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Standing Committee on Public Safety and National Security



Tuesday, March 1, 2011

[Recorded by Electronic Apparatus]



    Good morning, everyone. This is meeting number 57 of the Standing Committee on Public Safety and National Security. It is Tuesday, March 1, 2011. Today we are going to the clause-by-clause stage in our consideration of Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).
    We have with us, to assist us if need be, from the Department of Justice, Douglas Breithaupt, director and general counsel, and Glenn Gilmour, counsel, the criminal law policy section.
    We have five amendments that were given to the chair this morning, and all five deal with clause 4, if I'm not mistaken, so we'll move right into it.
    I should also remind the committee that we are prepared to finish this today. We have reserved this room until 2 o'clock, but that doesn't mean we have to stretch it out that long.
    An hon. member: [Inaudible—Editor]
    The Chair: We do have the room until 2 o'clock. That doesn't necessarily mean we should feel like we have to keep it until 2 o'clock, but we do want to try to complete this.
    We have our clauses. Pursuant to Standing Order 75(1), consideration of clause 1 will be postponed.
    (Clause 1 allowed to stand)
    (On clause 2)
    The Chair: We will call clause 2.
    Mr. MacKenzie.
    Before you start, did you say we have five amendments?
    That's correct.
    I think I have only two.
    Yes. We have the two from the New Democrats.
     Can we circulate the Liberal...?
    All right, so until we get the go-ahead....
     All right? They're all on clause 4.
    Shall clause 2 carry?
    We have one more on the way.
    One more? Okay.
    Shall clause 2 carry? All in favour? Opposed?
    It's carried.
    An hon. member: On division.
    The Chair: Okay. It's on division.
    (Clause 2 agreed to on division)
    Actually, Mr. Chairman, on a point of order, I don't think that was on division. I don't know exactly what you mean by on division.
    Well, it wasn't unanimous. There were two opposed.
    Right. But when you say on division, maybe I could use some clarification. What exactly do you mean by on division?
    It was not unanimous. There were votes on both sides.
    I see. As opposed to a recorded vote.
    Yes: on division.
    Thank you.
    (On clause 3)
    Shall clause 3 carry?
    I'd like a recorded vote, please.
    We have a request for a recorded vote. That's a non-debatable motion.
    (Clause 3 agreed to [See Minutes of Proceedings])
    (On clause 4)
    I guess we take these in the order they came in. This motion is in order. It is tagged on your pages as amendment NDP-1.
     Mr. Davies, we see it here: that Bill C-17, in Clause 4, be amended by replacing line 39 on page 8 with the following:
“day of Parliament after the second anniversary of”
    That is to change the sunset clause to two years from...I think in the bill it's five years.
    Mr. Davies, did you want to speak to that?
    Yes, briefly, Mr. Chairman. Thank you.
    As you know, the New Democrats are wholly opposed to Bill C-17 for all the reasons we spoke about when we were studying this bill and hearing from the witnesses. The New Democrats believe that no foundation has been laid by the government for this bill.
     There are some serious concerns about the civil liberties impact that this bill would have, including giving police powers to arrest on a mere suspicion and the power to compel evidence and force witnesses to testify, and indeed, allowing courts to lock people up for up to a year without charge. We find this bill is a serious incursion against Canadian civil liberties, so we're wholly opposed to this bill, and we'll vote against it.
     But we did hear from some witnesses, Mr. Chairman, about the sunset clause, which is currently set at five years in this bill. If this ill-advised bill were to pass, in the witnesses' views they wanted a very short sunset clause of two years so that Parliament could keep a very tight leash on, have a very close look at, and a very tight rein on what we all realize are serious derogations of Canadian civil liberties, justified in the name of fighting terror.
    I think it behooves all of us as parliamentarians to protect Canadian civil liberties. We can do that by making sure that this bill, if it passes, which I hope it doesn't...but if it does, we can look at the impact of this bill in two years' time instead of five years' time.
    Thank you, Mr. Chairman.
    All right.
    I will point out two things. Amendment NDP-2 will only apply if this one carries, right? So if you take a look in your bill, at section.... It's all part of the same clause. Section 83.32 is the sunset provision, but the reference to “the fifth anniversary of the coming into force of this subsection” is your second amendment, so that will only be brought forward if this passes, correct? It will apply only if this first one passes.


    That's true.
    The other thing I want to bring out is that if the NDP motion passes, we will not bring forward the Liberal amendment as well.
    Did you want to speak to his amendment?
    Thank you, Mr. Chairman.
     I think we have a couple of amendments to deal with on oversight and review. As for whether or not it's two years or three years, three years, if the bill were to pass, seems to be a more appropriate length of time. However, I can live with two years. It's not that substantive a difference unless there's a compelling argument to be made as to why the difference should be moved differently....
    Mr. MacKenzie.
    Mr. Chair, I'd like to speak to it, but I'd also like the committee to hear from the officials. Perhaps they have some comments.
    My concern is that in a minority government, which we have been in for five years, I think everybody realizes the opportunity for these committees to study these things. Two years and three years: there are different ways to kill a bill. Putting in a two-year limit for sure kills the bill, because we would never get it back to committee to study it. That's just a backhanded way of killing the bill.
    I think the other thing is that it sends a message to the community at large that we can talk about terrorism, and we can talk about the safety of Canadians, but all we're doing here is saying that we don't trust the officials who are empowered to protect Canadians in these situations. The world is not getting any safer. I think this is a foolish philosophical way of trying to kill a bill that is only in place to protect Canadians from those who would do harm to us.
    Make no mistake: terrorists only function if they can cause terror and if they can cause fear among the population when we start to take away the tools that are necessary to at least give the authorities some semblance of power.
    This is just ludicrous. I fear that it's the NDP's way of trying to kill a bill without saying right up front that they want to kill it.
    Actually, it has been almost seven years that we've been in a minority--
    But I'm just saying that in a minority situation, it's impossible to get these things back. It doesn't matter how long we've been in one, it's just impossible. We were over five years before.
    Madame Mourani. Then Mr. Holland and Mr. Davies.


    Thank you, Mr. Chair.
    We are going to vote in favour of this amendment for all the same reasons that my colleague Don Davies talked about. First of all, we are fundamentally opposed to this bill, which we find completely unacceptable from a human rights standpoint because it could infringe upon those rights. Furthermore, the bill is absolutely unnecessary because the current Criminal Code and current investigative measures do enough to address any risk of a terrorist attack.
    In addition, since it was passed, this piece of legislation has hardly been used. We have heard that from a number of witnesses. So the obvious conclusion is that this bill serves no purpose.
    That said, I still believe it is important to put a time limit on the provisions in question, and I think two years is completely reasonable. We will vote in favour of this amendment even though we are wholly opposed to this bill.


    Thank you, Madame Mourani.
    Mr. Holland and Mr. Davies.
    With regard to Mr. MacKenzie's point, the problem is, Mr. MacKenzie, that we've had major failures with respect to oversight of security intelligence in this country. The reality is that the most pressing recommendations that have flowed out of report after report, whether in the report by O'Connor, the conclusions of Iacobucci, or the recommendations made by this committee, by Mr. Kennedy, or, for that matter by Mr. Major, who just finished his report, have all dealt with oversight and the fact that in this country we lack sufficient oversight of our security and intelligence activities.
    The concern I have with not having a robust review mechanism, which happens frequently, is that when we haven't put into place any of these measures to provide oversight, really we risk having more major problems. Having a regular review mechanism, in light of the fact that there has been no action taken on oversight, I think is incredibly reasonable and measured.
    I'll be clear here today. Even with a robust review mechanism--something we're suggesting in the amendments we have here today--I have serious problems with this bill. We have to have a discussion as to whether or not these amendments would even be sufficient to allow support of this bill when we get to third reading. That's a debate that's still ongoing. We have to watch and see what happens with these amendments here today.
    In the absence of these mechanisms, I think all of us should have real concern, because at least this puts some heat on the government to act on the elements of oversight that have not been acted on, and to say that if these measures were to pass, at the very least we could review them in two years to see if any of the other recommendations with respect to oversight had been enacted.


    Thank you, Mr. Holland.
    Mr. Davies.
     Mr. Chairman, Mr. MacKenzie used the term “ludicrous” to describe an amendment that would cap violations of Canadians' historic civil liberties at two years and require Parliament to come back after two years to justify those incursions into civil liberties. Mr. MacKenzie calls that “ludicrous”.
    I don't call that ludicrous. When I'm speaking of civil liberties, I don't find anything ludicrous about the concept whatsoever. As a matter of fact, there is already a sunset clause in this bill. There was a sunset clause of five years in the original bill when it was passed in 2001. The bill before us proposes a sunset clause of five years. There is nothing unusual about the concept. Parliament is recognizing that when we talk about seriously changing the Canadian civil liberties landscape, which this bill does, Parliament should have to come back to justify that in a certain recurring time period.
    The only question is whether five years or two years is appropriate. In the New Democrats' point of view, civil liberties of Canadians are so important that if we're going to try to violate civil liberties Canadians have historically enjoyed, then it's up to Parliament to come back to justify that.
    Mr. Chairman, we also heard from witnesses. Several witnesses before this committee testified that they didn't want this bill to pass, but that if it were to pass, they want a very short sunset clause. There were no witnesses--none--that I heard before this committee who testified that a five-year sunset clause is appropriate. In terms of the substance behind this New Democrat amendment, it is actually informed by the evidence this committee heard.
    This bill, in its original form, sunset and expired in 2006. We also heard evidence that from 2001 to 2006, when this bill was in force, it was used precisely once--one time in five years. Since that time, in the five years hence, there has been no evidence we have heard before this committee that any of these extraordinary powers are necessary. On the contrary, we heard evidence that successful prosecutions under the existing Criminal Code provisions have been conducted.
    I have heard no compelling evidence before this committee--and I listened very intently to all the witnesses--that would lay an evidentiary basis for our justifying taking extraordinary steps, such as enshrining in law the concept of preventative arrest whereby individuals may be arrested without a warrant based on what a police officer suspects they might do. Mr. Chairman, that is an historic alteration of Canadians' rights to be presumed innocent and to not be deprived of their liberty except if the state has reasonable and probable grounds to do so.
    I'm going to conclude my remarks by saying two final things. One is that I must say I'm saddened to see the present-day Conservative Party so cavalierly dispensing with Canadian civil liberties. They have been championing one of their historic prime ministers, John Diefenbaker, and talking about naming--I think--an icebreaker after him. Mr. Diefenbaker had a proud record in this country of supporting civil liberties; in fact, he brought in the first Canadian bill of rights. The ease with which this current government is allowing an incursion into Canadians' civil liberties and rights without any evidence is sad, in my opinion.
    I also want to comment briefly on the Liberals, who brought in this legislation in 2001. In 2007, when this bill was brought back before Parliament, they opposed it and voted it down in Parliament. Here we are in committee watching the Liberal Party of Canada sit back and let Bill C-17 pass through committee.
    I've heard Mr. Holland say that he's going to wait to see what the amendments are. Well, the only amendments I think we're going to see in this committee have to do with the sunset clause, unless I'm wrong.


     I don't see any amendments by the Liberal Party or anybody--any that I've been served with--that would alter the fundamental deleterious and disturbing parts of this bill, which, as we've all pointed out, allow people to be arrested based on suspicion, enshrine the concept of preventative arrest, compel people to give evidence against their will, and allow the state to lock up people without charge for any period of time.
    Now, I've heard the members opposite on the government side say, “Well, it's only locking someone up without charge for 24, or 48, or 72 hours”. As we all know, it could be a matter of days, depending on when a person is arrested. If a person is arrested on a Friday night at six o'clock, they're going to be deprived of their liberty for at least 72 hours without any charge at all.
     The concept of having people locked up if they refuse to give evidence is also something that I think is of fundamental concern to the New Democrats in this country. I want to mention that we've heard about the effect this kind of legislation can have on communities, particularly the Muslim community of Canada. We've heard evidence that they're concerned they may be threatened...when police officers come into the community and threaten someone to be compelled to come and give evidence. If they don't give evidence, they're worried that they may be subjected to all sorts of negative consequences.
    Mr. Chairman, everybody is concerned about terrorism. Everybody wants to preserve the western cherished ideals of rights. We all want to protect ourselves against those who would make incursions against those rights. In fact, that's the very purpose, I think, behind all of our motivations: nobody wants to have terrorism. People who would use violence disturb the deepest cherished ideals that we in the west enjoy, which include freedom and civil liberties.
    Where the New Democrats draw the line, though, is in violating civil liberties in the name of protecting civil liberties. That is fundamentally disturbing. Even that can be justified, I would argue, in some circumstances; in times of insurrection and in times of war, I think Canadians can accept that their civil liberties may have to be truncated in some fashion, but I think Canadians expect that this happens only when we are satisfied that there's a factual basis for this.
    Really, I just have to repeat that in the hearings before this committee the facts are that there has been no evidence laid, other than just rhetorical flourishes about some nascent terrorism in the world. We have not had any evidence whatsoever that this legislation is required or needed or that the current Criminal Code is anything but sufficient to deal with any kind of criminal activity that may threaten our country or our security. That being the case, Mr. Chairman, we should not give up Canadian civil liberties in the absence of that demonstrated case.
    Thank you, Mr. Davies.
    Mr. Norlock, Mr. McColeman, and then Mr. Holland.
     Thank you very much, Mr. Chair.
    I've jotted down a few notes. Number one, I think we have to remind ourselves and Canadians that these sections we're dealing with and the whole Anti-terrorism Act in and of itself was brought in by a previous government. It has not been significantly changed.
     The only thing that was changed...specifically, some of the sections were changed as a result of direction from the Supreme Court of Canada, which says that these are wholly appropriate, so when you hear about serious violations of human rights and all those things, the courts have already determined that they are indeed acceptable in Canada because of the situation in the world. The world we live in is shrinking every day. In the past, it took weeks for minor things that happened to be reported here, and now it takes seconds. I hear about “serious violations of human rights”, etc., etc., but as I say, the courts have already determined that these are within the scope of our current laws.
    On the sunset clause, any and every Canadian knows that this place works so bloody slowly that two years is like lightning speed around here. Five years is wholly appropriate. If you go back to the fact that we're in a minority government situation, as was mentioned, I had the privilege of being on this committee some four years ago when we had to look at...we were already behind the five-year mark. With the assistance of the official opposition, we got the bill put back before Parliament. So a sunset clause of five years is wholly appropriate, as the previous Parliament decided, because of the slow pace at which this place works.
    When we talk about oversight, there is no less oversight today than there was during the previous government. So complaining that oversight is a huge problem, I would have to say, is perhaps the result of an unwillingness to cooperate and to look at the situation now. Some of those oversight issues occurred as a result of situations that occurred during the last government, and some occurred during this government. As for the fact that there is perhaps a need for more oversight, I can see the value, perhaps, in this Parliament working in a cooperative way to see that it's done. But cooperation is a two-way street that we don't often see as a government.
    When I hear that there's a cavalier disregard on the part of this government towards civil liberties, once again I say that the Supreme Court has already made that decision. The Supreme Court is not clouded with political rhetoric or a political stance. It listens to all the arguments, pro and con, and once again I state for the record that it is not cavalier; this government is adhering to what the Supreme Court said.
    I think it's good that we have a healthy debate, but you know, as we talk and hold up legislation that is totally designed to protect Canadians, they are aware of what's happening around this world. They're aware of what's happening in their own country. They hear experts, both domestic and external, tell us how lucky we are in this country that we have not experienced terrorist events like they have in Great Britain, Spain, and other countries--and I purposely left out the United States.
    On this business of the police threatening, perhaps some people, from time to time, because police officers really do care about what they do.... I think what he's referring to is probably CSIS officials. Perhaps they weren't sensitive enough to the community they were speaking to at the time. But I will say this, and say it without equivocation, that the vast majority--I'm talking 98% or 99%--of police officers and CSIS officials in this country operate with the public's best interests at heart, and they care about the community they're sworn to protect. To suggest that it's rampant that the police, CSIS officials, and other officials are quashing particular ethnic communities I think is an overstatement in the extreme.


    And to say that the Criminal Code is sufficient? The Criminal Code is a work in progress. The Criminal Code is a document that governs the society of the day. If we are saying that everything is perfect and we should just leave it alone, then why are we here? Part of the job we do as lawmakers is to look at the law and see when it needs to be changed. To say that the Criminal Code is some holy, sacrosanct document that can never be touched except under the most extreme circumstances and that it's the answer to all our problems is I think once again telling people something that is absolutely not the case.
    I was taught as a police officer when I first began that the law doesn't mean much if the average person out there cannot understand and comprehend, number one, why this document that governs some part of our social behaviour is the way it is and that it governs us and it punishes those who would have anti-social behaviour. So the Anti-terrorism Act is totally within the scope of proper due diligence on the part of the government. If this government didn't do something and didn't maintain what I believe to be an appropriate document, which, by the way, we were directed to bring in because of a United Nations edict...the United Nations, after 9/11, said that every nation should do two things. They should make sure that they bring in anti-terrorism legislation, and then they had NATO enforce some of what I would say is the policing of nations that would export terror, and that's why we're in Afghanistan. I think Canadians need to know that and I think Canadians understand that.
    Mr. Chair, I think these amendments are totally within the scope of the law. The Supreme Court has said that they are totally appropriate.


    Thank you, Mr. Norlock.
    Mr. McColeman.
    I, too, must underscore some of what my colleague has just said, but maybe from a slightly different angle. In regard to the statements that the NDP member across the table has made, it almost strikes you, when you listen to them, like law enforcement and policing are the bad guys. They're the guys we shouldn't give the tools to that they need to do their job, because they're going to abuse them and they're going to stamp on the rights of Canadians.
     Nothing can be further from the truth. He invokes a time in the late fifties and early sixties, through the Diefenbaker years, as being somewhat a justification of a carry forward of rights. The member doesn't recognize that we live in times that are totally different from the late 1950s and early 1960s, when Diefenbaker and his peers could never have imagined a world that looked like this and could never have imagined the terrorism that is being faced around the world. Just to repeat what my colleague has said, which we heard over and over again as witnesses came before us, it is that Canada is so fortunate and should count its blessings that we haven't experienced a terrorist act, as many countries have.
     In comparison to the laws of other western democracies that face the same situation but have been attacked, the laws such as this one that we're contemplating here today are far more rigorous and far more what I'd call all-encompassing in terms of giving law enforcement the tools they need and the time they need to ferret out who the real bad guys are--the terrorists--and to be able to give a sense to the general public, most of the people who are out there, that if we're going to err, we're going to err on the side of public safety. That's what we're here to do. We're here to draw that balance between what is good for this country in terms of laws to protect public safety, and not to protect, frankly, the rights of potential terrorists.
     As well, he draws an ethnic group into the discussion. That is totally unnecessary to draw into this discussion, because this is not what it's about. Yet he tries to underscore his ideological view with doing that, to draw that political argument in.
    I find the member from the NDP absolutely lacking the common sense to know that this is where we should be heading, to err on the side of public safety. And there's the fact that it has been used only once. But if it was used once and saved a terrorist attack, then that's all we needed it to be in existence for, to be used once. Perhaps it will be used once more only, but that's no justification for not having it and not giving law enforcement the tools they need.
    This amendment.... Obviously, the bill is written. It's written by people who have looked at other countries and their laws, and I think it's totally reasonable and gives law enforcement the tools they need. I believe it strikes the balance that this committee should be leaning toward at any time, and that's to protect all public safety and err on that side, when there are the world threats that there are today.


    Thank you, Mr. McColeman.
    Mr. Holland.
    Well, Mr. Chair, this is an open-ended meeting, if I'm not mistaken, so if we say inflammatory things to one another, we could be in for a very, very long day, because there will be a need for everybody to respond.
     I have to say that I'm disappointed by Mr. Davies' comments. I'm disappointed by them because I think there has to be an acknowledgement that over the past 10 years there has been an effort to try to find the line for where we draw rules on how we deal with anti-terrorism efforts. I think that after 9/11, appropriately, action was taken to try to empower law enforcement officials with the tools that were thought to be needed to combat terrorism. Obviously, there was a lot of worry at that particular moment. Quick action by the government was necessary and was supported I think by all parties. I don't recall the NDP voting against that or speaking out against those measures immediately after 9/11.
    Appropriately, there was a five-year review mechanism that was put in place. When that review took place, one has to remember that there were a lot of instances that...while they may have happened earlier, the reports, the judicial inquiries, weren't tabled until about four and a half years ago, when the first one arrived. So the recommendations for which I speak that have not been acted on were certainly beginning to be present at that period of time and have been over the last while.
    The debate that is before us is essentially to weigh the relative merit of these measures in empowering law enforcement agencies to conduct counterterrorism measures versus the potential for abuse and the potential for civil liberty violations. The concern I've expressed throughout these proceedings is that the existing mechanisms by which we provide oversight for security and intelligence are insufficient and have led to some great human tragedies that have played out for innocent Canadian citizens, and I have maintained throughout this process that it's difficult to contemplate enactment of new measures without proper oversight of the existing situation.
    Now, on the possibility of having this reviewed more frequently, as I say, the way we work is.... We have a caucus legislative committee tonight. That has to be something that I take to caucus legislative committee in order to be able to ascertain what our position would be.
     But to assert that by this going out of committee today we're somehow allowing it to go out of committee, when Mr. Davies knows perfectly well that this is going to the House of Commons for a third reading vote no matter what happens here today, it is a dishonest assertion. The point is that this is a serious debate around a very serious matter about where you draw a line and what mechanisms of oversight you have, and that deserves careful and prudent discussion and review. That's certainly what we're here to do.
     Mr. Chairman, I think our positions are clear and well stated, and I hope we can focus on the substance of amendments going forward.
    Thank you.
    Thank you, Mr. Holland.
    Maybe I'll just make mention of the fact that I served on that original committee back in 2001. The Liberal Party brought that Bill C-36 forward, and I can tell you that all parties took it very seriously: would it be abused? Some parties believed that police would use it to open the floodgates. Looking back, I think one of the arguments at that time was that if it were to be abused, then at the sunset clause, after five years, that would be something that the police, CSIS, and all these other groups would have to understand: they might lose this tool.
    At that point, it was very much accepted that this was a tool that was needed, but that we had to be very cautious and ensure that civil liberties wouldn't be abused. And you know, in fairness, when we look back over the last nine or 10 years, we really have to ask if they have been abused. This becomes, for all of us, all parties.... You don't want any civil liberties to be thrown out, but on the other hand, we are dealing with people's lives, and if there is an imminent threat.... The tool being there, the police and CSIS--all these groups--recognize that if they use the tool now, it will come under huge evaluation and they may lose it.
    So personally, I'm thankful that we haven't seen a lot of abuses based on this sunset clause or based on this piece of legislation, but we would do well to pause and reflect a little bit on what the potential is and what the potential is on the terrorism side as well.
    I have Mr. Davies, in conclusion, and Ms. Mourani.


     Thank you, Mr. Chairman.
    There are a number of points I'd like to make. Mr. McColeman said it was unfortunate that I brought up a particular ethnic group. I didn't bring up a particular ethnic group: I was quoting the evidence. There was evidence before this committee from witnesses who testified about the effects this particular legislation would have on the Muslim community in this country. He makes it sound as though I'm somehow bringing up something that wasn't talked about before, in some sort of untoward political realm. I was doing nothing more than reviewing some of the evidence that was heard before this committee.
    The Conservatives talk about balance. I agree with that. In any country, the proper balance between security and liberty is an important thing to pursue. It was mentioned that we have to give law enforcement the tools they need. That's exactly the point I'm making: the evidence before this committee is that the police have the tools they need under the current Criminal Code. Nobody has made a case for any extraordinary powers, other than just rhetoric: that we need it because there is terrorism or we need it because the world has changed. That's the only argument I'm hearing about this. Nobody has come before this fact, I didn't hear from any police agencies, I don't recollect, that came before this committee and said, “Here are the kinds of cases we're working on and here are the kinds of situations that we need these powers for”. I didn't hear that.
    I'll give one maybe more extreme example to illustrate my point. You could give the police the power to kick down Canadians' doors and search their houses tomorrow, and that would probably make us safer, but Canadians wouldn't accept that. Why? Because that doesn't strike the necessary balance.
     In this country, here is what the law has been since 1867. It has been that Canadians have the right to walk down the street and not be arrested unless a police officer of the state has reasonable and probable grounds to suspect that they have committed a crime. Other than that, we have liberty, because the state has no right to put me in jail or to truncate my liberty unless it can demonstrate that.
    This bill changes that. This bill says that the state can preventatively arrest someone, based not on what they've done, but on what they might do, based on suspicion. It's no longer on reasonable and probable grounds, it's on mere suspicion. And if they let you out after three days, I guess they just give you a cup of coffee and say, “Sorry about that”. I don't know if anybody has been in jail for two or three days, but I don't take that lightly. I don't think any parliamentarian should take the fact lightly that this bill would give the state the power to throw someone in jail for two or three days because we suspect that they might do something.
    Now, I want to correct something Mr. Norlock said about the Supreme Court of Canada. They didn't say this bill is “wholly appropriate”. That makes it sound like the Supreme Court of Canada endorsed this bill. What the Supreme Court of Canada said was that this bill is not unconstitutional. That doesn't mean that it's well advised. It doesn't mean that the Supreme Court of Canada thinks it's a good thing.
    In 1970 when the Liberal government passed the War Measures Act at a time of apprehended insurrection, we suspended civil liberties in this country. We saw police lock up...I think hundreds and hundreds of Quebeckers in particular were rounded up and thrown in jail without charge and kept there. Now, as bad a violation as that was, it was justified at the time because it was a period of what was called “apprehended insurrection”. There was at least an evidentiary basis to the invocation of those powers. There were kidnappings. There was a great fear gripping the streets.
     We don't have that here today. Nobody has come before us and said that there is any factual basis in this country right now, other than just fear, which...of course the Conservatives play on fear all the time with Canadians to justify their legislative agenda, but no fact...there's no fact.
    Some hon. members: Oh, oh!
    Mr. Don Davies: I hear the Conservatives laughing, of course, when I mention the lack of fact, but that's a different story.
    I want to comment on this fact: if there is no cause for concern in this bill, if we are not talking about any extraordinary powers here, why is there a sunset clause at all? Why doesn't the government have the courage of their convictions and pass the bill as a piece of permanent legislation? What gives them concern? Why are they concerned about these powers so much that after five years the powers will automatically disappear? It's because that's an acknowledgement and a recognition that these are extraordinary powers, that it changes the legal framework in this country, so that's what we're talking about here.


    It was also mentioned by the Conservatives that we need this bill to protect Canadians. Now, I will acknowledge that there's a bit of a circular argument here. How does a bill that was used once...? The powers under this bill were used once in five years. We heard evidence that in the absence of the bill over the last five years there's been no negative impact on our ability to fight terrorism at all. How does that protect Canadians? I mean, I'm all ears on that. If there was some evidence before this committee that said we need these powers to protect Canadians because of some sort of argument or some sort of factual basis, I haven't heard it.
    Mr. Norlock also said that the world has changed. Well, I'm not so sure about that. First of all, we heard no evidence of that. Terrorism is not new. The Stern gang was blowing up the King David Hotel in Palestine, as it then was, in the 1940s. There were acts of terrorism. Archduke Ferdinand was assassinated to start World War I. Acts of terrorism have been with us for a long time. This is not anything terribly new. States have had to operate to protect themselves, and to protect their citizens, from acts of belligerence by other countries and states and from acts of terror committed by people for a long time. I would dispute, with great respect, that there's anything different about that today.
    The last point I'm going to make is about the Liberals. I hear Mr. Holland being “disappointed”. Well, I'm disappointed by the Liberals flip-flopping on this position. They voted against this bill in the House of Commons the last time it came up. I mean, Canadians don't expect consistency from the Liberal Party of Canada, we'll grant you that, but they brought it in during 2001; voted against the bill when it was brought into the House of Commons last time; spoke against the bill, it appeared, when we were in committee; will probably vote for the bill in committee; and then we'll see what they do tonight or when this bill is brought back for third reading.
    I do want to correct something Mr. Holland said. He said this bill will come back for a third vote no matter what we do. But that's not the case. If this committee votes against this bill in this committee, then it may not be coming back for third reading.
    We all want to fight terrorism. We all want to make sure that our police agents have the powers they need. But we also want to do that in a way that respects Canadians' inherent rights. I think we should not be making incursions on those rights except to the extent necessary and except where we can justify it.
     I want to conclude by saying that it's not up to Canadians to justify why they have human rights and civil liberties in this country. They have those inherently. It's up to the state to justify when we want to take those rights away from them. In this case here, the record remains clear: the evidence before this committee was that there is no factual basis to justify us taking these extraordinary powers at this time.
    Thank you, Mr. Davies.
    We'll go to Ms. Mourani.


    Thank you, Mr. Chair.
    I could not agree more with my NDP colleague. I understand his position, which he made very clear: he is against this bill. Our position is very clear as well: we are against this bill for all the same reasons that were mentioned earlier, particularly the fact that it is unnecessary and may lead to human rights violations.
    However, up to this point—and it is now 9:35 in the morning—I have yet to understand where exactly the Liberals stand on this. They abstained from the vote on the first few clauses of the bill. So we are still in the dark as to where they stand. Are they for or against it? And why? All we are doing today is debating when we will revisit this bill, in other words, in two or in three years' time, and determine whether it was effective or not.
    As of this moment, I have no idea where the Liberals stand. We heard from certain witnesses, at the Liberals' recommendation, might I add, and those witnesses told the committee that they were against the bill and they gave their reasons. Yet we do not know where the Liberals stand on this issue.
    So I would like to know what their position is, if they have one. I must admit I am a bit lost on that one.



    Thank you, Madame Mourani.
    We'll now move to Mr. MacKenzie and then Mr. Kania.
    Thank you, Chair.
    In actual fact, this subcommittee and the committee looked at this back in 2006 or 2007 and went back to the House, so this has a long history. I know we got the history according to Mr. Davies, but this bill has been looked at a number of times and, Mr. Chair, you will recall I asked to hear from the experts at the end of the table. I think it would be appropriate to hear from them because I really do think there are some issues here that get lost in the political realm. So the reality needs to be heard, and I think it would be good to hear from them.
    All right, we will. I apologize, Mr. MacKenzie. You did ask for that in the opening round.
    Mr. Breithaupt, would you speak a little bit to the amendment or to the part of the clause of the bill that deals with the sunset clause?
    This is an amendment to clause 4. Clause 4 in the bill proposes a five-year sunset. This was a recommendation that was made by the House of Commons subcommittee that studied these provisions during the parliamentary review of the Anti-terrorism Act and that period is reflected in the bill.
    As you can see from the clause, there are a number of steps that are envisioned before the sunset clause possibly can come into effect. Obviously there may be a vote by the House of Commons and the Senate to extend the provisions, but there are three steps in particular that need to take place before the sunset clause can possibly come into effect.
    The first is a comprehensive review. As one would see in subclause 4(1), proposed subsection 83.32(1.1) states that “a comprehensive review of sections 83.28, 83.29 and 83.3 and their operation shall be undertaken”—so it's a mandatory clause—“by any committee of the Senate, of the House of Commons, or of both Houses of Parliament that may be designated...”.
    Secondly, there's to be a report. The committee or committees that undertake that review “shall”—it is again mandatory—“within a year after a review is undertaken...or within any further time that may be authorized by the Senate, the House of Commons, or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including its recommendation with respect to the extending the operation” of those provisions.
    Thirdly, the “Governor in Council may, by order, establish the text of a resolution”, which could then be debated by both Houses of Parliament. It specifies that the period of extension “may not exceed five years from the first day on which the resolution has been passed by both Houses of Parliament”. In addition, there's an annual review by ministers, which also includes a clear statement and explanation indicating whether or not the provisions remain warranted.
    So in considering a possible change to the sunset clause--to two years--one might also want to consider the fact that there are a number of compulsory steps that need to be taken before that sunset clause possibly takes effect.
    That is all included in clause 4. We just wanted to bring that to everyone's attention.


    Thank you.
    Mr. MacKenzie, go ahead.
    That's precisely the point we need to look at. We had difficulty in a minority situation getting the first review done within five years. If Mr. Davies wants to kill the bill--and it's my belief that's purely what he wants to do--by adopting his two-year sunset clause, he effectively kills the bill without having the ability to kill the bill in any other way. I just think it's wrong; he's being deceptive with Canadians. He's worried about civil liberties. We're all worried about civil liberties. But we're also worried about the safety and security of victims, pure innocent people.
    I just think, as I said before, that it's ludicrous to accept a two-year timeframe on a sunset clause, because this committee will never get together in two years to do the things that have to be done to meet the requirements of the bill.
    Mr. Breithaupt, I just have one point. I guess you can't say historically because this bill has only been here for a decade or whatever, but how long are these comprehensive reviews? How long does it take to undertake those? Is it something that's done over a period of months, or weeks, or...?
    Thank you, Chair.
    It's up to Parliament and the committees that Parliament strikes to decide.
    All right.
    Mr. Kania.
    Mr. Chair, I'm not going to filibuster, but I do want to make a few points.
    This piece of legislation originated from the Liberal Party. The Liberal Party believes--and I'm sure the Conservatives agree and everybody agrees--that our number one responsibility is to protect Canadians. That's why we brought it forward in the first place.
    The issue is whether it's still necessary. There was a sunset provision. It expired. We have not had it since 2007. When we were questioning the witnesses, the tenor of my questions related to whether or not it was still necessary. Mr. Davies is incorrect in saying that there was no evidence that it should be supported. Some witnesses were vehemently opposed to it. Other witnesses said that even though it hasn't really been used, it could be helpful and maybe it's something that needs to be there just to be careful.
    It is a very delicate balancing act to determine what is in the best interests of Canadians. Mr. Norlock is correct that the Supreme Court of Canada has not said it's unconstitutional. We have a balance in Canada. Although we have a Charter of Rights and Freedoms, people seem to forget that those rights are constrained by section 1 of the charter, which allows for reasonable constraints on rights in Canada under certain circumstances.
    Although it's certainly true that this does impinge on civil liberties, the issue is to what extent and whether or not it is reasonable to protect our society. Mr. Davies said that the Liberal Party has flip-flopped, but we're the ones that brought in the bill. To say that we are in favour or not in favour...we brought it in. All we're saying is that after the benefit of experience over a number of years, is this something that should be put in at this point in time, and if so, for what period before the sunset provision kicks in?
    By abstaining today, we're simply saying that our balancing act is not yet done. We are still considering the proper course of action. We will make that position known at third reading. There's nothing to be read into that, other than the fact that we're treating this very seriously and not having a knee-jerk reaction. Our position will be known at third reading.
    All right. There are no other names on the list, so we will now move to Mr. Davies' amendment.
    Mr. Chair, could I have a recorded vote, please?
    All in favour of amendment NDP-1? A recorded vote has been requested. I'll ask the clerk to call out the names.
    (Amendment agreed to: yeas 6; nays 5)
    The Chair: Amendment NDP-1 carries. That also takes away the LIB-1 amendment.
    Now we will go to amendment NDP-2, which is a housekeeping matter. The bill makes mention in subclause 4(2) of subsection 83.32 of the act, and says that, “The operation of section 83.28, 83.29 or 83.3 may be further extended in accordance with the procedure set out in this section”, but it should read there:
reference to "the second anniversary of the coming
    Is that correct? Perhaps we could take a vote on that right now.


    Mr. Chairman, I just want to make clear for my fellow committee members that this is simply the consequential amendment that flows from the amendment we just passed.
    Exactly. All in favour of amendment NDP-2?
    Mr. Don Davies: A recorded vote, Mr. Chairman, please.
    (Amendment agreed to: yeas 6; nays 5)
    So amendment NDP-2 is carried. We'll now move to amendment Liberal-2.
    This basically is calling for a committee of the Senate and a committee from the House of Commons, so two separate committees to be designated or established by the Senate or the House, as is the case. I think this changes it I think from one committee to two.
    Madame Mendes.


    I will let Mr. Holland explain what the amendment is about. I would just like to mention, however, that the French version of the bill is in need of a correction, in subsection 4(1), line 5 on page 9, where it says:

    (1.1) Un examen approfondi des articles 83.28, 83.29 et 83.3 et de leur application peut être fait [...]
    The word “peut” should be replaced with the word “doit” in order to make the French version consistent with the English version.
    Do you agree?


    All right. So that is being corrected and changed here in the text by the analyst.
    Mr. Holland.
    Thank you.
    Thank you, Madame Mendes, for that correction.
    Just to speak to this briefly, as I think all committee members know, in the last round the Senate was fairly instrumental in bringing forward a number of changes and amendments that were very consequential and very helpful, and in the same light as the previous amendment that we had suggested, very similar to the NDP amendment. I think it's important that when this review is conducted that it be conducted by both Houses.
    All right.
    Mr. MacKenzie.
    To be honest, I think it's all moot now, because I do believe they've killed the bill, essentially, because it can't be done within the two years. But I just wonder if we could have the officials make a comment with respect to Mr. Holland's amendment?
    All right.
    Mr. Breithaupt.
    Thank you, Chair.
    I guess our understanding of this is that it would prevent having a joint committee of the House of Commons and the Senate to conduct this review. That is an option contemplated currently in the bill. You can have either a Senate committee and/or a House of Commons committee or a joint committee of both the House of Commons and the Senate. Our understanding of this amendment is not to permit the option of having a joint one, but we may be mistaken in that.
    Thank you.


    All right.
    Mr. Holland.
    No, I think the amendment is clear in that it would ensure that.... As the bill is currently worded, it would provide for one House or the other. This amendment is saying that it would be obligatory to use both Houses. If the Senate and the House made a determination that this was to be a process that was joint, then that would be their determination, but this would prescribe that both the Senate and the House be included in those processes.
    I'd just simply point out that in the last round it was at the Senate committee where I think some of the most consequential amendments came in and informed the bill that's in front of us today. I think it would be an error to exclude the Senate from these proceedings.
    Can this be a joint committee?
    That would be the choice. There would be a choice for the House and the Senate for it to be joint if those so chose, but it would not allow for the Senate alone or the House alone to do this. It would either have to be the two independently or the two jointly.
    Mr. MacKenzie.
    Given that, if we could hear...?
    We'll go back to Mr. Breithaupt.
    Thank you, Chair.
    I think the intent behind the provision in the bill is to provide for all those alternatives: a House of Commons committee, and/or a Senate committee, or a joint committee. There may be a concern that the bill doesn't reflect that, but that was the intent.
    If it was the intent, I think the problem was that the bill as it's currently worded would allow just the House or just the Senate. What this would ensure is that the House and the Senate would be included in a process that was either a joint meeting or two independent processes.
     The bill does include the “or”. I don't think that what the Liberal amendment does.... At first read, I thought they were trying to say there has to be a committee of the Senate and a committee of the House, but Mr. Holland's suggestion is that no, this would be or could be a joint committee, but not necessarily the duplication of two committees doing the same work.
    Mr. Lunney.
    Thank you, gentlemen.
     As a visitor to this committee, I appreciate listening to the debate by the permanent members.
    It seems to me that as I look at the language here, when it says the study would “be undertaken by a committee of the Senate and a committee of the House of Commons”, that implies a committee of each House. If the intent is to still allow a joint committee, then it probably would be appropriate to say so in the language, simply, after “a committee of the Senate and a committee of the House of Commons”, “or a joint committee of the two Houses”. That would be considered a friendly amendment. Perhaps that would clear up any misunderstanding.
    Mr. Mark Holland: That's fine.
    All right. Mr. Holland has said that he would accept that as a friendly subamendment.
    Mr. Gaudet.


    Mr. Breithaupt, I would like to know what the problem is with the two committees.
    As usual, he is not listening: he is a public servant.


    Mr. Breithaupt.
    Thank you, Chair.
    We just were pointing out that the intent of the bill was to also allow for the option of a joint committee. It's up to members to decide what they desire, but that had been contemplated, and we just had brought to your attention our view at that time, at least, that perhaps it wasn't contemplated by this amendment, but that would be dealt with by the subamendment.
    Mr. Holland.
    Just very quickly: the point is that if the bill is left as it is, you could have just one or the other. With this amendment, it would ensure that both Houses are included and there could potentially be a joint process if that was decided to be the most effective way to move forward.
    Do we have the wording down here?
    So it would include “or a joint committee of both Houses of Parliament”. All in favour of that subamendment that has been brought forward?


    A recorded vote, please.
    We'll have a recorded vote on the subamendment.
    (Subamendment agreed to: yeas 7; nays 4)
    Are we ready for the question on the amendment as amended?
    So it's Liberal-2, correct? A recorded vote again is requested, on amendment Liberal-2 as amended.
    (Amendment agreed to: yeas 6; nays 4)
    All right. That carries. We do have a third Liberal amendment that will--
    An hon. member: On a point of order, Chair, is this “the third anniversary of the coming”? It doesn't make any sense—
    A voice: No, no--
    The Chair: The third one is still there.
    Mr. Mark Holland: The fourth is still relevant. It's housekeeping to bring the bill in line in other sections with the amendments that were just passed. It's simply housekeeping, but there's a.... It's a fourth one.
    You may not have it. This one here, I didn't have.
    I can speak to it, Mr. Chair.
    The Chair: Go ahead.
    Mr. Mark Holland: I don't know if committee wants it to be read, but essentially this is a housekeeping motion that would bring the bill in line with the amendments just passed. There are other portions of the bill that would have to be amended to reflect the changes that were just adopted in amendment. The wording in this new amendment would also have to reflect the subamendment that was passed and adopted as well.
    All right.
    I am proposing, if I could, Mr. Chair, that the wording—
    You'll have to move your own amendment.
    I'll move my own amendment, but I'll move it with the wording to be amended to reflect the motion that was just adopted.
    Are you going to give us that wording or not?
    If you'd like, Mr. Chair, the wording in total is: that Bill C-17, in Clause 4, be amended by replacing lines 12 through 18 on page 9 with the following: “(1.2) The committee referred to in subsection (1.1) shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate and the House of Commons”--
    Is that the right one?
    A voice: [Inaudible--Editor]
    Mr. Mark Holland: --“be submitted their report on the review to Parliament, including its”.
    Or a subcommittee, or a joint committee—
    Or a joint committee.
    All right. So right after the words “by the Senate and the House of Commons or a joint committee of both Houses of Parliament”, that's where that would be.
    The French version needs a lot of tweaking. It doesn't make much sense.


    In its current form, it is not at all clear. I do not see how it could be understood. So it needs some work.


    We are looking at the French text right now.



    If we agree that it could be undertaken by a joint committee, we need to replace “chacun des comités visés au paragraphe” with “le ou les comités visés au paragraphe”.
    Mrs. Maria Mourani: Could you explain it to me? I don't understand.
    Mrs. Alexandra Mendes: It needs to be consistent with the previous amendment. It talks about committees of the House of Commons and the Senate. We replaced “chacun des comités” with “le ou les comités”.


    Go ahead.


    What is the purpose of that amendment?
    Just to make it consistent with the preceding amendment. It is for housekeeping purposes.
    Mr. Holland's first amendment seemed to provide for the possibility of two committees dealing with the issue. The second amendment put forward by the Liberals says “chacun des comités”, which implied that at least two committees would deal with the issue. Now that the wording says that a joint committee could address the matter, the French version needs to indicate that only one committee, in other words, the joint committee, could deal with the matter. So Ms. Mendes was absolutely right to suggest changing the wording to read “le ou les comités visés au paragraphe (1.1)”.


    All right. So do we have something...? We will change that.
    Where are we here? I know that we'll be asked for a recorded vote for this one as well. I don't have any speakers list on this. It is a recorded vote on Liberal amendment 2.1.
    (Amendment agreed to: yeas 6; nays 4)
    The Chair: All right. The amendment is carried.
    Is that it? All right.
     Shall clause 4 as amended carry? It is a recorded vote. We are on the clause.


    Is it the amendment?
    No, the clause as amended.


    We're on the clause.
    Keep going.
    It's 5 to 5.
    Well, I will vote no.
    Okay, go ahead....
    A voice: [Inaudible--Editor]
    The Chair: Oh yes, we had one abstention, so this carries.
    A voice: Tie vote.
    The Chair: You're wrong.
    A voice: Sorry, Chair.
    The Chair: All right. So that carries on division.
    (Clause 4 agreed to [See Minutes of Proceedings])
    (On clause 5)
    The Chair: Shall clause 5 carry?
    A recorded vote, Roger.
    Mr. Lunney, we're doing a recorded vote, so please take your chair.



    We would like a recorded vote on every clause.


    Yes. I've already made mention of that.
    (Clause 5 agreed to: yeas 5; nays 3)
    The Chair: That's carried on division.
    (On clause 6)
    The Chair: Shall clause 6 carry?
     A recorded vote, please.
    Mr. Chairman, I just have one point of debate I want to mention. I just wanted to correct something for the record. There are two things. I erroneously said before that it doesn't matter what happens in committee, or that if this committee voted against it, it would not come back for a third reading vote. I was mistaken about that and I want to correct that.
    The Chair: All right.
    Mr. Don Davies: I have one other correction as well.
    Go ahead.
    Mr. Holland mentioned that he didn't hear the New Democrats opposing this bill in 2001. In the actual voting on the Anti-terrorism Act in 2001, on Bill C-36, all 10 NDP MPs voted against; all 30 Bloc MPs voted against; the Progressive Conservatives split 11 for and 1 against; the Canadian Alliance was 44 for and 4 against; and the Liberals were 134 for and 2 against. I just want to correct the record so that Canadians know what happened in 2001.
    Mr. Chair, if that's the case, I was misinformed, and I apologize.
    All right. Thank you, Mr. Holland.
    (Clause 6 agreed to: yeas 5; nays 3)
    The Chair: All right. Clause 6 carries on division. We'll go back to clause 1.
    Shall clause 1 carry?
    (Clause 1 agreed to: yeas 5; nays 4)
    All right. That carries on division.
    Shall the title carry?
    (Title agreed to: yeas 5; nays 4)
    The Chair: All right. That carries on division.
     Shall the bill carry as amended?
    (Bill as amended agreed to: yeas 5; nays 3)
    The Chair: That carries on division.
     Shall I report the bill to the House? Do you want that recorded vote?
    An hon. member: Yes, please.
    (Reporting of the bill to the House agreed to [See Minutes of Proceedings])
    The Chair: All right. That carries on division.
    Shall the committee order a reprint of this bill?
    A recorded vote, please.
    (Reprinting of the bill agreed to: yeas 8; nays 3)
    The Chair: All right. That carries on division.
    I want to thank our guests for attending our committee today and for their input. It is greatly appreciated.
     I want to thank each committee member.
    Just before you leave, committee members, we do have a budget here that's not on the agenda.
    Roger, would you explain what this budget does?


    Yes, Chair. This is to assume expenses for witnesses on our expansion of penitentiaries study. It's $20,000, providing for 15 witnesses at an average of $1,200 per witness, so it's just to cover expenses for witnesses.
    I move it.
    It's housekeeping It's not a trip. It's not any other travel. It's simply for the witnesses who we bring forward on this study. Does anyone want this circulated or are you ready for the vote on this? Everything is disclosed. It's just a housekeeping budget. It's moved by Madame Mendes. All in favour?
    (Motion agreed to)
    The Chair: That's carried unanimously.
    Thank you very much. We'll see you on Thursday.
     We are adjourned.
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