JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 30, 2001

• 0934

[English]

The Chairman (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call to order the 36th meeting of the Standing Committee on Justice and Human Rights.

Today we'll be continuing with Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime Act, and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

This morning we have as witnesses the Ligue des droits et libertés, the British Columbia Civil Liberties Association, and the Commission des droits de la personne et des droits de la jeunesse, represented by André Paradis, Denis Barrette, Garth Barrière, John Russell, Roger Lefebvre, and Pierre Bosset.

[Translation]

I would like to welcome everyone.

[English]

and to our committee.

• 0935

I presume you've been advised of the way this exercise works. Each group will have up to ten minutes to make an opening statement, if they choose to do so, following which we will give members of the committee the opportunity to offer their own reflections and ask questions. So without further ado, perhaps we can proceed in the order in which the names appear on the list.

[Translation]

We will first be hearing from the Ligue des droits et libertés [League of Rights and Freedoms].

Mr. André Paradis (Director General, Ligue des droits et libertés): Good morning. My name is André Paradis and I am the Director General of the Ligue des droits et libertés. I am accompanied by Denis Barrette, who is our legal counsel.

The Ligue des droits et libertés is an organization that has been active in advocating and promoting rights and freedoms in Quebec for nearly 40 years. For those of you who are interested in our background, it was established by people such as Pierre Elliott Trudeau, Jacques Hébert and others, including Bernard Landry, the current Premier of Quebec. This is a volunteer citizens' organization that is affiliated with the International Federation of Human Rights Leagues, a Paris-based organization representing about 125 advocacy groups located throughout the world.

As far as the bill is concerned, I would first of all say that we obviously recognize the need for both the Canadian government and the international community to strengthen the campaign against terrorism and to prevent terrorist acts.

Secondly, I would say that Bill C-36 contains some very pertinent measures, especially the one which will enshrine in our law the provisions contained in international conventions ratified by Canada. However, in our opinion, the bill contains several important measures, key measures, that will restrict rights and freedoms unduly and will open the door to serious abuses.

What most concerns us about Bill C-36, and what concerns many other witnesses that you have heard, is, of course, the vague and imprecise nature of several definitions and the subsequent powers that have been given to various authorities, notably the police.

The second most troubling aspect of the bill is its unlimited scope. The government still refuses to admit the need to include a sunset clause in the legislation.

The third aspect of the bill which troubles us is the significant discretionary power given to members of the executive, to certain ministers. For instance, there is the power given to the Minister of Justice to withhold information and the power to the Minister of Defence to authorize the electronic monitoring of Canadians' international communications.

And finally, we are concerned that the bill significantly challenges principles of common law and criminal law. I would now like to clarify the comments we have made about the four aspects of the bill that concern us.

First of all, without a doubt, the main issue pertains to the definition of “terrorist activity”. I am aware that the minister indicated this morning that she was prepared to consider amending this provision, notably by removing the word “lawful” pertaining to the definition of activities and the ground of defence that could be used in these cases. Nevertheless, despite the minister's proposed amendment, the definition is still far too broad. It would cover activities of civil disobedience, including illegal strike action and other demonstrations which at times can be viewed as being illegal, at least marginally so.

The bill contains other examples of very vague, imprecise definitions that are too big in scope. For example, there is the Security of Information Act, which would replace the Official Secrets Act.

The bill has a provision establishing an offence if “a purpose is prejudicial to the safety or interests of the State if a person

(j) adversely affects the stability of the Canadian economy, the financial system or any financial market in Canada without reasonable economic or financial justification;”

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This type of definition opens the door to certain things. For example, journalists who disclose information about the Canadian government's strategy in negotiating the establishment of the Free Trade Area of the Americas or a university professor who reveals important aspects of the Canadian government's strategy could be charged with this type of an offence. In recent years, non- government organizations have disclosed secret documents, particularly the one pertaining to the Multilateral Agreement on Investment, the MAI. The likelihood of this occurring is not far- fetched. As a result of this very broad definition, charges could be laid against a university researcher or a journalist for having committed an offence against the Security of Information Act, which we feel is quite unacceptable in a democracy.

Other worrisome measures pertain to the discretionary powers. The Information Commissioner and the Privacy Commissioner testified at great length about the unacceptable discretionary power given to the Minister of Justice to withhold information without any review by either the commissioners or the Federal Court.

We support the commissioners position in this respect. There is no justification for that. As the Information Commissioner demonstrated, the minister is already authorized to withhold information, but this must be reviewed by an independent authority. According to the Information Commissioner, during the past 18 years when the legislation has been in effect, there has never been any problem.

In addition, the power given to the Minister of Defence to authorize the Communications Security Establishment to intercept the communications of individuals or Canadian organizations with others outside the country is, in our opinion, an absolutely unjustifiable discretionary power. This will broaden electronic monitoring powers, which we also consider to be a negative development in that it will jeopardize the right to privacy. However, this measure is particularly unacceptable as there has been no provision for any control mechanism, any judicial authorization and, eventually, a mechanism to review decisions made by the minister.

As regards the measures that challenge significant principles of common law and our criminal law, we share the opinion expressed by several organizations; namely, that the need for measures such as preventive detention and inquisitory investigations has not been demonstrated. And yet, such measures compromise principles that are quite fundamental to common law and our criminal law. This measure plus others compromise the principles of the right to a full and complete defence, the right to remain silent, the right to freedom, the right not to be detained unless charged, the right to know the exact grounds of the arrest. In an impromptu manner, this challenges a whole series of principles that were very important, and the need for these measures has not been demonstrated.

I have followed the debate that took place here during the appearances. Several questions on this issue were raised and there were no answers showing how these procedures could have made a difference in known cases of terrorist investigations.

The scope of the bill is, therefore, very broad. The bill contains many measures that open the door to abuses and to measures that will erode and threaten our rights and freedoms. Moreover, the government is still refusing to include a sunset clause, a clause that would ensure that the bill would expire by a certain date and that the legislative process should begin again. In our opinion, there is a full range of arguments demonstrating the need for this sunset clause.

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First of all, the bill was crafted very hastily, as was acknowledged by the minister. This bill was drafted in barely one month.

The review and adoption process will be accelerated. The House of Commons and the Senate are sitting at the same time. While several witnesses are being heard here, right now, the opportunity to measure all of the consequences of the measures in this bill is limited.

Amendments are being made to the Criminal Code, to the Canada Evidence Act and to 20 other acts. The government is even using this opportunity to patch together, in the case of the Communications Security Establishment, an enabling act which did not exist. This is created through Bill C-36.

The bill covers a great deal of ground and we have very little time. As several people have already said, the text is quite difficult to understand and impenetrable. We have to refer back to the original statutes. It is difficult to study and we have very little time in which to do this.

The government is using the pretext that this is an emergency, a crisis resulting from terrorist threats that seem more menacing now, and have for a month and a half ago, ever since the attack of September 11. Most of the measures found in the bill are exceptional. It seems to me that exceptional measures must be accompanied by a time limit. The demand for a sunset clause is quite justified.

The argument raised by the Prime Minister of Canada, who says that the fight against terrorism will not be over within three years, is fallacious. Clearly, the fight against terrorism existed before September 11. It will continue to exist after three years, but the climate of crisis itself will no longer exist. The infringements and threats contained in this bill for rights and freedoms are so significant that, as a society, we cannot allow such measures to be enshrined permanently in our legal system.

I will conclude by saying that there are alternatives to many of the proposals we have criticized in the bill. I hope that we will have the opportunity to examine these alternatives during the discussion period.

The Chair: Thank you very much.

[English]

Now to the British Columbia Civil Liberties Association, Garth Barrière and John Russell.

Mr. John Russell (Vice-President, British Columbia Civil Liberties Association): Thank you, Mr. Chairman. We thank the committee very much for the opportunity to present our views to you today.

Let me begin with two general observations that I'll try to put in fairly concrete terms to illustrate, I think, some of the points the previous witness has already indicated. After I finish with those general observations, what I'd like to do is talk about some of the principles the BC Civil Liberties Association thinks can be applied to help us solve some of the problems we're facing with this legislation.

Our first observation is that we don't need to use this legislation to multiply the number of terrorists on the ground in this country. In fact, that will be the concrete effect of this legislation if it is passed in its current form. Moreover, the effect of that sort of enactment over time may be to turn Canadians against themselves in the fight against terrorism, as we discuss within our society how many terrorists there are.

We need also to acknowledge, at least more self-consciously, that the burden of this legislation is going to fall on a particular community. It's going to fall disproportionately on Canadians of Muslim descent. Although the overwhelming majority of members of those communities are certainly going to be with us in the fight against terrorism, that community is going to be the locus of a great deal of investigative action. The application of these provisions will be controversial in particular instances. Mistakes will be made, and to the extent that this legislation is maintained and pursued over time, we expect, and it's reasonable to expect, one effect will be that members of that community may begin to feel their status as Canadians, free and equal alongside other Canadians, will be significantly diminished.

These are problems I think we face with the current proposals. It would be helpful if we had some principled basis to help us navigate our way around those sorts of problems.

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One guiding principle should be readily evident and unassailable. It is that restrictions to established basic rights and freedoms in a free and democratic society are justified only if they are necessary ultimately for the sake of those very same rights and freedoms. Any retreat from this principle signals a retreat from what we have accomplished as a society, from what is arguably our most remarkable cultural and moral contribution to history, one that has been brought about not only with the most careful thought and effort, but with great personal sacrifice as well. Two fundamentally important implications follow from this principle.

First, the restrictions on basic rights and freedoms must be no greater than are reasonably necessary to address the problems at hand. In this respect, the onus is clearly on the government, and in particular right now on this committee, to demonstrate where existing institutions of law enforcement are inadequate to protect our basic rights and freedoms.

Second, if restrictions on established basic rights and freedoms can ultimately be justified only for the sake of those rights and freedoms, there must be some evident commitment that the restrictions will come to an end. Anything less will naturally be taken as a signal that we have qualified our commitment to the ideals of a free and open democratic society.

In our view, neither of these objectives has been properly met by the federal government's anti-terrorism proposals.

First, as the previous witness mentioned, the government's proposed definition of “terrorist activity” is simply too broad. As it stands, proposed item 83.01.(1)(b)(ii)(E) of this definition would count as “terrorist activity” any unlawful politically motivated act that threatened to significantly disrupt an essential service. This is a truly astounding provision. Aside from the fact that you could have targeted Martin Luther King's civilly disobedient freedom rallies and marches through the American South, because they disrupted local transportation, it would potentially brand as terrorists doctors, teachers, and nurses who threaten to strike or withhold services in the face of provincial orders deeming their work an essential service. It could also brand as terrorist the actions of first nations individuals who blockade an airport or a highway.

It requires no strong act of imagination to recognize that any use of the current anti-terrorism proposals against such dissident Canadian citizens will have profoundly destructive effects on the legitimacy of the campaign against terrorism and on the ties of civility and mutual respect that bind us together as a nation. It can only contribute to our woes to describe these Canadian citizens as terrorist and to subject them to these chilling measures. Indeed, we must steadfastly reject branding as terrorists Canadians who are now engaged in civilly disobedient protests that test the boundaries of civil society. Aside from the injustice of giving them this status, we must do it for another very simple and obvious reason: they may take it to heart. That, of course, would be a remarkable, and perhaps even a hoped for, victory for the real terrorists and a terrible, tragic defeat for our society.

For all these reasons, then, the association of familiar modes of dissent with terrorism is something that must absolutely be avoided. In our view, there is nothing of a terrorist nature captured by the cited definition of “terrorist activity” that is not already captured by other areas of the definition of “terrorist activity”. In consequence, we see no reason to retain this in the definition.

The second general issue raised by the legislation concerns the need for a clear commitment to make it temporary. If we take it as a guiding principle that restrictions to established and basic fundamental rights and freedoms can only be justified for the sake of those freedoms, there must be a sunset clause for this legislation. A legislative review is not an adequate enough guarantee of this. Legislative reviews have a history in our society of being ignored, and if not ignored, of being back-room rubber stamps for the status quo.

We need to signal more clearly to Canadians that this legislation will be temporary in nature. We need, more specifically, to signal to Muslim Canadians in this country that these measures will be temporary as well. It would be unrealistic, I think, not to acknowledge that the main force of this legislation is going to fall on that community.

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Finally, a sunset clause is the only way to guarantee an open public debate in subsequent years about the provisions of this legislation. This is needed also because of the difficult issues that are addressed by this legislation and because of the haste with which it has been prepared. There is simply no way, in our opinion, it's going to be possible for this legislation to get the thorough, careful consideration it needs. A legislative review is not going to guarantee that some years hence. A sunset clause is, in our opinion, a more effective mechanism to achieve this goal.

Let me conclude with some final words of caution.

The undeniable fact is that these proposals traverse the greyest area of the rule of law. When we make Canadian citizens subject to preventive detention on a reasonable suspicion, but not on probable grounds of a threat of wrong-doing, when we compel them to testify when no charges have been laid against anyone, when we permit elected partisan political figures, not an independent judiciary, to authorize covert surveillance of Canadian citizens, we come perilously close to being ruled by men, not by law. Such steps can only be taken, if at all, with the utmost restraint, and with the ultimate goal of securing and restoring basic rights and liberties. This imposes a duty on us as a society, on this committee in particular, and indeed, on all legislators to be satisfied that the means adopted here are as limited as are reasonably necessary in the circumstances and that there are sufficient guarantees in place that once the threat has been reduced to an acceptable level, the special measures will be withdrawn.

Thank you, Mr. Chairman.

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

Now to the

[Translation]

the Commission des droits de la personne et des droits de la jeunesse du Québec [Quebec Human Rights and Youth Rights Commission], represented by Mr. Lefebvre and Mr. Bosset.

Mr. Roger Lefebvre, Vice-President, Commission des droits de la personne et des droits de la jeunesse du Québec [Quebec Human Rights and Youth Rights Commission]: Thank you, Mr. Chairman. I am accompanied, as you have just indicated, by Mr. Pierre Bosset, who is Director of Research and Planning at the Commission des droits de la personne et des droits de la jeunesse du Québec.

Mr. Chairman, members of the committee, the Commission des droits de la personne et des droits de la jeunesse du Québec has been vested by the National Assembly of Quebec with the responsibility for promoting, through all appropriate measures, the principles of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter of Rights and Freedoms is as quasi-constitutional document that confirms the fundamental rights and freedoms of all citizens of Quebec. It furthers the international human rights commitments of Quebec and Canada.

As trustee of the principles of the Quebec Charter, Mr. Chairman, the Commission thanks the Standing Committee on Justice and Human Rights for inviting it to present its observations on Bill C-36, the anti-terrorist act.

As Parliament undertakes the examination of this bill, it must be kept in mind that the aim of this bill is first and foremost to protect our rights and freedoms: the right to life, the right to security and the right to personal freedom, in particular. The fight against terrorism must not be viewed as an end in itself, but as a means of defending these rights and freedoms. This is why, Mr. Chairman, the means used to combat terrorism must not in themselves become a threat to rights and freedoms.

If restrictions on rights and freedoms are temporarily necessary to fight terrorism, they must meet strict criteria of rationality and proportionality. In the final analysis, it will be up to the courts to determine compliance with these criteria, the burden of the proof being incumbent on the legislator.

The Commission supports the provisions of Bill C-36 respecting the distribution of hateful messages as well as mischief motivated by bias. However, the Commission considers that it must emphasize here, for the benefit of parliamentarians, the aspects of Bill C-36 that at this stage raise fears or concerns from the point of view of rights and freedoms.

The Commission is concerned about the definition Bill C-36 gives to the expression “terrorist activity”.

We have nothing against the first part of the definition, which refers to the international conventions on terrorism ratified by Canada. However, we believe that the second part of the definition is too broad. As drafted, this part of the definition may apply to such activities as illegal strikes or acts of civil disobedience, which are improperly equated with terrorism. According to the Commission, the fight against terrorism must not serve as a pretext for the suppression of forms of dissidence that are commonplace in most democratic societies and may arise from the exercise of the fundamental freedoms of peaceful assembly, association and expression.

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Accordingly, the Commission urges the legislator to more precisely define “terrorist activity”.

Bill C-36 provides for the possibility to compel a person to be interrogated in conjunction with an investigation pertaining to a terrorism offence. This possibility must be considered in light of the protection against self-incrimination.

In theory, according to the provisions of the bill, the questions asked in connection with such interrogation must concern an offence of terrorism already committed or reasonably expected to be committed. They must be limited to the purposes for which they are intended, for example to discover the hiding place of a suspected person or obtain other “direct and material” information pertaining to the said offence. In practice, Mr. Chairman, such interrogations must be rigorously supervised by the presiding judge so that they do not degenerate into “fishing expeditions.” Moreover, even though the answers given in connection with such an examination, as well as the proof arising from the evidence so obtained, cannot be used against the person interrogated, the person must answer the questions and cannot invoke his right to remain silent. The Commission des droits de la personne et des droits de la jeunesse is concerned to see that one of the fundamental principles of our penal law is being eroded in this manner.

Pursuant to Bill C-36, it will be possible to arrest a person and take him into custody without a warrant if a peace officer “suspects on reasonable grounds” that such taking into custody is necessary to prevent a person from committing an act of terrorism. The Commission urges the legislator to reconsider the use of such a subjective notion. Manifestly, Mr. Chairman, this notion is not as exacting as “believes on reasonable grounds”, which appears elsewhere in the bill. For this reason, we are concerned about the abuse to which this provision may give rise in that it infringes, primarily, on the right not to be deprived of one's freedom.

Bill C-36 eliminates the necessity of proving that electronic surveillance is a last resort in connection with an investigation on terrorists. The duration of an electronic surveillance mandate will be extended from 60 days to one year. Up to three years may elapse before the person who is the subject of surveillance is informed of such surveillance.

These new provisions derogate from the rules that are normally applicable in this respect. They must be considered as affecting the right to respect for one's private life.

The same is true of the provisions of Bill C-36 authorizing the Communications Security Establishment to intercept private communications between Canada and a foreign country. It is far from certain that the prior authorization of the Minister of National Defence will be sufficient to prevent potential abuse in the application of these provisions.

Mr. Chairman, because of their impact on citizens' rights and liberties, it is important to insist on the necessity to make the new provisions temporary ones. In principle, the restrictions made to rights and freedoms for the purpose of confronting exceptional circumstances must be limited in time.

Nevertheless, the Commission, among many other interveners, is of the opinion that clause l45 of the bill is clearly inadequate. Clause 145 provides for an in-depth parliamentary examination of the “provisions” and “application” of the bill, three years after it is enacted.

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Mr. Chairman, this provision has nothing to do with a real sunset clause. Nothing in clause 145 obliges parliamentarians to pronounce upon the expediency of maintaining in force or amending the provisions of the law, which will remain in force until they are repealed.

Resorting to the measures restricting rights and freedoms found in Bill C-36 constitutes an act that has serious enough consequences for its application to be limited in time. The Commission is in favour of a provision setting out that the provisions of the bill that affect rights and freedoms will cease to have effect beyond a predetermined time limit.

Like all concerned stakeholders, the Commission des droits de la personne et des droits de la jeunesse du Québec thinks that Bill C-36 raises major challenges from the viewpoint of human rights and freedoms. For this reason, it is of the utmost importance that Parliament not only insert a sunset clause limiting in time the restrictions on rights and freedoms set out in Bill C-36 but also subject each of the restrictions concerned to a rational, in-depth examination.

Because of the bill's complexity and the seriousness of its consequences, the Commission urges Parliament not to adopt the provisions of Bill C-36 precipitously and to continue to accord all the necessary attention to the examination of this important bill. The exceptional context in which the bill is being examined, by both the House of Commons and the Senate, should incite parliamentarians to exercise prudence, in the very name of our rights and freedoms.

I will conclude, Mr. Chairman, by saying that, in the circumstances, the legislator must make a supreme effort to attain the objective sought: fighting terrorism while respecting the fundamental principles that, in other times, would never be compromised.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Lefebvre.

[English]

For the first questions, we will go to Mr. Fitzpatrick for seven minutes.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Thank you, gentlemen, for taking the time to come here and inform people about your concerns.

The part of the definition of “terrorist activity” that's caused some concern, to lawyers anyway, is the motivation part, the political, religious, and ideological purpose, objective, or cause as an element in the offence. From what I can gather, the best explanation for including this in the definition is that it would somehow prevent the Martin Luther King situation. Saskatchewan did have an illegal walkout or strike in the medical field two or three years ago that went on for quite a long period of time. They defied injunctions and court orders and stayed on strike. The best I can gather is that the argument for the inclusion of this section is that it would protect those groups.

I'm wondering if any of you gentlemen has a comment about the purpose of that clause, and whether that would protect dissenters and protesters and so on from being classified as terrorists, engaging in terrorist activity. I refer to proposed item 83.01(1)(b)(i)(A).

Mr. John Russell: I don't see that as a significant protection. If doctors decide they're going to respond to essential services legislation by withdrawing their services, that seems to me to be vague enough to be described as an ideological purpose. It's not crystal clear that it would be protected. In the case of first nations, a decision to block an airport or a road would certainly not be protected by that.

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The idea that “terrorist activity” will be committed for political, religious, or ideological purposes is enormously vague and broad, and it could capture a lot. It would be possible under this legislation to place under preventive detention our version of a Mahatma Gandhi or a Martin Luther King. Not that we have such people on the ground now or the need for such people, but it shows you the breadth of the legislation.

The Chair: Mr. Barrette.

[Translation]

Mr. Denis Barrette (Counsel, Ligue des droits et libertés): I'd like to stress the fact that even in paragraph a) in the definition of “terrorist activity”, in the same clause, there might be certain problems. I refer you to proposed subparagraph (v), which says:

(v) the offences referred to in subsection 7(3.4) or (3.6) that implement the Convention on the Physical Protection of Nuclear Material—

Those are terrorist activities.

It's all very nice to trigger the Convention on the physical protection of nuclear material, but if you go back to section 7(3.4) in the Criminal Code, it refers to the transport of nuclear material. The bill also refers to section 423 in the Criminal Code, which states that it is prohibited to intimidate somebody transporting nuclear material by blocking or obstructing the road.

Let's take the example of the French or German people who, in a gesture of solidarity or because of political reasons, lay down on the road on which nuclear waste was being transported from France to Germany. I think it was last spring. You could say that they did commit some illegal act by blocking the road, but could you say that they wanted to prepare some terrorist activity? Let's then go further and think of a Canadian environmental association whom those people would have visited before their demonstration. The Canadian group would also fit the definition of “terrorist group”.

I would like to point out that offences included in the definition of “terrorist activity” automatically become terrorist activities without necessarily being so.

The Chair: Thank you very much.

A short question.

[English]

Mr. Brian Fitzpatrick: You hear lots of scenarios, and one that is troubling to me is where a person could be charged as a terrorist under this legislation and may not know who his accuser is, may not have the right to cross-examine his accuser, and may not have access to the very information that is going to be used to convict the individual. Can that scenario occur in this anti-terrorist legislation? I read an article where somebody was painting up that sort of scenario, and that I find very troubling in the British tradition of criminal justice.

Mr. Garth Barrière (Policy Director, British Columbia Civil Liberties Association): I'm not sure that, except in a limited circumstance, such is the case with this legislation, that you don't know who your accuser is, you don't know what you're accused of, you can't get information. The one example I would point to is the certificates that can be issued, including under the Canada Evidence Act. A certificate can be issued by the minister, that prevents you, as a defendant in a criminal case, getting access to information that may be useful to a defence you want to bring forward. That's of grave concern to us, because it seems to limit your right to disclosure as a defendant in a criminal prosecution if the minister can say, no you can't have this information, and the federal court can't review whether or not the information we're holding back on the certificate even meets the criteria that should be in place before the certificate is issued. So with that limited circumstance, I think there is a problem, but more generally, I don't see this legislation as encroaching at a conviction stage on the rights guaranteed to an accused.

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The Chair: Thank you very much.

For seven minutes, Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): First of all, I would like to thank you for joining in with all the others who have voiced their concerns regarding the possible application of Bill C-36. Quite sincerely, I agree with everything you have said, from A to Z. I have been saying the same things over and over again ever since the bill was first tabled.

To sum up, the way the bill is drafted, there is the possibility of abuses, and I think that all six of you share this point of view. You are not questioning the rationale for such legislation, but it does allow for abuses. Individual rights and freedoms, and even the rights and freedoms of society, could be threatened by potential abuses of the legislation.

The bill places far too much power in the hands of individuals. The balance that the government has been trying so hard to attain, which seems to have been an important element right from the outset, is the balance between national security and rights and freedoms. Obviously, this objective has not been reached. I think that everyone also agrees that a sunset clause is needed.

Here is my question: Would it be possible to add something to this bill that would shed more light on the rationale for its introduction? I will explain what I mean by that.

I am convinced that we need such legislation, if only to implement here in Canada certain international conventions that we have yet to implement. We also need such legislation to deal with the whole problem of money laundering. At present, Canada is far, far too lax, and we really have to think about this problem.

Yet it seems to me that something is lacking. I am thinking aloud along with you, and I would like you to tell me whether I am completely mistaken or if it would be possible to do a better job of delineating the reasons for such legislation and the way we would like to see it applied in Canada. I think that a precondition is missing for the application of Bill C-36.

I know there are provisions in the Criminal Code... I do not have an example with me, but at the very beginning of the Criminal Code, there is a section on people who threaten the stability of the government or the democratic nature of a government. The offence is set out at the very beginning of the Criminal Code. We should add a similar precondition to Bill C-36, saying that the legislation applies once the offence has been proved beyond all reasonable doubt.

I am also worried about the new principles having to do with suspicion, etc. Could we use the principles that are well-known in Canada that say "when there are reasonable grounds to believe that such and such an individual or such and such an organization is threatening the democratic nature" or "attempts to overthrow a government or destabilize it financially or an order of government politically?" Could we use something like that? I have not made up my mind about the terms of the definition, but could we add some kind of precondition for the application of the legislation, which would naturally go along with a sunset clause requiring a review and Parliament voting on the legislation again, since this is such an exceptional piece of legislation?

Could that reassure the people who are worried that the use of Bill C-36 could harm people's individual and collective rights?

The Chair: Mr. Lefebvre.

Mr. Roger Lefebvre: Yes, Mr. Chairman. We mentioned in our remarks that the Commission des droits de la personne agreed with the objective here, which is to counter terrorism in Canada and everywhere else in the world.

However, the legitimate objective that the government is trying to attain must not lead to unnecessary attacks on the principles that we wish to defend, such as freedom, the right to life, and the right to security. Consequently, we absolutely must succeed in striking a balance so that the measures taken respect the principles of rationality and proportionality. That is what we said a few moments ago.

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The Commission des droits de la personne has two major concerns. The first has to do with the definition of terrorism. We are told that apparently the minister intends to tighten up the definition somewhat. That remains to be seen.

However, the attacks upon fundamental rights and the basic principles of the Charter of Rights and Freedoms, that is to say, the violation of the right to silence, the preventive detention—and we are focusing on that point, Mr. Chairman—that we could accept under exceptional circumstances, absolutely must—and I think this goes without saying—be limited in time, and this time limit must be provided for in the legislation itself. This is what we call a sunset clause.

The Commission des droits de la personne cannot be satisfied with an announced intention, even in the bill, to eventually review the provisions of the bill, or the act, once it has been passed. We think that a sunset clause is absolutely necessary.

As for the rest, the Commission's primary responsibility is to evaluate the provisions as they have been drafted and to make comments later if amendments were to be made to the bill, amendments that could reassure us, at least about some aspects of the legislation.

The Chair: Thank you.

Mr. Paradis.

Mr. André Paradis: I think that the bill is unacceptable in its current form to those who are concerned about rights and freedoms. Even if it had a clause that specified the objective of the bill, it would not be acceptable, because the bill's machinery, the definition of “terrorist activity” and the powers that are granted and the measures that are provided for are in and of themselves undue violations of rights and freedoms that open the door to abuse.

Of course, one of the big problems is the definition of “terrorist activity.” In the first part of the definition, the drafters merely followed the international conventions, that is to say, they listed specific terrorist acts.

In the second part of the definition, however, while claiming to want to continue with the same logic of the definition of an act, the drafters are attempting to provide a general definition of terrorism. That is why they included an entire series of factors or elements. My impression is that the more we try to provide a carefully worked out definition in the bill, the more we open the door to abuses. This is a problem.

The interpretation of the concept of terrorism in the Immigration Act, the only act that provided for such offences beforehand, has always caused a problem. Indeed, a case is currently before the Supreme Court, the Suresh case. The plaintiffs argue that the definition is too vague and is too general in scope to be valid.

The UN Special Rapporteur on Terrorism and Human Rights has been working on this issue for several years. Her name is Ms. Koufa. In the last report she produced, in August 2001, she rightly pointed out the difficulty of defining the concept of terrorism. That is why the conventions mention various acts and do not provide a general definition. So there is a very major conceptual problem here. She herself points out that one person's terrorist is another person's freedom fighter and that the committee of experts has not been able to agree on this concept.

Let's look at the UN resolution on terrorism, which was first adopted in 1994, then reaffirmed in January 1997. Already, the definition of “terrorist act” is far more limited than what we find in the bill. I will read it out very quickly:

...Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to try to justify them;

Some of these elements are found in Bill C-36, but the drafters expanded on them. They expanded the definition and added all kinds of considerations to it. It has become a catch-all definition that could include all kinds of groups in society who express political dissidence or who are the "usual suspects" under current conditions, that is to say people of the Muslim faith, people who belong to the Arab community or other groups. The definition in the bill could include pretty much everything.

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I think that one possible solution may be to return to a far more restrictive definition. This definition should be pruned considerably. Even if removing the word “licit” is a form of progress, it is not enough to solve the problem of the definition of “terrorist activity” that is found in this bill.

The Chair: Thank you very much.

[English]

I would remind both questioners and witnesses that we're trying to get each round of questions inside seven minutes. I'm much more willing to interrupt the committee members than I am the panellists, but I would just offer that reminder.

Mr. MacKay, seven minutes.

M. Peter MacKay (Pictou—Antigonish—Guysborough, PC/RD): Seven minutes is not a lot of time.

Gentlemen, we very much appreciate your presentation.

[Translation]

Thank you very much for coming here today.

[English]

You are the guardians at the gate of a lot of these rights, and your commentary is extremely telling.

The legislation, as you pointed out, touches on some very fundamental rights, but one I haven't heard anyone raise as yet is the right to financial security. This bill, in many ways, can infringe upon a person's financial security through certain sections that deal with forfeiture and seizure of property with very little recourse. When a person's assets have been seized and they embark on a lengthy legal journey to try to unfreeze those assets, they have no ability to pay for a lawyer. There are also no provisions that I can see that touch on refund of or interest on property that may be frozen for extended periods of time. I would invite commentary on that.

The other question I have was touched upon, I believe, by Mr. Russell, and that deals with the “suspected”, as opposed to “believed”. There is certainly a lower threshold for a peace officer who suspects a certain type of activity, rather than believes it to exist. It has effect in the preventive arrest provisions, and yet is the reason to believe under the investigative hearings. I think you'll also find that lower threshold as it pertains to CSIS in their powers of arrest.

Finally, I wanted to ask a question with respect to the types of mistakes you could foresee—I think there have been several examples given already—the practical application of this legislation, what the result might be. You've alluded to aboriginal peoples and those who are involved in labour disputes, but I'm wondering if you could give us some more practical examples of where this legislation might cause some harm to the collective social fabric of the country?

The Chair: Mr. Russell.

Mr. John Russell: Thank you very much, Mr. Chairman.

On the issue of seizure of financial assets, we share those concerns, but we do think the legislation addresses legitimate problems. The financing of terrorism has to be short-circuited somehow. In our opinion, the most effective way to address that issue is to restrict the scope of the definition of terrorist activity, because it's necessary to have strong provisions to deal with the financing of terrorism. The reason we've focused so much of our energy on the issue of definition is that almost all the important provisions of this legislation, the substantive provisions, are triggered by the definition itself. If we have an acceptable definition, I think it's easier to accept the sorts of measures that are there restricting the finances of the terrorists.

• 1030

Terrorism, in our view, is primarily about politically motivated threats to the health, safety, or property of individuals. While the disruption of essential services often contributes to that, the other parts of the definition target those issues directly. So we think we can get rid of proposed item 83.01(1)(b)(ii)(E), and this would focus our attention on the right sorts of questions that need to be addressed in identifying terrorist activity.

Mr. Garth Barrière: To give you, just briefly, a practical example of the sort you asked for, we had a call from an Arab Canadian who had been visited by the RCMP. When arrived home, his wife was in the kitchen being questioned by the RCMP. They asked him a bunch of questions, they asked to search his home, and he agreed, because he had nothing to hide. His concern was, is there now a file on me somewhere? And I said to him, most probably there is, even though he wasn't arrested, he wasn't charged. It's that sense of insecurity that results from even something as simple as a police officer coming and.... The police officer did go on to ask if he knew Mr. Ressam? He said, no, I've never met him, I don't know him. In the call I got you could feel the fear and the concern of the caller—am I now on some sort of list? Even if it's not a legal list, it's a police list.

So imagine the kind of impact a preventive arrest will have on someone who is released in 24 hours because they've got the wrong identity, because they've mixed up the names, or because they've just no information to keep them, the judge decides that even reasonable suspicion isn't there. Or perhaps there is reasonable suspicion and they're kept on recognizance for a year, but nothing flows from that. The impact is not negligible, it's significant, and this committee needs to be aware of those sorts of emotional, psychological impacts, and impacts on the sense of being a Canadian citizen or landed immigrant, that will occur because of this legislation.

The Chair: Thank you very much.

I have three names left and less than a minute. So please try to be brief. Mr. Bosset is first, I think.

[Translation]

Mr. Pierre Bosset (Director of Research and Planning, Commission des droits de la personne et des droits de la jeunesse du Québec): Thank you.

I would like to answer the part of your question having to do with financial security. The right to enjoy and have use of one's property is recognized in certain human rights documents, but generally speaking, this right is exercised to the extent provided for in the law. So the law can place restrictions on one's right to enjoy the use of one's property. The restrictions found in this bill may be of this nature.

However, we have to be careful about these provisions being applied in a discriminatory way. In other words, the provisions of the legislation must not be applied more strictly to people on the basis of discriminatory criteria, particularly religious or racial criteria. If such a form of discrimination occurs, there may be a serious infringement of human rights. I believe that our federal counterpart, the Canadian Human Rights Commission, may have something to say about these issues.

The Chair: Thank you.

Mr. Barrette.

Mr. Denis Barrette: Earlier you were speaking of reasonable grounds for suspicion. I will give you a few practical examples.

I am a criminal lawyer, and I have been practising criminal law for a few years. First of all, someone must have told you that these two definitions are totally contradictory. I can tell you that practically speaking, when police officers have a certain authority, they often go to the extreme limit of that authority, or they go beyond it. For example, my mind turns to the "preventive" arrest of Jaggi Singh during the APEC Summit. I went to the Quebec Summit. I was there to defend the people who were arrested. Some people were arrested without any charges being laid, they were never charged with anything and they were held for interrogation for entire nights. There were several such cases.

Unfortunately, I predict that if this bill is passed, people will be arrested just for investigative purposes, just to give conditions, and above all, to intimidate people. One of the most dangerous things about this bill is that this tool, preventive detention, could become a tool to intimidate dissidence.

• 1035

The Chair: Thank you very much.

Mr. Paradis, you have four minutes.

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Thank you very much, Mr. Chairman.

I would like to thank all of our witnesses for their presentations this morning.

First of all, I would like to put things in perspective. The officials from the Department of Justice who appeared before us told us that although this bill was drafted quite quickly—you saw how quickly it was tabled—they had taken all kinds of precautions. On one hand, they had a team of drafters who were specialists in the Charter of Rights and Freedoms, and on the other hand, they had a team of drafters who were specialists in drafting bills in general. They assured us that throughout the entire process, these two teams worked together. The experts on the Charter of Rights and Freedoms expressed their opinion of each clause, followed by those who wanted to grant greater authority. So we are considering legislation that was prepared in this manner. We are also dealing with the fact—and everyone is saying this—that things will never be the same. When will everything return to normal, if that is possible?

As most of you mentioned, we must have the tools that are appropriate to the threats before us. Just last night, the American Justice Minister, Mr. Ashcroft, told us that we can expect other terrorist attacks in the week to come, which certainly is not very good for the economy.

We also have to look at the trade between our two countries. On the weekend, I made representations to members of the American Congress representing districts close to the border, because our trucks are backed up waiting on the Canadian side of the border. Things are no longer as they were before.

We are told that perhaps we should focus on the areas where the risk is the greatest, with the tools at our disposal.

I would particularly like to welcome Mr. Roger Lefebvre, who served as Minister of Justice in the government of Robert Bourassa. I will quickly quote an excerpt from the excellent brief he gave to us:

The fight against terrorism must not be considered an end in itself, but a means of defending these rights and freedoms.

I think you were absolutely right when you wrote those words.

I would like to raise three points. You mentioned the definition of terrorist activities. All the witnesses have assured us that the bill was not intended to cover illegal strike actions and so on. The Justice Minister and her officials told us that they were not trying to cover such activities.

First of all, I would like to ask a question of all the witnesses, and ask them how we could draft a clause that would make it clear that these activities are excluded, since everyone is telling us that they want them to be excluded.

Secondly, Mr. Lefebvre, later on in your brief you talk about the right not to self-incriminate.

I remember that in Quebec, during a number of commissions of inquiry, the inquiry into organized crime and the inquiry into spoiled meat, for example, the witnesses were obliged to talk; if they did not want to speak, they were put in prison. This was done in cases that may have been less serious than a case of terrorism. I would like to hear more on this issue.

Third, I would like to talk about sunset clauses. We have seen that the United States have adopted one. Perhaps it is because they gave more powers to police authorities, but they have adopted a sunset clause, just as France has. If we were to adopt a sunset clause, which clauses should it apply to? If it does not apply to the entire bill, what clauses would you like it to apply to?

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

• 1040

Mr. Denis Barrette: First of all, I would like to respond to the question about investigations. This is a completely new process for our system of law. A position is created that is similar to that of an examining magistrate, and the person appointed to the position would carry out an investigation. It is not the same thing as a commission of inquiry, which has a specific mandate. You gave the example of the spoiled meat investigation. There was a specific problem with spoiled meat, and a judge looked into the matter. This investigation also had a public side to it and a pedagogical side to it. That is not the case here. This is practically like an investigation, I would even say a fishing expedition, where a police officer has grounds to suspect that a terrorist activity has occurred. This leads him to question someone and ask him where he lives, with whom, who his friends are, who he has called on the phone, etc. The judge's role has changed completely. Instead of being impartial and independent, he has almost become an extension of the executive, and extension of the police. This is completely new to our Criminal Code, to our principles of criminal law and our principles of common law.

I will let the other witnesses answer your other questions.

Mr. Pierre Bosset: Let's go back to your introduction. We sense in this bill the desire to strike the right balance between the protection of individual rights and the protection of society. We can see it in a number of the provisions, and no doubt they bear witness to the skilled lawyers who work at the Department of Justice. However, this review by lawyers who specialize in the charters is a process that is followed for all bills. I do not believe this is something special for this particular bill. All the same, we routinely see the courts strike down various statutes and clauses, even though they did go through this process of being filtered by the officials. I would like to stress that you, the law makers, have the ultimate responsibility to take these decisions, not the officials. This is your responsibility.

No doubt it is true, I presume, that this bill is not specifically intended to deal with illegal strikes, but all the same, this bill in its current form can be applied to illegal strikes or acts of civil disobedience. There is nothing to guarantee that these provisions will not be used in that way in one, two, three or four years' time if there is no sunset clause. I think now is the time to be careful.

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

Mr. Denis Paradis: I would just like to stray off topic for a moment to ask you what you would see as being an improvement.

Mr. Pierre Bosset: I think that we would have to look at that. Indeed, it appears that the minister is open to amendments relating to the very definition of “terrorist activity.” We will be in a position to assess that once the amendments have been tabled.

You also asked about self-incrimination. It is true that in some situations, witnesses were forced to answer questions, but these statutes that stipulated this obligation to answer often were passed before the charters of rights and freedoms came into effect. I think that we have to be careful when we make these comparisons.

You also asked whether there should be a sunset clause—I believe so—and which clauses it should apply to. It does not have to apply to the entire bill. We are in agreement on some provisions of the bill, and we have said so. Basically, the sunset clause should apply to the provisions you identified, with the help of the witnesses, as being offensive to rights and freedoms.

The Chair: Thank you.

I will now give the floor to Mr. André Paradis.

Mr. André Paradis: There was a time when people would mistake me for your brother and vice-versa.

I would just like to reiterate what Pierre has said more diplomatically. I have never met a minister who has not guaranteed us that his or her bill can pass the test of the Charter. I have often attended parliamentary committees in the past 15 years, with Pierre, by the way. We often find ourselves at the same table. So I have never met any minister who has not given me this guarantee. But this minister's word is not enough. The fact that the minister is already admitted today that the definition of “terrorist activity” is a problem, despite the careful review of her officials means that this process is not sufficient and is not—

A voice: Foolproof.

Mr. André Paradis: ...foolproof, as they say in English. I am sorry, this is what happens when you speak in French but you want to speak in English.

• 1045

Moreover, to give you a good example of the problem, we find ourselves with the definition of “terrorist activity” that is so broad in scope that we saw, and it was before this committee, that the minister and the Commissioner of the RCMP gave different assessments of the scope of this definition.

The minister said it could have been used in Quebec during the demonstrations around the security perimeter while the commissioner said last week that in his opinion, he hadn't seen anything in Quebec that would justify the use of these provisions. There could have been, but there was nothing.

If between the Commissioner of the RCMP and the Minister of Justice there is this huge difference in interpretation concerning the effects of this, I think the human rights defence organizations are right in suspecting, of believing that maybe, perhaps not in its intent but in its result, this could target legitimate political dissent as well as the members of certain communities that are especially vulnerable.

We have to distinguish between intent and effect.

The Chair: Thank you very much.

[English]

Now we're going to our three-minute rounds, and I would just advise everyone that our seven-minute rounds have been running about 11 minutes, so the three-minute rounds will be a particular challenge to the chair. When posing the questions, try to put them precisely enough that we can get a couple of answers inside three minutes.

Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, and thank you, witnesses, for coming.

I appreciated the comments by each one of you, but I also appreciated the comments by Denis Paradis and Peter McKay. Peter McKay said you were the keeper of the gates of civil rights, and I think what we have to understand in what Mr. Paradis said is that although you're the keeper of the gates of civil rights, now everything has changed. We sit in these meetings day after day, and we hear witnesses talking about what changes have come along. The responsibility of this government is the protection of our country, the protection of our security, the protection of the freedom we enjoy outside. Everything has changed. I guess we all care about our civil liberties, but I care about the 7,000 people who are dead, I care about the people who are left without parents, without brothers and sisters. There's a balancing act, and 80% of Canadians say, we're willing to give up some of our civil liberties, we're willing to give up some of our freedoms, because we understand now that, as Mr. Paradis suggests, it's different now.

The question I was going to ask was just asked by Mr. Paradis, but Mr. Russell didn't answer it. What parts would you like to see sunsetted? What parts would you like to see taken out? Every one of you suggested that the definition of terrorism is too broad. What would your definition be? If you were in this government's position, realizing national security, how would you define terrorism for a bill such as this?

Mr. John Russell: The important thing to recognize here is that we're all, I think, prepared to accept that there needs to be, at least temporarily, a rebalancing, or at least consideration of a rebalancing, of the relationship between civil liberties and security interests. What goes along with that is the recognition that this is the beginning of a debate about the matter, and having a sunset clause, I think, is a way of ensuring that the debate continues after this legislation is passed—and it must be passed fairly quickly. So that's one thing to say.

In response to your request that we define the legislation for you, this is happening enormously fquickly. You're having trouble defining the matter of terrorist activity, we are too, but some things do seem clear to us. It would be a simple thing to get rid of proposed item 83.01(1)(b)(ii)(E), as it looks to us as though items (A), (B), (C), and (D) deal with the main thrust of terrorism. They deal with the fact that for political purposes, efforts are made to intimidate our society by violent means, by threats to health and safety, by threats to property. We don't see anything important captured within item (E) that is not already captured within items (A) through (D). So that's a fairly concrete proposal we can make.

• 1050

There's been some suggestion that you remove the term lawful from item (E). I don't think that will help at all. It's possible to interpret that item, if you remove the word lawful, as implying that the term is contained there. The fact that this committee removes the word lawful here is not going to make much difference in the way law enforcement officials interpret it. When they see the words “advocacy, protest, dissent”, they're likely to read “lawful advocacy, protest, dissent”. So it doesn't control the crucial issue.

The Chair: Mr. Lefebvre.

[Translation]

Mr. Roger Lefebvre: Mr. Chairman, I would like to respond to the comments made by my friend, member of Parliament Denis Paradis.

Of course, we noted that the bill was written in haste. For this reason, we are now asking you to hurry slowly, to vote with... We're convinced that the assessment of this bill is being done very seriously and we're encouraging you to do it even more seriously if possible.

The member said before that there are Canadians today who are ready to give up their personal rights, who are even ready to give up their own freedoms because of the worry and the psychosis that's being created everywhere in America and even all around the world. As long as a citizen is not personally deprived of his right to freedom, things will be fine, but if, hypothetically speaking, he were to feel unjustly deprived of his freedom because of Bill C-36, he might have a very different reaction.

That's the responsibility of the Human Rights Commission: to oversee the lawmaker and give him due warning. As lawmakers, you have the very heavy responsibility of trying to reach a balance. You must try to attain your objective which is to counter terrorism and protect our citizens, but at the same time you should not pass a law that would, in very exceptional circumstances, be out of proportion as compared to the objective you wish to attain.

This balance is difficult to achieve and we quite agree with that, Mr. Chairman. You have very heavy responsibilities. On our side, as guardians of human rights, we have the responsibility to oversee the lawmaker.

[English]

The Chair: Finally, a seven-minute round.

Voices: Oh, oh!

The Chair: John McKay, for three minutes—again.

Mr. John McKay (Scarborough East, Lib.): Okay, I'll try and keep it at a seven-minute standard.

I wanted to thank the presenters for their very able presentations and ask two specific questions.

The first question has to do with the constitutionality of this bill. We've been repeatedly told by the minister and the department, both in the House and before this committee, that this bill is constitutional as is. That's been repeated before the Senate hearings, as I understand it. My suspicion is that this panel might well dissent from that view.

Having said that, I'd be interested in the reaction of the panel to another way of approaching constitutionality. The ultimate issue is whether the Supreme Court, or the courts generally, will defer to Parliament on this point, whether Parliament will be able to communicate the severity of the crisis it faces, and whether this is, in fact, a proportionate response to that crisis. So the idea has been suggested to us by another witness of a continuous watching brief by a standing committee, and I'd be interested in whether any of you have given that much thought.

• 1055

The second issue is with respect to reasonable grounds—this particularly to Mr. Lefebvre. We were told by, I believe, the director of CSIS that there is an established body of law as to what reasonable grounds means with respect to both preventive detention and investigative hearings. I was a bit surprised by that response, but maybe I'm wrong, maybe there is a body of law with respect to both of those concepts. I would appreciate response on the general question, but also on the specific question as well.

The Chair: For the first question I have Monsieur. Barriere and Monsieur Paradis.

Monsieur Barrière.

Mr. Garth Barrière: I'll answer the question on the charter. I think it's important to recognize a distinction between looking at this legislation to divine whether or not a particular provision is going to be unconstitutional and looking at legislation to decide whether, on policy grounds, it's a good choice. There are lots of laws that can be passed that are quite constitutional, but are still problematic from a policy perspective or from our position, from a civil liberties perspective. In this committee you can look at the legislation for its constitutionality, but more importantly, you can look at the legislation and decide whether, even within the constitutional parameters that are given to legislators, it is a good idea. We won't know until these particular provisions are challenged in court and make their way up through the appellate process whether or not they are in fact constitutional.

We've been referred to as guardians of the gates of civil liberties, and that's a nice compliment, but you're the guardians of the gate of the law. You have to be in a position to play that role, and you're doing that today. The idea of an ongoing parliamentary watch on this legislation is a great idea, if it can be followed through, because parliamentarians, I think, are the guardians of the law, and if the law is acting badly, even within constitutional parameters, then it's the parliamentarians who are responsible for repealing, amending, and so on.

That's why, I think, we called for a sunset clause, because it reintroduces the role of the parliamentary guardians. You have to look at this legislation, or at least parts of it, later on, and decide whether or not we should continue with this. We say that role should be placed back in your hands in three or five years.

[Translation]

The Chair: Mr. Barrette.

Mr. Denis Barrette: My comment is about the reasonable grounds to suspect; as I was saying before, these are two concepts which, generally speaking, are in opposition. In jurisprudence, suspicion has more to do with rumour, with unverified information or with something whose reliability has not been checked, especially when dealing with a search. Reasonable grounds to believe are generally based on verified information. If it comes from an informant, you check on the reliability of the informant and so on.

I can give you a very short quote from Judge Cory in the Storrey decision:

In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.

I'll tell you what's special with a conditional commitment. The police officer, if he has suspicion or reasonable grounds to suspect or even a fear, should impose conditions to a specific person to prevent that person from doing such or such a thing even though that person has never committed nor will ever commit any criminal act.

In that context, one wonders on what basis police officers are going to force someone to honour conditions and detain someone for 72 hours, take that person's fingerprints and picture, even though that person was neither accused nor charged, bring him before a judge and force him to respect the conditions.

I think that's my minute. I could see you making signs.

[English]

The Chair: No. I'm trying to make sure everybody gets their questions in, but we don't want to lose valuable information in the exercise.

[Translation]

Mr. Paradis.

Mr. André Paradis: I'd like to come back to the fact that Canadians, at this time, are ready for a rebalancing of the security and rights and freedoms equation. That's doubtless the case, but in times of crisis, the lawmaker, in other words the members of Parliament in the House of Commons and the senators, must show even greater prudence because it's exactly during these periods of crisis and when you have public opinion moving in directions that aren't always rational—I'm not saying it's entirely irrational in this situation, but we can still point out that the situation in Canada isn't the same as in the USA, that we're not targeted to the same extent, even though there is a terrorist threat here—that we have to make all those distinctions so that we don't get such a unilateral public opinion developing that it might lead to the passage of measures that would be very harmful to our rights.

• 1100

We must remember the history of Canada and Quebec. In times of crisis, there's always a danger, that we give in to sometimes, to pass measures that will disproportionately encroach upon rights.

During the Second World War, there was a very, very strong movement in Canada to systematically imprison Canadians of Japanese origin in concentration camps. The Canadian government, a few years ago, offered its official apologies to the Canadian community of Japanese origin in this respect. It recognized that, in a moment of panicking public opinion, we had passed a measure that was unfounded and which, in its result, was discriminatory and abused the rights of a very broad community.

Of course, we must reassure Canadians. There are legitimate concerns about security. We have to reassure Canadians and calm down the Americans, but this should not be done to the detriment of our rights and freedoms by unduly limiting those rights and freedoms and passing measures that are so broad in their scope, that are so open to the interpretation of any old civil servant, police officer or security agent that, at the end of the day, we'll wind up with all kinds of breaches and encroachments.

I'm sure that others have already told you that in those circumstances, we have to make sure that those who are acting as leaders in society, and parliamentarians are certainly that, should also look at things with a critical eye and while trying to reassure the citizenry, they should also show judgment, which is more important than ever.

The Chair: Thank you very much.

Mr. Bellehumeur, three minutes.

Mr. Michel Bellehumeur: I think that you're right to say that in times of crisis we must be careful not to go to the other extreme. Right now, Canadians and Quebeckers are looking for security because of the events we all know about. They're going to grasp at anything we give them if we tell them it's good for national security and their own security. You can be sure that people will grasp at that. I think you have the right to ring the alarm when things go too far and you're doing that this morning. As parliamentarians, we must listen to what you are saying.

We must look at this as objectively as possible without getting into specifics, without grasping at that false sense of security. It must be said that no legislation is going to stop men or women who decide to die for a cause. Yes, you can have legislation, but you also have to look for balance. We don't have that balance here. Quite clearly, we don't have it.

As far as I'm concerned, I'm in favour of a sunset clause. I'm also in favour of respecting international conventions. But the way it's worded... Even international conventions, as you said earlier, refer to certain clauses of the Criminal Code. I have some serious problems right now. Yes, I want those international conventions, but they refer to clauses of the Criminal Code which actually go very far concerning hazardous products. When ordinary people stand in front of a truck carrying nuclear products, that is considered a terrorist act.

I think that the hate propaganda provisions aren't a problem, anymore than those that pertain to laundering proceeds of crime. I also think that the registry of charity organizations, except for the very secret part of putting people on the list or not, is still acceptable, depending on a review of those cases. However, for the rest of the legislation, I would like to see a sunset clause.

In the U.S.A., there is a sunset clause setting out that it's for three years, renewable for two years thereafter; so it's a maximum of five years. In France, the legislation clearly spells out that it dies on December 31, 2003. I think that it's even more complex in Great Britain: there are things that are done every year with some kind of vote. I think it would be normal to do that here, save for the exceptions I've just mentioned. Do you agree on that?

• 1105

Mr. Pierre Bosset: Yes, generally speaking. The time limit is necessary and it is even in the spirit of the international conventions on human rights that Canada has ratified, which provide that in times of emergency, you can temporarily suspend human rights on condition you say so. In this case, we did not proclaim a state of emergency. We could have done that. Canada does have an Emergency Measures Act that was passed here a dozen years ago but it wasn't raised in this case. But we are faced with exceptional circumstances and everyone agrees on that. And because we are facing exceptional circumstances, this bill has to be limited as to its duration.

I think the enumeration of the nevralgic or problematic aspects of the bill that you've made are pretty close to the consensus of the witnesses you have before you. At the very least, I think the lawmaker would not err in attaching a sunset clause to the provisions you've just mentioned.

[English]

Mr. John Russell: You and many of the other members of the committee have asked us, and I think what you'd like is some advice about what provisions of this act we can confidently keep and what provisions of the act we should subject to a thorough and open review down the road. Let me make two practical suggestions here.

One is that it's not a difficult thing to go through this act and identify those provisions that restrict established basic freedoms. The preventive detention provisions, the investigative hearings, the minister's certificates, all those types of activities restrict established basic freedoms.

In my opinion that's a start, but it's not really enough. This legislation is so broad and complicated that this is only part of the job that needs to be done. Given the haste with which we're proceeding through it, and we haven't confronted the questions you raised on this issue that directly, at least for my own part and that of the B.C. Civil Liberties Association, a full parliamentary reconsideration of this package is going to be necessary down the road to make sure all the issues we're not going to have a chance to deal with now are properly dealt with in the future.

[Translation]

The Chair: Mr. Paradis.

Mr. André Paradis: We would tend to agree with the idea that even if there were a sunset clause, the whole legislative text should be reviewed. At the present time, it's very difficult to measure the impact of all the measures there are. We got together a team of eight criminal specialists, including very well-known people like Julius Grey, to examine this bill. We have had many meetings and at the end of the day, we still have a lot of questions and there are very major differences of opinion as to the interpretation to be given to certain measures. There are a lot of things and it's difficult to measure the impact and all that. We are of the opinion that, broadly speaking, the legislation should be subject to a sunset clause and the whole thing should be reconsidered. We share the opinion of the British Columbia Civil Liberties Association on that.

On the other hand, we want to avoid having the possible inclusion of a sunset clause softening the criticism we've had on some rather fundamental aspects of the bill. Even with a sunset clause, there are quite unacceptable measures in it still, including, amongst other things, the definition of what constitutes a "terrorist act". We can't work with that definition for three years. The risk of abuse—and there are also other examples—is too great for us to accept. So we are saying yes to a sunset clause, but also yes to rather major changes to other provisions of the bill.

The Chair: Thank you.

Mr. DeVillers, three minutes.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chairman.

A lot has been said this morning about our role as lawmakers and representatives of the people. According to my understanding of section 1 of the Charter, we have rights, but these are not absolute rights. They change with the people's will. I think that after the events of September 11, we are starting to see that in Canada changes are happening as concerns the people's will vis-à-vis the rights set out in the Canadian Charter of Rights and Freedoms.

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Do witnesses agree that the rights found in section 1 of the Charter are not absolute rights but rights that are established by the will of the people? Whatever the changes we might make to the legislation, at the end of the day, the Supreme Court will decide. We're all convinced that there will be referrals to the Supreme Court for it to determine whether or not the Charter is being respected.

I simply wanted to ask you if, as experts in the matter of rights, you agree that section 1 does not list absolute rights but rather rights that can be changed depending on the will of the people.

The Chair: Mr. Bosset.

Mr. Pierre Bosset: Section 1 does actually say that those rights are not absolute, that they can be curtailed within reasonable limits in a democratic society.

However, I don't agree with the first part of what you said that the rights and freedoms were limited by the people's will. It's true that the people passes legislation, but the will of the people can not go beyond what is reasonable to attain an objective. Let's be blunt: the courts have the final word. It may happen, and it has happened in the past and it will happen in the future that the judgment of the courts concerning the criteria of rationality and proportionality that are included in section 1 do not coincide with the will of the people.

I would say that the objective of a charter of rights is to protect the minorities against the tyranny of the majority. You'll tell me that that is philosophical, but that is the very essence of the Charter. That's why we have a Charter of rights.

Mr. Paul DeVillers: Thank you.

Mr. André Paradis: I would like to say that there are criteria concerning the limitation of rights that were established in Supreme Court jurisprudence, like proportionality as concerns the results to be achieved, doing the least harm to the rights we're trying to limit, and so forth. There is already jurisprudence and there are criteria that have been established to determine how far you can go in limiting rights, but to be sure this bill or part of this bill someday will wind up in front of the Supreme Court.

[English]

The Chair: Merci. A final response, Mr. Barrière.

Mr. Garth Barrière: There's been a suggestion that everything has changed since September 11, and I don't agree that everything has changed. I think our principles remain the same. For instance, we live in a free and democratic society—that hasn't changed, and it shouldn't change. There may be a change in that when we apply the principles to the situation we're in, we may come up with a different conclusion, or at least a temporary different conclusion. But the principles haven't changed.

Mr. Paul DeVillers: I agree that the world hasn't changed, but the perception of it may have changed and public opinion may have changed. That's what may have changed.

Mr. Garth Barrière: Certainly, but this exercise was to look at the legislation to see whether it is necessary, appropriate, and effective and whether it creates the right balance. You apply the same principles, but with the knowledge you have that terrorism has been quite forcibly brought to North America and may continue to exist here.

[Translation]

Mr. Paul DeVillers: I think Mr. Lefebvre wants to add something.

Mr. Roger Lefebvre: I agree with the comments my neighbour has just made. You're also right in mentioning a perception by the population. That's where the legislator, and even more so, the Human Rights Commission must be even more vigilant.

We heard a comment to that effect before. As we speak, North Americans seem ready to accept all kinds of restrictions on their personal rights, but as long as they are not personally targeted by this kind of legislation.

The understanding our lawmakers have of the times we're living in right now means that they must be extremely vigilant. Mr. Chairman, I don't want to repeat this for a third or a fifth time, but we are in agreement with the objective that is sought, but with the means that are most proper in the circumstances. That, essentially, is the position of the Commission des droits de la personne.

[English]

The Chair: Thank you very much.

Mr. MacKay, three minutes.

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

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This legislation strikes me as something that can be very effective, but it can also be a very dangerous, a very intrusive legislative tool, if it is in the wrong hands. The minister we have I consider to be quite reasonable, as I've said before, but in the hands of a malevolent minister.... Ministers will change, governments will change, contrary to what some may think. The legislation can be used for broad purposes, as you have pointed out. The Privacy Commissioner and Information Commissioner both were very adamant that their roles were effectively subverted, the legislation would gut the current Privacy Act and Access to Information Act.

One of the reasons given by the minister and others as to why this is necessary is that our allies are concerned about the dissemination of information in this country. That was adamantly denied by the Iinformation Commissioner. We know now that France, Great Britain, the United States, and others have effectively sunsetted many of their provisions. It is difficult to understand why it's necessary in the first place that we take the discretionary review powers away from these two independent watchdogs of Parliament, and further, that we completely exclude the judiciary from any review of information in that regard.

Because we haven't dwelt on those particular areas of Bill C-36, I'm requesting some feedback on those two elements, where the issuance of a certificate is for the broad reasons given, prohibiting disclosure for the purposes of protecting international relations, national defence, or security. Those, in my mind, could be used by a minister at any time to dismiss applications for any type of information. It is so broadly worded that the government could essentially say they're not giving us any information about their actions, full stop. There are checks already on the discretionary use of information by the Privacy Commissioner, the Information Commissioner, and the judge. So I guess the simple question is, is this necessary? Rather than sunset this, why don't we simply get it right the first time.

The Chair: Mr. Barrière.

Mr. Garth Barrière: My understanding from reading the transcripts of previous appearances before this committee is that the Honourable Lawrence MacAulay talked about the principle of judicial review, and yet what we're talking about here is the removal of the principle of judicial review. It gets to what my colleague talked about, the greyness of the rule of law. We have certain principles, and one is that executive actors in our governments are subject to the rule of law and their actions are subject to judicial review.

The certificates exist under four pieces of legislation, the Access to Information Act, the Personal Information Protection and Electronic Documents Act, the Privacy Act, and most dangerously, I think, the Canada Evidence Act. They displace that principle and replace it with a principle, if you want to call it that, of absolute ministerial discretion, which is not reviewable. We say that can't be. If the certificate is going to be issued, there needs to be a set of criteria, at least. Second, the certificate needs to be subject to judicial review. That can be in camera, it can be through sealed packets, if necessary. So at least the judiciary can review whether or not the certificate meets the criteria. That's an essential element. From our position, there cannot be an absolute discretion of the minister to withhold information in that way—that's our minimum position.

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But I think we can go further and say that we agree with the Privacy Commissioner and the Information Commissioner that these amendments are not required. They displace their important roles as watchdogs, and certainly they displace the important role of judicial oversight, judicial scrutiny of executive action.

So that's our response.

The Chair: Thank you very much.

Mr. Owen, for three minutes.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you. And thank you, all, for being here and giving us the benefit of your very thoughtful commentary.

I'd like to just make a couple of quick comments. One is that if we look at the creation of this type of legislation as a risk assessment exercise, we all have to constantly keep in mind that risk assessment includes the combination of two considerations. One is the likelihood of an occurrence of an event, and the other is the consequence of the occurrence of the event. If it's low likelihood of occurrence and high consequence, maybe you don't have to do very much. If it's high likelihood of occurrence and very low consequence, you don't have to do very much either. But if it's high likelihood of occurrence and high consequence, then we've got a real problem of public policy and law enforcement in our society. That's what I would suggest we have before us—but of course, considering all of the important points you've made.

Second, security against terrorism and human rights or civil liberties have been cast as being in some sort of competition often in this debate. In fact, I don't think that's so. I think terrorism and the horror we saw on September 11 provide an example of the ultimate destruction of human rights. What we're looking at here is protection of those very critical and widespread human rights. We're actually involved in a joint process, I think, not a competitive process.

Third—and I won't be leaving you with a question, although I would welcome any response—you may not have been aware and many of the committee members may not have been aware that the Attorney General and Minister of Justice were before the Senate committee looking at this bill yesterday afternoon, and they mentioned specifically that several items were under consideration because of the public dialogue and the work of these committees and appearances before them by people such as you.

The four areas she mentioned specifically, without limiting them, that she was interested in hearing further information and advice on are sunsetting of some provisions of this; the definition of terrorist activity as it might apply to unlawful dissent, which is not what the proposed section is intended to move towards; the possibility of a non-discrimination clause in the definition, which is an issue you've brought up this morning; and a review mechanism for the issuance of Attorney General certificates.

So I think you should come away from our discussion knowing that you have identified and given greater force to many of the things that are very much on the government's mind and what this committee has heard and passed on to the Minister of Justice.

The Chair: Mr. Russell.

Mr. John Russell: Thank you, Mr. Chairman. And thank you, Mr. Owen, for your comments.

I think your suggestion that there is no fundamental conflict between security and human rights and civil liberties is correct, in one sense anyway. Ultimately, the aim here has to be to restore basic freedoms, to reduce the risk, to restore our society to a situation where our basic freedoms can be exercised confidently and without fear. It seems to me that the principle we enunciated in our remarks, that in times of crisis we permit ourselves to restrict established, basic freedoms for the sake of those freedoms, is the right sort of overriding principle to apply. If we take that principle, it seems to me that a whole bunch of things fall out of it. For example, we must regard the extraordinary provisions that are being taken here as temporary. Anything less than that would be a retreat from our commitment to an open society.

I think we're in agreement with what you say. What we need to look to is the principle that will govern the balancing of our security and basic rights and the ultimate protection of those, and that is simply that we can restrict these freedoms in times of crisis only for the ultimate sake of those freedoms.

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[Translation]

Mr. Roger Lefebvre: Thank you, Mr. Chairman.

I've listened to Mr. Owen's comments with much interest. Basically, our lawmakers and the Commission agree on the broad stakes. The citizen has a right to security. We have the obligation and you, as lawmakers, have the obligation to assure us that the citizen may enjoy that security, even under extremely difficult circumstances such as those we have today. On the other hand, we must protect the fundamental rights of those men and women we want to protect. That is the exercise that you, our lawmakers, have to go through.

Mr. Chairman, I've also heard Mr. Owen's comments, who said that the minister, as soon as today, maybe, would table or indicate to parliamentarians in the House of Commons that there will be amendments or changes to Bill C-36, whether concerning terrorism or the use of a sunset clause.

Mr. Chairman, I'm addressing all members of the House of Commons to say that commenting and analyzing those new provisions is part of the role and responsibilities of the Rights Commission and if we are asked to do so, we will do it.

[English]

The Chair: Thank you very much to all the witnesses for giving us your time, talent, expertise, background, and clear passion for the values you watch over on our behalf, as has been so eloquently demonstrated many times today. You have recognized our need to exercise judgment, and our judgment will be considerably enhanced for your interventions.

I'll suspend for a moment while we exchange panels.

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The Chair: It's always a good sign that the committee is engaged in the discourse when we won't let the witnesses leave, but we need to get on with our work and so I resume the meeting of the justice committee and the consideration of Bill C-36.

Now we have as a witness for the next hour and a half Michelle Falardeau-Ramsay, the Human Rights Commissioner. She has with her officials, who I will ask her to introduce. I'm certain, with her experience in this place, she is aware that we start with an opening comment of around ten minutes, and then we'll have an opportunity for discourse.

Madam Falardeau-Ramsay.

Ms. Michelle Falardeau-Ramsay (Chief Commissioner, Canadian Human Rights Commission): Thank you very much, Mr. Chairman.

Let me introduce the witnesses who are with me today, John Hucker, who is the secretary general of the commission, and Richard Tardif, who is the general counsel.

[Translation]

The impact of the events of September 11 continues to be felt and it is understandable that the government seeks to ensure that Canada's legal system is adequate to respond to the threats of terrorism we may face. However, it is vitally important that, in our haste to introduce new measures to counter terrorism, we do not put in place measures that exceed this aim and jeopardize human rights. It is in this spirit that I wish to express the Canadian Human Rights Commission's concerns with respect to some elements of Bill C-36 and our support for others.

If I may start with the positive—we strongly support the proposed amendments to section 13 of the Canadian Human Rights Act which are included in Bill C-36. For a number of years the Canadian Human Rights Commission has been interpreting the Canadian Human Rights Act to include hate messages over the Internet and we are pleased that Bill C-36 makes this explicit. At present, people specifically identified in hate messages can be awarded compensation of up to $20,000. In addition, the person responsible for a hate message can be ordered to pay a penalty of up to $10,000. Given the seriousness of hate messages, the Commission believes that consideration should be given to increasing these penalties.

The Commission is also pleased that the bill proposes to extend the hate propaganda provisions of section 320 of the Criminal Code to allow for a court to order the removal of hateful material on the Internet pending a final decision by a court.

It is extremely important to balance the increased security measures in Bill C-36 with measures aimed at combatting acts of hatred or discrimination aimed at minority groups.

But obviously any attack motivated by race or religion or any act of vandalism directed against a place of worship is unacceptable. The Commission is therefore pleased that the bill includes strong new criminal measures to deal with mischief against a church, synagogue, mosque or temple. In our view, this provision should not be limited to cover damage caused to property used for religious worship. It should also extend to other property used for ethnic or cultural activities or gatherings.

The government should also ensure that the new legislation is parallelled by additional programs and other measures to better educate the general public and law enforcement officials about human rights. There have been reports of backlash since the events of September 11 and some additional efforts by government, police and others are needed to counter this phenomenon.

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[English]

However, as I indicated earlier in my remarks, there are also elements in the legislation that raise serious human rights concerns. The government has repeated that the legislation balances the need to respond to terrorism with the need to preserve charter rights and freedoms. Unfortunately, there has been no charter reference to determine if this is, in fact, the case. Our concern, of course, is that there are certain elements of the bill that may be read as limiting rights and freedoms in a manner beyond what is demonstrably justifiable in a free and democratic society. The question to be asked is, are we getting enough additional security from the additional powers to justify these encroachments on human rights?

Chief among our concerns is the definition of terrorist acts. I know this committee has received testimony from some witnesses expressing similar concerns, so I will be brief. The risk lies in the potential for activities that are legitimate expressions of political dissent to be captured within that broad definition. For example, the bill requires that protest, dissent, or stoppage of work must be lawful to fall outside the definition of terrorism. This suggests that illegal strikes and other demonstrations that may be intended to cause serious interference with or disruption of an essential service, facility, or system, but would not be consistent with any common understanding of terrorism, could well fall within its definition in Bill C-36.

Removal of the word lawful may remedy this, but the inclusion of activities that pose a serious risk to the health or safety of the public may also be interpreted broadly to encompass activities one would not normally associate with terrorism. Naturally, acts or omissions intended to cause death or serious bodily harm or to endanger a person's life should be covered, but serious risk to the health or safety of the public could conceivably include a strike by medical workers.

Aside from vagueness in the definition itself, there is also the risk that in the application of the definition certain groups will be targeted unfairly for the sole reason of their race, ethnic origin, or religion. The possibility of an overly broad interpretation of the definition is particularly worrisome, given the extraordinary police and state powers granted by the bill, which, for the most part, rely on this definition as a safeguard against their abuse.

A second element that raises human rights concerns is the power of preventive arrest in proposed section 83.3. We have not done an exhaustive analysis of Bill C-36, and accordingly, our comments are of a preliminary and very general nature. The power to undertake preventive arrests already exists in our Criminal Code for a very limited number of offences. However, the new powers of preventive arrest under Bill C-36 rely upon an overly broad definition of the offence of terrorism, and they are combined with amendments to the Canada Evidence Act that allow greater scope to withhold evidence because of national security concerns. As a result, if our reading of the bill is correct, we run the risk of detaining people who have not been charged with a criminal offence, but who are detained because there are reasonable grounds to suppose they were going to commit an offence, based on evidence they have not seen.

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We are aware that Bill C-36 would require the consent of the Attorney General for the use of these powers. However, this safeguard, while welcome, is not sufficient. International law emphasizes that preventive detention must be severely circumscribed in terms of both the evidence required and the period of detention, in order that human rights and fundamental freedoms not be violated.

At this stage these are just questions I am raising. I would suggest that more detailed analysis is needed before the bill passes into law. We fear that the speed with which this legislation is being considered may cut short debate and curtail sufficient study of its full human rights implications.

An additional point may be raised with regard to preventive detention. We must remember that we are discussing a person against whom criminal charges have not been laid and may never be laid. We can contrast these preventive detention provisions with those in Bill C-11 referring to immigration detention, where there is an obligation to review the reasons for continued detention at least once during each 30-day period. If the provisions on preventive detention are retained in Bill C-36, this committee may wish to recommend that there at least be regular periodic review of the reasons for detention.

[Translation]

We also have some questions about the amendments to the Canada Evidence Act and the companion amendments to the Canadian Human Rights Act.

The effect of the amendment to sections 37 and 38 of the Canada Evidence Act is to permit a minister of the Crown or an official to object to the disclosure of information by the Human Rights Commission on the grounds of public interest. Our difficulty lies in particular with the changes to section 38.13 of the Evidence Act which would authorize the minister “at any time” to “quote a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or national security.” As both the Privacy Commissioner and the Information Commissioner have said, this grants the minister an “unfettered, unreviewable right to cloak information in secrecy for indefinite periods of time.”

[English]

Finally, given the rationale for Bill C-36, the heightened threat of terrorism in the wake of September 11, and the sweeping state and police authority, resembling emergency and war measures powers, it grants, we strongly recommend that the bill include a sunset clause, resulting in an automatic repeal of certain sections of the act no later than three years after the date on which royal assent is given. While we recognize that there are elements of the bill that should not be subject to a sunset clause, the amendment to the Canadian Human Rights Act for example, we strongly believe that those parts of the bill that extend police powers, particularly those relating to investigative hearings or preventive arrests, or increase the scope for withholding evidence should be temporary. One simple option would be to split the omnibus bill in two, separating out those parts of the bill that should be subject to a sunset clause in separate legislation.

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Our suggestion of a sunset clause does not mean that we assume the fight against terrorism will be over in three years time. It's simply a matter of asking Parliament to reaffirm the legislation by either re-enacting it or changing it. A sunset clause forces everybody to come to the table and re-evaluate the need for these powers against the needs of the day.

I hope you will give serious consideration to the issues raised in our submission. While the commission recognizes the need for the government to move quickly to address the threat of terrorism, it also believes that measures introduced precipitously and overly sweeping in their application will have the effect not of rooting out terrorism, but of calling into question Canada's strong commitment to the rule of law and the human rights ideals enshrined in our constitution.

Thank you very much, Mr. Chairman.

The Chair: Thank you very much.

The first seven minutes go to Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: Maybe you could help me out here. My understanding of the preventive detention under this bill is that the maximum period of time a person can be held would be 72 hours. The immigration bill requires that the detention be reviewed every 30 days. There's a significant difference there, is there not?

Ms. Michelle Falardeau-Ramsay: What I was dealing with is, for example, the case where a person would have been held in preventive detention, then would have gone in front of the judge, and the judge would have ordered, under recognizance, that, for example, this person not go within 100 feet of a mosque or something like that, or that the person should come back for testimony; the person would not have come back, and then would have been ordered by the judge to be in detention for up to 12 months. I think that in this case it would be necessary to have a review of the preventive detention on a regular basis.

Mr. Brian Fitzpatrick: There are people who are very concerned about where some of these provisions can go. A worst-case scenario would be like George Orwell's Big Brother society, in which the state is monitoring and spying and doing electronic surveillance on mass numbers of Canadians, and Canadians would not even know they're being watched, monitored, and so on. I would feel better about that sort of thing if I knew there were some strong judicial permission or review required before that could be embarked upon. I've been told by some experts that there isn't any such control on certain provisions of the act, and it does leave it open for politicians, basically, to start monitoring at their discretion any Canadian they want to, and nobody will know and nobody will be able to check it out, challenge it, or question it. Do you see any problems like this in the bill?

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Ms. Michelle Falardeau-Ramsay: I didn't look specifically at what would be, for example, the powers of CSIS or the police in overseeing what's happening with the various individuals, but one thing I can say, which for me is very important, is that it touches some of the really fundamental values on which our legal system is based, for example, the necessity or the obligation to know the facts that are held against you. With this legislation it seems that in many cases you would not even be aware of the facts that are held against you, so it would prevent you from being able to answer in a complete and exhaustive manner what you are reproached with.

Another area is that the right to remain silent would not be there any more, and you would be obliged to testify even if you're not accused of anything, just as a witness. This I think also is a very important right in our legal system.

I might ask if the secretary general has something he would like to add to my answer.

The Chair: Mr. Hucker.

Mr. John Hucker (Secretary General, Canadian Human Rights Commission): I have nothing really on the issue of surveillance. I think we've looked, at this stage, at the immediately apparent risks to human rights. We haven't looked at increased powers of surveillance with regard to the deprivation of privacy. I think you've heard from the Privacy Commissioner, who has some serious concerns in that respect. We endorse those concerns.

The major focus in our initial analysis has been on the need, first, for a full examination of all the provisions in the bill, and second, the need to achieve some measure of balance between those measures that, understandably, are aimed at threats to the security of the country and the need to reinforce ideas of human rights and non-discrimination in the bill.

Mr. Brian Fitzpatrick: I was just having a glance at the American definition, and it's a lot shorter. It zeroes in on one of three elements, mass destruction, assassination, or kidnapping with the intent to intimidate the civilian population or influence government policy by intimidation. In a lot of ways I'm starting to think they've got this right. It's hard to figure out for sure all the scenarios that can happen, but I can't really envision terrorism not fitting within the ambit of that definition. It just seems to me we've got a far broader definition that leaves lots of room for applications in areas that would be outside what you or I might consider terrorism. I'm wondering if maybe we should be looking at definitions in other jurisdictions with this act, rather than just going with what we've decided to hitch our wagon to. Have you got any comments on that?

Ms. Michelle Falardeau-Ramsay: I completely agree that this definition is too broad. It should be more restricted, so that normal acts of dissent wouldn't be considered terrorism.

The Chair: Thank you, Mr. Fitzpatrick.

[Translation]

Mr. Bellehumeur, seven minutes.

Mr. Michel Bellehumeur: Thank you for your testimony and your brief which will be very useful.

From what I understand, you agree with the whole part of Bill C-36 concerning hate messages, mischief against churches and synagogues and penalties for that.

Ms. Michelle Falardeau-Ramsay: Absolutely.

Mr. Michel Bellehumeur: However, to meet your concerns, penalties should be increased from $10,000 to $20,000.

Ms. Michelle Falardeau-Ramsay: That's it.

Mr. Michel Bellehumeur: Fine. And we'd have to add in cemeteries to places of worship. So far, we agree?

Ms. Michelle Falardeau-Ramsay: We agree very much. Cemeteries as well as cultural centres and meeting centres should be included.

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Mr. Michel Bellehumeur: For the rest of it, as for the four groups we heard this morning, you agree that these are exceptional times and that exceptional legislation is needed, but perhaps we've gone a bit too far. There are dangers of drifting, abuse and so on. You told us about some of those possibilities. There would have to be a sunset clause providing that these provisions will disappear in three, four or five years.

In your brief, you say it's relatively easy: you just need a bill in two parts. At the very beginning I also thought it was relatively easy. However, unless you've already gone through the exercise, it's not that easy to divide this bill in two parts, because of the references and definitions.

Did you look at what might be left and at all the other clauses that would be affected by the sunset clause? After three years, for example, those provisions would disappear on their own unless Parliament re-examined them and passed them again. Did you go through that exercise?

Ms. Michelle Falardeau-Ramsay: We went through the exercise concerning what affected our legislation. For example, it's quite clear that we agree with those amendments concerning hate messages on the Internet. We think that should remain even if there were a sunset clause.

I will admit that I didn't examine the bill clause-by-clause because of the time we had to review it, but I think it could be useful to go through such an exercise. Maybe there are some provisions, like the ones I was mentioning about our legislation, that could be easily put to one side.

It is clear that those parts having to do with increased investigation powers for the police, preventive detention and certificates preventing the presentation of evidence should fall under a sunset clause.

Mr. Michel Bellehumeur: You are reassuring me a little. I went through the exercise. Sincerely, except for the provisions on hate messages and mischief, and maybe even with the changes you are suggesting, it's hard to do. That's about the only part we could set aside and that could remain after that. We would be able to live with that. Actually, some of the amendments you're suggesting are perhaps desirable.

Now for my other question. The minister, answering several questions I put to her in the House concerning the sunset clause, always mentioned a review. Actually, the legislation does provide for a review in three years.

Do you make a distinction between the review that is in this bill and a sunset clause?

Ms. Michelle Falardeau-Ramsay: I make an enormous distinction. First of all, a review is something that is not mandatory, that may or may not happen. I'll give you an example, the Employment Equity Act, that we administer. In that act there is a clause providing for a review after five years. Normally, this review should be undertaken in the fall. It's possible that it will not be done. It is possible that it will be done in a year or two but it is also possible that it will not be done at all. So a review is a mechanism that is far from being certain whereas when there is a sunset clause, the legislation automatically ceases to have effect. If you want to get it back into the books, you have to go back to the House and go through the whole process. At that point, the legislation might have to be adapted to the circumstances which may have changed.

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Mr. Michel Bellehumeur: Thank you. I would have liked to have more Liberal members listening to your explanation. I hope they'll be reading this.

Ms. Michelle Falardeau-Ramsay: I hope so too.

Mr. Michel Bellehumeur: No further questions.

[English]

The Chair: Mr. MacKay, for seven minutes.

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

[Translation]

Commissioner, thank you for your testimony.

[English]

It's very insightful, and very helpful in this exercise of reviewing what I think we're all coming to grips with as an extremely complicated and comprehensive bill that touches on so many other areas of the law. Not to put too fine a point on it, as with the act of September 11, it's going to take us a considerable amount of time to have the potential impact wash over us.

Your commentary regarding the investigative hearings I found somewhat worrisome in the context of how that process will be used. I've been asking myself that question for some weeks now, since we first saw the introduction of the legislation. In a preliminary inquiry, as you know, there's an opportunity to review the evidence and present the crown's case. In these investigative hearings not only is there the ability to compel oral testimony, but the demand can be made to bring physical evidence to the hearing. The wording in this proposed section then goes on to basically restrict the use of that information or physical evidence in a later trial.

So I'm a bit concerned as to how this is going to work. If a person comes, gives a full confession, and produces damning physical evidence against themselves or someone else, there appears to be a restriction on the subsequent use of that evidence in a criminal prosecution or trial. I feel there is certainly a need to give greater clarity to the way these investigative hearings will be conducted. I would invite comment on that.

I'm also concerned with the issue you raised in your presentation about the review process. My understanding as to how it would work is consistent with what you said. Someone who refuses to comply with, or even accept, restrictions placed on them as a result of, perhaps, failing to testify or refusing to accept these recognizance conditions is then potentially in custody for that one-year period, subject to no review. At least, there doesn't appear to be any enunciated process for the defence counsel or the individual themselves to say, I've had a change of heart, or, I would like to have an opportunity to come before a judge again and hear what the crown is relying on for the purpose of holding me. To hold somebody in custody for 12 months with no charge and no review is an extreme infringement on a person's rights. And so, once again, there appear to be some vagaries and some potential for abuse in that section.

Finally, there's this entire definition of terrorism we've all been wrestling with. I'm wondering if you have given any thought to a specific wording or anything you could add to or delete from the definition we have before us that would provide assistance in that regard.

Ms. Michelle Falardeau-Ramsay: I agree with you on your first point, that there should be more clarity. We're dealing with very important fundamental rights, and this should really be very clear and very specific as to how it will be exercised.

As for the process concerning the review process for the person being put in jail, I think it is very important because we're touching also one of the most important rights we have in common law, which is the presumption of innocence. I think this also should be considered.

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As for the specific wording concerning the definition of terrorism, one that I mentioned in my presentation would be that the word lawful be taken out. With the definition of terrorism itself, I'm not an expert in drafting legislation. What I can tell you is that I think it should be restricted, so that, for example, as I mentioned in my text, a strike by doctors couldn't be considered an act of terrorism. I think that would be very important.

Mr. Peter MacKay: Presumably, it affects police themselves in a strike situation as well.

Ms. Michelle Falardeau-Ramsay: Yes, exactly.

Mr. Peter MacKay: I apologize for rushing through this. We have such limited time for such a substantial bill.

The issue of judicial review you also touched upon. In particular, it's almost a contradiction, because the legislation provides for judicial review of certificates as they pertain to charitable organizations—which arguably, again, pales in comparison when it comes to the importance of it—but there is no judicial review for the denial of information when the Attorney General issues a certificate based on reasons of national security, reasons of international relations. These are very broad reasons whereby the top justice minister can say, we're not providing reasons for our actions here, subject to no review from parliamentary watchdogs and no review from judges. One can only be led to the conclusion that this legislation is saying we don't trust the discretion of those officers or the judiciary in that regard. That in and of itself is quite troubling.

Ms. Michelle Falardeau-Ramsay: It is very troubling. I think there should be at least the possibility of review by the courts in respect of the issuance of that type of certificate. The rule I learned in law school, the audi alteram partem rule, says you should know what you are up against.

Mr. Peter MacKay: Yes.

Ms. Michelle Falardeau-Ramsay: It should be tempered with great caution. It would be, I think, very good if there were a type of review in this area.

Mr. Peter MacKay: Merci beaucoup.

Ms. Michelle Falardeau-Ramsay: I will ask, perhaps, if the general counsel has anything to add on any of the issues you mentioned.

Mr. Richard Tardif (General Counsel, Canadian Human Rights Commission): No, Madam, I think you covered those points very well.

Obviously, as the commissioner mentioned, we're concerned about the fact that there's no mechanism in place to review the exercise of the discretion of the minister to issue a certificate. As was mentioned on several occasions, although there are some remedies available before the courts, if somebody had to go before the courts and ended up at the Supreme Court of Canada after that many years, that would be unfortunate. This is why she made those comments, to make sure we could have a mechanism in place to prevent those types of situations. If we have clearer definition, for example, of terrorism, we will be able to restrict the unfortunate situations where this could happen.

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

Monsieur Paradis for seven minutes.

[Translation]

Mr. Denis Paradis: Thank you, Mr. Chairman.

Madam Commissioner, thank you for your presentation. It was mentioned that the people from the Department of Justice who drafted the bill, in this case, seem to have made far greater an effort so that this bill, which was written rather quickly, would conform to standards acceptable for legislation concerning human rights. We were even told that two teams worked day and night in parallel to make sure that each of the clauses would meet those minimal standards.

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All the intervenors are talking about problems and there are two main points that come out of this: the definition and the sunset clause. I must say that in my riding of Brome—Missisquoi, there are nine border posts. During the weekend, I went to visit those nine border posts and I saw the concerns of the truckers queuing up for three hours and other people who wanted to cross the border. We're in a bit of an exceptional situation. The Americans are rather nervous. They've doubled their staff at border posts. They're carrying out operations from A to Z. They're searching all the cars, all the trucks and so on.

The important thing is the balance between the rights of those truckers and traders doing business with the USA—there's $2 billion worth of commercial trade every day going across those borders—and the rights of the citizens who shouldn't get caught by a piece of legislation whose powers are too broad, but that must have broad enough powers. That's the whole matter of the balance we must have.

It is said that the world has changed a bit. Today, we put more of an emphasis on information and our intelligence services. In that respect, there were perhaps shortcomings in the past. I think the Americans are also going to find that there wasn't enough intelligence collected in the field.

I would draw your attention to proposed clause 38.13 of the Evidence Act that you quoted in your text:

...issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.

I understand that with a view to increasing information sources and obtaining information abroad, we're going to have to give guarantees somewhere. We'll say: if you tell me this, I won't repeat it or it won't be made public, neither tomorrow morning, neither in three months, nor in six months. If you don't have that, the other guy will say: I won't talk to you if the information I'm giving you might become public.

We're also talking about a sunset clause and saying that it could be made public three years later. I don't know if that's what you meant to tell us, but we want evidence to be made public. I'm mixing two things up, aren't I?

Ms. Michelle Falardeau-Ramsay: When the sunset clause kicks in, the legislation is of no further force or effect. The legislation lapses. It no longer exists in our books. That doesn't mean that the information becomes public. The information remains confidential.

Mr. Denis Paradis: Just as others have said, you are also saying that a sunset clause should apply to certain chapters, sections or provisions and you were mentioning three years, I think. Am I right?

Ms. Michelle Falardeau-Ramsay: Yes, it could be three years, because after three years we'll have a pretty good idea, at least I hope so, of how the whole situation will have evolved. I'm saying three years, but it could be two years just as it could be four. We need enough time to be able to evaluate the situation. One year seems a bit short because, in that area, you can't do much in one year. A five-year period seems a bit long because the situation could change enormously during that period. It seems to me a three- year period was a good medium term.

Mr. Denis Paradis: Would it not be possible, for those three or four years, to have a mechanism that could be immediately triggered, in case of abuse? It could happen that someone could use those powers for other purposes than the ones intended, and it might be good to have such a mechanism for such cases. I'm not alluding to anything in particular, except what comes to my mind, i.e. the Security Intelligence Review Committee. Could we then imagine such a mechanism that would enable us, during those three years, to raise and make public any case of abuse?

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Ms. Michelle Falardeau-Ramsay: You're catching me off guard. I didn't think of any such mechanism, and it seems difficult to have any kind of committee intervene in order to prevent abuse. It seems all the more difficult since most of what is alluded to here is precisely kept secret, it could never be made public, because of the certificate. How could it be made public?

As for the possibility of abuse pertaining to preventive detention, for instance, if it's based on a certificate, the problem is the same. That's why it is important that there be a review mechanism, or a possibility of appealing the Attorney General's decision when a certificate has been issued. I think this is the best way to prevent any abuse of that kind.

Then there is the Charter, some might say, but any procedure invoking the Charter is as you know very long and costly one. You cannot go that route and get a quick answer. Before it goes to the Supreme Court it could take years and be very costly. I don't think it would be a very efficient means to counter possible abuse of powers granted by the bill.

Mr. Denis Paradis: Thank you.

[English]

The Chair: Thank you very much, Monsieur Paradis.

My instincts tell me you may get another chance.

Mr. Sorenson.

Mr. Kevin Sorenson: Thank you.

I've sat here twice now going through the line, and I keep thinking that Mr. Paradis should be on this side, because he keeps asking all the questions we were going ask.

One of the comments he made is that perhaps we have been very lax in the past. We have been lacking in security in the past. Perhaps we've neglected the security end of things, and really now we're playing catch-up. I don't know if you've ever played catch-up, but sometimes the measures you have to take are fairly extreme.

Every person who has been here has talked about the extreme measures given, especially with the police, particularly those related to investigative hearings or preventive arrests. I go back to what the minister and the commissioner said. They were very clear that this is an awesome power they're being given, one they can't just toss around and use in a wrong way. Maybe I have more confidence in the police—and I'm not talking about what you have said, but what I've heard other individuals say. That leads into the question Mr. Paradis asked. It can't be included in this bill, but perhaps there should be a review mechanism, something more than what we have right now, to ask if they have abused the extra power they've been given—where are all these cases of abuse?

I guess it's just a continuation of what Mr. Paradis asked, but I really think that when you're playing catch-up, you have to recognize that we've got to make sure we hold those people accountable, whether it's the RCMP or the minister for the issuing of certificates. I don't know if you want to comment any more. It was more a comment than a question, I guess.

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Ms. Michelle Falardeau-Ramsay: I have already commented on the question and said what I think about that. Even if we're playing catch-up, it's not a reason to put into jeopardy the rights people in Canada have enjoyed, and I hope will continue to enjoy, really fundamental human rights, like the right to know what you're accused of or on what basis you have been considered a suspect in an area. How can you defend yourself? I think this is really fundamental. It's why there should be, at the minimum, a review mechanism to ensure that those certificates are not issued lightly or for the wrong reasons.

Mr. Kevin Sorenson: Are we exaggerating the rights we may be compromising? When the police officer has to have reasonable suspicion, probable grounds, and we say, okay, so he's got his probable grounds, now we're compromising all the big fundamental rights, isn't it just possible that if they have the reasonable grounds, it isn't really the fundamental rights that are going to be compromised?

Ms. Michelle Falardeau-Ramsay: It's very difficult to speak about reasonable grounds in an academic way without having a practical case in front of us. You cannot allow, in my view, those grounds to be put in jeopardy. Who would tell you that nobody would ever abuse those rights? You have to have safeguards, because if you don't, your basic rights can be abused. I think it's just a normal thing that there should be accountability.

The Chair: Thank you very much.

Madam Commissioner, I'd like to put in, if committee members don't mind, a couple of small questions myself. We have time left, so I'm sure everyone will have their opportunity.

You mentioned your concern about the definition of terrorists acts and the fact that some have spoken of the possible remedy being the removal of the word lawful. Others have recommended that perhaps the entire item 83.01(1)(b)(ii)(E) simply be eliminated, on the grounds that it doesn't add particular value to the section and everything it would capture is already captured without its inclusion. Could you speak very specifically in respect of those two possible remedies to the definitional issue?

Second, do you have an opinion as to whether it would be complementary, unnecessary, or redundant to have both a review and a sunset clause?

Ms. Michelle Falardeau-Ramsay: Let me start with the last one, because, in my view, this is the easiest one. If you have a sunset clause, you don't need a review, unless you have the sunset, let's say, after three years and a review after two years. Then that would be understandable, because you could review before the legislation becomes obsolete. But in my view, the most important thing would be a sunset clause. In this legislation you have a large definition of terrorism and you have values and rights being encroached on, so that I think should be important.

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As for your first part, to get the word lawful out would obviously allow for a stricter way of looking at the nature ofterrorism. But I am also worried, you see, about proposed item 83.01(1)(b)(ii)(C):

to cause a serious risk to the health or safety of the public or any segment of the public

This, I think, should be strengthened, because you could have an illegal strike, or even a legal strike, of doctors or police officers coming under this description. I think this has to be looked at also.

The Chair: Thank you very much, and thank you for your indulgence.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: This is just a comment.

Some Canadian statutes contain monitoring or review mechanisms; I'm thinking of the Access to Information and the Privacy Acts. In both cases we have a commissioner who, like an ombudsman, is entitled to take the government to task in certain situations. Now we have a bill depriving those guardians of any possibility of intervening.

Following what Mr. Paradis was saying, I think it very unlikely that we could have a monitoring or review committee in Bill C-36, precisely because the bill deprives us of those already existing review mechanisms, by preventing those individuals mandated to do that kind of work from doing that job. The political objective behind this bill, one can see, is to be able to focus on certain individuals, because of the current crisis and because of lots of other things.

It's always possible to think that we could have a review and monitoring committee of some kind, but it's all a matter of political will, first of all. Secondly, if there is the political will to have such a committee, we should then give back their powers to the information and privacy commissioners. Do you agree with me, to some extent?

Ms. Michelle Falardeau-Ramsay: Yes, because obviously it would be a useless duplication. If there is a complaint by an individual, whether you trigger one review mechanism or the other, it amounts to the same.

My problem, in matters of review mechanisms, is the same as for courts: it takes time. And then, the person has already been wronged. That's why we have to be extremely cautious about limiting the rights of citizens. We have to make sure that it does not give rise to permanent damage.

I agree that the situation requires that something be done, but, as I tried to convey in my presentation today, any action that is undertaken must be the result of careful consideration and we should do no more than absolutely necessary in order to achieve the desired objective.

Mr. Michel Bellehumeur: You mentioned a three-year sunset clause. I believe that is quite reasonable, since the best example we have of a sunset clause in Canada is the well-known "notwithstanding" clause that can be invoked under the Canadian Charter of Rights and Freedoms. The "notwithstanding" clause is for a period of five years and applies to a limited right. It does not apply to a range of limited rights as is the case with Bill C-36. That is a point in favour of your three-year clause. Since individual and collective rights will be so greatly affected, this timeframe must be reduced. Therefore, I believe that a three-year period would be quite reasonable.

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[English]

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

Clause 88 of the bill contains amendments to the Canadian Human Rights Act. That particular amendment, for purposes of interpretation, adds reference to the Internet and communication between computers. I'm curious about the potential. Could this amendment affect matters that are currently before the Human Rights Commission? I'm thinking of the Zundel case, where this issue has come up. Have you given that some thought?

Ms. Michelle Falardeau-Ramsay: Certainly, but the Zundel hearing is now finished, and we are awaiting the decision of the tribunal. It's obviously one of the issues we have raised, because we have said that the present section 13 of our legislation, in our view, covers the Internet. This would just support that.

Mr. Derek Lee: I don't think Parliament, by enacting this, would want to signal that it had failed to cover the issue in the earlier definitions and descriptions.

Ms. Michelle Falardeau-Ramsay: We see it as a clarification.

Mr. Derek Lee: It would be nice if we could say this is just a clarification, to make sure we all know what we meant then, but it's not worded that way. Is the wording currently there to your satisfaction?

Ms. Michelle Falardeau-Ramsay: We would prefer that it be clarified, to make absolutely certain that this is covered by the legislation.

Mr. Derek Lee: Not to restrict the generality and applicability of the foregoing section.

Ms. Michelle Falardeau-Ramsay: Yes.

Mr. Derek Lee: Okay. That's a thought. Thank you.

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

Mr. MacKay.

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

This is one of these bills where the more you read it, the more things jump out at you. So it was during the course of your exchange with Mr. Bellehumeur on this subject of watchdogs. I direct your attention to part V, page 120 of the bill, where we're dealing with the Communications Security Establishment and empowering the Minister of Defence to have final sign-off authority on interception of private communications that originate outside Canada. There seems to be a huge anomaly.

Proposed subsection 273.63(1) says:

The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment....

So there is the enabling power to set up a commissioner. When you go to page 123, you find subclause 273.65(8):

The Commissioner of the Communications Security Establishment shall review activities....

That's fine, we're putting some checks and balances or oversight scrutiny ability in place, but it says “may”. We're giving the powers holus-bolus to the minister and telling him he might want to set up a watchdog for himself, or he might not. Yet we're putting in place the powers of this commissioner to review activities and do all sorts of things, hypothetically, if that person exists, at the will and discretion of the minister.

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So again it appears that the legislation was cobbled together in a hurried fashion. There's power there, but it appears to me to depend on the goodwill and good faith of the minister to establish this commissioner in the first place.

Ms. Michelle Falardeau-Ramsay: I think it would be a question of interpretation of the legislation. I'm not an expert on that. Does the fact that here in subsection 273.65(8) you have the words “shall review” mean that in subsection 273.63(1) the “may” could be interpreted as being an obligation? I think this would be a question for a interpretation expert to look at. Unfortunately, I'm not that type of person.

Mr. Peter MacKay: I understand.

More to the point from a human rights perspective, are you concerned about the powers that appear to be granted to the Minister of Defence—it is somewhat questionable—to intercept private communications outside the country? Again, there's an element of interpretation as to whether that means two Canadians communicating about what might be perceived as an extraterritorial threat, and whether that falls under the ambit of the legislation.

In particular I ask you to address the extension of these extraordinary powers to intercept for a period of one year, with the added proviso that when, to use the normal example, the person's phone has been tapped, they don't have to tell them for three years. These appear to be quite extraordinary in the circumstances. Again, all of this can be cloaked with a ministerial certificate that says, we don't have to tell you the reasons we're doing this.

Ms. Michelle Falardeau-Ramsay: It's obviously a question of privacy. I completely endorse what the Privacy Commissioner has said to this committee concerning the tapping of lines. I think it is also an area where we should be very careful about the actions that are taken.

The Chair: Thank you very much, Mr. MacKay and Madam Commissioner.

Mr. Cadman, I think yours will probably be the final question.

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

On page two you made a comment:

It's extremely important to balance the increased security measures in Bill C-36 with measures aimed at combatting acts of hatred or discrimination aimed at minority groups.

I don't take issue with that at all. Fortunately, we have very few reported incidents in Canada, certainly out in my part of the world. I would like to get your views on the other side of that. I'm reminded of listening to a lady speak about her child who went to school a few days after September 11 and made a comment as to how horrible what happened in New York was. She was confronted by some schoolmates, long-time friends of hers from a visible minority, who turned around and said, well, they got everything they deserved. I just want to know if you feel the same way I do. I find that horrifying. I wondered if we're going to take the same attitude to hateful comments made by minorities towards the majority. Shouldn't we be concerned about that, because I certainly am?

Ms. Michelle Falardeau-Ramsay: I think it shows how education and information are important, and that there should be some resources given to organizations like ours whose mandate is to provide information and education to the public. It means that child had not received the education and information he or she should have received in view of these issues. It's the same thing.

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I can refer to one editorial in the National Post that was really inflammatory against certain racial and religious groups. That illustrates the same issue, that there's a lack of education and knowledge concerning what discrimination is all about and concerning what I argue are rights and obligations when you live in Canada. It goes both ways.

Mr. Chuck Cadman: Okay. Thank you.

The Chair: Thank you very much.

I understand Madam Falardeau-Ramsay adjusted her busy schedule to accommodate us, and for that we're very grateful. To the officials also, thank you very much for being here.

We'll see everybody at 3:30.

Meeting is adjourned.