group.

Secondly, with respect to the other amendment about imprisonment for life on conviction of a terrorist offence, surely it's not unreasonable to suggest that a person could receive less than life imprisonment upon conviction for a terrorist offence and therefore they are ineligible for parole until they serve the entire sentence. I'm just wondering if my friend can address those anomalies.

Mr. Vic Toews: Well, with respect to amendment CA-6, I believe, which is on page 103, it clearly says “where an offender receives a sentence of imprisonment for life”. So that issue is clear.

With respect to the issue of an accused being a member of a terrorist group, that I think follows from the legislation itself. The accused in fact can be convicted of membership in that terrorist entity.

The Chair: John McKay.

Mr. John McKay: What would this amendment add that was not already covered in Bill C-24?

Mr. Vic Toews: What does this add? Well, it's in effect exactly what we did in the organized crime legislation, where in fact we already have certain offences spelled out in the Criminal Code. This anti-terrorist legislation creates certain offences that may well already be covered in the Criminal Code, but given the legislation and the specific need to address terrorism, this is a parallel situation.

• 2105

Mr. John McKay: But isn't that the point, though, that it's already covered by the amendments we made in Bill C-24? All terrorist groupings, by definition, once we have passed this bill, are committing Criminal Code offences.

Mr. Vic Toews: Yes, but what we have to prove, or what a prosecutor has to prove in this particular case is that the member is facilitating some kind of an offence. In the American legislation, for example, the RICO legislation, in the Spanish legislation, which talks about membership in a terrorist offence... it doesn't have to be proven that the individual facilitates a particular offence. It's membership in the terrorist organization that is the crime, given that the terrorist organization is already proven to be terrorist.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I think this one is quite important because a lot of the definition deals with actions, and the minister this afternoon made it quite clear that the focus of this legislation is prevention. It seems if prevention is the key... if you have a terrorist organization and you can prove that a person is a member of that organization, that's a good tool for prevention, and that's what this bill is supposed to be all about. Actions may be too late. The building may have blown up or the nuclear plant is gone, whatever. This is a prevention tool.

The Chair: Thank you.

I'm going to call the question, in the fashion that has been proposed and I presume is acceptable to everyone, and that is that CA-4, CA-5, and CA-6 be dealt with...

Mr. Blaikie.

Mr. Bill Blaikie: We're not voting on them all at once; we're just going to vote on them one at a time.

The Chair: On CA-4?

(Amendment negatived)

The Chair: On CA-5?

(Amendment negatived)

The Chair: On CA-6?

(Amendment negatived)

The Chair: I now turn to the amendment identified as G-21. It's a stand—

Mr. Vic Toews: A point of order.

The Chair: Mr. Toews.

Mr. Vic Toews: Thank you very much, Mr. Chair.

In view of the extraordinary cooperation that I received from the members opposite, and with respect to my colleague's very insightful amendment, I will, pursuant to my agreement, withdraw my other amendments.

The Chair: I turn now to government amendment 21, and please indicate if it's a technical amendment so we can...

Mr. Stephen Owen: Mr. Chair, I notice that amendments G-21 to G-30 are all of a technical nature, and I wonder, in terms of expeditious treatment, if we might do something similar and treat them as a group.

The Chair: I'll give members the opportunity to look through G-21 through G-30. If there's no objection, we'll deal with G-21, G-22, G-23, G-24, G-25, G-26, G-27, G-28, G-29, and G-30 as a group. So there is no objection to proceeding by dealing with them as a group?

[Translation]

Mr. Michel Bellehumeur: Can you repeat them?

[English]

The Chair: This would be government amendments G-21 through G-30. They've been identified by the government as technical amendments. I'll give you the time you require to look through these amendments to make sure there's nothing you would like to speak to.

Perhaps the way to do it would be to simply call a vote on each one.

On G-21?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-22?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-23?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-24?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-25?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-26?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-27?

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: On division. I understand that they are the truth, but I want to protect myself.

[English]

(Amendment agreed to on division—See Minutes of Proceedings)

• 2110

The Chair: On G-28?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-29?

Mr. MacKay.

Mr. Peter MacKay: Is it correct to say that this is simply adding the ability for the Attorney General to have someone act as their agent?

The Chair: Mr. Mosley.

Mr. Richard Mosley: Thank you, Mr. Chairman.

It currently refers to “peace officer”. This substitutes “Attorney General or the Attorney General's agent” to make it clear that this is to be brought on behalf of the crown.

Mr. Peter MacKay: I see. So it replaces “peace officer” with “agent” and “Attorney General”.

Mr. Richard Mosley: Yes. This is putting the questions to the person in the investigative hearing. It currently reads “peace officer”. It should read “Attorney General”.

Mr. Peter MacKay: That's fine.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-30?

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: Now we turn to the PC/DR amendment identified as 4.1. It is a stand-alone amendment. It's in the first package, page 69.

Mr. MacKay.

Mr. Peter MacKay: Mr. Chair, this particular amendment would ensure legal representation. You will note that in the wording it says the presiding judge “may” appoint as opposed to “shall”, so there is discretion on the part of the judge.

It's simply to underline and certainly highlight the fact that in this particular type of instance it's extremely important that the person have representation. Certainly with the constraints and the current strain upon the legal aid system, I would suggest that there is merit in giving the judge the ability to appoint counsel for an individual who finds himself before the judge on one of these sections.

The Chair: Mr. Owen and then Monsieur Bellehumeur.

Mr. Stephen Owen: Mr. Chair, I certainly see the sensitivity and sentiment behind the suggestion. I'd only suggest that we do have legal aid schemes in this country. They are funded jointly by the federal and provincial governments but administered by the provincial governments, and also, to a large extent, funded by many provinces. I think the real issue here is, who's going to pay for counsel, once appointed?

That is an intricate federal-provincial funding issue, and I would suggest that this is not the place to deal with that. I share our colleague's concern with respect to the need for counsel. I think the need for counsel in many criminal and civil proceedings is necessary. The provision of that counsel is a complicated mix of federal and provincial funding and provincial administration, so I would raise that as a concern.

[Translation]

The Chair: Mr. Bellehumeur, you have the floor.

Mr. Michel Bellehumeur: I simply wanted to tell Mr. MacKay that I wholeheartedly support his motion, even though it is very unlikely that it will pass because it is almost identical to my amendment BQ-25, which was defeated earlier by the government.

[English]

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I just don't think it's necessary. If a person is charged with a terrorist offence and doesn't have the money to retain counsel, I'm quite sure the judge in charge of that case is going to appoint counsel for the accused, or there'll be some step taken to have that counsel appointed. So I don't really think we need to get into legal aid here.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I turn now to amendment G-31.

• 2115

Mr. Richard Mosley: Mr. Chairman, this is part of a...

The Chair: I apologize; before we go to G-31 we go to NDP-2.1. It is a stand-alone amendment in the second package, page 36.1.

Mr. Bill Blaikie: Mr. Chairman, I wasn't anticipating one of our amendments until much later, so I'm not sure what this amendment...

Oh, I think we had withdrawn that one, Mr. Chairman. We have only have a sunset amendment at the end.

The Chair: NDP-2.1 and NDP-2.2 are withdrawn.

I now go to Bloc amendment 26. It's a stand-alone amendment. It's in the second package at page 37. It's BQ-26.

[Translation]

Mr. Michel Bellehumeur: In the interest of speeding up the work of this most interesting committee, I would like to introduce amendments BQ-26 and BQ-27 together, since they both seek to accomplish the same thing. They can be found on pages 37 and 38.

[English]

The Chair: Mr. Bellehumeur, just let me establish that this is in order. It's BQ-26 and BQ-27 together?

[Translation]

Mr. Michel Bellehumeur: Yes, BQ-26 and BQ-27. I will repeat. I listened to the witnesses who appeared before the committee. One principle was common to all of their presentations. Foremost in my mind is Mr. Grey and the League of Rights. A number of people expressed concern about the introduction of the concept of “reasonable grounds to suspect” in this bill. Moreover, we asked the law enforcement agencies how they intended to use it and they could not give us an answer. Apparently, they were waiting for some course that would help them to interpret this new wording in criminal law. All we are suggesting is that the expression “reasonable grounds to suspect” be replaced by the expression “reasonable grounds to believe”, a wording which already exists in the Criminal Code. This is a concept that can be used by criminal lawyers and those who work in the field, and it takes into account the evidence that we have heard and have taken note of. That is why I am introducing these amendments. It is now up to you to decide if you listened to the same witnesses that I heard.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you, Mr. Chair.

If we look at that clause, I think it's one of the best examples in the bill of what we've talked about—the necessity to act to prevent something that could have catastrophic consequences. The concept is not unknown. I think Mr. Mosley addressed this, at least in part, this morning. In the Criminal Code it's similar to the provision for roadside alert, where on reasonable suspicion a peace officer can require that a person take a breathalyser, for instance.

But the real key here, I would suggest, is that if there were “reasonable grounds” to believe, that would be in fact the right to arrest. This is a pre-arrest or something where, because of the potential catastrophic consequences of what we're talking about, we're adding a preventive tool, so that the admittedly lower standard of suspicion, rather than belief, is an appropriate incremental step to take to provide the necessity to prevent action that could stop the terrorist event from happening.

• 2120

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Mr. Owen, have you just said that it would be the same as a police officer who can arrest someone whom he suspects has been drinking in order to administer a breathalyser test? Is that what you are saying?

[English]

Mr. Stephen Owen: Yes, if the suspicion arises because of the conduct or whatever, the way the person is driving the car.

[Translation]

Mr. Michel Bellehumeur: No, even in the case of impaired driving, a police officer has to have reasonable grounds to believe that the individual is committing an offence. One cannot arrest someone just because one suspects that the person might be driving drunk.

No doubt you will quote a precedent in support of what you have said, and we will have a little chat. There is a mistake in the system. It doesn't work that way.

Tell me exactly where, in the Criminal Code, this type of behaviour is sanctioned, that is, to arrest someone on "reasonable grounds to suspect". Quote me one clause in the Criminal Code where that wording is used.

[English]

Mr. Stephen Owen: I'll refer to our officials to identify any particular area, but I want to re-emphasize the overriding issue in this clause, which is that we want something lower than reasonable belief, because of the potentially catastrophic consequences of terrorist activity. That's why, in this preventive section, we have used the slightly lower standard.

Let's look to see if we can find a clause where it is used.

The Chair: Mr. Mosley.

Mr. Richard Mosley: The first one we can lay our hands on—and let me tell you, there are many provisions in the criminal law and the statutes—is an order for a number recorder to be attached to a telephone line. It's subsection 492.2(1):

    A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect

The example Mr. Owen gave earlier was of the roadside screening device that is commonly used across the country. The suspicion ground is enough for the officer to—

[Translation]

Mr. Michel Bellehumeur: You say clause 442 of the Criminal Code?

[English]

Mr. Richard Mosley: Subsection 492.2(1) of the code.

The example given by Mr. Owen earlier was the Alert device. You can be stopped on suspicion. You can be asked to breathe into the Alert device on the side of the road. That, if it tests positive, serves as reasonable grounds to demand that you accompany the officer to the police station, and you give a breathalyser test.

This standard has been well understood in the criminal law and has been, as a colleague reminded me, interpreted and applied by the Ontario Court of Appeal in a case called Simpson.

[Translation]

Mr. Michel Bellehumeur: He can certainly give us some examples, but I would like him also to read the entire clause. It says in paragraph 492.2(1):

    492.2 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect—

That is much more specific and much more demanding that what you have written there. He needs nothing more in order to act. There is a difference.

[English]

The Chair: Again, we've exhausted the subject, and I'm going to ask the question on Bloc amendments 26 and 27.

(Amendments negatived—See Minutes of Proceedings)

The Chair: I go now to government amendment G-31. It is a stand-alone amendment. It's in the first package, page 70.

Mr. Owen.

Mr. Stephen Owen: Mr. Chair, I was just going to suggest that according to prior practice, as it's developing this evening, government amendments 31 through 34 be treated as technical amendments and be dealt with together.

• 2125

The Chair: Mr. MacKay.

Mr. Peter MacKay: Could we have an opportunity to at least read those first?

The Chair: That would be amendments G-31, 32, 33, and 34.

There's a question from John McKay.

Mr. John McKay: With respect to G-32, you've changed it from “in order to prevent the commission of an indictable offence, where the act or omission constituting the offence”. So you're dropping from proposed paragraph 83.3(4)(b) the concept of an indictable offence. Is that a fair reading? For a peace officer to arrest somebody in exigent circumstances, he has to suspect on reasonable grounds. The detention of the person in the original concept had to meet a twofold test, namely, an indictable offence and a terrorist activity. Now you've reduced it to one test, which is terrorist activity. Now terrorist activity could include facilitation, section 83.20. So in theory a peace officer in exigent circumstances could have a preventive arrest in order to prevent facilitation. Is that a logical reading, and is that what you intended?

Mr. Richard Mosley: If I may, Mr. Chairman, terrorist activity is the terrorist activity as defined in that provision in the bill. The facilitation offence is the offence of facilitating the commission of a terrorist activity.

Mr. John McKay: Well, is facilitation a terrorist activity or not?

Mr. Richard Mosley: Mr. Bartlett, I think, has this one.

Mr. William Bartlett (Counsel, Policy and Programs Directorate, Department of Justice): Mr. McKay, you'll notice that all the previous references are to preventing the carrying out of a terrorist activity. Indeed, a terrorist activity is somewhat narrower than a terrorism offence or an indictable offence that equals a terrorist activity. That reference there was really an erroneous reference, because that's not what proposed section 83.3 is set up in previous provisions to deal with. It's to deal with the carrying out of a terrorist activity, rather than an apprehended offence that equals a terrorist activity, which is a more technical term that is used elsewhere in the bill.

Mr. John McKay: So is terrorist activity limited to the definition on pages 12 and 13?

Mr. William Bartlett: Yes.

Mr. John McKay: And it does not stretch over to the definition or the activity of facilitation.

Mr. William Bartlett: Facilitation is a terrorism offence, but it's not a terrorist activity.

Mr. John McKay: Thank you.

The Chair: I'm going to call the question on amendments G-31 to 34.

(Amendments agreed to on division—See Minutes of Proceedings)

The Chair: We now go to G-35. It's in the first package and is a stand-alone amendment. It's on page 77, and on page 78 in French.

Mr. Mosley.

• 2130

Mr. Richard Mosley: Mr. Chairman, this motion amends proposed paragraph 83.3(7)(b) by replacing the cross-references to sections 515 to 524, the bail provisions of the code, with statutory language to make it clear that where an information has been laid and the person has been taken before the judge, they are to be released unless the peace officer shows cause why the detention of the person in custody is justified.

The officer who laid the information must show to the court that detention is justified on one or more of the following grounds: that the person appears for the hearing, under proposed subsection 83.3(8); to protect the public and their safety, including witnesses; and any other just cause, including to maintain confidence in the administration of justice—that test is already in the code—having regard to all of the circumstances, such as the strength of the peace officer's grounds and the gravity of any terrorist activity that may be carried out.

The Chair: Mr. MacKay.

Mr. Peter MacKay: This is with respect to proposed subparagraph 83.3(7)(b)(iii), where it says:

    the person may not be detained in custody by virtue of this section for longer than forty-eight hours following the appearance before the provincial court judge

After appearing before a provincial court judge again, how many times can this section be used? Can the 48 hours be continually extended?

Mr. Richard Mosley: No, it's a one-time event. This proceeding would only contemplate that the matter could be adjourned for up to 48 hours. It can't be a repetitive remand 48 hours at a time.

Mr. Peter MacKay: And this new amendment, G-37, is to now bring it in line with...

An hon. member: G-35.

Mr. Peter MacKay: Okay. This is to bring it in line with the hole that existed here as to whether sections 515 to 524, the judicial interim release sections, would in fact apply.

Mr. Richard Mosley: It's to make it more precise as to the procedure that would be applied rather than the cross-references to bail provisions of the code. But it's also to clarify that:

    (ii) the judge may adjourn the matter for a hearing under subsection (8), but, if the person is not released under subparagraph (i), the adjournment may not exceed forty-eight hours.

That's assuming they're not released. They may in fact be released.

Mr. Peter MacKay: All right.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I would simply like someone to explain something to me. We are striking clause 83.3(7)(b)(iii), which reads as follows:

      (iii) the person may not be detained in custody by virtue of this section for longer than 48 hours following the appearance before the provincial court judge under subsection (6).

The proposed amendment reads:

      (ii) the judge may adjourn the matter for a hearing under subsection (8) but, if the person is not released under subparagraph (i), the adjournment may not exceed 48 hours.

Does this mean that once the person has appeared before the judge, he must either be released, or the judge must give further orders? What exactly does it mean?

[English]

The Chair: Mr. Mosley.

Mr. Richard Mosley: The detention would have to be justified by the peace officer. So if you look at new proposed items 83.3(7)(b)(i)(A) and (B), this is in effect what we call a “show cause” hearing. The officer would have to demonstrate why the detention of the person would be justified. And if it was not, then, of course, the person would have to be released.

And then (ii) is only dealing with the situation where the officer has shown cause, the person is detained, and, if the court wishes to adjourn, it can only be adjourned for no more than 48 hours—unless he's released.

The Chair: Peter MacKay.

Mr. Peter MacKay: Mr. Mosley, do the same criteria for a regular show-cause hearing apply here—that is, there would be a fear that they would flee or that they would commit another criminal offence?

Mr. Richard Mosley: Yes, that's in new proposed sub-item 83.3(7)(b)(i)(B)(I), that terrorist activity will be carried out, and in (II), interfering with the administration of justice.

• 2135

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: On G-36, does the government share Mr. Myers' view that this is a technical amendment, with no explanation required?

An hon. member: Yes.

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: Amendment G-37 was newly distributed separately this evening.

Mr. Mosley.

Mr. Richard Mosley: This is correcting an erroneous reference. All of the previous references are to terrorist activity. This is page 37 in the bill, lines 35 to 45.

You'll note in the text of the act right now it refers to the “commission of a terrorist offence”. This amendment substitutes that with “for preventing the commission of a terrorism offence”.

This is for consistency with prior usage.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I believe the next one is PC/DR-6. It's a stand-alone amendment. It was available in the first package, and it's page 82.

Mr. MacKay.

Mr. Peter MacKay: Mr. Chair, in light of the previous amendment that was passed by the government—not anticipating that the government was going to amend this particular clause—this amendment would be redundant. So I'll withdraw PC/DR-6.

The Chair: Thank you very much.

The next amendment is G-37.1. It's a stand-alone amendment from the first package, page 83.

Mr. Owen.

Mr. Stephen Owen: Mr. Chair, we're reviewing some of these forward amendments to see how many can be categorized as technical.

The Chair: Well, in this case, Mr. Owen, as I see it, we have only four more government amendments on clause 4 and one Bloc amendment on clause 4. Therefore, I would have to call a vote on clause 4 as amended before we proceed to other amendments.

Mr. Blaikie's been waiting for quite some time for us to actually do a clause.

So G-37.1 is a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment G-38 is a stand-alone amendment on page 85.

(Amendment agreed to—See Minutes of Proceedings)

• 2140

The Chair: I go next to amendment G-1.4. It's a stand-alone from the second package, on pages 39 to 42.

Mr. Owen.

Mr. Stephen Owen: Thank you, Mr. Chair.

This is the amendment requiring the Attorney General of Canada and all provincial attorneys general to make an annual report of the use of certain sections. We discussed this one this morning during the minister's presentation, and I think it speaks for itself. I would just invite any questions from colleagues.

[Translation]

Mr. Michel Bellehumeur: Don't you find it strange that it is the Attorney General of Canada and the Attorney General of every province—

[English]

Mr. Stephen Owen: Excuse me. On the next page, we continue on to include the Solicitor General as well.

[Translation]

Mr. Michel Bellehumeur: —and the Solicitor General who provide an annual report on the enforcement of the act? It is rather like asking the Minister of Finance to prepare a report or general audit of his department's expenditures. It is seem to me that we turn to an independent Auditor General quite simply because this is what must be done if you want a proper audit. This exceptional bill, which gives very considerable powers to the Minister of Justice, the Solicitor General, the police and the justice system, provides that the Attorney General of Canada and the Attorney Generals of the provinces will present an annual report. Do you not think that is a rather strange way of reviewing the legislation and reassuring people? The person called to do that is both the judge and the person being judged for his or her own administration of an exceptional act.

[English]

Mr. Stephen Owen: Mr. Chair, I think these annual reports should be seen in conjunction with the other accountability, transparency, and review mechanisms in the bill, whether they be parliamentary or judicial. In particular, it builds on the ability of Parliament to conduct the three-year parliamentary review, as well as advising both Houses of Parliament with respect to the potential extension of what would otherwise be the sunsetting of particular clauses.

In terms of the accumulation over time of evidence of when these additional powers are used, it's of immense importance to us. The data is of a factual nature, and it allows us as parliamentarians—or indeed a court in terms of a charter challenge—to determine the reasonableness of the actions within the clear intent of the statute as a whole.

The Chair: Thank you very much.

[Translation]

Mr. Paradis, you have the floor.

Mr. Denis Paradis: Thank you, Mr. Chairman.

The annual reports must contain the number of consents, the number of summations and the number of cases. The reference is always to the number, rather than to the name of the individuals. Tell me why there is a reservation at the end which provides:

    (4), The annual report should not contain any information the disclosure of which would

      (a) compromise an investigation—

      (b) endanger the life or safety of any person;

      (c) prejudice a legal proceeding; or

      (d) otherwise be contrary to the public interest.

if the reports to be provided by the Solicitors General or the Minister of Justice, and so on, refer to the numbers only?

[English]

Mr. Stephen Owen: There are qualifications in proposed subsection (4) to ensure that the reporting does not compromise ongoing investigations, life, or safety, or prejudice legal proceedings. Within that limitation, which I think we'll all agree is an important one—

• 2145

[English]

Mr. Denis Paradis: Yes, but it's only numbers we're looking for in different reports from the different ministers, which doesn't mean three of this kind, four of the other kind, and 25 of this kind. How do you justify the application of that reserve there?

Mr. Stephen Owen: I think it provides members of the public, as well as members of Parliament, with an indication of whether these extra powers under this anti-terrorism legislation are being used for the limited but exceptional circumstances they're intended for.

For instance, I think it would be extremely important for us to know if in one province of the country there were large numbers of investigative hearings or preventative arrests. I think that would be a pretty clear indicator, in both comparative trends across the country and absolute numbers across the country, of whether this is the limited exceptional application that is intended or perceived.

The Chair: Thank you very much.

John McKay, and then back to Mr. Bellehumeur.

Mr. John McKay: The way I understood the minister when he made the representations this morning was that this would be, in effect, a report to Parliament.

Is there a distinction between making available to the public an annual report and a requirement to report to Parliament?

Mr. Stephen Owen: I have a couple of comments with respect to this. The provinces' solicitors general or attorneys general don't report to Parliament. So that would allow us to make it available to Parliament, through the public.

Looking at it from the other end of the telescope, of course, any report to Parliament becomes public, so there's a symbiotic relationship in the publication of a report. Certainly it would inform us as members of Parliament, in terms of our parliamentary review, as the data accumulates toward the three years, and eventually the five years.

Mr. John McKay: But the point is, the Attorney General makes all kinds of annual reports about various things. The Solicitor General makes all kinds of annual reports about various things. Whether the information is gathered from provinces or whether the information is gathered only from federal sources is a sidebar issue.

The real issue here is the question of whether there is a mandatory obligation to table a report in Parliament on an annual basis with respect to the operation of these two sections.

Mr. Stephen Owen: From the reading of it, the answer is no. The effect of it is that I would certainly expect this committee, as the minister suggested this morning, to have the minister appear to provide further information and answer questions on those annual reports.

Mr. John McKay: With respect, that puts the onus on this committee to compel the minister to place a report before us, as opposed to the reverse onus, which would be to compel the minister to place the report in Parliament, to in turn be dealt with by this committee. I understood the minister's remarks to be the latter, not the former.

Mr. Stephen Owen: I think you're right that this does not require the minister to table the report before Parliament. The significance of the difference, I'll let colleagues consider. I can't imagine a situation, given the seriousness with which this bill is being taken by this Parliament and certainly this committee, where the committee would not want to have the opportunity to question the ministers—the Solicitor General and the Attorney General—on this matter.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: My first question is somewhat along the lines of what Mr. McKay was saying. Once again, when the minister appeared before us to testify at noon, she not tell us the entire truth about this. She told us that it would be a report tabled in Parliament. If the report is made available to the public, I can hardly wait to see how that's going to work out in actual fact. This is not the report that she promised us.

• 2150

Mr. Chairman, I must make another observation, once again to show just how ridiculous this evening's exercise is. I tabled amendments to clauses 145 and following that have to do with a large part of this revision, given that it was in the chapter of revisions. Yet the government, which does not listen—no big deal—put it in clause 4, whereas at the beginning, the revision was to clause 145.

The amendment that the government has suggested, G-1.4, is somewhat similar to amendment BQ-63, which I tabled. Once we get to amendment BQ-63, we will have already passed amendment G-1.4, and my amendment will no longer be relevant. So something is wrong in Parliament. There is something you don't understand. You are moving so fast that the work of members of Parliament becomes a joke. The way you are operating makes absolutely no sense.

Even so, I'm going to play the game anyway. The amendment that I moved to clause 145 went far further than the government's amendment. I will read it to you because I am sure that the government members, who are in a big hurry, will not have the time to read it. I was not asking only for the number, as the government does. I was talking about the number of the nature of charges laid under the suggested clauses 83.01 to 83.04 of the Criminal Code; the number and identity of the entities on the list provided for at 83.05; the quantity, the nature and the value of the assets frozen pursuant to this provision; the quantity, nature and value of the goods seized or frozen pursuant to another clause; the number of investigations conducted pursuant to section 83.28; the number of people arrested or detained under section 83.3, and so on and so forth.

I wanted a real report in which we would find certain information that would show whether or not there had been abuses, whether or not the act had been enforced properly. But the way the government is proceeding, this will no longer be relevant once we get to clause 145. Furthermore, given the way this amendment is drafted, the report will be made available to the public. We do not know how it will be tabled nor do we know whether it will be in a pamphlet like the ones that the government is flooding us with these days. We receive all kinds of documents from the government, from all the departments. Will this be the same thing? Will it be made available to the public at specific locations? I'm having trouble understanding the way this will be done.

In closing, I would like to ask you, Mr. Chairman, if we could not make a decision immediately on G-1.4 and G-1.5, so that we can take the time to look at the amendments that I will be moving further on, namely amendments BQ-63 and BQ-64. I do not want the report to be done by the Attorney General of Canada or by an attorney general of a province. I want the report to be prepared by an independent commissioner who would be appointed, something like what the other House recommended in its report, which we're not talking about. We listen, but the government hasn't even listened to the Liberal senators.

Would it be possible to suspend consideration of amendments G-1.4 and G-1.5 so that we can take the time to study amendments BQ-63 and BQ-64 at the same time, and perhaps even BQ-65?

[English]

The Chair: I'm going to go to Mr. Owen first, and then to Mr. John McKay.

Mr. Stephen Owen: Having listened carefully to the ideas of Mr. John McKay and Mr. Bellehumeur on this, I am conferring with officials. An amendment that required the Attorney General of Canada to cause delay in terms of preparing and laying a report before Parliament would be acceptable and totally in line with the motivation and the objectives expressed by the Minister of Justice this morning.

• 2155

There is the continuing problem that we can't cause the attorney general or solicitor general of a province to lay a report before Parliament, but we could have something that had the Attorney General of Canada prepare and lay a report before Parliament, and the attorney general of every province shall publish... That would continue. But I think the suggestion certainly meets the objectives of the government in this situation.

The Chair: Mr. McKay.

Mr. John McKay: In light of the parliamentary secretary's openness to consideration, my suggestion is to stand down so appropriate drafting can be put back before us.

May I suggest that the parliamentary secretary look at the Canadian Security Intelligence Service Act, which requires that the minister shall cause a report to be laid before each House of Parliament on the 15th day of that House. That is an appropriate form of wording that seems to meet the intentions, as I understand them.

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you, Mr. McKay. I'm advised that it won't be necessary to stand it down if colleagues find it acceptable. Following the words, “The Attorney General of Canada” in proposed subsection 83.31(1); the “The Attorney General of Canada” in proposed subsection 83.31(2); and the “The Solicitor General of Canada” in proposed subsection 83.31(3), the words would be added: “shall prepare and cause to be laid before Parliament.”

The Chair: I see we're accepting this on the part of the parliamentary secretary.

Mr. MacKay, would you...

Mr. Peter MacKay: That's exactly what we were looking for here. I assume that's consistent with the intention of members.

The Chair: Do I take it then that there's receptivity to an amendment to that effect? We'll vote on the amendment, as presented by Mr. MacKay first—the subamendment to G-1.4 as Mr. Owen has articulated it.

My clerk has asked, Mr. Owen, that you repeat it again for purposes of clarity.

Mr. Stephen Owen: I move that following the words, “The Attorney General of Canada” in proposed subsection 83.31(1); “The Attorney General of Canada”, in proposed subsection 83.31(2); and “The Solicitor General of Canada” in proposed subsection 83.31(3), the words, “shall prepare and cause to be laid before Parliament” be inserted.

(Amendment agreed to)

The Chair: Now we'll go back to amendment G-1.4, as amended.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I asked you something. I just wanted you to tell me no, to answer my question. I asked you to suspend the adoption of G-1.4 and G-1.5 so we can analyze the government's amendments that affect the same matter as my amendments to clause 145. I'm asking you to suspend adoption of these two amendments until we get to clause 145 so that we can look at both.

[English]

The Chair: I'm in the hands of the committee. Mr. Bellehumeur has asked that we set aside...

Mr. Paradis.

[Translation]

Mr. Denis Paradis: Mr. Chairman, Mr. Bellehumeur told us about his main concerns regarding clause 145 and his two amendments. A few moments ago, he spent three or four minutes talking about his two amendments that are coming up. We are ready to make a decision about the clause that is before us. We have already heard Mr. Bellehumeur's comments on the two clauses that are coming up.

[English]

The Chair: Mr. Paradis has indicated that Mr. Bellehumeur has had every opportunity to make his case, to this point.

(Amendment agreed to—See Minutes of Proceedings)

• 2200

The Chair: Now I turn to G-1.5. That is a stand-alone amendment. It was in the second package. I've been advised that the amendment we referred to as the new G-1.5 was distributed to everybody but us. It's been distributed as G-1.5. It replaces the old G-1.5.

Mr. Owen.

Mr. Stephen Owen: Mr. Chair, this is the amendment referred to by the Minister of Justice this morning that provides for the sunsetting or expiry of the provisions related to preventive arrest and investigative hearing after a period of five years; where the Parliament may not be sitting, the expiry will be extended to 15 days after sitting. The later amendment provides that the resolution, when put forward, should not be amended, and the difficulty the government is seeking to avoid is there being, within the 15 days before the expiry, amendments proposed in either House that will slow down the consideration of the extension for a period of up to five years. It will not slow down the consideration of that within the 15-day period that might extend beyond the five years.

So we want a single resolution put that then can be debated and either passed or defeated. The confusion, obviously, that we seek to avoid is amendments between Houses or within Houses of Parliament.

The Chair: Questions? Mr. Blaikie.

• 2205

Mr. Bill Blaikie: Mr. Chairman, this is obviously a key amendment, in respect both of what it does and what it doesn't do. To me, this doesn't have the ring of a true sunset clause. If I understood the nature of sunset clause properly before, it is that something is allowed to expire and then has to be brought back, rather than simply having a provision in it that allows it to be extended. So in some respects, this is not really a sunset clause, because if you don't have the extension, then they do expire. I might be wrong, but the way I understood everyone else to understand, including myself, a sunset clause is that something actually expires and then is reintroduced, which is different from having something never expire because it's been extended. Do you get the difference I'm talking about?

The Chair: Mr. Owen.

Mr. Stephen Owen: Certainly, the presumption is that it will expire but for the action of Parliament.

Mr. Bill Blaikie: But for the extension of it, as opposed to the reintroduction of it?

Mr. Stephen Owen: “Reintroduce”, I suppose, would have the same effect. What this clearly does is provide the opportunity for both Houses of Parliament to consider whether they wish to pass a resolution that would extend something that would otherwise expire.

Mr. Bill Blaikie: But a resolution that extends is not the same as legislation being reintroduced, because presumably, when legislation is reintroduced or clauses reintroduced, that provides an opportunity for amendment, whereas a motion to extend wouldn't do that, would it?

Mr. Stephen Owen: That's true.

Mr. Bill Blaikie: So that's the difference between what the government is doing and, if you like, a full sunsetting of those two measures.

Mr. Stephen Owen: I think that's an accurate statement. I reflect on a lot of the advice we've had and witnesses before us, as well as our own comments and comments in the House, that expressed particular concern about these two clauses, these two powers, extra powers that are being provided in the act. I think we have to look at the accountability and parliamentary oversight role as a whole package, including the annual reports of the Attorney General, the Solicitor General, the Minister of National Defence, together with the three-year review of Parliament, and also I can do nothing but expect this committee to interview ministers as witnesses on an annual basis and to inform, therefore, over time, in a cumulative way, Parliament as to whether this is being used, whether it's not being used, whether it's being misused, overused, and to act accordingly.

So what we've got is, I would suggest, a package of parliamentary oversight mechanisms that together resolve the issues that have been raised many times in front of us. But you're quite right, this is not something that would have to be re-legislated. It would be something that would be extended in the same terms by a joint resolution.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Mr. Blaikie said what I wanted to say about the minister's sunset clause and what we meant by "sunset clause." Once again, when the minister told us this morning that there was a sunset clause, she was telling us a half-truth. If we read the provision, we see that it is not a sunset clause like the one found in the tax act, I believe. The government has already used it, as has France. If we look at what the allied nations have done, we see that France has specified a particular date: December 31, 2003 or 2004. I'm not sure which is the exact date, but it is a specific date, and that's the end of it, whereas here, this clause would allow the government to adopt the same thing again in five years. We can't suggest amendments. That's the end of it.

• 2210

When I see the way that it's been drafted, I'm not even sure that five years from now, we will vote again for five years. After five years, will we be able to vote for it to be in effect for another five-year period? After “the period of the extension” it is written “which may not exceed five years”. Ten years from now, will we be able to adopt it for another five-year period?

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Just to refer again to the cumulative and packaged effect of parliamentary oversight, the parliamentary review that's provided for after three years also requires a report to Parliament. That report to Parliament can recommend legislative changes for these provisions, and that's something the two Houses would consider as to whether they would entertain a resolution and pass a resolution for extension.

But with respect to the definition of “sunset”, actually what has bedevilled a lot of the discussion over sunset clauses across this country is the lack of definition and people talking about different animals. This is a sunset provision with certain definition to it.

The Chair: A supplementary, Mr. Bellehumeur?

Mr. Stephen Owen: Excuse me. For Mr. Bellehumeur's benefit, I might say that the U.K. legislation has an extension provision as well in their sunset clauses.

[Translation]

Mr. Michel Bellehumeur: You have confused two different things. I think you've done it advisedly: it's because you don't want to answer the questions. Subclause (3) of the amendment couldn't be clearer: "in both Houses of Parliament but may not be amended". That's settled. The motion cannot be amended and it will pass like that.

My question has to do with subclause (2), which states:

    (2) The Governor General in Council may, by order, establish the text of a resolution providing for the extension of the application of sections [...] and specifying the period of the extension, which may not exceed five years—

In 10 years, will we be able to extend this act for another five years, in the same conditions as those we find ourselves in?

[English]

Mr. Stephen Owen: The same provisions would apply and the same cumulative provisions of annual reports to inform Parliament of changes it may wish to make.

[Translation]

Mr. Michel Bellehumeur: So, this is not even a sunset clause with a maximum of 10 years anymore; the maximum is for life. As long as the government wants such an exception in legislation, it will have no problem.

[English]

Mr. Stephen Owen: The sun sets in the absence of a resolution to extend.

[Translation]

Mr. Michel Bellehumeur: That's not a sunset clause.

The Chair: Mr. Fitzpatrick.

[English]

Mr. Brian Fitzpatrick: I have one question about proposed subsection 83.32(3). Based on experience, let's say we find there's a defect in that legislation or it needs shoring up, or something along that line. Why are we precluding the opportunity to amend it or improve it or strengthen the legislation?

Experience is definitely going to show that some of this stuff is not perfect. I know you gentlemen are very astute individuals, but there will be things that will be missed, and we should be looking at improving this legislation when it comes up. I don't understand why you would want to put a provision like that in that would prevent amendments.

Mr. Stephen Owen: I think the main reason is that it wouldn't be possible by resolution to amend legislation, but because of this provision, it's possible to extend the operation of particular sections, which is what this does.

But certainly if there were to be an amendment, it would require legislative initiative, which would be informed by the accumulating data over time of the experience with these clauses.

Mr. Brian Fitzpatrick: Right.

As just a devil's advocate question on this, too, on page 34, proposed subsection 83.28(10), about self-incriminating evidence and any evidence arising out of that, let's say by chance this legislation under this resolution was not re-enacted. Would that then allow the crown to presumably use this evidence in further proceedings? The thing is dead now.

Mr. Stephen Owen: No, it would not.

Mr. Brian Fitzpatrick: Why? It's dead. It's gone.

• 2215

The Chair: Mr. Mosley.

Mr. Richard Mosley: At the time the questions were put and the answers were received, it was subject to the protections accorded the person being examined. That would continue whether or not the power to continue to hold such hearings was still available after five years. Moreover, there are protections under the charter that would continue, whatever happened to the statutory provision. There's no question about that.

The Chair: Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Mr. Chair, the way I read proposed subsection 83.32(1), it clearly states that if nothing is done, the bill expires; it ceases to apply, which is my understanding of a sunset clause. The rest of it is just the alternative to it not sunsetting, a way that it can be kept alive by resolution rather than having to re-enact it. The Parliament of the day can choose instead to let it expire and re-enact whatever form it wants. So I really don't understand the debate as to whether it is or isn't a sunset clause. I think it meets the layperson's definition of what is understood by sunset.

The Chair: John McKay.

Mr. John McKay: I have two questions. The first has to do with the proceedings that are taking place at the point where the act expires. Are you satisfied that the evidence you have obtained during the currency of those hearings will be protected and admissible? Clearly you direct your minds to the point that it will expire and that you can carry on with what otherwise has already been commenced. But should you also direct your minds to in effect protecting the evidence you are obtaining in those hearings where the thing expires?

The second question has to do with the War Measures Act. The War Measures Act provides a specific sunset date, but it also provides that, by resolution of Parliament, it can sunset earlier than the specified date. Is there some reasoning as to why phrasing such as, in the War Measures Act, “on such earlier day as may be fixed by proclamation” isn't in this particular sunset?

Mr. Richard Mosley: On that last point, this is not emergency legislation. The Emergencies Act that you've referred to does apply in the context of a situation that may end, in which case it makes sense to have a provision that would allow for an earlier sunsetting of the measures that were being put in place.

In this context, there is no foreseeable duration. The bill doesn't respond to an emergency crisis that needs to be addressed, as under the Emergencies Act.

On our earlier point, about protection of the evidence, we did consider whether it would have any effect on the value of any evidence obtained and satisfied ourselves that it wouldn't, because at the time the evidence was secured, it was under law. So we don't anticipate any problems in subsequent use of that evidence even if the power to continue to hold hearings is no longer available to the crown.

There is, of course, a grandfathering that applies in this proposal to continue a proceeding that has been initiated before the authority has expired. That would also apply to continued collection of evidence if the matter was underway at the date the provisions did sunset.

The Chair: A supplementary, Mr. McKay?

• 2220

Mr. John McKay: Just on your initial point as to whether this is or is not emergency legislation, I'm not prepared to analyze whether this is an emergency within a legal definition of emergency, but we have had a horrific event. It has precipitated a number of actions by the government, one of which is this rather significant piece of legislation. There is a general sense of apprehension in the community. There is heightened police awareness of the activities of certain groups and entities. If it looks like an emergency, talks like an emergency, and walks like an emergency, it might even be an emergency.

The question is whether this is in fact emergency legislation but not dressed as emergency legislation. Therefore, aside from someone saying it's not an emergency but just appears to be an emergency, what's the argument as to why an ability for Parliament can't be put into an earlier sunset provision?

Mr. Stephen Owen: First, on the issue of whether this is emergency legislation or not as compared to the War Measures Act or to similar emergency services legislation in other countries, those tend to have a much broader reach for a particular emergency. From a policy point of view, I think what has been exposed by September 11 is not simply the al-Qaeda network and that particular continuing specific danger. Rather, what's been exposed is the vulnerability of society to people so motivated to cause such consequences.

As to the application of this act, it is a much more focused approach for the future than war measures legislation, which is very broad in its reach. It applies to specific offences and to specific individuals with respect to suspicion or reasonable grounds that specific terrorist activity is going to occur. It's the general awareness of vulnerability that would distinguish it from legislation designed for a particular emergent situation, as well as the finer, targeted tools that are applied here as opposed to the wide, sweeping nature of emergency legislation.

Mr. John McKay: Why wouldn't you give the opportunity to the government, through legislation in and of itself, to revoke this by proclamation prior to five years?

Mr. Stephen Owen: Well, certainly, the government of the day always has the option of legislating amendments to the legislation.

The Chair: Mr. Paradis.

[Translation]

Mr. Denis Paradis: Mr. Chairman, I would like to make a comment to congratulate the minister and the parliamentary secretary for including this sunset clause. That's the only comment I had to make, Mr. Chairman.

[English]

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I have two things.

First, I was going to make the point Mr. McKay made to the effect that it sure sounds like an emergency, and in fact we've been told over and over again that it is an emergency. If it's not an emergency, why are we here at this hour, Mr. Chairman? Why aren't we dealing with these amendments in a more reasonable, sane, progressive, and intelligent way than what has been forced upon us today? I don't think the government can have it both ways. They can't preach it's an emergency to us when it suits them, and then when it doesn't suit them say, well, this isn't emergency legislation and we'll just... It just seems to me that there's a mixed message there, at the very least.

The question I wanted to ask Mr. Owen when I first intervened on this matter, Mr. Chairman—before you went on to someone else before I was finished—

The Chair: My apologies, Mr. Blaikie.

Mr. Bill Blaikie: —was if the parliamentary secretary envisioned on this resolution of extension whether it is the sort of thing there could be hearings on. For example, would you envision a motion being introduced five years from now to extend these particular provisions of the Criminal Code? Would that be something you would imagine the justice committee holding hearings on?

• 2225

Mr. Stephen Owen: Such hearings are not provided for in the wording of the legislation.

Mr. Bill Blaikie: In other words, will there be public input, or will it be a case of, get the whip out and get this thing over with?

Mr. Stephen Owen: Certainly, the legislation as suggested doesn't specifically provide for hearings. It does anticipate debate in each House. Can I anticipate hearings? I certainly can between now and the end of five years, depending, for instance, on the circumstances of how these provisions are used and on the deliberations of this committee as it receives reports and has ministers appear before it. But it's not provided for specifically. It's not required in this amendment.

Mr. Bill Blaikie: But it's not prohibited either?

Mr. Stephen Owen: I'll defer to expert advice, but I don't see any prohibition.

The Chair: Mr. Mosley.

Mr. Richard Mosley: I don't profess to be an expert on parliamentary procedure, but I don't see anything in the proposal that would prevent the justice committee, for example, or any member from making a motion to have the subject matter considered by a committee in either House.

Mr. Bill Blaikie: That's in the motion.

Mr. Richard Mosley: Yes.

Mr. Bill Blaikie: Just in case we're all here five years from now, I want to be able to get back to you.

The Chair: Mr. Blaikie will be right here. I apologize for having cut you off, and I'm making sure I don't do it again.

Mr. Peter MacKay.

Mr. Peter MacKay: Leaving aside the fact that this provision exceeds the mandate of this government, the question raised by Mr. McKay and others centres on the pre-empting of the sunset clause or on invoking the sunset clause earlier. My question to you, Mr. Owen, is, is there the ability to have the sunset clause re-enacted, renewed, or extended prior to the expiry date of December 31, 2006? That is, can the government, through well-documented reasoning on the necessity of extending it beyond three years to five years, re-enact this legislation in advance to fulfill the necessity to pursue ongoing investigations? Mr. Mosley has told us that the investigations, if they are underway, can continue; they are essentially grandfathered. But is there the ability to pre-empt this expiration by a year, two years, or any amount of time the government chooses?

Mr. Stephen Owen: Certainly, the reading of proposed subsection 83.32(1) says “unless, before the end of that day”, referring to the 15th sitting day. I don't see anything that would preclude a resolution coming significantly in advance of that time to extend it.

Mr. Peter MacKay: So it could easily be extended then, by your interpretation, at any time prior to this expiration date of 2006. Is that so?

Mr. Stephen Owen: Certainly, if we're talking about the day after passage, that would make no sense. As we get closer to the end of the five years, it might make more sense, given the information we would have.

Mr. Peter MacKay: So there's really no reason, other than a political reason, that it should be five years and not three years.

Mr. Stephen Owen: When we see it in terms of the full package of annual reports and three-year parliamentary review, five-year sunsetting is seen by the government as a reasonable period of time to collect information about use and to consider the continuation of the threat. We're talking about, if not an emergency, certainly intimidating circumstances, vulnerabilities such as those we have come to know and are subject to. The staging of this is reasoned, and with one year, three years, and five years, it has a built-in relevance to it.

• 2230

Mr. Peter MacKay: So you're suggesting by that answer that after the passage of three years, enough information will be gathered or there will be sufficient time for the application of the provisions of this bill to learn whether it has been a success, whether there has been abuse, or whether in fact these provisions are necessary at all. We have to wait five years.

Mr. Stephen Owen: Well, perhaps no, but perhaps yes. By that time we may have evidence it hasn't been used at all. One would hope that it won't be necessary to use either of these provisions at all, and that might move Parliament to pass legislation to delete these provisions. Similarly, an inadequacy of experience at that time might cause us to let the five years run out.

Mr. Peter MacKay: My point is, if there is significant harm—and hopefully there won't be—that comes from this, certainly three years with the ability—as you've just informed us—to extend after a year or after two years even would be preferable.

Mr. Stephen Owen: Well, this is being put forward as government policy reflecting at least the information we have to date. The advice we have to date and hear quite repeatedly is that the threat is real and expansive and won't be dealt with quickly. The five years has been picked as a reasonable time and will expire if there is not a resolution to extend it. Who knows whether it's going to be two years or ten years before we're certain that the threat is gone or that these provisions are otherwise unnecessary or undesirable?

The Chair: Mr. Owen and Mr. MacKay, we'll call the question on amendment G-1.5.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Given that I'm still worried about the credibility of our work, I wouldn't want people to think that we did it any old way. Once again, I asked the committee to suspend the adoption of the G-1.5. I know that the NDP have amendments in this area, but I have one as well, amendment BQ-63. If we adopt G-1.5, once we get to BQ-63, it will no longer be very relevant, given that this is a true sunset clause and we will already have voted on similar changes. So, I am asking that we suspend this until we get to BQ-63. Mr. Blaikie has a similar amendment.

[English]

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: On the same point of order, Mr. Chairman, perhaps we could do what we did with respect to the Canadian Alliance amendments and deal with all the amendments having to do with sunsetting right now. We can vote on this one, we can vote on the Bloc one, and we can vote on ours to decide the matter on sunsetting here and now rather than—

The Chair: Let me confer with our procedural—

Mr. Bill Blaikie: We can do anything by unanimous consent.

The Chair: I'm advised by the procedural resource person that there's nothing procedurally wrong with our isolating the various sunset provisions and dealing with them in a group. They would have to be identified for purposes of helping out the staff here pull them out of the pile. The reason they were placed where they are is that it was according to where in the bill they would have been found. So they are sequential all throughout the bill.

• 2235

So if the committee is of that view, perhaps you could identify specifically, to be of assistance to our staff, those provisions that deal with sunsetting all at once. I see no objection.

There's a point of order. Mr. Myers.

Mr. Lynn Myers: Has Monsieur Bellehumeur identified which motions on sunset he's pulling out?

The Chair: Mr. Bellehumeur will identify... Let's make sure we understand each other here.

[Translation]

Mr. Michel Bellehumeur: I've said three or four times that it's BQ-63. I think that they sidestepped BQ-64 earlier.

[English]

The Chair: Mr. Bellehumeur would like to put forward BQ-63. I think we've identified Mr. Blaikie's.

Mr. Peter MacKay: I have one as well, Mr. Chair. I'm just trying to locate it by number in your book.

The Chair: Is it PC/DR-21?

Mr. Peter MacKay: Page 226, yes, that's correct.

The Chair: Okay.

Colleagues, I think, in fairness, we have to come to terms with what it is. We have four competing sunset clauses. We would allow each person who's bringing forward a clause to speak to his or her clause, but at some point we're going to have to vote in some order. So clearly, what we would have to do is vote in the order in which they appear in the legislation. There's no other way to make that determination.

So everybody gets an opportunity to make the case, to convince colleagues of the advisability of their particular sunset provisions, and then I'll be calling a vote. When I call a vote on the first one, which would be G-1.5, simply because it appears first in the legislation, once that vote is taken, please understand, other sunset provisions would no longer be in order. But everybody would have—

Mr. Bill Blaikie: Why does a sunset provision that sunsets a part of the bill make out of order a motion that would sunset more of the bill? I don't understand the procedural argument there. If a subsequent amendment has as its affect the sunsetting of a much larger piece of the legislation and isn't directed to the same subsections, I don't understand why that would be out of order.

The Chair: Okay, Mr. Blaikie.

Mr. Myers.

Mr. Lynn Myers: Why don't we let everyone have his or her own say? This is a huge issue. So let's start with Mr. Bellehumeur, let's then go to Mr. Blaikie, and then let's go to Mr. MacKay. Let's vote on each one of those, and then we'll come to the government vote. Let's just do it.

The Chair: With the unanimous consent of the committee, we can do that.

I go to Mr. Bellehumeur first.

[Translation]

Mr. Michel Bellehumeur: In any event, Mr. Chairman, the result will be the same, if we start at one end and go to the other... If the past is any indication of the future, I know how this will end.

• 2240

The only thing I would like to say once again, Mr. Chairman, is that I am presenting a true sunset clause of three years. Why three years? Because most of the witnesses who appeared before us spoke of a three-year sunset clause. You were there, Mr. Chairman, and you heard it as I did.

I respect the people who come to testify before us. They travelled here, they studied the bill and they made remarks. They are specialists in this area. We have to have some respect and listen to them. This is what I've done by moving a sunset clause of three years.

However, the witnesses also told us that they did not want the entire part implementing international law to be subject to the sunset clause. This is why you find in amendment BQ-63:

    145.1 The provisions of this Act cease to have effect three years after this Act receives royal assent, with the exception of the provisions respecting the implementation of the following conventions, adopted by the General Assembly of the United Nations:

      (a) the International Convention for the Suppression of Terrorist Financing;

      (b) the International Convention for the Suppression of Terrorist Bombings; and

      (c) the Convention on the Safety of United Nations and Associated Personnel.

However, what is important to notice is that the three opposition amendments provide for a three-year sunset clause. In another words, we heard the same thing from the witnesses, at least regarding the duration of three years. Perhaps the government did not hear the same thing, but the three opposition parties agree that it should be three years.

As for the formulation of the amendment, Mr. Chairman, my amendment, the NDP's amendment and the Conservative Party'S amendment all have the same objective. If you want to negotiate to determine which one of the three to choose, no problem. I'm open to that.

[English]

(Amendment negatived)

The Chair: I believe Mr. Blaikie's amendment is NDP-2.5. It's in the second package, and it's page 113.1.

Mr. Bill Blaikie: Mr. Chairman, our amendment is very similar to the Bloc amendment. I think the only differences are that we're more explicit about what's left in the bill and our amendment doesn't sunset the provisions having to do with hate crimes. Otherwise, it's pretty much the same and in pretty much the same spirit.

I would submit, Mr. Chairman, that our amendment is not just in the same spirit as that of the Bloc, but that both our amendments, and perhaps even the amendment of Mr. MacKay, are more in keeping with what we heard as a committee. Time and again, we've heard two things since the beginning of this. One was that the government and the Minister of Justice wanted to listen to what the witnesses had to say. And it was generally put that she wanted to hear what the committee had to say. Unfortunately—and I repeat a complaint I think I made earlier in some context—the committee never really had an opportunity to say anything to the minister. The committee heard from witnesses, and then the minister had something to say to the committee, but the committee never had an opportunity to develop a mind of its own on this and make a recommendation to the minister before we knew what it was the government would find acceptable or not.

So in some ways we've participated in a kind of fiction, that is to say, we were going to have hearings, then we were going to give the minister feedback, then the minister was going to recommend government amendments on the basis of what the feedback from the committee was. Well, there was no feedback from the committee. We heard witnesses, and the committee got feedback from the government. We never actually had a process whereby the committee had a chance to form a mind of its own, independent of what was known about the government's intention or what the government found acceptable. I think that's really unfortunate, and I say that in the context of addressing this amendment.

• 2245

Had the committee members been able to deliberate amongst themselves, without the government making known what it found acceptable or without the government coach on the committee—i.e., without the parliamentary secretary being present—we might have actually arrived at that, particularly if we had wanted to take seriously a lot of the testimony that we had before us in terms of the wisdom of a three-year sunset clause of some kind. If the government, in its wisdom, then didn't want to accept the recommendations of the committee, or if it then made it known that it wouldn't either accept the recommendations or would prevail upon the government members to change their minds or change it in the House if the committee insisted on amending the legislation...

I know these are all part of a parliamentary dream state that I'm having here, but the fact is that we did often hear in the House that the minister wanted to listen to the committee. If the minister, in this parliamentary dream state that I'm having, had actually listened to a committee that had a chance to form its own mind on the basis of what it heard from witnesses, rather than on the basis of what it heard from the minister, then we might well have come up with a recommendation of some kind of three-year sunset clause for certain aspects of the bill. It might not have been exactly what I have in the NDP amendment, what was in the Bloc amendment, or what's in the Tory amendment, but it might have been something along those lines and not entirely for the whole bill.

I think all of us could have agreed on the fact that there wouldn't have been any necessity or perhaps any wisdom in sunsetting our international obligations—at least, those that are set out in the United Nations and that portion of the bill addressing that. But for other things, we could certainly have done that and would have been responding to what we heard. I also think we would have been doing a better job, while living up to that scenario that was painted at the beginning in terms of how things were supposed to unfold: the committee hears witnesses, the committee makes up its own mind, and the committee makes recommendations, rather than the committee hears witnesses, then the committee hears from the minister, then the committee makes up its mind. That's not the way it should work, at least not in my book, Mr. Chairman.

What we have here is an amendment that sunsets everything but the UN-related stuff and the clauses having to do with hate crimes. I recommend it to the committee as something a great deal closer to what we heard from Canadians than what was put before us by the minister earlier today and by the government tonight, which for all intents and purposes is really a ten-year sunset clause. The resolution to extend is not a bona fide, authentic sunsetting of those particular aspects of the legislation, and it doesn't reflect what we heard as a committee.

Mr. Stephen Owen: Just as a comment, Mr. Chair, I think we have to look at the totality of the experience we've been going through over the last four to six weeks. We have had questions in the House every day on this issue. We have had debates in the House. We have heard a lot of witnesses. We have had the benefit of hearing the questions and the expressions of each of the members here, getting their opinions as we went along.

Certainly, in terms of the government caucus on this meeting, we have been meeting regularly over this time to check our developing consensus. We have been in communication with the minister about what we've been feeling and what we saw as the way in which this was going ahead. Frankly, the votes tonight are reflecting the degree of common cause—or not—on different aspects of this bill as the weight of votes is observed.

• 2250

I think it's also important to realize that the committee invited the minister to come back to speak to us today. We have anticipated for a long time that she would be giving an indication of the direction in which the government was going. That has been expected, it has been prepared for, and it reflects. The minister has had access to the information and the transcripts of the comments of witnesses, as well as to our accounts of it.

I think we've come to the point at which we have developed some collective ideas. They're not uniform around the table, but there are some balances of opinion on one side or another, and to various aspects of this. The sunset clause is a good example. So we've been examining this for a long time, and now we're voting on it and we are expressing the degree of common cause we've found or not found.

The Chair: The final word goes to Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I'm glad to hear the government caucus had an intellectually stimulating time together while they were working out what their position would be. But I was talking about what the committee could have done, what we all could have done together as people from different parties. My contention was that the committee did not have the opportunity to do the kind of work Mr. Owen has reported as having gone on on the government side. I thought that's what a parliamentary committee was for. We could do that kind of work together and decide what it was we found acceptable or what we found reflected what we heard from the witnesses, rather than having this very fine process going on somewhere else on the government side.

I'm glad you guys talk to each other. That's good. But it's not the work of the committee. That's my only point. What went on there...

I think there was enough goodwill here, and enough openness, to change and to try to find ways to improve the legislation. The process that is described as having gone on on the government side in camera, behind closed doors, wherever it was they met, could have gone on here in the committee. We could have then made a recommendation to the minister and had the minister come back.

I appreciate the fact that the minister came back. Of course she was going to come back. She had to come back anyway. It's not like she made some great big gesture. Ministers come back on these things, so let's not make too much of that.

But she could have come back in a different context. She could have come back in a context in which she was responding to what the committee had decided, not necessarily by way of amendment, but by way of a report, for instance. We would have been saying that these were the things that should be changed in the legislation. The minister could have then come in and said she agreed with us on certain things and disagreed on others, and there could have been some dialogue. But in the way it happened, basically the law was laid down.

I think the process that happened within the government caucus could have happened within the committee. That would have been much more in keeping with what people expect their parliamentary committees to be like.

The Chair: Thank you.

We'll go to the question on NDP-2.5.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Mr. MacKay is next, on amendment PC/DR-21, which is on page 226 of the first package.

Mr. Peter MacKay: Mr. Chair, I guess I'm feeling a little demoralized, given the success rate of my colleagues and given the fact that this particular amendment is quite similar in nature.

I can't help but draw the conclusion that the government has presented the bare minimum in its own sunset clause—that is, the very shadow of a sunset clause, if I can use that expression. It doesn't really set at all; it just dips on the horizon and comes right back into the sky.

This amendment would occur after three years. That's the major change. As I said earlier, I submit that three years is more than ample time to ascertain whether the particular provisions have had the desired effect or have had unintended consequences that could be very serious.

Mr. Bill Blaikie: It's sort of like the sunset in June in the Northwest Territories.

Mr. Peter MacKay: Yes, the summer solstice.

The provisions would attach or would leave intact the United Nations conventions, the definition, and the sections Mr. Blaikie referred to, as well as those pertaining to hate crimes. It's mainly aimed at shortening the time to a three-year period and making it a true sunset clause where it lapses and has to be re-enacted.

• 2255

The Chair: Thank you very much. I'll put the question on PC/DR amendment 21.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Now I would put government amendment 1.5.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Now I turn to BQ amendment 28, and I alert the staff to bring to my attention the changes this last little exercise might bring to the order in which we're presenting things.

Mr. MacKay, I presume you have a point of order.

Mr. Peter MacKay: On a point of order, Mr. Chair, the agenda for this evening indicates 4:15 p.m. to 11:15 p.m. Now, granted, we didn't start until 5 p.m., but would the chair give some indication for those assembled—staff, translation, everyone—as to whether we intend to proceed past 11 p.m., given where we are in this particular process? The indication I get is we could be here until 3 a.m. if we continue at this pace.

The Chair: Well, of course, I'm in the hands of the committee, but it would be my intention... According to the minutes of when we originally decided to proceed today or this afternoon, it was suggested we would go through. Of course, at the time we made that decision no one knew we would be dealing with as many amendments as we have.

Mr. Bill Blaikie: We didn't know how bad the legislation was and how many government amendments there would be. We had no idea.

The Chair: I'm in the hands of the committee right now. We're operating under the original decision we took that we would carry on.

A voice: I think we should proceed.

The Chair: Okay.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Might as well get this spectacle over with tonight.

[English]

The Chair: The next item of business is the Bloc amendment number 28.

[Translation]

Mr. Michel Bellehumeur: You are all able to read the amendment:

    (15) For greater certainty, any person who is a victim of abuse as a result of the application of this section is entitled to recover such compensation as the court hearing the case thinks reasonable.

Once again, this amendment is to respond to the concerns of some witnesses who wondered whether it would be possible to sue the government for compensation if there were any abuses when bill C-36 is enforced.

[English]

The Chair: I call the question on Bloc amendment number 28.

Mr. MacKay.

Mr. Peter MacKay: I have a question for Mr. Bellehumeur. Is this intended to pre-empt any kind of a civil lawsuit, or is it just to codify in contemplation of a lawsuit that would result?

[Translation]

The Chair: Mr. Bellehumeur.

[Editor's Note: Inaudible]

Mr. Michel Bellehumeur:

[English]

Mr. Peter MacKay: Okay. It enables a person to commence a lawsuit

[Translation]

against the government.

Mr. Michel Bellehumeur: That's right.

[English]

The Chair: I call the question on Bloc amendment number 28.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Mr. Blaikie, this is for you. Shall clause 4 carry as amended?

• 2300

(Clause 4 as amended agreed to: yeas 12; nays 3)

(Clause 5 agreed to on division)

(On clause 6)

The Chair: I turn now to clause 6, and there is an amendment identified as G-39. It's page 87, a stand-alone amendment in the first package.

Mr. John McKay: I want Mr. Owen to speak to it.

Mr. Stephen Owen: Mr. Chair, we have identified this issue previously. Mr. Mosley will tell us exactly the effect of it in this situation.

Mr. Richard Mosley: Mr. Chairman, it is to insert text that has been inadvertently omitted from this provision and to split the existing subsection into two subsections.

Mr. Peter MacKay: Mr. Chair, I have a question for Mr. Mosley.

What is the effect, then, of splitting this particular section?

Mr. Richard Mosley: It's just easier to read; it's for ease of comprehension.

Mr. Peter MacKay: But there is text...

Mr. Richard Mosley: Yes. The missing text is in (b), “an offence committed for the benefit of, or at the direction of or in association with a criminal organization”.

Mr. Peter MacKay: And what is the effect of this insertion?

Mr. Richard Mosley: This is subsection 185.(1.1), which deals with the electronics or surveillance. It is an exception to one of the requirements that normally applies. This is an exception for criminal organizations and terrorist groups. It's consequential on the amendments made in Bill C-24, but it was omitted when this draft was prepared.

It contemplates a change that has already been made in Bill C-24, by the House, not yet by the Senate.

Mr. Peter MacKay: So this is to bring about parity with that other bill still before us.

Mr. Richard Mosley: Yes.

Mr. Peter MacKay: Okay. Thank you.

[Translation]

(Amendment agreed to—See Minutes of Proceedings)

[English]

The Vice-Chair (Mr. Denis Paradis): We will come back to clause 6.

(Clause 6 as amended agreed to)

The Vice-Chair (Mr. Denis Paradis): There's a new clause.

Mr. Owen.

Mr. Stephen Owen: Excuse me, Mr. Chair. There is a clause 6.1.

The Vice-Chair (Mr. Denis Paradis): Yes, I was going to come to 6.1 right after.

Mr. Stephen Owen: Thank you.

[Translation]

The Vice-Chair (Mr. Denis Paradis): We have amendment G-40 which suggests a new clause 6.1. It is on page 89.

[English]

Mr. Richard Mosley: Mr. Chairman, this too is to correct an oversight in the drafting and also relates to Bill C-24 and to legislation initially enacted by Parliament in 1997.

The bill in clause 6, which was just dealt with, modifies 185(1.1). It's the exception for the peace officer from the investigative necessity test and applies now to criminal organization offences. The effect is to extend it to the new terrorism offences. This has been done for the peace officer, but there is a complementary provision for the judge who must consider the authorization, and it clarifies that the same exemption that applies to the criminal organization offence applies to the terrorism offences.

• 2305

The Vice-Chair (Mr. Denis Paradis): Mr. McKay.

Mr. John McKay: When we did Bill C-24, a police officer could commit certain offences with two or three exceptions—sexual assault, murder, I think, and something else, I've forgotten what it was. In the intersection of this bill and Bill C-24, is there any impact on the exemption offences of a peace officer?

Mr. Richard Mosley: The bill does do that, but not here. What you're getting at, if I may, Mr. McKay, through the chair, is the limited police immunity for committing what would otherwise be an illegal act in the course of an investigation. The bill does apply in effect to the terrorism offences investigated by the police.

What it does here is continue an exception that was initially made in 1997 with regard to the anti-gang legislation, Bill C-95, and was extended by Bill C-24 to apply to the expanded range of criminal organization offences in that bill. The proposal here is to extend it to include the terrorism offences as well.

In this particular context it is the investigative necessity standard that normally applies. The officer, in presenting the information to obtain the electronic surveillance authorization, must satisfy the court that every other investigative procedure has been tried and exhausted. That doesn't apply to the gang offences in Bill C-95. It was extended to the criminal organization offences in Bill C-24. The proposal is that it also be extended to the terrorism offences in this bill.

Mr. John McKay: Okay, that sounds logical. Maybe it's too late at night, but I can't think of any logical reason you wouldn't extend it. I can't anticipate any other consequences to that major immunity provision.

Mr. Richard Mosley: They're not related. This applies to an investigative procedure; it doesn't deal with the liability of the officer at all.

Mr. John McKay: Okay. Thank you.

(Amendment agreed to—See Minutes of Proceedings)

(On clause 7)

The Chair: I turn now to clause 7 and amendment G-41. I would advise that the passage of amendment G-41 is consequential to amendment NDP-2.3.

Mr. Owen.

Mr. Stephen Owen: This again is a technical amendment, which Mr. Mosley will speak to.

I note, and perhaps ask the question, there are a number of these in order, and they apply to different clauses. Perhaps that means they can't be dealt with in a group, but I take your direction.

• 2310

The Chair: I think in this case, because we do have an amendment that will be deemed out of order in the event this is passed, we should go with amendment G-41 and call the question.

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: That causes amendment NDP-2.3 to be out of order, I'm advised. Therefore we go to... It was withdrawn?

(Clause 7 agreed to)

(On clause 8)

The Chair: Now I go to clause 8 and amendment G-42. Is amendment NDP 2.4 withdrawn also? So we don't have to deal with amendment NDP-2.4.

We go to amendment G-42.

It's technical. We'll call the question.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 8 as amended agreed to on division)

(Clause 9 agreed to on division)

(On clause 10)

The Chair: Amendment G-43.

Mr. Richard Mosley: It's technical; commas.

(Amendment agreed to)

(Clause 10 as amended agreed to)

(Clause 11 agreed to)

(On clause 12)

The Chair: I go now to clause 12, and the first item is Bloc amendment B-29. It's a stand-alone amendment. It's in the second package, page 48.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Once again, this is in response to a request from witnesses. It's just to specify the terminology. I know that there is the word "including", but some witnesses who came, including Ms. Falardeau-Ramsay of the Canadian Human Rights Commission, said that we had to add the word "cemetery" to the terminology after "a church, mosque, synagogue or temple". A cemetery is not a building like the ones that are found on the list, but cemeteries can also be turned upside down or be the target of hate crimes. This is just an amendment to respond to these witnesses' concerns.

[English]

The Chair: Mr. McKay.

Mr. John McKay: On the face of it, I think Mr. Bellehumeur's suggestion of a cemetery is not a bad one. There have been defacings of cemeteries, and it is an expression of hate. Can the parliamentary secretary give me advice as to why this is objectionable?

The Chair: Mr. Owen.

Mr. Stephen Owen: Well, Mr. Chair, the concern the government had with extending it beyond places of religious worship is that it takes it into another realm. There are cemeteries that aren't connected to a particular religion, and there's a special impact of people practising their religion in a place of worship. That was the distinction intended.

We have heard testimony, I agree, that people of particular religions feared and took particular offence to acts of desecration in cemeteries.

I think I'd like to get some advice from officials on whether adding cemeteries would require any other wording changes to this section, because I think it was the strong feeling, certainly expressed to us, that this was an essentially important addition.

• 2315

The Chair: Mr. Myers.

Mr. Lynn Myers: Mr. Chair, I think there's some merit to this. I was wondering if Monsieur Bellehumeur was going to follow Mr. Toews' very sterling example so that if in fact we agree to this, he would bank a few of his Bloc motions and we could pass them in a group. I just wondered if he was agreeable to that kind of process.

[Translation]

Mr. Michel Bellehumeur: I'm not even going to answer.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: We're concerned, in getting advice from officials here, Mr. Chair, that there is a question with the wording, in that these are examples listed of places used for religious worship, including among others “cemetery”. A cemetery is not a place used for religious worship, so we would have to have some other wording to make it—

[Translation]

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: What do you think people do in a cemetery?

[English]

Some hon. members: Oh, oh!

[Translation]

Mr. Michel Bellehumeur: He says that it's not a place of worship. I think it's late for everyone.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: We're playing with some wording here that would make the intention clear.

Mr. Chair, I think if we added after the words “a building or structure” the words “or a cemetery”, then it would divide it from the qualifying opening wording about worship and we wouldn't get into an argument about what people do at cemeteries.

The Chair: Is that acceptable, Monsieur Bellehumeur?

[Translation]

Mr. Michel Bellehumeur: The “including” would no longer have much meaning, because in a cemetery, you do not find a church, a mosque, a synagogue or a temple. It's as if the “ including” was a description of what we considered to be a place of religious worship. I haven't gone to ceremonies often, but I think that we do practice a form of religious worship in a cemetery. You don't tap dance there. You pray. You conduct ceremonies.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: I would propose an amendment for consideration of all colleagues here, that after the phrase “such a building or structure”, there would appear the words “or a cemetery”, and then deleting the word “and” and replacing it with “if”, so it would read “if the commission of the mischief is” and then continue.

The Chair: Mr. Owen has submitted a subamendment to BQ-29. I want to make sure with staff that we get the details of this right.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: If you have taken it down, I would like you to reread it. I have one understanding of it, and I want to know whether everyone understands it the same way.

[English]

The Chair: Okay. What I'd like Mr. Owen or officials to do is to read proposed subsection 430(4.1) as the subamendment would have it read.

• 2320

Mr. Stephen Owen: Beginning, Mr. Chair, at line 7, on page 43, it would read “on the grounds of such a building or structure, or a cemetery”, and then be followed by deleting the word “and” and replacing it with “if”.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: It's just that “including” is normally used to give examples of what we wanted to say beforehand. If you are telling me that it's comprehensible and non-controversial, there is no problem. We would write:

    [...] commits mischief in relation to property that is a building, structure or cemetery or part thereof that is a primarily used for religious worship, including a church, a mosque, synagogue or temple, [...]

These are all buildings. The cemetery... It seems to me that the “including” would be better in a description, without getting into the details of the other. But if you tell me that that is all right, there is no problem as long as it is indicated in there.

[English]

The Chair: I'll put the question on the subamendment.

A voice: Is that Mr. Owen's subamendment?

The Chair: Yes, and on the amendment identified as Bloc amendment 29 as amended.

(Subamendment agreed to)

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go now to government amendment number 44. Did we do 44?

Mr. Richard Mosley: Mr. Chairman, we did it by that subamendment.

The Chair: I go now, then, to PC/DR amendment number 7. That is in the first package. It's a stand-alone amendment on page 97.

Mr. Peter MacKay: Thank you, Mr. Chair.

Mr. Chair, this amendment would insert on line 10 at page 43, along with the other motivations for prejudice or hate—“based on religion, race, colour”—the word “sex”, then continue with “or national or ethnic origin”. This, I would suggest, is consistent with our charter, first and foremost. It is also consistent with a Criminal Code amendment brought forward by this Liberal government a few years ago. That amendment is found at Criminal Code section 718.2(a)(i), which speaks of an offence being motivated by “bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex” and it goes on to say “age, mental or physical disability”.

This amendment was in fact recommended by Professor Bayefsky, who appeared before the Senate committee in their deliberations. She strongly urged the Senate to make that recommendation. I would suggest it is in keeping with the spirit and intent of excluding sexual orientation or sex as a motivation for this mischief that is found in this particular section.

The Chair: Mr. Owen.

Mr. Stephen Owen: I think the motivation is clear. The difficulty is that it seems to be out of context in the section dealing with places of worship, or places related to cemeteries, that the bill as it's worded deals with. Whether it be religion, race, colour, national or ethnic origin, all can be seen to relate directly back to places of religious worship. This seems to be out of context with the logic of those categories, because we're building on the concept of places of religious worship and then cemeteries with this amendment.

The Chair: Mr. DeVillers.

• 2325

Mr. Paul DeVillers: Does the inclusion of the word “sex” in that clause have any relationship to terrorism, since that's what the bill is dealing with? Is there any connection with the goal and the target in the bill in including the word “sex” there?

Mr. Stephen Owen: If you're asking me, I'm not suggesting that we put it in. But that's a good question.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I'm a little bit puzzled. The whole intent seems to be to protect places of worship and so on. For the life of me, I don't really know how sex gets into this paragraph. But notwithstanding that, am I mistaken? It's my understanding that the Criminal Code has ample provisions to deal with mischief offences and so on. It's not as if there aren't laws to deal with this sort of problem. Are we not just trying to repeat stuff that's already in the Criminal Code by trying to put things like this into this section?

Is there anybody out there who's familiar with the mischief provisions?

The Chair: Mr. Bellehumeur, and then the last word to Mr. MacKay.

[Translation]

Mr. Michel Bellehumeur: I would like to explain why the word "sex" appears there. Mr. Chairman, I no longer remember the exact testimony of the person who was speaking of that, but I think it is because of some religions in which men and women have special roles. There could be an attack against one particularly category of women. That is why we should perhaps include sex in this definition. That is the link with terrorism.

[English]

The Chair: Finally, Mr. MacKay.

Mr. Peter MacKay: Well, yes, Mr. Bellehumeur is right. I have an institution in my constituency, the Sisters of Saint Martha. There are certainly religious sects who are monks, and they only admit men into their particular sect. It may be putting too fine a point on it, but I would suggest that it's not beyond the realm of possibility that it might be “sects”. It is not beyond the realm of possibility that one of those particular groups could find themselves targeted for this type of mischief. I don't see how it causes any harm by adding it to this particular section. I don't see the harm that would flow from it.

The Chair: I'm going to put the question.

(Amendment negatived—See Minutes of Proceedings)

(Clause 12 as amended agreed to)

(On clause 13)

The Chair: The first amendment to consider on clause 13 is PC/DR-8, which is in the first package. It's a stand-alone amendment, and it's page 98.

Mr. MacKay.

Mr. Peter MacKay: This particular amendment, Mr. Chair, also has some consequential amendments. It follows that what we're seeking to do here is insert the words “national security” into wording that goes throughout the entire act. The reason is that there is, I would suggest, the possibility of confusion over the use of the word “security” in some sections where they're talking about general security for all rather than national security.

• 2330

The drafters of this legislation were kind enough to provide me with a list. They went through this, presumably with a fine-tooth comb, and set out references in the entire act where security is referred to in the generic sense, meaning security and intelligence reports, for example, at page 17, “to preserve the sovereignty, security or territorial integrity” at page 55, “health, safety, security or economic or financial well-being” on the same page.

So these particular amendments are to differentiate between national security and security overall. It is for greater clarity, I would suggest, throughout this particular bill. As I said, the drafters have identified 10 particular areas where security is meant in the overall capacity, as opposed to what I assume is the intention of the government, to refer specifically to national security.

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you, Mr. Chair, Mr. MacKay.

I'm advised that the wording here comes out of the UN International Convention on the Suppression of Terrorist Bombings, which is why it appears here. I'm also advised by officials that this would not affect the effectiveness of the section and it simply doesn't change the meaning of it. If it makes it clear to some people...

The Chair: I'm going to go to the question.

Mr. MacKay, I have just one question. Do I understand there are other amendments of the same nature throughout the exercise?

Mr. Peter MacKay: That's correct.

The Chair: It might be helpful to identify those amendments. Or do I assume, Mr. Owen, that the effect may be different? Do we know?

Mr. Stephen Owen: I think the question may be, Mr. Chair, whether with national defence and security, which is a phrase that's used quite often, “national” modifies both.

The Chair: We'll deal with this one, and, Mr. MacKay, if you would bring to our attention other examples of the same thing, we'll deal with them as they come up.

So in the case of PC/DR-8, all those in favour, please indicate.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go now to Bloc amendment 30. It's a stand-alone amendment. It's in the second package on page 49.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: This amendment follows the other amendment that I tried to have passed to item 83.01(1)(b) (i) (B) regarding the whole economic aspect. The amendment is to clause (2) and would remove the phrase after "serious bodily injury". I would like to take out the rest of that phrase.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: I go now to government amendment 45. It's a stand-alone amendment. It's in the first package, page 99.

Mr. Mosley.

Mr. Richard Mosley: Mr. Chairman, it's another technical amendment, to add the term “for greater certainty”, which had been left out of the draft.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 13 as amended agreed to)

• 2335

(Clauses 14 to 20 inclusive agreed to on division)

(On clause 21)

The Chair: I think the first amendment may be one of the amendments that has been withdrawn by Mr. Toews, amendments number 5 and number 6 both, so there's one government amendment, G-46, at page 102 in the first package. It's stand-alone.

Mr. Richard Mosley: Mr. Chair, this is to remove these words in the French version:

[Translation]

"sur déclaration de culpabilité par mise en accusation".

[English]

The words are not necessary because no terrorism offence in the bill is a summary conviction offence.

The Chair: On the question of G-46, all those in favour?

(Amendment agreed to—See Minutes of Proceedings)

(Clause 21 agreed to as amended)

(Clauses 22 to 25 inclusive agreed to)

(On clause 26)

The Chair: I will refer to government amendment G-47.

Mr. Stephen Owen: It is deleting words.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 26 as amended agreed to)

(On clause 27)

The Chair: There's an amendment, BQ-31, and it is a stand-alone amendment, in the second package on page 50.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: It is similar to the amendment that I tried to have passed to item 83.01(1)(b) (i) (B). It's the whole economic aspect. The amendment would remove "economic or financial well-being". It would read as follows:

    health safety or security of the people of Cana-

[English]

The Chair: Mr. Bellehumeur, does that involves all three of these amendments, BQ-31, BQ-32, and BQ-33?

[Translation]

Mr. Michel Bellehumeur: I will take a look. No.

[English]

The Chair: On BQ-31, all those in favour?

(Amendment negatived—See Minutes of Proceedings)

The Chair: Now we'll go to BQ-32, which is a stand-alone amendment in the second package on page 51.

[Translation]

Mr. Michel Bellehumeur: I believe that it is also “or” in English. It says:

    (a) in order to advance a political, religious or ideological purpose, objective or cause or to benefit a foreign entity—

Unless I have misunderstood the meaning of the clause, I'm of the opinion that we should replace the word “or” by “and”: “and to benefit a foreign entity”. Repeating the word “or” tends to water it down, I think, and it is not necessarily the objective that was sought by the department in drafting this provision.

[English]

The Chair: Mr. Piragoff, is there any response?

No. So I'm going to call the question on BQ-32.

(Amendment negatived)

• 2340

The Chair: Bloc amendment number 33, also on clause 27, is a stand-alone amendment in the second package, on page 52.

[Translation]

Mr. Michel Bellehumeur: This amendment simply seeks to remove a subclause. I'm not sure what the objective is. Perhaps I should ask the question before I introduce my amendment. It reads:

      (c) causes or aggravates an urgent and critical situation in Canada that:

        (ii) threatens the ability of the Government of Canada to preserve the sovereignty, security or territorial integrity of Canada;

Before introducing my amendment, here is my question for the Parliamentary Secretary to the Minister of Justice. How does the government intend to apply this provision in the case of a democratic undertaking in Quebec, during a referendum where the vote would be in favour of the separation of Quebec?

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: What we're looking at here, Mr. Chair, is a foreign state. Everything flows from that; it's the endangerment from a foreign state. It doesn't apply or would have no relevance to a decision within Canada for secession, for instance, if that's the concern. Maybe it should. It flows from line 13 of the definition of “foreign state”. That's what is being referred to other than Canada.

The Chair: I think it's understood.

I'm going to call the question on Bloc amendment number 33.

Yes, Monsieur Bellehumeur, is that a vote or a question?

[Translation]

Mr. Michel Bellehumeur: In view of the well-considered response by the government and the question mark that seemed to hang at the end of the answer, here is my amendment. It is intended to remove this threat to the government's ability to preserve the sovereignty, security or territorial integrity of Canada. The amendment would replace that provision by the following:

    (c) causes or aggravates a critical situation in Canada that endangers the lives, health or safety of Canadians.

[English]

The Chair: Do I understand, Monsieur Bellehumeur, that you're withdrawing the amendment?

[Translation]

Mr. Michel Bellehumeur: No, I will not withdraw my amendment; I will explain it to you.

[English]

(Amendment negatived—See Minutes of Proceedings)

(Clause 27 agreed to on division)

The Chair: Shall clause 28 carry?

Oh, I'm sorry.

Mr. Mosley.

An hon. member: Where are we?

The Chair: I don't know. We're not there yet.

Mr. Richard Mosley: There is an amendment that wasn't distributed. It's on page 55.

The Chair: Where is it?

• 2345

I'm sorry, amendment BQ-34 would be included in clause 27. It's my mistake. We had it down lower. This amendment is a stand-alone amendment on page 53 in the second package.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Yes, it's BQ-34.1, and on page 54, there is also BQ-34.2.

Amendment BQ-34.1 relates to clause 27. We move to delete lines 4 to 12 on page 56. Once again, in keeping with the economic side of terrorism, we suggest that these provisions relating to economic and financial aspects be deleted.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: Mr. Mosley.

Mr. Richard Mosley: Unfortunately, the government had a motion to amend clause 27 at page 55. It's a technical change to line 39 en francais, where it says “puissance”. It's to substitute “capacité” for “puissance”.

The Chair: It's a technical amendment.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Just a minute. I know that we are pressed for time but—

[English]

Mr. Richard Mosley: It speaks of the military capability of the Canadian Forces.

[Translation]

In French, the expression reads “la puissance militaire des Forces canadiennes”. The expression “la capacité militaire des Forces” is closer to

[English]

the English expression “military capability”.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 27 as amended agreed to on division)

(Clause 28 agreed to on division)

(On clause 29)

The Chair: We go back to the Bloc amendment that I'm going to call 34.2, because we had two. That's why we had the confusion the last time. It's the first amendment under clause 29. It's a stand-alone amendment in the second package, on page 54.

[Translation]

Mr. Michel Bellehumeur: Once again, this relates to economic entities.

[English]

The Chair: Understood.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I go now to government amendment G-48—and there's a long list of government amendments, as you'll see. This is a stand-alone amendment in the second package, on page 105.

Mr. Mosley.

Mr. Richard Mosley: These words would be added to the offence:

    at the direction of, for the benefit of or in association with a foreign entity or terrorist group.

• 2350

They restrict the scope of the offence by requiring some link to a foreign entity or a terrorist group.

The Chair: I apologize. Mr. Bellehumeur is having a hard time finding it. This amendment is in the first package, on page 105. Thank you.

Mr. Mosley, please continue.

Mr. Richard Mosley: The addition of these words, which are underlined, restricts the scope of the offence by requiring some link to a foreign entity or a terrorist group.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Government amendment G-49 is a stand-alone amendment in the first package, on page 107.

Mr. Richard Mosley: This amendment adds a definition of “department” to assist in the understanding of the application of proposed sections 8 and 9 in this context.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment G-50 is on page 109 of the first package.

Mr. Richard Mosley: Mr. Chairman, this would delete the definition of “security or intelligence agency” in the English version. This definition is unnecessary, as the term was only used in the first paragraph of the definition of “person permanently bound to secrecy” in proposed subsection 8(1). That term is to be replaced by the definition of that term in an amended proposed paragraph (a) of the definition of “person permanently bound to secrecy” in proposed subsection 8(1).

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment G-51 is on page 111 of the first package.

Mr. Richard Mosley: This is consequential to what I just said.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment G-52 is on page 113.

Mr. Richard Mosley: These amendments would delete the word

[Translation]

"étrangère" in the expression "entité étrangère"

[English]

in proposed paragraph (a) of the definition of “renseignements opérationnels spéciaux” on page 58, and would add the words “le contrat, protocole d'entente ou” in proposed paragraph 10(2)(b) on page 60.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We turn to G-53, on page 114 in the first package.

Mr. Richard Mosley: The RCMP is a division or branch of the Public Service of Canada, as set out in the Financial Administration Act. It therefore falls within the definition of a department as proposed in proposed subsection 8(1). For that reason the former proposed paragraph 8(2)(c) can be deleted.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: We don't even have time to read the clauses that you want us to vote on. You have enough time. I am sure you have the time. You dealt with both the English and the French versions at the same time. I am absolutely convinced that you had enough time to do all of this. In any case, it makes our work here that much more serious. Let's see if we can read an entire page in three seconds.

Past.

[English]

The Chair: I go to government amendment G-54.

Mr. Richard Mosley: This replaces line 35 on page 59, which currently reads “board, agency or office”. It adds the words “division, branch or office of the public service of Canada”. Again, it's just for clarity.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Government amendment G-55 is on page 117 in the first package.

Mr. Richard Mosley: The designation scheme has always been intended to apply to security and intelligence staff. It has been intended that only persons with authorized access to special operational information would be covered under the scheme. Adding the word “authorized” in front of the word “access” reinforces that point.

• 2355

[Translation]

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: What does "authorized access" mean? Can you give me an example?

[English]

Mr. Richard Mosley: It's somebody who is entitled within the scope of their employment to have access to the information.

[Translation]

Mr. Michel Bellehumeur: And if we had not added the word “authorized”, would there be a problem with what is found in the first paragraph? Part one reads: “The deputy head in respect of a person...”. Therefore, we have established the fact that there is a person. It says in clause 10(1):

    [...] may, by notice in writing, designate the person to be a person permanently bound to secrecy if the deputy head is of the opinion that, by reason of the person's office, position, duties, contract or arrangement

      (a) the person had, has or will have access to special operational information—

Why add “authorized”? Is that not obvious in the first subclause?

[English]

Mr. Richard Mosley: Would it have caused a problem? I think it could be inferred from the text that it means authorized access. The addition of the word is simply intended to make that clear.

Presumably it could have been inferred or interpreted to apply to somebody who was not supposed to have access to the special operational information but came across it in the course of the exercise of their job in some other way. This would make it clear that this applies to people who are authorized to have such access.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-56 is on page 119 of the first package.

Mr. Richard Mosley: Mr. Chairman, this relates to military judges. It is to respect the guarantees of judicial independence that they are excluded from the operation of the scope of the persons who have been bound to secrecy. It's just to make that clear.

The Chair: Mr. Piragoff.

Mr. Ronald Piragoff: The effect of this amendment is to delete proposed paragraph 10(3)(e) for the reason that the people in (a), (b), (c), and (d) are clearly well defined, but the people who could fall into paragraph (e) are quite broad. It would be very difficult for these types of people to fall under the exception, which is in the opening lines of proposed subsection 10(3), as people who could “not be designated as persons permanently bound”. Any person appointed by the Governor in Council who performs any quasi-judicial powers or functions can include all kinds of administrative officials. We would be excluding a lot of people in the government who possibly should be bound to secrecy.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-57 is in the first package, page 121.

Mr. Richard Mosley: This function, Mr. Chairman, would amend proposed subsection 15(5) of the Security of Information Act. The effect is that absent exigent circumstances, which are dealt with in (6), the person could not be found to have acted in the public interest without having made prior disclosures to the authorities, as set out in the proposed subsection. Persons would be encouraged to exhaust internal redress mechanisms, as set out in proposed subsection 15(5), before publicly disclosing state secrets.

• 2400

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We now turn to PC/DR-9.

Mr. MacKay.

Mr. Peter MacKay: Mr. Chair, this is another amendment that in particular would amend the bill at page 65, proposed section 19, by inserting the word “national”. In the bill you will note that we're speaking of “Canada's economic interests, international relations or national defence or security”, and I suggest we add “national” to security. Again, this would differentiate between other references to security found throughout the bill, such as “security and criminal intelligence” and “security and international affairs”. It's national security we're talking about here, not just security.

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Chair, the feeling is that this is not an inappropriate amendment. If we look at the French version, it appears that “nationales” modifies both defence and security. So this amendment would not have any detrimental or changed effect, and we have no opposition to it.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Government amendment 58 is on page 124 of the first package.

Mr. Richard Mosley: Mr. Chairman, this substitutes the words “outside Canada” for the words “in a foreign state”.

The Chair: Mr. Owen.

Mr. Stephen Owen: Apparently this was raised during committee hearings by way of a suggested clarification.

The Chair: I don't think it's going to raise objections.

Mr. Stephen Owen: Perhaps Mr. Piragoff can explain it.

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: In the bill, proposed paragraph 26(1)(c) talks about persons who are locally engaged and who perform functions in a Canadian mission in a foreign state. We do have missions in territories that are not yet states. This would ensure that we can also apply the provisions of proposed section 26 to those locally engaged staff.

The Chair: Thank you.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-59 is on page 126 of the first package.

Mr. Richard Mosley: This adds a number of offences, under the Security of Information Act, to the definition of “enterprise crime offence” in the Criminal Code. The addition of new proposed section 28 is to ensure that part XII.2 of the code, with regard to proceeds of crime, is applicable to the Security of Information Act. If and when Bill C-24 comes into effect, neither provision would be required. There is a coordinating amendment in the package to address this fact for new proposed section 28.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 29 as amended agreed to on division)

(On clause 30)

The Chair: Amendment G-60 is on page 128 of the first package.

• 2405

Mr. Richard Mosley: This is a technical and consequential amendment further to the last change, because there are now 28 sections and not 27 sections in the act.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 30 as amended agreed to on division)

(Clauses 31 to 33 inclusive agreed to on division)

(On clause 34)

The Chair: I go now to amendment PC/DR-10. It's on page 130 in the first package.

Mr. MacKay.

Mr. Peter MacKay: Again, it's an amendment to add the word “national”. In the reference here we're talking about National Defence and I would suggest “national” security.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 34 as amended agreed to on division)

(Clauses 35 to 40 inclusive agreed to on division)

(On clause 41)

The Chair: I go to amendment G-61.

Mr. Richard Mosley: This is technical for an incorrect reference in the bill.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 41 as amended agreed to on division)

(Clause 42 agreed to on division)

(On clause 43)

The Chair: The first amendment is identified as G-62.

Mr. Richard Mosley: This is similar to the amendment that was introduced in relation to the listing procedure and the judicial review, dealing with the nature of the evidence that can be considered by the court.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Next is G-62.1. It is on page 135 of the first package.

Mr. Richard Mosley: This adds proposed subsection 37.3(2), which provides examples of possible fair trial protections, such as an order dismissing specified counts of the indictment or information, a stay of proceedings, and a finding against any party on an issue relating to the information that could be ordered by the judge.

Its purpose is to illustrate what is intended by this provision, because it's not immediately apparent to people when they read it.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: The next amendment is PC/DR-11.

Mr. MacKay.

Mr. Peter MacKay: Again, it deals with national security and clarity.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Is PC/DR-12 the same thing?

Mr. Peter MacKay: It's similar, in dealing with the national security aspect.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: The next amendment is G-63 on page 139 in the first package.

Mr. Richard Mosley: It's technical.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Next is G-64 on page 140.

Mr. Richard Mosley: The designated entities are listed in schedule 2 at page 175 of the bill, but only for particular purposes, except in one case—a board of inquiry convened under section 45 of the National Defence Act.

This amendment recognizes this fact, while allowing for entities to be listed on a schedule in cases where no particular purpose applies.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Next is G-64.1 on page 142.

Mr. Richard Mosley: These are technical corrections in French.

(Amendment agreed to—See Minutes of Proceedings)

• 2410

The Chair: Next is amendment G-1.6. It's in the second package on page 55.

Mr. Richard Mosley: This is to require notice to the government of the intention to disclose information that would be potentially injurious. It gives the Government of Canada a period of 10 days within which to bring an objection to the disclosure of the information.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I just want to make sure I understand. Is this a reverse onus then on a person affected to give the government notice of their intention to produce evidence?

Mr. Richard Mosley: Let me just confirm. This starts on line 23.

In the context of proposed section 38.02, it's actually not a person; it's an entity that has the capacity to make a decision or an order. But before doing so, they should give the Government of Canada notice that they are about to make such a decision or order, to give the government the opportunity to appear to make representations that the information should not be disclosed.

The Chair: Mr. McKay.

Mr. John McKay: Do I understand your response to Mr. MacKay's question to be that if a judicial officer intends to make a decision that certain information will be disclosed, presumably after argument between the parties, the judge, by his entity, has to notify the crown, and then the crown gets another go at the information?

Mr. Richard Mosley: The Attorney General of Canada may not be a party to these proceedings, but more generally, the answer to your question is yes.

Mr. John McKay: So that's the concept here, that a judge is going to make a disclosure of certain information, and the Attorney General must be notified prior to that.

Mr. Richard Mosley: It could be a body. It could be a tribunal of some sort dealing with the information. Assuming they're aware it is sensitive information, they would be obliged to notify the Attorney General of Canada.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Who makes the determination as to whether this particular information is deemed sensitive or could result in potentially injurious information? I suspect strongly this 10-day period being elapsed gives the minister time to invoke a certificate that would blanket the information. Is that correct?

Mr. Richard Mosley: As I read this, the body dealing with the information has to make the decision that it is sensitive. It is a fair-warning provision, if they're dealing with information they know to be highly sensitive. If they have no idea the information is potentially injurious to the interests of Canada, they're not obliged under this to do anything. But if they're aware of that and are about to say it will be released to party X in these proceedings, at that point they are, under this provision, required to postpone and notify.

Mr. Peter MacKay: But who is required to disclose, based on whose determination of the injurious nature of the information? Who deems it to be sensitive?

• 2415

Mr. Richard Mosley: This could be a judge of the Federal Court. It could be the Security Intelligence Review Committee, an adjudicator under the Immigration Act, a board of inquiry convened under section 45 of the National Defence Act... They're set out in schedule 2, on page 175.

Mr. Peter MacKay: So this is the same sort of heads up that this information is going to be disclosed. It's the same sort of courtesy that's not afforded to a person who's going to be listed. Right?

Mr. Richard Mosley: It's a different context. This is a situation where the information that may be released could cause harm to Canada.

Mr. Peter MacKay: Okay, but it wouldn't apply. For the same concept, you differentiate. Where it could cause harm to a person who's going to be listed, the government doesn't have to tell them within 10 days. Right?

Mr. Richard Mosley: Right.

The Chair: I think we've reasonably been through that debate.

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: I go now to amendment G-64.2. It's page 143 of the first package.

Mr. Richard Mosley: It's just technical.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I now go to amendment PC/DR-13.

Mr. MacKay.

Mr. Peter MacKay: Mr. Chair, it's the same type of amendment with respect to national security.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment PC/DR-14.

Mr. MacKay, the same thing?

Mr. Peter MacKay: It's national security again.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Amendment PC/DR-15.

[Translation]

Mr. Peter MacKay: Once again it's the same thing.

[English]

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go now to amendment G-64.3, on page 148 of the first package.

Mr. Richard Mosley: This introduces a provision in proposed section 38.06 to provide, again, a degree of flexibility. It's the same amendment that has already been adopted twice in this bill.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go now to amendment PC/DR-16.

Is it the same thing, Mr. MacKay?

Mr. Peter MacKay: It's the same thing.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Mosley.

Mr. Richard Mosley: We have an amendment to clause 43, page 87.

The Chair: Has it been circulated? Is this amendment G-1.7?

Mr. Richard Mosley: I don't know the number. I don't have it on this.

The Chair: We have it. It's identified as amendment G-1.7.

Mr. Lynn Myers: Mr. Chairman, on a point of order again, do you have more amendments like this? Let's get them out on the table. We're wasting a bit of time here.

You know what I'm saying. If they're distributed, if we know they're coming...

The Chair: As far as I know, they've been distributed.

Mr. Lynn Myers: Okay, thank you.

The Chair: Generally, Mr. Myers, because they're single pieces of paper, what we're trying to do is moderate their distribution.

Mr. Lynn Myers: Are we expecting any more?

The Chair: There's one more.

Mr. Lynn Myers: Great.

The Chair: On amendment G-1.7, Mr. Mosley.

Mr. Richard Mosley: This would clarify that the certificate in proposed section 38.13 would only be issued after an order or decision that would result in the disclosure of the information subject to the certificate has been made under this or any other act of Parliament. That is one of the changes that the Minister of Justice spoke to this morning.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: As a point of clarification on this area, when would the certificate come into effect, once the judicial review has taken place, or would it come into place as soon as the minister issued the certificate and then the review would take place after the fact? How would that work?

• 2420

Mr. Richard Mosley: The review of the certificate would take place after it was issued. The certificate would take effect immediately.

Mr. Brian Fitzpatrick: Okay.

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: The next one I have on my list is amendment CA-7, but that was withdrawn.

I go now to amendment G-64.4, page 152 in the first package.

Mr. Richard Mosley: It is a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Next is amendment G-1.8. A copy was just distributed.

Mr. Mosley.

Mr. Richard Mosley: This is consequential on the policy change announced by the minister this morning about the scope and effect of the Attorney General's certificates under this bill. Proposed subsection 38.13(7), for example, as called for by a number of witnesses, would require the certificate to be published in the Canada Gazette, which was an omission in the existing bill.

It provides the mechanism for the review of the certificate by a judge of the Federal Court of Appeal to ensure that the information that is the subject of the certificate is in fact related to international relations, national defence, or security. The judge would have the power to confirm, vary, or cancel the certificate. That's in proposed section 38.131.

The certificate would be limited in time to 15 years. It could be reissued by the Attorney General, and each, as noted, would have to be published in the Canada Gazette.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: There's no automatic review under this provision. It requires a party to apply for the review. Is that correct?

Mr. Richard Mosley: Sorry.

Mr. Brian Fitzpatrick: There's no automatic review of these orders.

Mr. Richard Mosley: No.

Mr. Brian Fitzpatrick: Somebody has to apply to have the order kick in.

Mr. Richard Mosley: That's right.

Mr. Brian Fitzpatrick: What's the limitation period on that?

Mr. Richard Mosley: I am just checking to confirm this, but I don't believe there is any limitation period in this to preclude the application, to limit it to a particular period of time. Once it has been made, however, the judge must, under proposed subsection 38.131(7) consider the application as soon as reasonably possible.

The Chair: Mr. Peter MacKay.

Mr. Peter MacKay: Mr. Mosley, I assume these determinations made by a Federal Court judge would be done in camera?

Mr. Richard Mosley: Yes, that's a fair assumption.

Mr. Peter MacKay: But is that expressed anywhere in this particular section?

Mr. Richard Mosley: Under proposed subsection 38.131(6), proposed sections 38.11 and 38.12 apply, with any necessary modifications, to an application, and that would permit the hearing to be conducted in camera.

• 2425

Mr. Peter MacKay: Okay, it would permit it, but it's not mandatory, is it?

Mr. Richard Mosley: Yes, proposed section 38.11 is in private. It is mandatory that it be in camera.

(Amendment agreed to on division—See Minutes of Proceedings)

[Translation]

Mr. Michel Bellehumeur: On division once again, Mr. Chairman. I had some questions to ask. You see, I read these. I don't know if you read the amendments, but I do and I try to understand how they relate to the provisions—

[English]

The Chair: I apologize, Mr. Bellehumeur. As has happened a couple of times, when hands go up, sometimes I'm assuming it's on the vote. If you have a question, we'll take the question, and we'll—

[Translation]

Mr. Michel Bellehumeur: That's because you do it all with your eyes closed. If I have to dance on the table to get your attention, that's what I will do.

Where are we?

[English]

The Chair: We're on government amendment 1.8. We were voting on the amendment, but I thought we were—

[Translation]

Mr. Michel Bellehumeur: Did it pass or not?

[English]

The Chair: You can put questions. If the committee would allow, Mr. Bellehumeur wanted to put a question. Go to it.

[Translation]

Mr. Michel Bellehumeur: In any case, it won't change much. I just wanted to know how those amendments would affect clauses 87, 103 and 104.

[English]

Mr. Richard Mosley: We haven't got there yet, but the practical effect of these changes is that—if I may, Mr. Chairman, give a broader explanation—the existing procedures under the Access to Information Act and the Privacy Act would continue to the point where a certificate is issued under the Canada Evidence Act.

For example, suppose someone is engaged in judicial proceedings, such as a criminal trial or a civil action, and is seeking to obtain information that has been obtained in confidence from a foreign state. If the court presiding over that case orders its disclosure, the Attorney General may at that point issue the certificate. If at the same time an application has been made for that information under the Access to Information Act, the normal procedures under that act would continue right up until the point at which the certificate is issued in the judicial proceedings. In most instances there would be no effect on the role of the Information Commissioner or the Privacy Commissioner in reviewing a complaint about the failure by the government to disclose the information.

This deletes the words “at any time”, which were part of the certificate mechanism in the bill, and it makes it clear that the role of the two commissioners would continue with respect to that information. The only point at which the role may be superseded could happen in these circumstances: where there is a case proceeding in court; where there is an order for disclosure of the information; where the Attorney General issues a certificate to protect that information; or where that certificate is itself subject to judicial review under this mechanism that is before the committee at the moment.

• 2430

[English]

Once that certificate is issued, the person who has sought to obtain the information through those proceedings can't bring a collateral application under the Access to Information Act or the Privacy Act. But if they're not involved in the proceedings and if they are applying to get the information in the normal course of events, they would not be impeded in that by the revised certificate procedure. Is that clear?

[Translation]

Mr. Michel Bellehumeur: Not really. If I'm clear on this, clauses 87, 103 and 104 remain unchanged. The government is not proposing to delete clauses 87, 103 and 104 and replace them by what we have before us.

[English]

The Chair: Mr. Mosley.

Mr. Richard Mosley: There would be no certificate under the Access to Information Act or the Privacy Act. The only certificate that would be contemplated by the changes that are being made to the bill would be under the Canada Evidence Act, but the issuance of a certificate under the Canada Evidence Act could have an effect on—

[Translation]

Mr. Michel Bellehumeur: Agreed.

[English]

The Chair: Mr. MacKay.

Mr. Peter MacKay: This arises out of that question. Just so I'm clear on this, what you've just told us is that the access to information request can precede the interventions of the privacy and information commissioners in the pursuit of information, but upon the issuance of the certificate, they are trumped. Suppose their decision were to authorize disclosure at the end of their findings. If the minister issues this certificate, their role is trumped, and then the recourse is to apply to a Federal Court judge to review the minister's decision to trump the decision of the Privacy Commissioner.

Mr. Richard Mosley: It doesn't trump the commissioner. If I may, if there are no judicial proceedings concerning this information, and if somebody has simply made an application under the Access to Information Act to obtain it, that whole procedure will continue right through to the point where the Information Commissioner makes a recommendation as to whether the information should be disclosed or not. If it's not accepted and the person goes to the Federal Court in order to get the information, the Attorney General can then issue a certificate in the Federal Court proceedings.

Mr. Peter MacKay: No. You skipped a step here. Once the Information Commissioner or Privacy Commissioner says to disclose, if the minister issues this certificate, then they're trumped. Their decision is void.

Mr. Richard Mosley: It would only be issued after proceedings are taken in the Federal Court to order disclosure.

Mr. Peter MacKay: Who has undertaken the proceedings?

Mr. Richard Mosley: The person applying for the information has.

Mr. Peter MacKay: Okay. The Information Commissioner and the Privacy Commissioner currently don't have the power to order disclosure. Is that correct?

Mr. Richard Mosley: Right.

Mr. Peter MacKay: It again highlights the necessity of the issuance of the certificate. They're going to go to the Federal Court to decide whether the information should be disclosed. Is that correct?

Mr. Richard Mosley: Right.

Mr. Peter MacKay: The minister is going to have to go to court and defend the issuance of the certificate. Is that correct?

Mr. Richard Mosley: Yes.

Mr. Peter MacKay: So we're converging on the same process. What's the necessity?

Mr. Richard Mosley: Well, the certificate is different from the proceeding, which would normally take place in the Federal Court. The proceeding in the Federal Court on the access application is a proceeding on the merits. The proceeding that is contemplated on the certificate is a proceeding as to whether the minister got it right with regard to the nature of the information.

Mr. Peter MacKay: Yes, Mr. Mosley, but the forum here is ultimately the Federal Court. The ultimate arbitrator here will be the Federal Court judge.

Mr. Richard Mosley: The difference is that it goes to the Federal Court trial division for the usual access proceeding and to the Federal Court appeal division for the review of the minister's certificate.

Mr. Peter MacKay: Does that mean there will be a panel, or will there be a single judge?

Mr. Richard Mosley: There will be a single judge.

Mr. Peter MacKay: It's a single-judge court of appeal. Okay.

The Chair: Thank you, Mr. MacKay.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: In practice, does that mean that during a trial it will possible to bring forward documents that the defence won't have had the right to see before the trial?

• 2435

[English]

Mr. Richard Mosley: There is, yes. Under the Canada Evidence Act an accused may apply for disclosure of information held by the crown, as is the accused's right. The court may order the disclosure of that information. The Attorney General may intervene in the proceedings, may assume, under the Canada Evidence Act changes here, responsibility for the carriage of the prosecution if it is a provincial prosecution, would possibly issue a certificate to prevent the information being disclosed. But the key point here is that proposed section 38.14 gives the presiding judge full authority to make any order that is necessary to ensure fair trail rights of the accused, which could include a judicial stay of proceedings, which the committee has just addressed, as an order dismissing specified counts of the indictment or information or permitting the indictment or information to proceed only in respect of a lesser or included offence, an order affecting the stay of the proceedings, and an order finding against any party on any issue relating to information the disclosure of which is prohibited.

Again, it's a balancing of interests, the interest in protecting the security of the state from the disclosure of potentially harmful information, the collective interest, and the individual interest of the party who is seeking to obtain the information. The court is given the authority to rule in favour of that individual and make any order within those terms I've just described.

The Chair: Thank you very much.

We go to the question on government amendment 1.8.

Mr. Brian Fitzpatrick: I have a question on that point, if I could, just to clarify it.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: If I understand this correctly, it's possible that an accused person could be convicted on evidence that he or she does not—

Mr. Richard Mosley: Not at all. The accused will only be convicted on the evidence presented in court.

Mr. Brian Fitzpatrick: Okay. So if there's a national security issue here that goes against disclosing the information, there's a possibility that a criminal person will be able to walk away from those proceedings.

Mr. Richard Mosley: If the crown has insufficient evidence to prove the case, then, yes, an accused will be acquitted. It may well be that the accused will argue that he or she has insufficient information or evidence to satisfy their fair trial rights—“to make full answer and defence” is the expression in the criminal context—because they can't get disclosure of the information the Attorney General of Canada is protecting. In those circumstances, if they can't make a defence, the court can rule in their favour, and they may well walk. There's no question about that. It's a trade-off.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go now to government amendment 64.5. It's page 153 in the first package.

Mr. Richard Mosley: That's what I just described a few moments ago, Mr. Chair.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go to government amendment 64.6. It's page 155 of the first package.

Mr. Richard Mosley: It substitutes the words “Governor in Council” for “it”. It's just clarity.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 43 as amended agreed to)

(Clause 44 agreed to on division)

• 2440

(On clause 45)

The Chair: We have government amendment 64.7, page 156 in the first package.

Mr. Richard Mosley: This adds a reference in proposed subsection 58(2):

    An objection to disclosure shall be determined in accordance with the Canada Evidence Act if

      (a) ...a minister of the Crown... objects to the disclosure in accordance with sections 37 to 37.3 or section 39 of that Act;

Our proposed pargraph (b) clarifies:

    within 90 days after the day on which...

These are clarifications in the text.

(Amendment agreed to on division)

(Clause 45 as amended agreed to on division)

(Clauses 46 to 48 inclusive agreed to on division)

(On clause 49)

The Chair: On clause 49 we have government amendment 64.8.

Mr. Richard Mosley: This merely clarifies that the definition of client includes both persons and entities.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 49 as amended agreed to)

(On clause 50)

The Chair: On clause 50 we have government amendment 64.9.

Mr. Richard Mosley: This clarifies that entities are required to establish record keeping and client identification requirements as well as persons.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 50 as amended agreed to on division)

(Clause 51 agreed to)

(On clause 52)

The Chair: On clause 52 we have Bloc amendment 34. Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: You'd have to write BQ-34.3 because this is the third BQ-34 amendment.

In the interest of time, if you'll allow me, as this amendment is of the same nature as many others that are to follow, I will say that I'm simply moving that everywhere the bill reads “reasonable grounds to suspect” we add a principle of law that we have in the Criminal Code, in other words “reasonable grounds to believe”. We have this amendment in BQ-34.3 and BQ-35 and there's something similar in BQ-36 because instead of “if an officer suspects” we're moving “if an officer believes”.

We're removing the principle of suspicion and replacing it by that of “reasonable grounds to believe”. As I was saying, we have that in BQ-36, BQ-37 and also BQ-38. In BQ-39, it's “unless the officer has reasonable grounds to believe”. In BQ-40, we're suggesting “is believed” rather than “is suspected”. In BQ-41, it's “reasonable grounds to believe” instead of “reasonable grounds to suspect”. In BQ-42, it's exactly the same thing and in BQ-43, rather than “suspect”, we're suggesting “reasonable grounds to believe”. In BQ-44 it's exactly the same change and also in BQ-45: instead of “suspect”, it's “believe would be relevant to investigating or”.

• 2445

For BQ-46, the same thing. It reads “has reasonable grounds to suspect” and we're suggesting “reasonable grounds to believe would be relevant to investigating”. Amendment BQ-47 is exactly the same. It's “reasonable grounds to believe” instead of ”reasonable grounds to suspect”.

Finally, the same goes for BQ-48. The bill reads: “has reasonable grounds to suspect”. In the amendment, we're suggesting “has reasonable grounds to believe that the information would be relevant to the investigation”.

All these amendments have the same objective, in other words inserting a legal notion that we know. It isn't because this is an exceptional piece of legislation that we want to change the rules to such an extent that even the police officers told us that they didn't know how they'd apply this new orientation of the Criminal Code in the field.

[English]

The Chair: I would like to reiterate. Monsieur Bellehumeur made reference to Bloc amendments 34.3, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, and 48. I know that Mr. Owen wants to speak to this. My thinking at this point would be that we would take the vote on amendment BQ-34.3, which is in clause 52, and then with the committee's permission I would apply that to all of the other places where those similar amendments occur.

Mr. Owen.

Mr. Stephen Owen: Mr. Chair, with respect to clause 52, the amendments that are suggested are amendments to a provision of Bill C-22, which Parliament has already passed, and the words “reasonable grounds to suspect” already exist in that legislation passed by Parliament.

The implication of this provision, this clause, is to add the underlined words “or a terrorist activity financing offence”. So the effect is to enlarge that section to apply to terrorist financing in addition to the money-laundering or proceeds of crime legislation previously dealt with. So we're not actually dealing with the phrase “reasonable grounds to suspect”; we're extending what is already passed by Parliament to cover terrorist financing offences as well.

The Chair: I'm going to go to the vote on BQ-34.3, an amendment to clause 52.

(Amendment negatived)

The Chair: Monsieur Bellehumeur, I take it from your enumerating all of those that you believe there is enough common argument in this that we would apply the vote on BQ-34.3 on clause 52 to the balance that you identify.

[Translation]

Mr. Michel Bellehumeur: No, but I was saying it was the same principle. If the committee votes against my amendment BQ-34.3, it should also vote on my other amendments. I want you to understand that the principle of BQ-34.3 is the same as is contained in the others. The term I wanted to change was the same one. It wasn't that it applied. Vote on that as a block of amendments if you will, but vote so that the record will show that you rejected those amendments, Mr. Chairman.

[English]

(Clause 52 agreed to)

The Chair: I go now to clause 53 and it's amendment G-64.10.

• 2450

Mr. Richard Mosley: Mr. Chair, this amends section 10 of the act that Mr. Owen has just referred to, an existing provision. And it would extend it to clarify that the good faith defence against criminal civil liability is available for persons and entities who provide voluntary information to the Financial Transactions and Reports Analysis Centre of Canada.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 53 as amended agreed to on division)

(Clause 54 agreed to on division)

(On clause 55)

The Chair: I'm going to put Mr. Bellehumeur's amendment BQ-35. As he explained, it is similar to that in the other.

(Amendment negatived—See Minutes of Proceedings)

(Clause 55 agreed to)

(On clause 56)

The Chair: We have amendment BQ-36.

(Amendment negatived—See Minutes of Proceedings)

The Chair: And we have amendment BQ-37.

(Amendment negatived—See Minutes of Proceedings)

(Clause 56 agreed to)

(On clause 57)

The Chair: We have amendment BQ-38.

(Amendment negatived—See Minutes of Proceedings)

(Clause 57 agreed to on division)

(On clause 58)

The Chair: We have amendment BQ-39.

(Amendment negatived—See Minutes of Proceedings)

(Clause 58 agreed to on division)

(On clause 59)

The Chair: We have amendment BQ-40.

(Amendment negatived—See Minutes of Proceedings)

(Clauses 59 to 63 inclusive agreed to on division)

(On clause 64)

The Chair: We have amendment BQ-41.

(Amendment negatived—See Minutes of Proceedings)

(Clauses 64 to 66 inclusive agreed to on division)

(On clause 67)

The Chair: We have government amendment G-64.11.

Mr. Richard Mosley: This is an amendment to delete the word

[Translation]

“d'activités”, in French,

[English]

at line 39 to clarify that the suspicion here is on money laundering, not on activities resulting in money laundering.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Then we have amendment BQ-43.

(Amendment negatived—See Minutes of Proceedings)

(Clause 67 as amended agreed to on division)

(On clause 68)

The Chair: We have Bloc amendment BQ-44.

(Amendment negatived—See Minutes of Proceedings)

The Chair: We have Bloc amendment BQ-45.

(Amendment negatived—See Minutes of Proceedings)

The Chair: We have Bloc amendment BQ-46.

(Amendment negatived—See Minutes of Proceedings)

The Chair: We have government amendment G-64.12.

Mr. Richard Mosley: It's to clarify that FINTRAC can share information with foreign agencies of a similar nature on request.

(Amendment agreed to on division) —See Minutes of Proceedings)

The Chair: On amendment G-64.13, this is in the same clause.

Mr. Richard Mosley: Technical to the French to conform more closely to the English.

The Chair: A technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We have two more Bloc amendments in clause 68. BQ-47.

(Amendment negatived—See Minutes of Proceedings)

The Chair: And Bloc amendment BQ-48.

• 2455

(Amendment negatived—See Minutes of Proceedings)

(Clause 68 as amended agreed to on division)

(Clauses 69 to 73 inclusive agreed to on division)

The Chair: Clause 74, government amendment 64.14.

Mr. Richard Mosley: This is to clarify that employees can rely on the defence that they have reported to their superior, with respect to FINTRAC reports, the existence of the property of terrorists.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 74 as amended agreed to on division)

(Clauses 75 to 86 inclusive agreed to on division)

(On clause 87—Prohibition certificate)

The Chair: On clause 87, we have a first amendment, G-1.9. It's been distributed.

Mr. Richard Mosley: Is this the amendment to clause 87, page 12?

The Chair: Yes.

Mr. Richard Mosley: This is consequential to the changes made to the certificate procedure I described earlier.

The Chair: One moment, please; I have to get clarification.

Mr. Richard Dupuis: There is some confusion. In the package you have 1.9. The second 1.9 is what was distributed, so we are going to call it 1.9.1.

• 2500

The Chair: Mr. Owen or Mr. Mosley will speak to this. Mr. Mosley.

Mr. Richard Mosley: I described the changes to the certificate procedure earlier, Mr. Chairman. This is a consequential amendment to the Access to Information Act, changes to section 69.1. It describes the effect of the issuance of a certificate under the Canada Evidence Act.

(Amendment agreed to on division—See Minutes of Proceedings)

The Chair: Our next amendment is PC/DR-17. This is still on clause 87. It is page 170 in the first package.

Mr. MacKay.

Mr. Peter MacKay: This amendment inserts the word “national” into the line “national defence or national security”.

The Chair: Mr. Mosley.

Mr. Richard Mosley: This was an amendment to a provision no longer in the bill as a result of an amendment already made.

The Chair: Mr. MacKay, will you withdraw then?

Mr. Peter MacKay: Yes.

The Chair: Also under clause 87, PC/DR-17.1.

Does the same thing apply here, Mr. Mosley?

Mr. Richard Mosley: I believe so, yes.

The Chair: Does the same thing apply, Mr. MacKay?

Mr. Peter MacKay: No. This particular amendment would delete the entire section 87, taking away the minister's ability to issue these certificates at all.

Let's have a recorded vote, just to satisfy Mr. Myers over there.

(Amendment negatived: nays 12; yeas 3—See Minutes of Proceedings)

The Chair: Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I'd like a clarification. Why is there an amendment to delete the clause? Why are we voting? I thought that kind of amendment wasn't in order.

[English]

The Chair: I'm advised that in fact the amendment was out of order, but because the request for the recorded vote came before I was advised of this, we did the recorded vote.

Mr. Blaikie.

Mr. Bill Blaikie: On the same point of order, Mr. Chairman, just for the record, we had also wanted to move a motion to delete this particular section having to do with the certificates, but we had been advised that such a motion was out of order, and all we could do in order was to vote against the particular section. So we'll do that now.

The Chair: You've lost me, Mr. Blaikie. I apologize.

Mr. Bill Blaikie: Well, what I'm saying is you haven't yet asked, “Shall clause 87 carry”? When you do—

The Chair: Oh, I see.

Mr. Bill Blaikie: —I'll be able to follow the procedural advice. In the meantime, Mr. MacKay, who didn't listen to what the clerk told him, moved the motion anyway.

• 2505

The Chair: I see. PC/DR-17.1 was defeated, in any case.

Mr. Bill Blaikie: It doesn't pay to take advice.

The Chair: Now I go to clause 87 as amended. Shall clause 87 carry as amended?

Mr. Bill Blaikie: I would like a recorded vote on that.

(Clause 87 as amended agreed to: yeas 12; nays 3)

(On clause 88)

The Chair: I go now to clause 88 and government amendment 64.15, a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 88 as amended agreed to on division)

The Chair: On clause 89, I will remind members that CA amendments 8 and 9 were withdrawn.

Shall clauses 89 through 92 carry?

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Unless I've misunderstood, the Alliance amendments were on clause 87 which was withdrawn. They asked for the vote on clause 88. I'm not sure, but I don't think clause 87 was agreed to.

[English]

The Chair: We have voted on clause 87. We have amended and voted on clause 88, and I have two amendments... Anyway, they have been withdrawn. I had them showing in clause 89.

[Translation]

Mr. Michel Bellehumeur: It's the amendments to clause 87 that were withdrawn. I have no amendments on clause 88.

[English]

The Chair: In any case, they're withdrawn, and I'm now going from clause 89 through clause 92.

Shall clauses 89 through 92 carry?

Some hon. members: On division.

(Clauses 89 to 92 inclusive agreed to on division)

(On clause 93)

The Chair: On clause 93, we have government amendment G-64.16.

Mr. Richard Mosley: It's correcting a typographical error.

(Amendment agreed to) —See Minutes of Proceedings)

(Clause 93 as amended agreed to on division)

(On clause 94)

The Chair: On clause 94 there is a government amendment, G-65.

Mr. Richard Mosley: It's a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Next is government amendment G-66.

Mr. Richard Mosley: It's a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 94 as amended agreed to)

(Clause 95 agreed to)

(On clause 96)

The Chair: On clause 96 I have a Bloc amendment, number BQ-49.

[Translation]

Mr. Michel Bellehumeur: It has to do with the Firearms Act. Subclause 97.(1) reads:

    97.(1) Subject to subsection (4), the Governor in Council may exempt any class of non-residents from the application of any provision of this Act or the regulations, or from the application of any sections 91—

Then there's a series of sections that follows.

• 2510

From the explanations provided by the department, I think this is supposed to be about the air marshals. So it should be indicated very clearly because non-residents would have more powers or more—

[English]

The Chair: I think people are looking for this. It's page 82 in the second package.

I'm sorry, Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: What I was saying had to do with the Firearms Act. As written, the text gives more rights to non- residents and allows broader application of the act in the case of non-residents for registering firearms and such. We asked the people from the department about this and they told us this had been done for the air marshals. If that is the case, why not indicate it clearly in amendment BQ-49, which states:

    Governor in Council may exempt any armed police officer whose presence on board an aircraft is required for the application of any

The rest of the paragraph doesn't change.

The Chair: Mr. Owen, followed by Mr. Paradis.

[English]

Mr. Stephen Owen: I'd like to ask Mr. Bartlett to provide some explanation.

Mr. William Bartlett: Monsieur Bellehumeur, this proposed section has a much broader purpose and effect. It would be used, for example, to deal with the situation of American police officers who transit Canadian territory to get from their home to their place of work, and often the only route between home and where they work is through Canadian territory. The same provision used in situations where that kind of transit occurs would be used in situations where groups of, say, foreign athletes were coming for special events and it was appropriate to provide an exemption because of the nature of a supervised event. So it has a much broader purpose than that concerning air marshals.

The air marshals issue is simply the particular connection with the terrorism purpose of this particular bill. It was the trigger for taking this provision, which is in Bill C-15, out of that bill and putting it in here, because it is also needed in order to deal with the situation of American air marshals coming into Canada.

[Translation]

The Chair: Mr. Paradis.

Mr. Denis Paradis: Mr. Chairman, that could also include the bodyguards of a foreign country president visiting here.

[English]

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: Is there any provision for a resident to be exempted under the regulations—under this sort of thing?

Mr. William Bartlett: There's an existing provision for exemption of employees of certain kinds of businesses.

Mr. Brian Fitzpatrick: Would there be nothing that would allow a resident Canadian employed as an air marshal—the sky marshal—to be armed?

Mr. William Bartlett: Resident Canadians employed as air marshals will be either peace officers or licensed individuals.

The Chair: I have two more names on the list. Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Just to go a little further, there is, then, a place where they are exempt. Is that correct?

Mr. William Bartlett: If they are peace officers, yes. They are exempt as public officers if they are peace officers.

Mr. Kevin Sorenson: Is there a big difference between a police officer and a peace officer?

Mr. William Bartlett: No, it means the same thing. Police officers are public officers under part III of the Criminal Code and are exempt by virtue of being police officers.

[Translation]

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: The first time we put the question to the department, they mentioned air marshals. Today, we're being told the story of an American police officer transiting through Canada to go back home. You'll have to give me names because your story seems complicated.

The other example you're giving us is that of athletes. I don't think they show up here with firearms.

As for bodyguards, when Bill Clinton came here a few years ago, Bill C-36 wasn't on the books and his bodyguards had firearms without any exemption provided by any legislation whatsoever.

• 2515

Today, in 2001, bodyguards of foreign heads of State are allowed to walk around armed in Canada. There are permissions and all that. My concern has to do with the fact that you're broadening this considerably for non-residents while we're being as stringent as possible for residents where firearms are concerned. There's a problem. There's something I don't understand in the implementation of all this and especially, in the first answer you gave us, you talked about air marshalls and today, you seem to want to broaden that even more. The whole thing doesn't make sense.

[English]

The Chair: Mr. Mosley.

Mr. Richard Mosley: I think I gave that explanation, and it was in an effort to explain why these provisions are in this bill. They are also in Bill C-15B and they were being advanced as part of the package of changes to the Firearms Act in that bill. The only reason they were duplicated in this bill was because of the absence of anything under our existing law that would allow us to cover the situation of foreign air marshals, for example, on any American flight flying into Canada.

As for American law enforcement agency officers, I would direct your attention to Point Roberts, Washington, which is actually an extension of the lower mainland of British Columbia but is American territory. Also, in southern Ontario there are places where to get from one part of the United States to another it is shorter to go through Canada.

The Chair: I would mention Campobello.

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I'll pass on my question.

The Chair: Mr. Paradis.

[Translation]

Mr. Denis Paradis: I'd just like to put the question, Mr. Chairman.

[English]

The Chair: Mr. Sorenson.

Mr. Kevin Sorenson: The only problem with that is that we haven't passed Bill C-15B yet. So now we're being kind of put into a position where our committee is going through Bill C-15B. It will probably pass—I imagine it will—but now we'll pass it because we've already done it in the anti-terrorist bill.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I didn't quite catch the answer to Mr. Paradis' question respecting foreign bodyguards under subsection 97(2) of the act, whether in fact by designation of the minister non-resident bodyguards can be exempted. Is that the correct interpretation?

Mr. William Bartlett: They could be exempted, but generally it's handled in quite a different fashion. Normally, bodyguards for foreign heads of state come in under the supervision of the RCMP and either are not allowed to be armed or if they are allowed to be armed are made special constables or something for the period they're here but under the supervision of the RCMP.

(Amendment negatived—See Minutes of Proceedings)

(Clauses 96 and 97 agreed to on division)

The Chair: We go now to clause 98 and government amendment number 67, which is page 178 of the first package.

Mr. Richard Mosley: This replaces some words in French with other words en français for clarity.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 98 as amended agreed to on division)

(Clauses 99 to 101 inclusive agreed to on division)

The Chair: I go now to clause 102. The first amendment under clause 102 is identified as Bloc amendment number 50. That is page 83 in the second package.

• 2520

[Translation]

Mr. Michel Bellehumeur: Amendment BQ-50 is everything that concerns the Communications Security Establishment. I won't read those four pages out for you. It makes all the provisions on interception of communications similar to what we now have in the Criminal Code. Once again, our concern is that they're turning an emergency act into legislation that will henceforth apply in Canada in all kinds of areas, one of them being the very important area of wiretapping.

Many witnesses who came before the committee and examined Bill C-36 and shared their comments on it with us told us they were very worried concerning the use that could be made of this whole chapter and the use the Communications Security Establishment could make of specific points concerning wiretapping.

So, to reassure people, we'd like to write into this legislation provisions and procedures that are known to the justice system, to the criminal system, in Canada and Quebec. These are simply amendments that put this legislation on the same footing as the Criminal Code.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Chair, the difficulty with applying the domestic law for authorization to these types of interceptive communications is first of all that Canadian courts do not have jurisdiction to provide authorization for interception outside of the country. The targets being outside of the country and non-Canadians, the provisions of the bill will not come into effect. You couldn't have prior authorization because in targeting foreign nationals outside of the country you don't know that there has been either a communication to or a communication from someone in Canada until that has actually happened. So to get prior authorization simply wouldn't be possible.

[Translation]

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: Once again, this is a way of getting around things. If I'm not mistaken, a non-resident speaking with a resident is covered by these provisions if they allow you to do indirectly what the Criminal Code does not allow you to do. The objective of these amendments is exactly to make those provisions comply with the provisions of the Criminal Code which apply in those cases.

[English]

Mr. Stephen Owen: The point of targeting, for intelligence purposes, foreign nationals outside of Canada is to provide international intelligence. The nature of terrorist activity and terrorist networks is so international, including activities inside Canada potentially by Canadians, that contact is foreseeably made with them or made by them to the international suspects who might be followed.

We would not have the information to apply for prior authorization because we wouldn't know whether the person was contacted by the targeted suspect or was contacted by them until it had actually happened. So the reasonable grounds to believe that would be put in an authorization request couldn't be sworn.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I go now to Mr. Blaikie and NDP amendment 12.

• 2525

Mr. Bill Blaikie: Mr. Chairman, I think our amendment is very much in the same spirit as I understood the Bloc amendment to be. It would amend Bill C-36 in clause 102 by adding, after line 26 on page 122, the following words—

The Chair: Mr. Blaikie, let me direct the committee to page 179 of the first package.

Thank you, Mr. Blaikie.

Mr. Bill Blaikie: Can I continue now?

The Chair: Yes.

Mr. Bill Blaikie: It would add the words:

    Despite the authorization given by the Minister under subsection (1), the Communications Security Establishment must obtain a warrant if the interception is directed at a Canadian citizen or permanent resident.

Mr. Chairman, this is very much along the same lines as was just argued by my colleague from the Bloc, and it does seem to us that some measure of judicial oversight or discretion is in order here, particularly where Canadian citizens are involved, if we are to act in accordance with what I think a lot of Canadians think their rights are with respect to when they get wiretapped.

The Chair: Mr. Owen.

Mr. Stephen Owen: Well, first of all, Mr. Chair, interception cannot be directed at a Canadian citizen. That's part of the restriction. It's directed at someone else. But if consequentially it's received or made to—

A voice: Directly directed.

Mr. Stephen Owen: Directly directed.

I think Mr. Piragoff may have an additional comment.

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: I think Mr. Owen made the point that proposed subsection 273.65(2) makes it very clear the minister may issue an authorization only if satisfied the interception will be directed at foreign entities located outside Canada. So there is no power in this draft to target a Canadian. As soon as the authorities discover they have a Canadian on the line and they want to target that person in the future, they would have to go to the CSIS Act. The RCMP would have to go to the Criminal Code.

The Chair: Mr. Bellehumeur, and then Mr. MacKay.

[Translation]

Mr. Michel Bellehumeur: What happens if the Communications Security Establishment listens to the conversation of a non- resident and discovers at some point that this non-resident is discussing things with a resident? Can the information obtained through that wiretap be used against the resident?

[English]

The Chair: Mr. Mosley.

Mr. Richard Mosley: I think Mr. Akman might be of assistance to us.

[Translation]

Mr. Michel Bellehumeur: I put that question to the Communications Security Establishment and I already know the answer.

[English]

The Chair: Could our witness introduce himself, please?

Mr. David Akman (Counsel, Communications Security Establishment, Department of National Defence): My name is David Akman. I'm counsel with the communications security establishment.

The only time any information that is incidentally intercepted could be passed on is found in proposed paragraph 273.65(2)(d), page 122. That's where the information will be used or attained only if it is essential to international affairs, defence, or security.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Just for complete clarification on this, are you saying that if, in the course of monitoring a foreign national who is a target, information came to the attention of those who were carrying out the wiretap of a domestic nature for an offence committed in Canada by a Canadian, that information would not be admissible in a court of law, and would not even be passed along to Canadian authorities—RCMP, municipal police?

• 2530

Mr. David Akman: Admissibility is not the issue. The issue is that it's a very high bar. It can be used only if it's essential to international affairs, defence, or security.

Mr. Peter MacKay: With the greatest respect, it is important to know whether that information that was achieved incidental to the wiretap... I accept that it was intended for a person outside of Canada and all of the proper authority was granted, but if in the course of carrying out that wiretap they were to receive information that pertained to a crime committed in Canada by a Canadian, are you saying that information wouldn't be passed on and wouldn't be used in a court of law?

Mr. David Akman: I wouldn't give you a categoric answer that it wouldn't. I would say it would have to meet this very rigid test.

Mr. Peter MacKay: It would have to be of an international—

Mr. David Akman: Essential.

Mr. Peter MacKay: Could you refer me to the section again?

Mr. David Akman: It's page 122, proposed paragraph 273.65(2)(d). This is because they have to have measures in place to protect the privacy of Canadians. Private communications will be used or retained only if they're essential to international affairs, defence, or security. That's the test. It's a very high bar.

Mr. Peter MacKay: Okay.

(Amendment negatived)

The Chair: I turn now to amendment PC/DR-18.

Mr. Peter MacKay: Thank you, Mr. Chair.

This is an amendment that I would suggest is extremely important in terms of injecting oversight into this section. It refers specifically to proposed section 273.63. Upon reading that section you'll see that the Governor in Council may appoint a supernumerary judge or retired judge of a superior court as commissioner of the communications security establishment.

This amendment would change “may” to “shall”. I ask Liberal members of the committee to refer to proposed subsection 273.65(8) at the bottom of page 123. It enumerates various activities that the commissioner of the Communications Security Establishment “shall” review, activities carried out under authorization. It sets out what this commissioner does.

Yet this section, if it uses the word “may”, is completely discretionary. So I would strongly urge members of the committee to support changing this word to “shall” so the new commissioner will in fact be in a position to carry out these specified activities.

The Chair: Mr. Owen.

Mr. Stephen Owen: I think we discussed this earlier today. Just to recall the information we were given, the difficulty with the amendment as proposed is that it would give direction to the Governor in Council through legislation, which, as I understood the explanation, is not possible.

Mr. Peter MacKay: Not possible?

The Chair: Mr. Mosley.

Mr. Richard Mosley: It's convention that a statutory provision that empowers the Governor in Council to do something is always framed in terms of “may”. It's discretionary; it respects the role of the crown. It's not impossible, but—if I may suggest—it's inappropriate to substitute “shall” for “may” in this context.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I think I've seen many times the wording, “the Governor in Council shall make regulations”. I'm sure I've seen this terminology before.

• 2535

I don't know what the big deal is over this thing. The Governor in Council, I presume, is the cabinet. It would hash this out. This requires it to go ahead and appoint this person. The problem I have is that if this is “may”, the person may not be appointed. Then we have another section where this invisible person “shall” do something. It doesn't make any sense. It's not logical or rational.

Mr. Richard Mosley: There's every intention to maintain the person in this office. For that reason, all of the functions of the office will be performed by the commissioner. This is a nicety in drafting terms, rather than imposing a mandatory requirement on the Governor in Council, on the crown, essentially.

The Chair: John McKay.

Mr. John McKay: This is a nicety rather than an obligation. If this committee chose to, it could choose the word “shall” as opposed to “may”. There's no legal impediment as to why “shall” could not be chosen in place of “may”. Am I understanding that correctly?

Mr. Richard Mosley: Is there a legal impediment? I must confess that not having heard of the issue until earlier today, we haven't researched it as to whether there is any issue about binding the crown to make the executive do something. I can tell you that wherever you see a reference to the Governor in Council making regulations, for example, it's always “may” make regulations.

The object of putting these provisions in this bill at this time was clearly to establish this office. At present, the office does not exist other than under the Inquiries Act. This creates the office and puts it in legislation for the first time. It's inconceivable that the government would do that with the intention of not appointing somebody to the office.

The Chair: Mr. McKay, a supplementary.

Mr. John McKay: Our researcher has graciously given me a copy of the Canadian Security Intelligence Service Act. With respect to the inspector general, subsection 30(1) states:

    The Governor in Council shall appoint an officer to be known as the Inspector General,

So clearly there appears to be precedent for this. If there's precedent, and this is a nicety, and if this appears to be a pretty significant issue, then I fail to understand your resistance on the point of “may” versus “shall”.

Mr. Richard Mosley: I suspect that amendment was probably made in similar circumstances, Mr. McKay, late at night in a committee that...

The Chair: Mr. DeVillers.

Mr. Paul DeVillers: I will make a wild guess here, but I'm assuming the convention is there because the Governor in Council is the government, which retains the power to change it from a “shall” to a “may” in any event. How far can it go in binding itself? It's that sort of thing. I think that's likely why the convention is the way it is.

• 2540

(Amendment negatived: nays 8; yeas 7—See Minutes of Proceedings)

The Chair: I will now turn to government amendment number 68 on page 181 of the first book.

Mr. Richard Mosley: This would substitute for what is currently in proposed subsection 273.63(6) to make it clear that:

    The Commissioner shall carry out such duties and functions as are assigned to the Commissioner by this Part or any other Act of Parliament, and may carry out or engage in such other related assignments or activities as may be authorized by the Governor in Council.

It is more fulsome than what is currently in the bill with respect to providing instructions to the commissioner. The current wording in the bill appears to fetter the discretion of the commissioner by giving direction as to how the commissioner would carry out his or her duties. The amendment would make it clear that the commissioner derives authority under this act and clarifies that any additional responsibilities would have to be authorized by the Governor in Council.

The Chair: Peter MacKay.

Mr. Peter MacKay: So it was a fairly large omission on the part of the drafters that this was missing, and in fact it further clarifies the role of the commissioner, if the commissioner exists. Is that correct?

Mr. Richard Mosley: The commissioner exists and is continued by this legislation. It does clarify the assignment of responsibilities to the commissioner.

Mr. Peter MacKay: If he's appointed, this would kick in?

Mr. Richard Mosley: Do I need to answer that, Mr. Chairman?

Mr. Peter MacKay: It's a direct question to you, sir. If he's appointed, then this section would kick in, correct?

Mr. Richard Mosley: There is a commissioner. The commissioner is continued under this section. This applies to that commissioner carrying out his responsibilities under this bill.

Mr. Peter MacKay: Right, under the conditional section that says he “may” be appointed, correct?

Mr. Stephen Owen: He has been appointed. He's continued under this bill.

Mr. Peter MacKay: Right.

(Amendment agreed to)

The Chair: Now I'll go to government amendment number 69, on page 183.

Mr. Richard Mosley: This clarifies the meaning of “Government of Canada”—that is, that it is a federal institution as defined in the Official Languages Act.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 102 as amended agreed to on division)

(On clause 103)

The Chair: We'll go to clause 103 and the first amendment. There's a new government amendment. It has been distributed and it's government amendment number 1.9.1. It is on clause 103 at page 125 of the bill.

Mr. Owen.

Mr. Stephen Owen: These are the provisions respecting the Privacy Act, which have already been passed—

A voice: Actually, it's the Personal Information Protection and Electronic Documents Act.

Mr. Stephen Owen: Right. I'm sorry. We're on clause 103 and it is the Personal Information Protection and Electronic Documents Act.

Mr. Peter MacKay: What page are we on?

Mr. Stephen Owen: Page 125.

The Chair: I think he's asking about this page.

It was distributed afterward, Peter. It was an additional amendment to clause 103 at page 125.

• 2545

Mr. Stephen Owen: Mr. Chair, it has the same effect as was applied to clause 87, the Access to Information Act. This now applies in the same way to the Personal Information Protection and Electronic Documents Act, and we can anticipate it will apply as well to the Privacy Act in the next clause.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I go now to amendment PC/DR-19. Mr. MacKay.

Mr. Peter MacKay: This is another one of my amendments dealing with national defence. It's a crumb I've been thrown, if it were to be passed.

The Chair: Mr. Mosley.

Mr. Richard Mosley: As a consequence of the preceding amendment, there is no longer a reference to that term in the bill.

Mr. Peter MacKay: The crumb is withdrawn.

(Clause 103 as amended agreed to on division)

(On clause 104)

The Chair: The first amendment on clause 104 is PC/DR-19.1.

Mr. Peter MacKay: Same crumb.

The Chair: Mr. Mosley.

Mr. Richard Mosley: Same point.

The Chair: Oh, it's gone.

I hesitate to ask, but the next is PC/DR-20.

Mr. Peter MacKay: Same one.

The Chair: Mr. Mosley.

Mr. Richard Mosley. Same effect.

The Chair: Withdrawn, Mr. MacKay? Okay.

We have a government amendment, which has been distributed, to clause 104, and it is G-1.11. It was in the package that was distributed just this evening.

Mr. Owen.

Mr. Stephen Owen: Mr. Chair, this is the consequential amendment to the Privacy Act, following what was applied to clauses 103 and 87.

(Amendment agreed to—See Minutes of Proceedings)

• 2550

(Clause 104 as amended agreed to on division)

(On clause 105)

The Chair: We have government amendment G-70 on page 194.

Mr. Richard Mosley: It's a technical matter again, a correction in the French.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 105 as amended agreed to on division)

(On clause 106)

The Chair: I go now to government amendment 71.

[Translation]

Mr. Richard Mosley: It's the same thing: a change in French.

[English]

(Amendment agreed to—See Minutes of Proceedings)

(Clause 106 as amended agreed to)

(On clause 107)

The Chair: Government amendment 72.

Mr. Richard Mosley: A grammatical error.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 107 as amended agreed to on division)

(Clause 108 agreed to on division)

(On clause 109)

The Chair: Government amendment 73.

Mr. Richard Mosley: A technical change.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 109 as amended agreed to on division)

(Clauses 110 to 112 inclusive agreed to on division)

(On clause 113)

The Chair: Government amendment 74.

Mr. Richard Mosley: A technical wording change.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Now we have Bloc amendment 51. Bloc amendment 51 is page 95, second package.

[Translation]

Mr. Michel Bellehumeur: The Bloc Québécois has several amendments to part 6, on the registration of charities, to give it more transparency and to limit somewhat the power that the government wants to have concerning this category of organizations.

BQ-51, that you have before you, will delete the restriction set out in subclause 5(2). We find the federal government already has a lot of powers and that it doesn't need this subclause on the restriction of the certificate on top of all the others.

[English]

The Chair: Mr. Kennedy.

Mr. Paul Kennedy: The whole purpose of part 6 is to put a regime in place to deal with the evidence. Currently, there are provisions under the Income Tax Act that deal with deregistration of charities. The challenge we've had is that we can't use national security information, because the current procedures require it to be disclosed. So part 6 is created to provide a specific regime to allow us to use that information. There's a whole set of rules put in place to deal with it. So what is identified here under proposed subsection 5(2)2 is a request to delete the very mechanism that is the raison d'être for part 6.

The Chair: I guess that's clear. Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I have a point for clarification. It might not be for this actual section, but I would like an answer to the question. If you have a listed entity, would the Minister of National Revenue, if that person's name is in his files, have to disclose that information to the commissioner of the RCMP or the commissioner of CSIS? It looks to me as if it's a criminal offence not to do that.

• 2555

If a listed entity shows up with Revenue Canada, or whatever it's called today, would the Minister of National Revenue have to report that information to the RCMP and CSIS?

Mr. Richard Mosley: Obviously, that question has nothing to do with part 6.

Mr. Brian Fitzpatrick: No, but it just popped up. I'm just curious about it. Everybody else has to report. I'm just wondering about that one.

Mr. Richard Mosley: The bill does not bind the crown with regard to those requirements. Are you asking if there is money in the possession of the revenue department?

Mr. Brian Fitzpatrick: They have a tax return with a refund or something for one of these outfits.

Mr. Richard Mosley: No, they're not bound by these provisions.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Next is amendment BQ-52, which is on page 96 in the second package. Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Our objective is always to add more transparency. The minister's bill states:

    (4) An order on an application referred to in subsection 3 is not subject to appeal or review—

That looks like dictatorship. This provision as amended by our amendment would read:

    (4) An order on an application referred to in subsection (3) is subject to appeal or review—

[English]

The Chair: Mr. Kennedy.

Mr. Paul Kennedy: We have put in a procedure that automatically refers the decision of the Minister of National Revenue and the Solicitor General to the Federal Court. The Federal Court judge in fact reviews the decision, the certificate, and the evidence. It's a system that parallels the procedures we have under section 40.1 of the Immigration Act. Rather than cause someone else to start the appeal, we put a procedure in so that it goes automatically to the judge. So a judge is looking at it and reviewing the minister's decision.

(Amendment negatived)

The Chair: I now turn to BQ-53, which is on page 97 of the second package.

[Translation]

Mr. Michel Bellehumeur: That's on page 132. Once again, transparency is our objective. Quite frankly, this is not a Bloc Québécois invention. This is what was said to us by the groups we heard on the old Bill C-16 and on Bill C-36. It's to obtain this transparency we're looking for, for the parties to be informed of the circumstances leading to the issuing of certificates so that they can have adequate information to properly defend their organization.

[English]

The Chair: I'm going to call the question on BQ-53.

Mr. Paul Kennedy: Mr. Chair, this provision mimics the provisions you've seen earlier in part 1. It's identical to section 40.1 of the Immigration Act. The suggestion here is that confidential information that otherwise goes to a judge be turned over in its entirety to the individual or organization in question. Again, you defeat the whole purpose of the legislation.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I now turn to BQ-54, which is on page 98 in the second package.

• 2600

[Translation]

Mr. Michel Bellehumeur: In my case, it's the same explanation. The objective is to allow for an appeal and a review. I already know what the government's comment is going to be.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: I now turn to government amendment 74.1, which is on page 200 of the first package.

Mr. Richard Mosley: We're inserting the word “reliable”. Again, it's an evidentiary provision such as has already been approved by the committee.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Still on clause 113, I now turn to Bloc amendment 55 on page 99.

[Translation]

Mr. Michel Bellehumeur: It's just like the rest of it. We can see where the government is going on this one. In proposed clause 7, on evidence, it states:

    7. For the purposes of subsection 6(1), the judge may, subject to section 8, admit any relevant information, whether or not the information is or would be admissible in a court of law—

I think that's very dangerous. Once again, it constitutes a precedent. They're trying to turn these rules into something normal for our society. I find that unacceptable. With the proposed amendment, the provision would read:

    [...] admit any relevant information, if the information is or would be admissible in a court of law—

[English]

The Chair: Mr. Kennedy.

Mr. Paul Kennedy: This body already looked at similar wording earlier in the evening in terms of dealing with if it would not otherwise be admissible under Canadian law. I think Mr. Mosley explained that this provides flexibility and allows both sides to put in information. You've already approved it in another context. It's the same kind of concept.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Next is Bloc amendment 56, which is on pages 100 and 101 of the new package.

[Translation]

Mr. Michel Bellehumeur: We're still pursuing the objective of transparency. It means proceeding in presence of the applicants and giving them the possibility to have the documents with them. It's the whole matter of evidence. It's in the same vein as the other amendments. I don't have much more in the way of explanations to give to you. I think you know my views on this part 6. It's nothing new on our part or on the part of the people who testified because these are comments that we either made or heard in the context of Bill C-16.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: Next is Bloc amendment 57 on page 102.

[Translation]

Mr. Michel Bellehumeur: It's Ms. Venne's amendment. It sets out the framework concerning the certificates. We're more specific than what's set out in subclause 11(3).

• 2605

[English]

The Chair: Does anybody have an answer?

Ms. Caroline Fobes (Legal Counsel, Department of the Solicitor General): I'm Caroline Fobes, Department of Justice counsel to the Department of the Solicitor General.

I'd just like to reiterate what Paul Kennedy has said. The raison d'être for part 6 is to protect sensitive information in order that it may be used in determining whether a charity should be revoked as a charity, or whether an organization should be granted charitable status. The amendment you are suggesting this evening would actually undermine that whole objective. We need to be able to provide summaries to the applicants so that sensitive information is not disclosed, and it must be done in the absence... The amendment you are suggesting is based on summaries not being provided, so it really undermines the whole objective of part 6.

The Chair: Thank you very much. That's amendment BQ-57.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: I understand that all the amendments I've moved are in opposition to the government's view, but perhaps they're more in line with my view and that of the people we had as witnesses.

The lady has just said that this goes against the view of her department. As we began our work this evening, I could see that this ran counter to the government's vision.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: The next amendment is BQ-58, on page 103 of the second package.

[Translation]

Mr. Michel Bellehumeur: Amendment BQ-58 would allow the court's decision to be "subject to appeal or judicial review" as is normally done contrary to what is indicated in clause 11(5) as set out by the government in this part of Bill C-36.

[English]

(Amendment negatived—See Minutes of Proceedings)

(Clause 113 as amended agreed to)

(Clauses 114 to 121 inclusive agreed to on division)

(On clause 122)

The Chair: I go now to clause 122 and government amendment G-75, which is on page 202 of the first package.

Mr. Richard Mosley: It's a technical amendment, Mr. Chair.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 122 as amended agreed to)

(Clause 123 agreed to on division)

(On clause 124)

The Chair: I go now to clause 124 and government amendment G-76.

Mr. Richard Mosley: It's another technical clarification.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 124 agreed to on division)

(On clause 125)

The Chair: I go now to clause 125 and the Bloc amendment numbered BQ-59. That is on page 104 of the second package.

[Translation]

Mr. Michel Bellehumeur: As for amendment BQ-59, the government bill reads:

      (e) on each request of the Minister or the Minister of National Revenue, the judge shall hear all or part of the information or evidence in the absence of the applicant—

You do understand that this goes against a common rule, that of audi alteram partem, something any good novice lawyer in first year of law school actually knows. So I'll simply suggest that the words "in the absence of" be replaced by the words "in the presence of". That is the intent of amendment BQ-59.

[English]

The Chair: Mr. Kennedy.

Mr. Paul Kennedy: You will find that the next series of amendments are all coordinating amendments. I believe they are on pages 104 through 107. Because they're coordinating amendments, they're just going to be repeating the same objections on which you just ruled. I just point that out to you.

• 2610

In this particular case, this is again a request that the confidential national security evidence be led in the presence of the individual.

The Chair: I think we've had this debate.

(Amendment negatived—See Minutes of Proceedings)

The Chair: The next Bloc amendment, BQ-60, is on page 105.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Amendment BQ-60 goes to the quality of evidence:

    (h) the judge shall provide the applicant or registered charity with all the information or evidence, so as to enable it to be reasonably informed of the circumstances giving rise to the certificate;

Finally, this is so the applicant may have the information or evidence necessary to prepare its defence and make the proper representations.

The Chair: It's the same thing?

[English]

Mr. Paul Kennedy: Yes, I've indicated that all of these are just consequential, and they repeat themselves because of other changes.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I go now to government amendment G-76.1, which is on page 206 of the first package.

Mr. Richard Mosley: The substance of it was already dealt with previously. This is again a coordinating amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I now go to Bloc amendment BQ-61, which proposes to amend clause 125. There are two amendments, BQ-61 and BQ-61.1. The first one applies to line 22 on page 144, and it's identified as page 106.

[Translation]

Mr. Michel Bellehumeur: Page 106.

The Chair: Yes.

Mr. Michel Bellehumeur: This is simply to delete from the minister's bill the words "even if it is inadmissible in a court of law".

I think it is inadmissible to have something like that written into a bill. According to our witnesses, for this to be proper, it should read:

    (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate and admissible in a court of law, and may base the decision on that evidence.

The Chair: Mr. Kennedy, the same thing?

[English]

Mr. Paul Kennedy: As I've indicated, this is the same issue.

(Amendment negatived—See Minutes of Proceedings)

The Chair: I turn now to Bloc amendment BQ-61.1, on page 107.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: This goes to the whole matter of the decision that is not subject to appeal or judicial review. With the amendment we're moving, the determination is subject to appeal or judicial review.

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: I turn to government amendment G-77.

Mr. Richard Mosley: This is a technical amendment.

(Amendment agreed to on division—See Minutes of Proceedings)

(Clause 125 as amended agreed to on division)

(Clauses 126 to 129 inclusive agreed to on division)

(On clause 130)

The Chair: I turn now to clause 130 and government amendment G-78.

Mr. Richard Mosley: This is a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I turn now to government amendment G-79.

Mr. Richard Mosley: Again, this is a technical, coordinating amendment.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 130 as amended agreed to on division)

(Clauses 131 and 132 agreed to on division)

• 2615

(On clause 133)

The Chair: G-80, Mr. Mosley.

Mr. Richard Mosley: It's a technical coordinating amendment.

The Chair: Is it the same for G-81, G-82, and G-83?

Mr. Richard Mosley: Yes.

The Chair: But we have to do them one at a time.

On G-80.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-80.1 is being distributed.

Mr. Richard Mosley: G-80.1 corrects a section number.

The Chair: So G-80.1 is a technical amendment.

Mr. MacKay.

Mr. Peter MacKay: Are we not on G-81?

The Chair: No, we're on technical amendment G-80.1.

Mr. Peter MacKay: I thought Mr. Mosley just spoke to that one.

The Chair: No, he spoke to G-80, and G-80.1 is a technical amendment.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-81 is on page 215 of the first package.

Mr. Richard Mosley: This is to coordinate the provisions of this bill with Bill C-24. It has no substantive effect.

The Chair: Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, there are two pages. At least give us enough time to see what's in them.

[English]

Mr. Richard Mosley: The committee dealt with the substance of the amendment to section 186.1 in the act earlier in the evening.

The Chair: I'm calling G-81 again.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-82, Mr. Mosley.

Mr. Richard Mosley: Typographical error.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-83.

Mr. Richard Mosley: The substantive change was made earlier in the evening. This coordinates a linguistic issue.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 133 as amended agreed to on division)

(On clause 134)

The Chair: BQ-62, Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Amendment BQ-62 is in the same style as other amendments that I have moved during the evening. It would replace the words "reasonable grounds to suspect" by "reasonable grounds to believe". So we're suggesting that the verb "to suspect" be replaced by the verb "to believe".

[English]

(Amendment negatived—See Minutes of Proceedings)

• 2620

(Clause 134 agreed to on division)

(Clauses 135 to 140 inclusive agreed to on division)

(On clause 141)

The Chair: On G-84, Mr. Mosley.

Mr. Richard Mosley: Again, it's technical, with changes in the French language.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: On G-85.

[Translation]

Mr. Richard Mosley: It's the same thing.

[English]

(Amendment agreed to—See Minutes of Proceedings)

(Clause 141 as amended agreed to)

(Clauses 142 and 143 agreed to)

(Clause 144 agreed to on division)

The Chair: I now refer you to BQ-64, which would insert a new clause, which we'll call clause 144.1, between clauses 144 and 145. It is contained on page 110 of the second package.

Mr. Lynn Myers: Mr. Chairman, are you sure it's not BQ-64 and BQ-65?

The Chair: No. BQ-64 would insert a new clause between clauses 144 and 145 in the bill. BQ-65 is actually an amendment to clause 145.

Monsieur Bellehumeur, BQ-64.

[Translation]

Mr. Michel Bellehumeur: I have a question for you, Mr. Chairman. I think this amendment should be included in the bill, but as the attorneys general of the provinces and Canada already have an obligation to report on some elements, I could introduce my amendment BQ-64 but we should also read BQ-65, which happens to give investigative powers to the commissioner, whose appointment I'm suggesting, to oversee the Anti-terrorism Act.

If my amendment, BQ-64, is adopted, what powers would he have, since we have already voted on amendment BQ-65 relating to the provincial attorneys general and to the Attorney General of Canada? It's a procedural question. Is there any use in my introducing this amendment or is it still possible to confer this powers if we pass BQ-65?

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Chair, the significant amendments put forward by the government, and already accepted, established the three principles of ministerial responsibility, judicial oversight, and public accountability. The public accountability comes through the annual reports, the three-year parliamentary review, and the sunset clauses. In that situation, and in addition to the continuing powers and obligations of the commissioners of privacy and information, the government feels this additional office is not required.

The Chair: Before I put the question, I would like to make the point, for the record, that in fact the recommendation does infringe on the royal recommendation. The establishment of this entity would in fact cause the spending of funds and therefore is in violation of the royal recommendation principle. I'm going to put the vote, but I didn't want to do it without making that note.

• 2625

Mr. Bellehumeur, do you understand my point?

[Translation]

Mr. Michel Bellehumeur: Usually, when the amendment is out of order, we're told when it is drafted. It isn't only our clerk, but also—

[English]

The Chair: It only has to do—Mr. Bellehumeur, it's an innocent mistake—with how quickly these were received. It has just become apparent now that this was the case.

[Translation]

Mr. Michel Bellehumeur: Simply—

[English]

The Chair: I just wanted to make the point for everybody.

[Translation]

Mr. Michel Bellehumeur: In any case, Mr. Chairman, this is my final argument. I don't believe this recommendation comes only from the Bloc Québécois. One of the bodies that you are quite familiar with, that is, the Senate, had recommended something similar in the report that the minister had said she wanted to follow up on, because she was very attentive and she wanted legislation that would please everyone.

Therefore, this is what is involved: a commissioner for the review of the Anti-terrorism Act, who would, of course, be given the powers arising out of amendment BQ-65.

[English]

The Chair: The point is made, and the amendment is out of order.

(Clause 144 agreed to on division)

The Chair: I go now to clause 145 and amendment G-86.

Mr. Stephen Owen: Mr. Chair, this amendment reflects the recommendation of the Senate committee and clarifies the intent of the clause, namely that both houses of Parliament may conduct a review of the bill. The Senate had expressed some concern that the original wording might leave them out of a potential review against their will.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I now turn to BQ-65, and that is pages 112 and 113 of the second package.

[Translation]

Mr. Michel Bellehumeur: Earlier, we saw something similar for a specific part of the bill. What I am requesting through this amendment involves the commissioner for the review of the act, and you have just voted against creating such a position. Therefore, there is no need to introduce amendment BQ-65.

[English]

The Chair: Are you withdrawing this, Mr. Bellehumeur. Is that what I understood?

[Translation]

Mr. Michel Bellehumeur: If we want to be logical, then the committee should say that it has already been defeated because it deals with powers to be given to a commissioner for the review of the Anti-terrorism Act, when we have not agreed to have a commissioner.

[English]

The Chair: It's withdrawn.

I turn now to Mr. MacKay and PC/DR-22.

Mr. Peter MacKay: I think, Mr. Chair, you'll find that this was already defeated under the sunset clauses when we dealt with them at one time.

(Clause 145 as amended agreed to)

The Chair: Just one moment please.

• 2630

Peter, I'm advised that proposed amendments PC/DR-21, 22, and 23 are all referenced to the sunset clause.

Mr. Peter MacKay: No.

The Chair: Okay. So PC/DR-22 is page 228 in the first package.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

This amendment would in effect create an oversight committee that would be comprised of persons, as set out in this amendment, who are essentially independent citizens, former judges, and former members of CSIS appointed by Parliament to monitor the effects of the act and issue annual reports to Parliament.

The Chair: Is there any response? Mr. Owen?

Mr. Stephen Owen: It's the same response as the one to the previous amendment to appoint an independent commissioner.

Mr. Peter MacKay: I'd like a recorded vote on this.

(Amendment negatived: nays 9; yeas 6—See Minutes of Proceedings)

[Translation]

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: I let you vote even though I don't understand why you would decide to vote on that amendment. I believe that there are costs related to the amendment, unless it is a volunteer position and it is drafted on recycled paper that is free of charge.

[English]

The Chair: No. In fact, that's the possibility that allows it. It could be that case.

A voice: It's a follow-through?

The Chair: It could be. There's no obvious cost.

Next is PC/DR-23. Mr. MacKay.

Mr. Peter MacKay: The amendment would in effect create on the day the act receives royal assent a parliamentary oversight committee—Heaven forbid—consisting of members of Parliament of all recognized parties—and coalitions, I might add—in the House appointed by resolution of Parliament to monitor the effects of the act and to issue an annual report to Parliament. So it's to actually put into the hands of parliamentarians the ability to monitor this particular act and its effects and report back to Parliament, thus providing a great deal of accountability.

The Chair: Mr. Owen.

• 2635

Mr. Stephen Owen: I would simply add to my previous comments about the set of accountability mechanisms built into the act and added to by the government tonight. In particular, I would like to reference the annual reports—amendments to the amendments—between the Attorney General of Canada and the Solicitor General of Canada, which shall be prepared and laid before Parliament, which of course would then be subject to this committee's oversight and review in questioning those ministers.

(Amendment negatived—See Minutes of Proceedings)

(Clause 145 as amended agreed to on division)

The Chair: I turn now to clause 146 and Bloc amendment number 66, which is page 115 of the second package.

[Translation]

Mr. Michel Bellehumeur: Quite simply, we're putting forward this amendment after having heard numerous answers from those who will have to enforce the act who told us that they have neither the training nor the knowledge necessary to implement the new rules. Police officers even told us that they didn't know how to interpret the provisions relating to suspicion. Therefore, this amendment was intended to give security to police officers as well as to those who will be subject to the application of this act. This is how it reads:

    (3) The Governor in Council can give effect to subsections (1) and (2) only if those responsible for implementing the intended provisions have received the necessary training for such implementation.

[English]

(Amendment negatived)

(Clause 146 agreed to on division)

The Chair: I turn now to schedule 1, which is page 232, and government amendment number 87.

Mr. Richard Mosley: It's technical, to add certain RCMP programs to the schedule.

(Amendment agreed to—See Minutes of Proceedings)

(Schedule 1 as amended agreed to)

The Chair: I turn to schedule 2 and government amendment 88.

Mr. Richard Mosley: Same thing.

(Amendment agreed to—See Minutes of Proceedings)

(Schedule 2 as amended agreed to on division)

The Chair: I go now to the preamble and government amendment number 89. That's page 240.

Mr. Stephen Owen: This changes the term “country” to “nation”. The French already says “nation.”

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-90, which is page 241.

Mr. Richard Mosley: Clarifying language.

Mr. Stephen Owen: Clarifying language, Mr. Chair.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: G-91. Technical also?

Mr. Lynn Myers: Yes.

Mr. Peter MacKay: I would like to hear from the witnesses whether it's actually a technical amendment, not from Mr. Myers.

The Chair: I have reminded Mr. Myers repeatedly that in fact the witnesses will make that determination.

Mr. Mosley.

A voice: That's verbal diarrhoea over there.

• 2640

Mr. Richard Mosley: It's another technical amendment to clarify the intent of the preamble.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: I turn now to Bloc amendment 67.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: I will withdraw it.

[English]

(Preamble as amended agreed to)

The Chair: I would like to seek unanimous consent to reopen clause 29, government amendment G-53. It's page 114 in the first package, and there is a reference under paragraph (b). We passed government amendment 53 to clause 29, on page 114—if everyone has it. Under (b) it says “for a member of the Canadian Forces, the Chief of the Defence Staff”. We've been asked, with unanimous consent, to change that to:

    (b) for an officer or a non-commissioned member of the Canadian Forces, the Chief of the Defence Staff;

Mr. Peter MacKay: What is the implication of that? What is the necessity of making that amendment?

The Chair: Mr. Mosley.

Mr. Richard Mosley: This more accurately describes the two classes of persons in the Canadian Forces.

(Amendment agreed to)

The Chair: Thank you very much.

Now I move to the title. Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry as amended?

[Translation]

Mr. Michel Bellehumeur: We are requesting a recorded vote in order to adopt the bill in its entirety.

[English]

(Bill C-36 as amended agreed to: yeas 12; nays 2)

The Chair: Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

The Chair: Shall the committee order a reprint for use at report stage?

Some hon. members: Agreed.

The Chair: Thank you.

• 2645

Before we find our way to other places, may I once again pay tribute to all of the officials who have stayed to this late hour. I want to particularly pay tribute to the staff. I've watched it very closely, and this has not been easy. They've done an extremely good job. We've made some technical mistakes in terms of moving this forward, but that's not their fault. I think they deserve a round of applause.

Voices: Hear, hear!

The Chair: And the 50th meeting of the committee is adjourned.

Top of document