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]

Wednesday, October 24, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good afternoon, all. I'd like to call to order the 33rd meeting of the Standing Committee on Justice and Human Rights.

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

We have four very distinguished witnesses today: from the Norman Paterson School of International Affairs, Professor Martin Rudner; from Osgoode Hall, Professor Patrick Monahan; from the University of Toronto, Professor Wesley Wark; and from the Canadian Civil Liberties Association, Alan Borovoy.

Gentlemen, thank you very much for giving of your time. I understand some of you, at least, have had the opportunity to have some of this discussion in the other place, and we appreciate that you've decided to assist us as well.

You've all been before this committee before and consequently would know our format, which is that you would make opening statements, trying to keep them inside of ten minutes, and then we'll go to questions from members of the committee. We are scheduled to be here from now until roughly 5:30 p.m.

I will proceed in the order in which your names appear on our list. So, Professor Rudner, you're first.

Professor Martin Rudner (Director, Centre for Security and Defence Studies, Norman Paterson School of International Affairs): Thank you very much. It's indeed an honour and a privilege to be here today.

I've been asked and intend to address in particular signals intelligence, what is termed as SIGINT, and its implications for the bill that is presently before us and for Canada's efforts in the campaign against international terrorism.

SIGINT, or communications intelligence, has a particularly important role to play in the counter-terrorist effort. Firstly, as we know, terrorist networks and groups must communicate, and much of their communication is electronic. Secondly, terrorists engage in fundraising and in financial transfers, and much of this movement of money is again through electronic means. SIGINT, communications intelligence and signals intelligence, are the methods through which government and law enforcement can monitor and control these movements of information about plans, operations, and funds.

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In Canada, as we know, signals intelligence is the responsibility of the Communications Security Establishment, the CSE. The CSE has several functions that are of relevance to this legislation. It has the function of intercepting communications, and also the function of cryptoanalysis, which means deciphering the codes in which most of the communications are transmitted, and it has the function of protecting Canada's communications security, the networks and the infrastructure of Canada's own governmental communications.

The policy framework for CSE is unusual for the Government of Canada. There is no statutory basis for CSE. It was established by Order in Council. Its mandate is to collect foreign intelligence. Its original mandate excludes, in fact, under the National Defence Act, intercepting communications of Canadian persons, and that is understood to mean both Canadian citizens and organizations and companies established in this country.

CSE has a dual management or accountability structure. It is responsible to the Department and the Minister of National Defence for administrative matters and to the coordinator of intelligence at the Privy Council Office for policy matters. It is subject to administrative review through the CSE commissioner, the Honourable Claude Bisson, who has authority to undertake reviews of CSE activities to ensure that they comply with the law and to handle complaints about CSE activities.

Proposed Bill C-36 introduces a number of innovations to the functions of signals intelligence through the Communications Security Establishment. I could identify three areas of innovation, the first of which is that the new legislation will make it easier for CSE to use electronic surveillance and interceptions against terrorist groups; secondly, it will amend the National Defence Act to expand the mandate of CSE to collect foreign intelligence, including communications to or from Canadian persons, with authorization of the Minister of National Defence; and thirdly, it will enhance the capacity of CSE to monitor threats to government communications infrastructure offensively.

I will take this opportunity to make a number of points about the challenges confronting communications intelligence or signals intelligence in Canada. There are several types of challenges, some of which are technical and some of which are operational but are relevant to the legislation that is before us.

Of the technical challenges, first, CSE now finds itself having to intercept communications that are communicated through fibre optics, which are much more difficult technically for the organization to intercept; therefore, this calls for an invigorated effort by the CSE to obtain the kinds of information necessary for it to perform its function.

Secondly, there's immense power of encryption available now to private people, including terrorists, that at one time was simply unavailable. At one time, the government itself was leading in the areas of encryption. Today the private sector is leading in most areas of encryption, and the ability of CSE now to decrypt coded messages requires much enhanced capability.

Thirdly, there's an area that people define as steganography, which is the ability to actually hide messages electronically in the transmission of graphics or music across the Internet, and so requiring immense capability on the part of interception authorities to find hidden messages amidst large transmitted files of music, graphics, photography, or whatever.

In such circumstances, organizations like CSE have particular operational challenges. First, in intercepting communications, the take is absolutely massive. There are millions, if not billions, of communications taking place daily, if not hourly, and this take must be sorted into what is relevant, being the threats by terrorists and others to Canada's national security, and the other things, which, frankly, aren't relevant and aren't worthy of CSE's resources.

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Secondly, even after intercepting and decrypting, we have a challenge of translation. Not every message transmitted across communications networks is in French or English, and the obscurer languages pose immense challenges to communications intelligence.

The third challenge is the massive production of product. According to the CSE commissioner, CSE currently produces over 100,000 reports a year—intelligence product—and the ability to handle, disseminate, and utilize such product requires immense effort on the part of intelligence authorities.

To me, there's no question that CSE requires enhanced capability to intercept the communications, both financial and operational, of terrorist groups, some of whom operate or may base themselves in this country. Equally, it is vital to ensure that the privacy rights and other charter rights of Canadians are observed, and, if I may make a digression to something that is outside the legislation but within the mandate of Parliament, to seek new ways in which to achieve this balance between the need for public safety, through intelligence collection, and the protection of the rights, including privacy rights, of Canadians. Part of that requirement would be enhancing the capability of the Parliament of Canada to conduct its oversight of communications and other forms of intelligence.

Currently, we have two forms of oversight in Canada. We have executive oversight, which is performed by the CSE commissioner in the case of the Communications Security Establishment and by the Security Intelligence Review Committee in the case of CSIS; and we also have parliamentary oversight, which in Canada is usually conducted by specific parliamentary committees directed at particular government departments. For CSE, it would be the Standing Committee on National Defence and Veterans Affairs.

One could make the case that this is too narrow a process of parliamentary oversight. Parliamentary oversight in Canada, in many ways, has lagged behind our counterparts in the United Kingdom—or the United States, for that matter—in terms of its capabilities and its function. One could talk about enhancing Canada's parliamentary capabilities as a means of ensuring that the function of protection of our safety is congruent with the function of the protection of our public rights, our civil rights, and our private liberties.

So three areas that I would propose would be, firstly, to consider a comprehensive approach, which would mean establishing a committee on intelligence and security, which would bring together the intelligence functions of all the departments related to committees, and which would provide the review of Canada's security intelligence functions writ large and their oversight; secondly, to enhance the capabilities and the capacity of parliamentary committees to provide for oversight—and this would require enhanced staffing—and improved research capabilities; and thirdly, to build up the knowledge base of parliamentarians and their staffers on intelligence, and particularly security issues that have to do with communications and other forms of intelligence collection.

I would suggest, in my separate capacity as president of the Canadian Association for Security and Intelligence Studies, which is a national association of academics and others involved in intelligence studies, that we could actually contemplate policy fora, bringing together scholars and parliamentarians and their staffers to help brief and build up the knowledge base of parliamentarians so that parliamentary oversight could be part of the way we respond to the need to achieve a balance between protection of national safety and the protection of the private rights of Canadians.

Thank you very much.

The Chair: Thank you very much. That's as close to ten minutes as we've ever had.

Professor Monahan.

Professor Patrick Monahan (Director, Centre for Public Law and Public Policy, Osgoode Hall Law School, York University): Thank you very much, Mr. Chair. It is a great pleasure to be here.

I have prepared a written summary of my remarks, and I did provide some copies to the clerk. It is available only in English, but if members want to consult that, I have a few extra copies. I will be suggesting, for your consideration, an amendment to the definition of “terrorist activity”.

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Mr. Chair, I'm going to address certain of the investigative powers and procedures established by Bill C-36, with a view to assessing whether they are consistent with the Canadian Charter of Rights and Freedoms. In particular, I want to consider the definitions of “terrorist activity” and “terrorist group” at the centre of this legislation. I also want to consider the procedures for investigative hearings and preventive arrest without warrant, which I know have been the subject of some discussion in this committee.

Of course, committee members are aware that charter rights are not absolute. They must be balanced against the needs of a free and democratic society. Clearly, terrorist activity strikes at the heart of freedom and democracy because it attempts to substitute the rule of force for the rule of law. That is inherently incompatible with a free and open society, and therefore it is essential that such a society take measures to investigate and eradicate terrorist activity.

It is difficult to assess in advance the precise nature of the terrorist threat we face. But it is reasonable to assume that the threat is very real and substantial, and therefore it is also reasonable to assume that additional investigative and enforcement measures are necessary. Looking at Bill C-36 as a whole, Mr. Chair, it is my view that it does strike a fair balance between the need to protect liberty and our attempts to deal with terrorist activity.

I do have a minor concern about the definition of terrorist activity, and I'll deal with that in a moment. But in general, I believe the bill strikes a fair balance. However, because at this time we do not know the precise nature of the threats to us, I think it would be appropriate to insert a sunset provision in the bill. I will deal with that in a few moments.

Looking first at the definition of terrorist activity, this committee has heard that it's similar to definitions in place in the United Kingdom or the United States, either proposed or already enacted. I think the definition requires proof of a specific intention to cause very serious harm, and in accordance with customary or conventional international law, it also excludes acts or omissions by persons fighting against racist or dictatorial regimes outside Canada. They are not included in the definition of terrorists or terrorist groups. In general terms, therefore, I think the definition is appropriate.

My only concern, Mr. Chair, is with item (b)(ii)(E) under the definition of “terrorist activity”—that's the provision that refers to causing serious interference to, or serious disruption of, an essential service, facility, or system—whether public or private. It also has a carve-out that says:

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

In brief, Mr. Chair, I think in that context, the use of the word “lawful” to describe such activity is confusing. First of all, we don't have a definition of “lawful”—for example, of what would be a lawful stoppage of work. Does it mean a stoppage of work that's in breach of contract, or of a parliamentary statute, or of a provincial legislature? Even more difficult would be some action taken outside Canada. Do we assess the action by the laws of Canada or by the laws of that jurisdiction?

My view is that this committee should propose to the House that the word “lawful” be deleted from the provision. I do not think it is necessary. From what I've read of the testimony, and the discussions with the minister, I think this is not intended to catch stoppages of work or protests. Therefore, limiting this to lawful activity, or somehow trying to define lawful activity, is not necessary.

I'm also concerned about the final words of that section: “that does not involve an activity that is intended to result in certain conduct or harm”. I think the danger there is that if certain persons involved in an activity do have that intention, other persons who do not have that intention should not be swept up or deemed to be engaging in a terrorist activity.

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In paragraph 8 of my submission to you, I propose a revised version of that proviso. I might say that the French version of the bill does not have that problem. I think the French version of the bill is worded appropriately and doesn't give rise to that second concern.

With those relatively minor changes, it seems to me that the definition of “terrorist activity” is appropriate.

I have also considered the procedure for listing terrorist groups. It is important to note that the group must actually have carried out, or have attempted to carry out, a terrorist activity. There is also provision for appropriate judicial review of that procedure. Therefore, I think this is an appropriate procedure.

The investigative hearings are not completely unprecedented—certain other provisions and statutes have similar procedures. But I think it is certainly new ground. Again, though, there are certain safeguards here, including the fact that evidence, or other evidence derived from the evidence, cannot be used against a witness. Given the enormous potential harm associated with terrorist activity, again I think this is a reasonable procedure.

Finally, with respect to preventive arrest, I must say I find proposed section 83.03 a somewhat puzzling provision. I don't want to spend too much time on it, but it seems to be based on the belief that a terrorist act will occur, and on a suspicion—not necessarily that a given person will commit an act, but that imposing an order on this person not to do it will prevent the act from happening. It's a little difficult for me to understand what that is intended to do, but again, there is a procedure for review by a judge, and the person must be released within 72 hours.

The procedure of imposing an order on a person to do or not do certain things—again, there are already similar provisions in the Criminal Code, in sections 810 and 810.1. So assuming that this will actually achieve something—and I think it will, because obviously it hasn't been inserted for no reason—again, it would seem there are appropriate safeguards.

In conclusion, Mr. Chair, my view is that it would be appropriate at some point to insert a sunset provision, to ensure that this matter does have to come before both Houses—that government inaction will not just leave this law in place. I don't know if three years is the appropriate period; perhaps it should be five years.

But in three or five years, I think we will understand how these provisions actually work in practice. I also think a sunset clause would mean that the courts would take a very modest view of their role. Their attitude would be that if there's going to be a parliamentary sunset review in three to five years, it's probably appropriate to look to that procedure.

Mr. Chair, those are my submissions on Bill C-36.

The Chair: Thank you very much.

Now to Wesley Wark.

Professor Wesley Wark (International Relations Programme, University of Toronto): Thank you, Mr. Chairman, for the invitation, and thank you, honourable members.

My expertise with regard to Bill C-36 is really in the area of intelligence and international security. But I must confess that since September 11, I've been persuaded by the media that I'm an expert on everything. So I'm going to try a kind of tour d'horizon approach to this bill, touching on ten points in ten minutes.

By way of a prologue to more detailed remarks on Bill C-36, let me begin with a general observation about the nature of Bill C-36 in the context of a broader question about Canadian capabilities, intelligence, and security. We might usefully keep in mind a checklist of ingredients for the effective and democratic functioning of a security and intelligence community in Canada, in response to terrorist threats and other kinds of threats. What would this checklist consist of? In part, of course, this checklist would consist of good laws.

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In this checklist, I propose that we keep in mind the six key ingredients for an effective security and intelligence community in this country. One ingredient is good laws. A second ingredient is a coherent organization for directing policy, handling intelligence, and disseminating it. The third is sufficient resources. The fourth is talent and professionalism in the security and intelligence community. Fifth is ally-worthiness; and the sixth, and by no means the last, ingredient is public legitimacy.

I understand that this committee is concerned primarily with Bill C-36 and its legal implications. But I think it's worthwhile to keep the legal dimensions in mind within a broader context. In this bill, some of the security and intelligence dimensions overlap with the legal provisions.

As a scholar who has studied the area of security and international intelligence for 20-plus years, I want to make some very brief comments on elements of the bill that have caught my imagination.

First of all, defining terrorism. As Professor Monahan pointed out, a definition of terrorism is a difficult proposition. Clearly we require a definition, and the ideal definition would be neither too broad nor too narrow. How do we actually frame such a thing to function effectively in this context?

Beyond the purely legal considerations, I think one consideration to keep in mind is, does our definition of terrorism actually fit the nature of the threat? That's the point Professor Monahan made earlier.

I want to approach this by suggesting that the definition built into this bill does in fact reflect our general understanding of the problems of terrorism, as a target for security and intelligence investigation and action.

The truth of the matter is that terrorism functions clandestinely. Professional and competent terrorist organizations take much of their modus operandi from the methods of state intelligence and security services: they operate in secret, they're compartmentalized, they use the need-to-know principle.

I reflect on all this in the context of one of the most troubling elements in the bill: the notion of facilitating terrorist activities. At first glance, the bill suggests that you can assist a terrorist action or operation while unwitting of its exact dimensions, without directly knowing about its nature.

This might strike us as draconian. The truth of the matter is that many terrorist operations, by their very nature—given their clandestinity, their secrecy, the way they're organized—are sometimes going to involve people who may help them without full or detailed knowledge of the mission or the intended target. So the facilitation element might strike us as draconian, but is perhaps necessary in the face of this particular threat.

The second point I would like to make concerns a list of terrorist entities. On this issue, I will simply say that I believe it's important and necessary for the government to create a list of illegal terrorist organizations and to publicly identify them.

The objects of this exercise include sending a warning to individuals involved in such organizations, to deter them; providing for public education and therefore public legitimacy; and not least, sustaining Canada's ally-worthiness. For many years, our principal allies have had their own lists of terrorist organizations deemed illegal.

A third element of the bill is the question of forcibly disclosing information. To me, this cuts to the bone of the emergency we face and is among the most startling elements of the bill. In many ways, it seems to be a repugnant measure.

Let me offer a couple of countervailing observations. We should consider that forcible disclosure might in fact prevent enforcement and intelligence agencies from being tempted to consider illegal means of collecting information.

As well, forcible disclosure, as defined in the bill, might have the useful effect of focusing investigations on genuine threats and therefore reducing security paranoia, the pursuit of false leads, and the general scope for the creation of a kind of fog of war and mystery surrounding some of the terrorist problems we might face directly or as an ally in a coalition war.

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If we think back to 1946 and the royal commission on espionage following the Gouzenko revelations, it might be argued, perhaps slightly heretically, that a forcible disclosure provision at that time would have prevented many false leads, and might have prevented a decades-long and misguided hunt, on the part of the RCMP security service, for so-called Communist front organizations.

On preventative detention, again it's clearly another emergency measure, but one that might assist the security and intelligence community, as long as the security and intelligence community has the professional capacity to understand when it is wise to require such preventative detentions.

The fifth point I'd like to make concerns the Official Secrets Act, or what is now to be called the Security of Information Act. It strikes me as important that the government has now finally decided, after decades of review of this act, to bring something forward that will have some power and some capability of enforcement.

The current Official Secrets Act is widely regarded as a dead letter and unenforceable, particularly in the aftermath of the charter. We need such a thing because Canada has secrets, both made-in-Canada secrets and secrets provided to us by our allies.

There are a couple of dimensions of the security of information provisions of this bill that I think we should reconsider. One dimension is the requirement of an oath of permanent secrecy on the part of those who have had access to classified information. The notion of permanent secrecy is an antiquated notion that is not relevant to the new era of intelligence operations and communications. We don't need a permanent oath of secrecy; we need an oath of secrecy that spans some distinct chronological period. That might also be related to questions on how we might reform the Access to Information Act.

The other controversial dimension that strikes me, in the Security of Information Act, has to do with the quite limited provisions that are allowed for public interest defences, or what we might call, more generically, whistle-blowing and leaks. There is a very narrow opportunity provided for public interest defence under the Security of Information Act that it would be wise to reconsider, and perhaps reconsider in an institutional framework.

In this regard, we might well copy a British initiative that was taken to create an internal ombudsman within their security and intelligence community, as a person to whom any individual could go with a grievance, or who believed the government was acting illegally in this field. So these are two measures we might look at under that part of Bill C-36.

On terrorist financing, again this measure has been called for over a number of years by people who have watched over terrorist problems in Canada. I think it's long overdue. The one issue I would raise, with regard to the monitoring and interdiction of terrorist financing, is that as the bill currently stands, it raises the possibility of creating overlapping jurisdictions, or overlapping areas of operations, between the existing centre to monitor financial transactions that was created to pursue money-laundering issues—and now will have a function in terms of pursuing terrorist financing—and the mandate of the Canadian Security Intelligence Service, to concern itself with terrorist financing and fundraising in Canada.

Overlapping jurisdictions in the security and intelligence business is the bane of that business. We have to be careful any time we seem to be creating the circumstances to provide such overlap. I wonder whether this needs to be looked at again.

Professor Rudner raised some issues to do with the CSE provisions of the bill. I would simply make two points about this. One is that we might have to face the fact that the extended mandate now given to CSE might have to be considered as a kind of half measure, in the future. If the bill is passed, CSE will be allowed to monitor the communications of Canadians in Canada, as long as those communications have a foreign intelligence component and are part of a communications network that links Canadians with foreign entities overseas.

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This, of course, raises the question of what to do when the global infrastructure circulation of information referred to in the act is more than simply two ways—when it is triangular, or contains a significant component of Canadian-to-Canadian communications to do with terrorism. At the moment, CSE has no legal mandate to monitor such communications. It can only monitor communications now if there is a link between a Canadian and a foreigner. Do we want to think about the circumstances in which it might be appropriate or technologically wise to allow CSE, in certain defined circumstances, to be able to monitor two-way communications within Canada itself?

The other issue that comes up strikes me with respect to two other quick issues on CSE. There seems to be considerable opaqueness surrounding the new powers being given to CSE to monitor communications that reflect on the security of government-protected networks of information.

We're not very clear what this monitoring function might involve and to what extent it will involve the monitoring of communications of Canadian citizens, who might be deemed threats to communications-critical infrastructure.

The Chair: Mr. Wark, we're at about 13 minutes.

Prof. Wesley Wark: Okay, sorry.

Let me skip a couple of points and just come to a conclusion very quickly. I appreciate the extra time.

On the Official Secrets Act and the Privacy Act, which has raised a lot of heat—I did a research paper for the Treasury Board task force—the provisions to allow the Attorney General to issue a certificate to remove information from the purview of the Access to Information Act and the Privacy Act is unnecessary and unwise.

The government contains all the powers it needs to protect the information it needs to protect under cabinet confidences and the exemptions provided by the Access to Information Act. It's unnecessary and unwise, in the sense that as a matter of common wisdom, if you have hot intelligence, the last thing you want to do is label it hot intelligence because it will only encourage people to engage in aggressive investigations of this information, and then possibly encourage leakers and whistle-blowers.

Finally, on the sunset clause, just to draw my remarks to a conclusion, I don't know which is best, to be honest. I have no distinct recommendations on a sunset clause as opposed to a review. The issue here is which will lead to the greatest degree of public education and public discourse? This is a matter for Parliament to decide. Would a review lead to more public education and public discourse at the end of a specified period, or would that happen if there were a sunset clause in the reintroduction of measures?

That is the criteria, and it should be applied here. Of course, our allies seem to be going down the road of sunset clauses, and maybe Canada will want to follow them in order to maintain some uniformity of front.

Thank you, Mr. Chairman.

The Chair: Thank you very much.

Mr. Borovoy.

Mr. A. Alan Borovoy (General Counsel, Canadian Civil Liberties Association): Thank you, Mr. Chair. In fact, I have a special thank you. I was involved before a Senate committee this morning, so you have enabled me to do the entire Parliament in one day, for which I'm very grateful.

No reasonable person can quarrel with the goal of this bill. In fact, few events in history can match the kind of outrage to the conscience of civilized people that was inflicted by the calamities of September 11. But the desirability of the goal does not necessarily legitimize the means.

In a nutshell, the Canadian Civil Liberties Association believes this bill is too broad. It is capable of targeting a variety of behaviour that bears no resemblance to the kind of behaviour most of us would call terrorism.

The key is the definition of terrorist activity. Indeed, everything in the bill flows from that definition. The new offences, the new powers, flow from that definition.

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I'd like to break my comments into two parts, one dealing with Canadian support for activity outside of Canada and the other dealing with entirely domestic behaviour.

Insofar as the first is concerned, the bill talks about having a political, religious, or ideological purpose and intending to cause death, serious harm, the endangerment of life, serious risk to health or safety. All of this deals with coercive pressures that are exerted.

The bill does not appear to make a distinction between activities conducted against democracies and those conducted against dictatorships. It doesn't appear to distinguish behaviour that deliberately targets the instruments of a state—police, secret police, or armed forces—and behaviour that deliberately targets innocent civilians or non-combatants.

I heard Professor Monahan's remarks in which he suggested that international law may cover the distinction I'm talking about and thereby be caught by the exemption in the bill. It is not as clear to me as it may be to him that international law does that. But we don't need to attempt to resolve here today what international law says. Suffice it if we could all agree we want to ensure that Canadians are free to support insurrectionary activity, even if violent, in regimes to overthrow or dismantle dictatorial regimes, and that even there, Canadian support should not be directed to violence that deliberately targets innocent civilians. That is what I think we ought to agree upon. Then the question is, how far does this language support or not support that objective? At least that's what I suggest we ought to agree on.

Then I turn to the domestic arena and deal, as Professor Monahan did, with proposed item 83.01(1)(b)(i)(E) of the definition. I'm concerned that, as presently worded, this talks about unlawful activity that is intended to disrupt, seriously disrupt, or seriously interfere with essential services, systems or facilities. The key thing, of course, is how one interprets that language.

I raise the question—and incidentally, as I raise the question, I don't insist that I can tell you definitively what a court would do, but I think it's a fair question to raise—would the arguably unlawful teachers' strike in Ontario attract this definition? It constituted a disruption of an arguably essential service, namely education, and the government thought it was serious enough to put an end to it. To what extent is this broad enough to include the deliberate blockading of roads and certain key highways, as the truckers threatened to do and as native people have done at various times?

I'm not suggesting for a moment that the activity to which I'm referring should require legal immunity. I'm just suggesting there is no way it ought to be characterized as terrorism so as to attract the provisions of this bill.

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I do note that when the Minister of Justice was here—this much homework I was able to do, but please don't test me on the amount—she attempted to assure the committee, saying oh no, it wouldn't cover this kind of activity. She said that wasn't the intent of the bill.

I cannot speak, of course, for their intent; I'm not clairvoyant. But suffice it to say that there is an important distinction between intent and effect. The question we must ask is whether the language, regardless of the intent, is broad enough to cover that activity. Now as I raise this—as I said, I don't know for sure that it would—I would suggest it's obviously a reasonably arguable point to make on the basis of that language. If that's the case, shouldn't we clarify it in order to ensure...we don't need to leave this in a state of ambiguity. Let's clarify it in order to ensure that it won't suffer this kind of disability.

To the extent that the definition is acceptably tightened, some of my organization's objections to other features of the bill would decline in unacceptability. But others would not, and I cite for one the provision that could commandeer information against the will of members of the community, who may be picked up and brought to what is called an investigative hearing and required to disclose information.

This is a much less focused power than exists in the criminal process, where you may be testifying at a trial where people are inquiring about a much more circumspect area. An investigative hearing is necessarily a lot broader, thereby inviting a much greater intrusion into a person's life than our criminal law normally permits. Indeed, our tradition has been against it. If I recall correctly, the Supreme Court of Canada decided a few years ago explicitly that public inquiries may not be used in order to gather evidence in this way.

This being the case, it is our view that that provision should be deleted, subject to one exception. We believe a distinction could be drawn between getting information for investigative purposes and getting it for preventative purposes. That is, there's a difference between asking for things in order to solve a crime already committed and asking for things in order to avert a disaster that has not yet happened and you are trying to prevent it. Our view has long been that in the face of imminent perils, normal safeguards can be relaxed. We would therefore suggest that that distinction be incorporated into the power to commandeer evidence beyond people's will.

The one point to make on the CSE is that we note that the Minister of National Defence will be given the power to grant warrants for the interception of private communications involving Canadians. In our view, cabinet ministers ought not to enjoy an unreviewable power of this kind. These decisions on a case-by-case basis should be made by independent tribunals—courts—not by cabinet ministers.

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In view of the fact that cabinet ministers have not only national security interests but also political interests, we should try to structure things in order to minimize as much as possible the risk of the suspicion or the appearance of political motives influencing those decisions.

We also join with others in the call for a sunset clause. There is, I would say to my colleague Professor Wark, a big distinction between a parliamentary review and a sunset clause. A sunset clause forces everybody to come to the table and grapple with these issues again. A review lies within the effective control of the government of the day and therefore couldn't hope to command the confidence of the public in the way a sunset clause would.

Finally—

The Chair: Fairness compels me to bring to your attention the fact that you too have hit the 13-minute mark.

Mr. Alan Borovoy: I can't believe it.

The Chair: Trust me.

Mr. Alan Borovoy: That being the case, I will leave my other remarks. I will invite somebody to ask me that which I haven't said yet.

Thank you very much—all of which is, as always, respectfully submitted.

The Chair: Thank you very much. Thank you all.

We'll start for the first seven minutes with Mr. Fitzpatrick.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Thank you, Mr. Borovoy.

In history, when we have countries with oppressive regimes—and there are lots of them around—freedom fighters and civil wars are the ways they are replaced and we wind up with better regimes or systems in place. Are you suggesting anybody who supports some sort of popular uprising in one of these oppressive states could be classified as being involved in terrorist activities?

Mr. Alan Borovoy: I'm concerned that the definition does not adequately make it clear because it talks about force being used with the intent of causing such damage, and it doesn't make any distinction at all, unless you agree that international law somehow makes this distinction. But I would be talking about insurrectionary activity and not conventional wars across borders. It doesn't make it adequately clear that it makes this distinction, nor does it make the distinction, as I see it, between violence targeted at instruments of the state and that which is targeted at innocent non-combatants.

Mr. Brian Fitzpatrick: I agree with some of your comments about unintended consequences under the definition.

We did have an illegal health strike in Saskatchewan about three years back. I'm sure a lot of patients thought they were in serious risk when that was on. They were being transported to different jurisdictions. If you look at the definition, on the face of it there's at least an argument that the three test limbs on this thing could apply to the union behind this strike. I know it's not the intent, but I'm looking at the way it's drafted.

I'm also concerned about some of the provisions with the ministerial certificates and so on. Political interest could be used there. The review mechanisms aren't there. And we know how this world operates. People have a tendency to take more slack out of something than is actually there. If there's no accountability or review, the door is wide open for abuse on those systems. I share this concern.

I have some questions for some of the other members. I'm looking for help. The investigative hearing, where a person can be compelled to give testimony but the testimony can't be used against that person in any subsequent criminal proceedings, and if it leads to other evidence it can't be used against them either—I'm trying to figure out the logic of this. If you had a suspect and you hauled him in for an investigative hearing, it would seem to me a defence counsel might just tell the person, “Spill the beans, give a full confession”. What we may end up having here is a terrorist who will be able to walk free, because you can't do anything to the person afterwards.

Does anybody understand the rationale for this sort of Miranda-type provision? Why is this provision stuck in this anti-terrorist bill? What is the logic behind it?

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The Chair: Mr. Monahan.

Prof. Patrick Monahan: I could respond to this.

It's not unlike the American grand jury system wherein a person who is called before the grand jury may plead the Fifth Amendment, which says that they cannot be compelled to incriminate themselves, whereupon the prosecutor has the option of granting immunity to the individual, in which case the individual cannot be prosecuted.

It's a broader immunity than what's provided for here. He or she can't be prosecuted in respect of those matters, and then the individual is forced to give evidence. Here individuals could be prosecuted, but not based upon the evidence they provide at the investigative hearing or evidence derived from it. It's intended, basically, to say we have an overwhelming need to obtain that evidence and we're prepared to allow this person not to be prosecuted for that, because we have the desire and the need—obviously because of the risk involved—to obtain this evidence.

There are comparable provisions in the United States and in other provisions and statutes in Canada as well.

Mr. Brian Fitzpatrick: I, too, am concerned about the definition.

It's been raised before, but I would be interested in your response to it. Members of the committee are wondering if the inclusion of political, religious, and ideological motivation is really necessary. I'd feel a lot more comfortable if somebody could get off the academic level and explain in a very practical sense why it is necessary in the war against terrorism to include that as part of the charge, so to speak, when dealing with these people. People who have a prosecution background see it as another barrier in prosecuting terrorists, not as an asset.

The Chair: Please respond, Mr. Wark.

Prof. Wesley Wark: Mr. Chairman, may I try to respond to that, not as a legal expert but more in consideration of the nature of the threat and the kind of people who might be involved.

I presume “religious” and “ideological” were added to the previous definition of political threat because it was understood that terrorist organizations might have no political aims as we would understand them in the usual political discourse, that they might have religious aims or ideological aims but not necessarily political aims in terms of overthrowing the government or changing the regime. We needed a broader definition adding “religious” and “ideological”. I didn't do it.

Mr. Brian Fitzpatrick: The problem I have with that is, if somebody is charged with murder, getting into the person's motivations for committing the murder is irrelevant. You prove mens rea and the physical act and you get your conviction. You don't get into the motivation. We have a terrorist here, and what we're doing is getting into the motivations of the terrorists, and if we can't prove those motivations or create a reasonable doubt and so on, we've got a problem. I wonder why we're doing this.

The Chair: Mr. Wark.

Prof. Wesley Wark: Let me respond to your previous question, if I can. I don't have a straightforward answer to your other issue, but I presume it is to broaden the definition of threats to the security of Canada.

To understand the idea of needing to compel testimony, we have to appreciate that terrorist suspects are unlikely to freely give information, unlikely to turn informers against their own organizations, unlikely to be turned as double agents—any of those kinds of classical models intelligence agencies used to rely on for information from within closed organizations that were threats in the past. As a preventative measure, the need to compel testimony to prevent some kind of catastrophe strikes me as a practical issue.

The Chair: Thank you very much Mr. Fitzpatrick, Mr. Wark.

[Translation]

Ms. Venne.

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Mr. Chairman, before putting my question to the witnesses, I have a point of order and I wouldn't want it to count against the time I have been given for questions.

Mr. Monahan certainly is not aware of the rule we have in this committee to the effect that we don't distribute any document when it's written in only one of the two official languages. I don't think this is a subterfuge on the part of the professor so that people won't have access, but I would appreciate it in the future if we were not handed these documents in Shakespeare's language only. Thank you.

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[English]

The Chair: Your point is very well taken and members should be advised that what has happened in recent weeks....

Witnesses will appear at short notice, which is our responsibility. They will arrive. They will bring copies in good faith. They will put those good copies on a table in the back. And as a committee, it's important we remind ourselves—and not at the expense of Mr. Monahan—as this opportunity presents itself more and more frequently and becomes more and more routine, it certainly is in violation of the spirit of what it is we're trying to do, and I thank you for bringing it to our attention.

[Translation]

Ms. Venne.

Ms. Pierrette Venne: So I'll begin my questions.

Professor Wark told us we should make the distinction between a statutory review and a situation where there's a sunset clause. There's certainly a great difference because we have here two colleagues from the Alliance who mentioned that even though it is written in the act that it must be reviewed after a year, there are many cases, and we could quote you some, where the act has not been reviewed yet even five or six years later. So it's far from being statutory and it does happen in many cases that it's not done at all, contrary to what's written into the act itself. That was a comment.

My first question concerns the Communications Security Establishment. Bill C-36 provides that by short-circuiting the system, the Minister of Defence will be able to give an authorization to the centre to allow it to intercept private communications on Canadian territory, basically.

Quite clearly, for us, of the Bloc, this is a violation of privacy, contrary to section 8 of the Canadian Charter of Rights and Freedoms. However, this situation does not seem to concern the Prime Minister as he recently said that Bill C-36 was unattackable and passed the test of section 1 of the Charter.

In your opinion, is C-36 as solid as the Prime Minister says and do the provisions the Bloc has expressed reservations about, the ones about preventive detention, wiretapping and access to information, respect the section 1 criteria?

[English]

The Chair: Mr. Rudner.

Prof. Martin Rudner: Let me respond to the first part of your question, which addressed the CSE and the Minister of National Defence's authorization to intercept communications from Canadian persons.

As I read the legislation, that authorization is specific to communications between Canadian persons and non-Canadians—foreigners abroad in relation to foreign intelligence. That language is in Bill C-36, and there is no permission, either in the law for the minister or from the minister to the CSE, to intercept private communications among Canadians, an issue raised by my colleague Professor Wark as perhaps inhibiting or constraining CSE's effectiveness in the war against terrorism.

The Chair: Mr. Monahan.

Prof. Patrick Monahan: Well, I haven't reviewed all of the provisions of Bill C-36, and of the provisions I've focused on—which I've discussed within the committee and for the reasons I've explained—there are appropriate safeguards. Particularly, there are safeguards in the nature of judicial oversight or review of the use of preventative detention or arrest, for example, in the provisions for investigative hearings. In general terms, assuming the definition of terrorist activity is appropriately defined—and I have suggested a relatively minor amendment or tightening of it—then in my view these provisions are in fact consistent with section 1 of the Charter of Rights.

The Chair: Are there any others?

Mr. Borovoy.

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Mr. Alan Borovoy: I'm not able to tell you, as I sit here now, what will or will not pass charter muster. That's so often dependent on the cosmic coincidence of which judges are sitting on which cases at what time. But it would seem a question that ought to be asked—and I say it ought to be asked for charter purposes and for policy purposes, at least—is, has it been demonstrated to your satisfaction that the existing powers, without any changes in the law at all, are inadequate to deal with the crisis as we know it?

I have not heard enough of a case made to satisfy me that this is the situation. I say this quite mindful of the extensive powers. If prevention is supposed to be the goal, then surveillance becomes a particularly important feature. When I look today at the kind of powers available to CSIS, without any change, to monitor what the CSIS Act calls activities in support of or directed toward “acts of serious violence... for the purpose of achieving a political objective”, here or elsewhere—and for that, they can engage in electronic bugging, surreptitious searches, mail opening, the secret invasion of confidential records, the targeting of covert informants at people—I would argue that even that is more than is required to deal with the terrorist threat as we know it.

This is not to say that additional powers wouldn't be helpful. The question is, would we be getting enough additional security from the distinction between the additional powers and what currently exists to justify these additional encroachments on civil liberties? And that is not as clear to me as it may be to others.

The Chair: One quick question, Madam Venne.

[Translation]

Ms. Pierrette Venne: I'd like to wind up by reminding us that clause 273.65 of the bill says:

273.65 (1) The Minister may, for the sole purpose of obtaining foreign intelligence, authorize the Communications Security Establishment in writing to intercept private communications—

Private communications are defined as being those found in section 183 of the Criminal Code and section 183 of the Criminal Code addresses private communications between Canadians. Apparently this clause would apply in exceptional circumstances, but these remain communications between Canadians.

My last question concerns judicial authorization, which the Minister of Defence addressed with us yesterday. He said that judicial authorization could not be required for wiretapping because the wiretapping in question would only be conducted against alien entities and that, thus, Canadian courts have no jurisdiction to give any such authorization.

If it is true that the intercepted communications must come from foreign entities, the intercepted communications could be issued or received on Canadian territory.

I'd like to know if you agree with the Minister of National Defence concerning the absence of jurisdiction on the part of Canadian courts on this matter.

[English]

The Chair: Thank you, Madam Venne.

Mr. Borovoy.

Mr. Alan Borovoy: I don't have a problem. I have a considerable problem with what the minister said. In fact, if I look at this bill, it would purport to deal with the behaviour of Canadians in other countries. Why then couldn't it deal with the behaviour of Canadians here as they communicate with other countries? I do not understand the distinction the minister is drawing.

The Chair: Is there anyone else? Mr. Wark.

Prof. Wesley Wark: Could I just say that in clause 102, where it is amending the National Defence Act with a proposed section 273.65, the bill does indicate that “the Minister may, for the sole purpose of obtaining foreign intelligence,” engage in that authorization.

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But let me turn to the issue of efficacy, which is always part of the balance. Prior to September 11, the situation we had in this country was that, in terms of counter-terrorist operations and the monitoring of communications that might provide intelligence on terrorist activities, there were two distinct jurisdictions.

The Canadian Security Intelligence Service had a mandate, with legal provisions built into it, to monitor communications within Canada between Canadian persons. The Communications Security Establishment, prior to September 11 and prior to this bill, had a mandate only to monitor communications overseas.

In terms of efficacy, frankly I think that distinction—that drawing of a border in terms of communication flows among terrorist organizations—makes no sense whatsoever. It might be a comforting thing to try to do in terms of legal propriety, but in terms of the efficacy of intelligence and security investigations, it makes no sense to me.

The Chair: Thank you very much.

Mr. Blaikie, you have seven minutes.

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

There are many things to follow up here. I want to pick up on some of the problems with the definition that Professor Monahan and Mr. Borovoy have identified. One point, for Professor Monahan, concerns the wording where the word “lawful” is inserted to somehow make us feel better—although in fact it has made some of us feel worse—about what might possibly be included in the definition of a terrorist activity.

Another concerns Mr. Borovoy's worry that somehow the support of insurrectionist or such activities outside Canada that are directed towards racist or dictatorial regimes might somehow be included. There's a difference between the two of you as to whether the reference to international law meets that criterion.

I'm reminded that very shortly Nelson Mandela will be coming to this country to receive an honorary citizenship. I think one of the last times I had a long conversation with Mr. Borovoy was when we actually sat at the same table at the state dinner for Nelson Mandela in Toronto, in 1989 or thereabouts. I think one of the concerns is that support for, say, something like an anti-apartheid struggle or the ANC or others, that type of thing, might come under the definition we have here. Anything you could say that would help us understand better how we can get around that problem, or make sure that kind of thing isn't included, would be helpful.

One hesitates to even talk about interpretive clauses, given our experience with the proposed constitutional interpretive clauses, but one journalist did make the suggestion that perhaps an interpretive clause at the beginning of this bill might help us. I don't know if either of you has given any thought to that. If you have, that's great. If you haven't, but have any spontaneous unprepared thoughts on the question, that would be great.

The second thing—and I think it's related—is the criticism that sometimes has been made of the British bill, which is similar to this, that you actually get a kind of two-tier system of justice. Certain things are actually penalized more greatly because they're done for religious or ideological or political purposes, whereas if they were just done for ordinary old criminal purposes they wouldn't carry the same penalty or sanction.

I wonder if you've given any thought to either of those criticisms.

Prof. Patrick Monahan: I think those are very useful questions. In fact it was in reflecting on this legislation that I had the opportunity to review the transcripts of some of the earlier hearings—and particularly, Mr. Blaikie, some of the questions you had raised on the definition of “lawful advocacy”. I also had the benefit of talking to Mr. Borovoy about it earlier this week.

Mr. Alan Borovoy: I'm glad you still refer to that as a benefit.

Prof. Patrick Monahan: It's always interesting to talk to my friend Alan. We had a discussion about this. I think what is meant by this “lawful advocacy” or lawful stoppage of work is not entirely clear. Alan raises, for example, the possibility of the teachers' strike in Ontario.

• 1645

I would only point out that there was an injunction sought against that strike but not obtained from a court. It seems to me unlikely you would characterize that as an unlawful stoppage of work, but I agree with him that the word “lawful” is confusing and does potentially give rise to a problem. I think the problem is solved if you take out the word “lawful”, and I noticed Alan didn't comment on that.

It seems to me if you take the word out, what you then say is that any type of stoppage of work, or any type of protest or dissent, as long as it's not intended to have these heinous effects, is permissible. I think that's positive, because it says in fact that in Canada dissent is not going to be regarded as terrorist activity. I would have thought that would be acceptable. It would solve Mr. Borovoy's problem. Perhaps he can comment on that.

As for the issue of the freedom-fighters fighting against apartheid and racist regimes, if you look at the secession reference and the decision of the Supreme Court of Canada—and I participated in that case—there was extensive argument before the court on the emerging view in international law that rebellion and the attempt to fight against racist and oppressive anti-democratic regimes is consistent with an emerging view in international law. The Supreme Court of Canada made comment on that and suggested and noted it in the secession reference.

I think the courts would likely interpret this phrase in the way I'm suggesting. In other words, they would not apply this definition of terrorist activity to circumstances where the attack was on the instruments of an oppressive state—not where you want to kill innocent civilians, but where you want to resist an oppressive state. But if a manner of defining that more clearly were found, then I think it would be useful to insert it in the definition itself rather than have some other general interpretative clause that we then try to use.

If the view is that this definition doesn't do it for us—and I caution you, I'm not sure you can clarify it much beyond what's there now, because I don't think these things are susceptible to a precise definition—but if the view was taken that there needed to be clarification, I would think it appropriate to do it in the definition itself. But as I say, I don't think the definition now gives rise to that problem.

The Chair: Thank you very much, Mr. Blaikie and Mr. Monahan.

Mr. Borovoy.

Mr. Alan Borovoy: I just wanted to respond, since Professor Monahan invited my comment.

In terms of his comments on the definition—that is, taking out the word “lawful”—I have little difficulty saying that would be better than leaving it as it is. What I'm currently not as convinced about, since he didn't tell me about this when we talked before the hearing.... I haven't had an adequate chance to consider it; I'd like to just mull it over.

My temptation was to suggest the complete removal of sub-item (b)(i)(E) from the definition of “terrorist activity” in proposed section 83.01. I'm not sure what it accomplishes that isn't otherwise covered by the earlier parts of the proposed item.

In the reference he made to international law, he said that it was “emerging” international law. That suggests to me that international law may not be quite as clearly settled as it ought to be for these purposes.

There is another problem with that as well. I wonder—and I don't purport to be an expert in international law, but I would be a little concerned—whether, if the insurrection activity occurring elsewhere were taking place within a country that Canada recognizes and has diplomatic relations with, his comments about international law would still apply. I would be a little concerned that they would not.

Suppose, for example, there were an insurrection in Cuba to get rid of the Castro dictatorship. It's not clear to me that Canadian support of that would pass muster with the bill as currently drafted.

The Chair: I see the panel mulling, and while they do, I'll go to Mr. MacKay for seven minutes.

• 1650

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair, and I want to thank all the panellists. It's terrific to get your insights on this bill, which is obviously very complicated and touches on a number of other pieces of legislation.

I was very interested in Mr. Wark's mention of the fact that if a clause were in place to provide a sunset for some of these provisions, not the entire bill—I don't think anybody really is suggesting the entire bill lapse—it would lead to greater public discourse, which I think is important.

It's very difficult, as I suppose it was pre-September 11, to imagine what is going to happen four or five years from now, but some of these intrusions, as Mr. Borovoy pointed out as well, are significant, particularly, as we heard yesterday, in the area of the ability of the government to withhold information about Canadian citizens, information to which citizens under, shall we say, normal circumstances would be entitled.

The question I have for you, and I'm not sure if you have the ability to answer, is whether there is concern abroad for the way in which we treat our information, information we might receive from our allies. Has that concern been expressed?

Both our Information Commissioner and Privacy Commissioner seemed to indicate this wasn't something of great concern. Similarly, other countries haven't gone to this extent of putting in a complete clampdown, giving the minister, by virtue of this certificate, the ability to say no—for very broad reasons, including national security, national defence—to to say we are not giving you an inch, not a bit, no information. We're not going to be accountable. We're not even going to justify why we're not giving the information.

We can all contemplate the type of information the government would want to protect, and I believe one of the panellists has already pointed out there are current provisions that allow for the protecting of information, including cabinet confidentiality and anything that would jeopardize an investigation, that would put somebody at risk.

What I take from all of this is that this legislation is saying, number one, we don't trust our parliamentary watchdogs to exercise proper discretion. Perhaps even a little more disturbing is that we don't trust judges to make the proper decision as to what information should or should not be released. I think that's a bit of paranoia—not to use too strong language—on the part of government that those competent individuals wouldn't exercise proper discretion.

I would invite any or all of you to comment on that.

Prof. Patrick Monahan: I don't think it's that we don't trust. As I understand it—and I haven't focused particularly on those provisions—it's not the concern that we don't trust the judges to make the right decision but whether the fact that there is a provision for judicial review would inhibit someone from providing that information because they might not be certain what the outcome of that would be.

I can understand that is a rational concern. Although we say our judiciary is excellent and is likely to make the right decision, there is always a risk—as Mr. Borovoy pointed out—that a particular judge on a particular day may decide something somewhat differently. I think that is the reason for those provisions. But I say that while hastening to add that I have not focused particularly on them.

Professor Wark, I interrupted you.

Prof. Wesley Wark: It's an interesting question, and I think it goes to the root of two issues, one that has to do with the current powers under the Access to Information Act and the Privacy Act. I would just repeat my remarks from the beginning, that I believe the government has sufficient powers to protect all the information it needs to protect under the existing legislation, and I regard these potential changes to the legislation as very unwise and unnecessary.

On the other issue, if you like, of context, ally worthiness is an important consideration for the Canadian government. It's an important consideration because you have to understand the nature of Canada's position within the intelligence and security alliance to which it belongs. That position is that we reap a great deal of benefit in terms of the information that comes to us from our allies, and we get a great deal more information than we give in that alliance context.

• 1655

It has always been the Canadian perception that our ability to stay at that alliance table has depended on our being, and being seen to be, a very security-conscious nation, a nation able to protect secrets that are given to us by our allies. I think this has created a kind of mentality within the government and within the security and intelligence community that is at times paranoid about the protection of secrecy, but perhaps understandably so.

That said, I do not believe Canada is under any pressure from any of its principal intelligence allies to change the security provisions surrounding the protection of information. So I believe this measure is taken as a result of internal reflections, not external pressure, and it is unnecessary.

The Chair: Mr. Rudner.

Prof. Martin Rudner: It's difficult, Mr. Chairman, to know the intention of the drafters and initiators of this particular provision in the legislation, but I'd like to comment on a problem that intelligence has with information, and that's the protection of sources.

Intelligence has to protect its sources and methods. With respect to counter-terrorism in particular, the only way one can gain intelligence on terrorist networks and groupings is to somehow penetrate those organizations, either with a mole or through various agents and operatives, and to somehow even hint, through releases of information of the most casual or official sort, about the nature of the source, the presence of the source, or the method, is a death warrant to that person.

I think intelligence agencies in dealing with counter-terrorism tend to be obsessive, and justifiably so, in the protection of information lest leaks occur. In fact, in intelligence history there have been cases of members of Parliament—I'm thinking of the British Parliament—speaking about an activity with respect to the Falklands War that revealed to the Argentinians British capabilities—and it was certainly without intent.

So I think the obsessive preservation of information may be justifiable in these particular circumstances, although, as I say, I'm not familiar or acquainted with the precise intent. I think we have to look at it in the context of the campaign against terrorism. It's the problem of sources.

The Chair: Thank you very much.

Thank you, Peter.

John McKay, seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you for your insightful comments.

The first question is directed to Professor Monahan and Professor Borovoy on the issue of the definition. I'm having trouble—and this was partly referred to by Mr. Fitzpatrick—understanding why proposed sub-item 83.01(1)(b)(i)(A) is even in there. Who cares about the motives? What's the relevance of that? Why should a crown attorney have to prove something to do with the political, religious, or ideological purpose? To my mind, motives don't play any part in any other part of the Criminal Code, so why should it be in this section?

I will give you an example—Timothy McVeigh. Who cares whether he was motivated for an ideological, religious, or political purpose? It's not relevant.

I'd ask both of you to comment on why that item has to be there as an additional element, a constituent element, that a crown attorney is going to be forced to prove.

The second question is to Professor Wark, and it's with respect to proposed subsection 83.01(2), which talks about facilitation:

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

the facilitator knows that a particular terrorist activity is facilitated

Let's say World Vision raises money for Palestinian activities. Palestinian activities presumably don't occur in Palestine without the knowledge of the PLO or Hamas or whatever. A very simple case scenario could be that World Vision, completely unknowingly, indirectly, by some means or another, facilitates the activities of the PLO, Hamas, or some other proscribed terrorist organization.

• 1700

I'd be interested in knowing whether I'm into a paranoid scenario or whether this is within some realm of realistic concern.

The third question to Professor Borovoy.... I've made you a professor twice now.

Mr. Alan Borovoy: I accept.

Mr. John McKay: Now all you have to do is get an appointment.

My question is with respect to your distinction between support for activities that would, if you will, overthrow dictatorships as opposed to democracies. I respectfully suggest that's a distinction without a difference. We may on this side of the Atlantic think we know the differences in other situations, when in fact it's sometimes very difficult to tell who's the good guy and who's the bad guy.

I'll let you answer those questions in whatever order you wish.

The Chair: We'll start in reverse order, so Professor Borovoy....

Mr. John McKay: Three times and you're lucky.

The Chair: If someone says it a fourth time, you get paid.

Mr. Alan Borovoy: I would suggest to you that this is not a distinction without a difference. I quite acknowledge that you may have situations where it's difficult to know who's the good guy and where you might have some very tough judgment calls. But there are democracies similar to ours operating in this world, and there are lots of countries that don't have institutions similar to ours. I would think that it would be a mistake to apply the same ground rules to both. We should try as best we can to distinguish between them, because we do know the difference between, say, the United States, Britain, and France on the one hand and, let's say, Cuba and Saddam Hussein's Iraq on the other. There we wouldn't have any trouble making that distinction, and I think it would behoove us to make the distinction.

I'm going to venture a guess as to why you have the motivation in part A. It may be that this is a limiting factor, not one to extend it but rather one to limit it, because this bill creates very special powers that otherwise don't exist in dealing with normal crime. In order to trigger the exercise of those special powers, the drafters of the bill wanted to ensure that it was confined to a certain phenomenon and was not designed to deal with crime at large. That might help to explain it.

The Chair: There was a second person. Was it Professor Monahan?

Prof. Patrick Monahan: I was going to comment on two of those points that were raised.

First of all, with respect to this definition and the intention that a crime be carried out for purposes that are ideological, religious, or political, I don't think that is in fact essential to the definition. If you look at the various conventions associated with terrorism, you do not find that element as part of the definition. The definition in those international conventions is focused on activities intended to cause serious damage, death, and so on.

I see it as being included here as a limiting principle to narrow down the definition. Not only do they have to be intending to cause this harm, they have to be intending it for these purposes. I think this is based on the United Kingdom's statute, which includes that element, but I don't think it is essential to the definition of terrorism.

I myself am more comfortable with that element there, because I think it reflects the need to balance and the desire on the part of the government in drafting the bill to balance and not to overreach. I'm more comfortable with that element there.

Let's consider the other point about Cuba and these dictators to the effect that we should permit people to engage in bombing them and doing other sorts of activities because Cuba is a dictatorship. That is not what I regard as the carve-out in this bill. This carve-out is very narrow. Under international law, it would only apply to something like a South African regime, a regime that is racist or that is systematically oppressing a certain sector or group within that society.

• 1705

I don't think we should say, well, we'll allow people to engage in bombing and killing people, because over in Pakistan or wherever else they don't have free elections. I don't think that's appropriate, and I don't think that's what this bill is saying.

I don't agree with Mr. Borovoy when he seems to say that if it's a dictatorship, it's okay to bomb them. I don't think that's what the bill is intended to say. It's intended to apply only to a very narrow, limited class of regimes such as the former regime in South Africa prior to the end of apartheid. I think that is what the bill is intended to aim at, and that is what the Supreme Court of Canada commented on in its judgment in the secession reference.

The Chair: Thank you very much.

There was a middle question that was directed towards Professor Wark. I can't remember the question, but I'm sure he does.

Prof. Wesley Wark: I think the question had to do with the clause about facilitation. It's a very interesting question, and my only response to it would be in terms of the context of and knowledge about terrorist operations rather than the legal interpretation.

I would say that using the facilitation clause wisely—for example, making a distinction between a World Vision contribution to a cause in the Middle East and a terrorist facilitation—will in the final analysis depend on the competency and professionalism of our intelligence and security agencies. That is the issue, it seems to me.

If we can't make that distinction, it's not because the law isn't going to be clear enough for us. It's because our institutions of security and intelligence are not sufficiently professional. We need to think about that, because I don't think we can come up with any better—or worse—definition of facilitation.

Mr. John McKay: So you're only okay if you have a good cop.

Prof. Wesley Wark: Not cops; you're okay if you have good intelligence analysis.

The Chair: Thank you very much.

Mr. Fitzpatrick, you have three minutes.

Mr. Brian Fitzpatrick: Earlier this morning we had a Professor Wilkinson from Great Britain here. I found his testimony quite illuminating in his description of the bin Laden organization. I think he might have described it as one of the most powerful transnational organizations we have in the world. He said they're way ahead of the world we live in with respect to where they're at on all fronts, how quickly these organizations can pop up and get around in the world, and so on.

It occurred to me that with regard to our listing provisions—I would like to direct this to Professor Wark—I would like to think that once this legislation comes into effect, if the U.K. identified an organization and put it on their list, bingo, 10 minutes later it'd be on our list. Or similarly, if something like that happened in the U.S.A., bingo, that name would be on our list. These people move quickly, they're international, and they're very devious people. I look at that provision and I'm not....

I'm concerned about the political considerations for the thing, too. I don't think there's any room for political considerations in fighting these terrorists. Terrorism is terrorism. Let's get them on the list. Let's go after these people. If they're on the U.K. list and they're on the American list, I think that's good enough for me to get them automatically on our list. We have good review mechanisms to get individuals off the list because of mistaken identity or other factors. I'd just be curious as to your response about the automatic inclusion of people who are on our allies' lists in this war on terrorism.

Prof. Wesley Wark: Mr. Chairman, just quickly in response, I would imagine that the way things would work in practice is that a Canadian list would be very similar to those of our allies'. This is to a great extent because our allies, the British and Americans in particular, have much greater capacities and will always have much greater capacities in terms of intelligence capabilities in this area.

That said, I think we also want to rely on our own judgment where we're not sure, and again we have to have the intelligence capability to make our judgment in cases where we're not sure.

The other thing that needs to be said about listed entities is that we must understand the outcome of listing terrorists organizations. It can have a deterrent effect and a sort of public education effect, but it is also inevitably going to drive the real enemy underground if that real enemy is not already underground.

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In a way, then, the listing of terrorist organizations is necessary and practical but also symbolic. And it's not going to be a cure-all for preventing terrorist fundraising, recruitment, or the presence of terrorist individuals and organizations in this country. It is simply going to drive them underground and, to a certain extent, make the work of the security and intelligence community more difficult. I think we just have to accept that.

The Chair: Thank you very much.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): I'm interested in Professor Monahan's comments, that he believes it's reasonable to assume that the threat of terrorism is real and substantial. I'd like to have him expand on his reasons for believing that and possibly get comments from other members of the panel on that point.

Prof. Patrick Monahan: Given, first of all, that it seems there was no ability, really, to obtain accurate information in advance of the September 11 events, it is evident as well, in the events subsequent, with this anthrax scare we have, that our existing approach to these issues has to change. In my view liberty is undermined. It is destroyed by the failure to take appropriate measures, because the cause of liberty and of an open society depends upon citizens being able to go about their business peacefully and not being subject to intimidation and coercion.

It is my view that this has shifted. I would agree with the Minister of Justice in her remarks to this committee and elsewhere. Since September 11, in considering under section 1 of the charter the balance between charter rights as opposed to the needs for security, that balance has shifted. It is appropriate that the government institute new measures. After a period of time we will have the opportunity to see whether or not those measures are adequate. It may be that we have to take even stronger measures than are here.

For example, this bill does not proscribe membership, per se, in a terrorist organization; it is only activities that are offences, unlike in the British statute. So it may be that we would have to go even further than we've gone here in the bill. I'm not prejudging that; I'm simply saying that a parliamentary review after three or five years would give us the benefit of experience.

The Chair: Any other comments? He invited the panel.

Mr. Rudner.

Prof. Martin Rudner: From the perspective of terrorism and counter-terrorism, Mr. Chairman, we have a dual problem in Canada. First, Canada actually has been the target of terrorist activities. Air India was one such terrorist act and there have been others, including assassinations of diplomats in our national capital.

Secondly, and I believe this bill is attempting to address this issue, we have terrorist activities in Canada that don't necessarily conduct violence in this country. They are activities that in fact engage in fundraising, mobilization of resources, arms procurements, and operational planning against other countries elsewhere where the activities take place. I think the legislation of the sort that is before us today is intended to enable the intelligence services and law enforcement agencies in this country, in conjunction with our allies, to try to address a complex problem of organizations and obscure networks that conduct activities in this country and violence elsewhere—a very distinctive sort of challenge for both law intelligence and law enforcement.

The Chair: Mr. Borovoy.

Mr. Alan Borovoy: Mr. Chairman, I agree with Professor Monahan's opening remarks about the importance of fighting terrorism and that impact on a free and democratic society. There's no question he's right in that description. It does not follow, however, that simply because the dimensions of the problem appear to have changed, each and every measure being proposed is a proper response to it. One thing doesn't necessarily follow from the other.

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In my view, it is still important, and the government still has the duty, to demonstrate why the existing powers, considerable as they are, are not adequate to deal even with the changed face of terrorism.

The Chair: Thank you very much.

Mr. Blaikie, for three minutes.

Mr. Bill Blaikie: Perhaps just picking up on what Mr. Borovoy said, the other day I asked the RCMP commissioner, Mr. Zaccardelli, presuming that they were consulted on the drafting of the bill, what kind of events could have been prevented in the past but weren't because they didn't have the preventive arrest powers or the other powers they would now have in this bill. The only answer was, well, everything changed on September 11.

So it seems to me that what we have here is related not so much to past experience, but to anticipated experience. So it's very much a guessing game on what powers are needed. He wasn't able to point to terrorist activities that did occur in the past because these powers didn't exist in the past.

I asked the question earlier about a two-tiered system. It relates to the question Mr. McKay asked, about defining things as occurring for a religious, ideological, or political purpose.

Now, your response, Professor Monahan, was that in some ways this was trying to limit it. At the same time as that is true, is it not also true—I'm not sure myself—that it does create this sort of higher-level crime? The same incident, one done for religious, ideological, or political purposes, and the other done just out of malicious intent or whatever, are treated differently in the law. Is that a concern?

Prof. Patrick Monahan: To me it is not a concern, because I regard the acts that occurred on September 11 and other acts similar to them to be the most heinous type. They attacked not simply individuals; they also attacked the very essence of liberty, of a free and democratic society. They deserve the highest form of sanction that we as a state can apply to them.

So I have no difficulty with saying it is in fact a limiting concept, but it is an indication that it does deserve sanctioning of a very particular type if it is undertaken for those purposes.

Let me just comment on your first point with respect to existing powers. The existing powers in the Criminal Code, for example, to arrest someone without warrant, require that you have to believe this particular individual is about to commit a crime. What we now seem to be faced with is a situation where there may be intelligence that something is going to happen. We don't know exactly what it is. We can't say this particular individual necessarily is going to commit a crime, but we have a good sense that something is going to happen. The existing code provision, section 495, that allows you to arrest someone wouldn't apply in that type of situation.

That doesn't seem to be appropriate in light of what we now know from September 11, when it seems, from media reports, there was some sense that something was going to happen, but we didn't have the evidence to say exactly what that was. So it would seem to me that this is in fact an illustration of the need for increased powers, as my friend, Mr. Borovoy, pointed to.

Prof. Wesley Wark: I think it's largely right that we're dealing with a future scenario, the details of which we can't imagine.

On the intelligence capability side, let me just reflect briefly on the Ahmed Ressam case. Ahmed Ressam was the bomber who was headed to Los Angeles to create a terrorist incident, who was arrested by accident more or less on the border.

Part of the reason we were unable to fully monitor his activities in Canada was that at one point Ahmed Ressam left Montreal and went to Afghanistan to train in a bin Laden camp. We did not have the intelligence capabilities to maintain a continuous monitoring of this individual, partly because of the prior distinction we drew between domestic intelligence monitoring and overseas monitoring.

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When he went to Afghanistan we lost him. When he came back to Montreal he came back with a different identity and a different set of contacts in Montreal under the name of Benni Norris. CSIS didn't know that Benni Norris was Ahmed Ressam; they were still looking for Ahmed Ressam. That is the reason why we may need, in these new circumstances, increased capabilities and increased latitude for intelligence collection, it seems to me, that doesn't concern itself so much as it did in the past with borders.

The Chair: Thank you very much.

Mr. Owen.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you. Thank you, all of you, for being here today and for your very thoughtful testimony. I thought I might just briefly touch on two issues that have come up.

First of all, Professor Monahan, in your recommendation that we consider sunset clauses, were you restricting those to the investigative hearing and the preventative arrest provisions that you had also commented on?

Prof. Patrick Monahan: Yes. That's all I was contemplating, just those specific clauses.

Mr. Stephen Owen: Thank you. I want to ask a more general question, perhaps first to Mr. Borovoy, with respect to the investigative hearing.

Do you see in those provisions something more expansive or intrusive than the powers of inquiry under the Inquiries Act, for instance? In particular, I think you made a distinction between the prospective and the retrospective inquiry. Of course, public inquiries, as distinct from royal commissions, tend to be retrospective, not prospective, and there's a great deal of Supreme Court jurisprudence in Canada around the relationship between retrospective public inquiries and potentially subsequent criminal trials. I'm wondering, in the context of all of this practice in Canada and the judicial pronouncements we've had on them, whether you're given more comfort that this provision, albeit directed at some quite extraordinary new threats we are aware of, would provide that unique an approach in terms of our general inquiries into things of importance in the public policy of Canada.

Mr. Alan Borovoy: I think in view of the—I'll use Mr. Monahan's words—emerging law in the area of public inquiries, the effort now is to limit the ability of public inquiries to gather evidence for criminal law purposes. This hearing, on the contrary, would be designed to gather evidence for criminal law purposes; that would be one of its essential purposes. So in that sense I'm not comforted, but again I would remind you that if the idea is to compel the evidence in order to avert some disaster that is considered relatively imminent, then I would say all bets are off and go ahead.

Mr. Stephen Owen: I'd like to clarify that. My memory, and it may well be it is foggy, of the Supreme Court of Canada decision in Westray was not that the public inquiry could not proceed but that it must proceed on the understanding that it may taint the admissibility of evidence at a subsequent criminal trial.

Mr. Alan Borovoy: Forgive me, my memory is also somewhat clogged, but what about the Pattie Starr case? Didn't that deal with something closer to this?

Mr. Stephen Owen: That was far before that.

Prof. Patrick Monahan: If I could clarify, that went to a different point, namely that because it was a provincial law and because criminal law is a matter of federal jurisdiction, that in fact was trenching on criminal law. It was on that basis that the terms of reference in the Houlden inquiry in that case—

Mr. Stephen Owen: That's the Starr case.

Prof. Patrick Monahan: That's the Starr case. They were ruled to be an enactment of criminal law. It did not deal with the issue of whether there was some infringement of a right of an individual. So that's a different point entirely.

I would agree with Mr. Owen's point that the thrust of the jurisprudence is to say that we will allow inquiries in fact to go ahead as long as that is not used in effect as a vehicle to prosecute those persons who are being compelled to testify. In this case, it is in fact provided that we will not use that evidence against these particular individuals.

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The Chair: Thank you very much.

Mr. Alan Borovoy: In fairness—

The Chair: Mr. Borovoy.

Mr. Alan Borovoy: I'm sorry.

The Chair: We have less than five minutes left, I have two questioners left, and I have a panel downstairs waiting for us to join them. So, Mr. Cadman, could you keep it as short as possible? Then we'll go back to Mr. Cotler.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair. I have two questions.

Earlier Professor Rudner alluded to the enormous amount of data, the enormous amount of information, that CSE has to deal with and analyze, and we can assume that CSIS has an incredible pile of stuff to deal with too. In the opinion of the panel, do they have adequate resources to be able to stay on top of that even with what the government has said they will commit in extra funding? Do they have the resources to be able to do the kind of analysis that's going to be required to stay ahead of the game?

Number two, with regard to the Internet, you mentioned something I'd never thought about, which is that you vetted signals within the Internet. Should ISPs, Internet service providers, be a little bit worried about where this may take them? We just went through this with child pornography on the Internet.

The Chair: Mr. Rudner.

Prof. Martin Rudner: I want to reply to the second part of your question first. In Britain in fact the legislation has been enacted requiring Internet service providers to provide a window of opportunity, if one might call it that, to the British equivalent of CSE to monitor communications through the Internet. We don't have such an entitlement, or requirement, or authorization here in Canada.

As to the first question, it's very difficult to know whether an organization like CSE has sufficient resources. This is among the most privy of intelligence information, which the organization itself retains. We could say from discourse in the intelligence community, mainly in the United States, that if fact organizations like that always find themselves short of capacity to handle the massive flow of “cake”, as they call it, going through the system to sort out what is relevant, and then to translate what is relevant, and then to disseminate it in ways that are useful to their clients within government, my own suggestion would be that CSE would probably find themselves in the same kind of resource constraint as the NSA in the United States or as GCHQ in the United Kingdom.

The Chair: Anyone else? Mr. Wark.

Prof. Wesley Wark: I think the current circumstance of the Canadian intelligence community is that it is under-resourced and has been for years. One of the difficulties is that the Canadian security and intelligence community doesn't have an ability to ask for more or to make its case because of the way in which it's walled off from normal government operations, or at least was before September 11.

I think the clearest indication that CSE in particular was under-resourced was the enormous sum of money it was recently given by the government, $37 million, which represents nearly one-third, an increase of 33% to its normal annual operating budget. I think what we're involved in in fact is a process of trying to catch up and patch prior resource problems. CSIS has been given some additional money already and I think there's more to come. One of the reasons why it wasn't given more initially is that there are other decisions that are going to have to be made, particularly in terms of whether CSIS is going to be given a genuine mandate to conduct overseas intelligence gathering.

So I wouldn't be confident that we have the capabilities we need to meet future threats.

The Chair: Thank you very much.

Mr. Cotler, for the last three minutes.

Mr. Irwin Cotler (Mount Royal, Lib.): I'll try to state the questions very quickly. The first one is to Martin Rudner on the CSE. Should there be a requirement for judicial review of ministerial authorization having regard to the appropriateness or desirability from a technical and operational point of view and having regard to the fact that there is already oversight by the commissioner?

Second, and you may wish to answer this question as well, is there a jurisdictional problem here? We've been given witness testimony that this in fact cannot be done. That's the first question.

The second question is to Patrick, although Alan could jump in on it too. Under the investigative hearing provisions there is protection for what a witness answers, but there is no protection if a witness refuses to answer. In other words, the right to protection against self-incrimination is protected under section 13 of the charter, but in fact no right to silence. My question is whether you're troubled by this, that somebody may in fact be imprisoned for refusing to answer the question. Or have the events of September 11 shifted this balance. With respect to Alan's notion of imminency, should we tighten up the language on this?

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Finally, terrorist activity is defined as including an act committed “in whole or in part for a political, religious, or ideological purpose or cause”. The question is, would you want to include this as a requirement in the elements of the offence or would it be better to reverse this and say that an act cannot be defended against by reason of religious, political, or ideological motive? In other words, rather than it be a required element of the offence, exclude it as an element for the defence.

The Chair: Mr. Rudner.

Prof. Martin Rudner: Apropos ministerial authorization, I understand that the legislation before us has specific criteria for ministerial authorizations of CSE interceptions of communications. Without being a lawyer but looking at it from a public policy perspective, there's no reason the CSE commissioner could not examine the appropriateness of the authorizations in terms of the enabling legislation without necessarily commenting on the broader question of ministerial discretion. Certainly, I would have thought that the CSE commissioner could comment on the relevance of the authorization apropros the legislative entitlement.

The Chair: Thank you. Does anyone else wish to comment? Professor Monahan.

Prof. Patrick Monahan: I'd like to comment briefly on the important point Mr. Cotler makes about the investigative hearings. It is true that someone is not entitled to refuse to answer, but the requirement of the legislation is that there are reasonable grounds to believe (a) a terrorism offence will be committed and (b) that this person has direct and material information relating to the terrorism offence that we believe will be committed. That assessment is made by a judge, not by a police officer. If a judge—in this case a provincial court judge or a superior court judge—finds that those circumstances are present, then I would say yes, that person must provide that information. I am comfortable with that.

As for the suggestion that the element of intention—the political, religious, or ideological purpose—be reversed and introduced as an element of the defence, that would mean you do not have to prove that intention as an element of the offence, if I understand that proposal correctly. Again, as I said, the international conventions on terrorism do not include that as an element of defining terrorism, so I do not think it is essential. I am more comfortable having that as an element of the offence as opposed to simply providing it as an element that cannot be used to exonerate the individual.

The Chair: Mr. Wark.

Prof. Wesley Wark: Just very briefly, with regard to CSE, I think the Minister of National Defence indicated that he's going to extend the mandate of the commissioner of the Communications Security Establishment to review all ministerial authorizations that involve the interception of private communications in Canada. The difficulty the CSE faces, and it's a thing we're going to have to struggle with, is that the CSE does not want to have to go through a process of judicial warrants for its intercepts. Why is that? It's partly tradition, but it's also because of the nature of the international undertaking it has engaged itself in in order to have access to allied intelligence product. So I think CSE sees it as a huge roadblock in terms of the judicial warrant process. I can't imagine that they're going to want to go down that road because I think it would threaten their very lifeblood in terms of capabilities and access to allied information.

The Chair: Did you wish to comment, Mr. Borovoy?

Mr. Alan Borovoy: No.

The Chair: Mr. Cotler.

Mr. Irwin Cotler: I have a very quick question, but it may take longer to state than to answer. The legislation is not intended to cover an act committed during an armed conflict that at the time and place of its commission, let's say, was in accordance with customary international law and treaty law. This language was taken almost directly out of the Crimes Against Humanity and War Crimes Act and inserted here. But anti-terrorism law, as a recent United Nations Security Council resolution demonstrated, is organized around the foundational principle that terrorism from whatever quarter, for whatever purpose, is illegitimate. In other words, there is a zero tolerance policy for terrorism.

This brings me to your point, Patrick, that under a very limited class of regimes, e.g., apartheid, we might countenance certain acts. I can understand where an act would be against a state-owned facility without the intention to commit murder or that kind of mens rea threshold. Even with that limited class of regimes and against an apartheid regime, would you include actions that are not only violent and criminal but also have the mens rea intention to murder, maim, and the like?

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Just as a passing reference, what I understood from the secession reference was that under oppressive regimes there's a right to secession. I don't recall the Supreme Court intending to validate any act of violence in the course of that right to secession.

The Chair: If I may, I'd appreciate it if you could answer in less than a minute because we have a whole panel downstairs anxiously awaiting our arrival.

Prof. Patrick Monahan: I'm trying to give some meaning to those words that are included in the proviso. It seems to me that to give them some meaning in the context of this must involve some carving out from the definition that is there. That is to say, it must be that some categories of acts that would otherwise fall within that definition are somehow protected. It seems to me that we have to try to give some meaning to those, and the manner in which I've tried to do so may or may not be correct.

The Chair: We'll give the last word to Mr. Borovoy.

Mr. Alan Borovoy: As far as the deliberate targeting of innocent non-combatants is concerned, then we say that shouldn't be allowed and Canadians shouldn't be allowed to support it no matter where it happens.

But as far as other types of violence are concerned, such as revolutionary violence, I would be troubled by attempting to make a distinction between some dictatorships and others. For example, violence could be used against the instruments of the state in a racist dictatorship in South Africa but perhaps not against a communist dictatorship somewhere. I would have a lot of difficulty making a distinction of that kind.

The Chair: I want to thank all the panellists. I'm sure our deliberations have been well advanced by virtue of your time and input today, and it's very much appreciated.

To members of the committee, we're all invited to room 112-N for the continuation of this meeting. We'll be discussing Bill C-15B. I'm going to mention this now, because I think a change takes place among the representatives of the parties with the different pieces of legislation. At the end of the morning's hearings tomorrow, which are on Bill C-36, we will be working on finalizing the work plan. Our meeting was originally scheduled to finish at 1 o'clock. It will probably go on until 1:30, depending on the nature of that discussion. That's for tomorrow morning.

On that note, thank you very much.

This meeting is adjourned.