JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 23, 2001

• 0932

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 30th meeting of the Standing Committee on Justice and Human Rights. Today 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 (money laundering) Act and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

We are very pleased to have as witnesses today Commissioner Zaccardelli from the RCMP, and Director Ward Elcock of CSIS.

These gentlemen have appeared before this committee many times, so I don't need to tell them that we will try to accommodate their introductory comments within approximately 10 minutes and then leave opportunity for members of the committee to ask questions.

Once again, welcome, and thank you very much for accommodating our schedule and being here today.

Has there been any decision made among our witnesses as to who's going to go first?

Mr. Ward P. Elcock (Director, Canadian Security Intelligence Service): Mr. Chairman, I don't have an opening statement, but I think the commissioner does. I'd be happy to take questions.

The Chair: Commissioner Zaccardelli.

Commissioner Giuliano Zaccardelli (Commissioner of the Royal Canadian Mounted Police): Thank you, Mr. Chairman.

Good morning, ladies and gentlemen.

[Translation]

Good morning, ladies and gentlemen.

[English]

Thank you for the opportunity to be here today to discuss Bill C-36, the proposed Anti-terrorism Act, tabled in the House of Commons on October 15 of this year.

My remarks will be brief but will highlight three important messages. First, the RCMP is taking a measured and sustained response to terrorist activity. Second, the proposed legislative change will enable law enforcement agencies such as the RCMP to continue to fight terrorist activity in a balanced way. Third, all that we do at the RCMP is consistent with Canada's legal framework and the values that Canadians cherish.

Before I speak to you about the RCMP's measured and sustained response to terrorist activity, let me begin by setting the stage somewhat.

What is terrorist activity? Terrorist activity is indiscriminate, global in scope, and destabilizing in effect. Those who carry out terrorist activity have no respect for human life. They will stop at nothing in their effort to achieve their goals. Terrorist activity is carried out by groups and individuals willing to commit suicidal acts of mass destruction against innocent civilians. They think nothing of strapping a bomb around their waist and detonating it and themselves in a location strategically selected to result in the greatest possible loss of life and destruction of property.

• 0935

Terrorist groups are intricate, complex, sophisticated, and clandestine criminal organizations. Terrorist groups have long-term goals, to infiltrate and assimilate in society and establish individuals with sleepers' roles.

Terrorist activity poses an extraordinary threat to society, as evidenced by the tragic events of September 11. The fight against terrorist activities calls for extraordinary action. Since the tragic events of September 11, the prime objective of the RCMP has been and will continue to be to ensure public safety. There has been a heightened awareness of the need to remain vigilant. That heightened awareness remains solidly in place at the RCMP since the attacks on Afghanistan positions by American and British forces, which began on October 7. But our actions do not stop at awareness and vigilance.

What has the RCMP done? Post-September 11, the RCMP has initiated a full-scale domestic investigation to determine if there was any Canadian involvement in the events of that tragic day. This includes an effort to determine if there are threats to Canada coming from either within the country or outside. In addition, task forces dealing with the events of September 11 have been established in key locations across Canada, with all our law enforcement partners and intelligence agencies, everyone who can contribute to this cause.

Investigative efforts are also under way in an attempt to ensure that terrorist funding is cut off. These investigations are transnational in nature and require a coordinated national and international effort by law enforcement and security agencies. As a result, the RCMP is working closely with international partners in all its activities, and because terrorist groups are intricate, complex, sophisticated, and clandestine criminal organizations, our investigations will require long-term, intensive efforts.

Our measured and sustained response was further bolstered on October 12, when the Government of Canada announced new funding to assist the RCMP in its work on the anti-terrorism plan. The RCMP received $59 million for new measures that will strengthen Canada's ability to prevent, detect, and respond to existing and emerging national security threats. The RCMP is pleased that the Government of Canada has provided this additional funding.

As I told the Standing Committee on Citizenship and Immigration last week, this money is helpful, but the RCMP and security agencies, CSIS in particular, can use even more money so that we can provide better security for Canadians in this country.

In terms of working with our partners, on the domestic front we have put into place some very concrete activities to ensure that our partners are in the loop on law enforcement initiatives with regard to terrorism. For example, all RCMP provincial headquarters have briefed their respective provincial and municipal partners on events that impacted on their jurisdictions. These regional initiatives include regular briefings of provincial departments of justice, policing services at various levels, and briefings to municipal mayors, provincial emergency measures organizations, and airport authorities.

As you can see, we are constantly sharing information with our partners, as well as evaluating the national security situation and modifying needs according to the circumstances at hand. We are also working very closely with the Solicitor General to contribute to the national security committee headed up by the Minister of Foreign Affairs. We are providing advice and intelligence on how best to ensure public safety, and of course, we are sharing information and intelligence whenever we can with our international, national, and local partners.

• 0940

In the circumstances, we feel that we have done what we can to heighten vigilance, readiness, and response capacity. However, the RCMP supports the proposed legislation.

Some people say that Canada already has a strong legislative framework and enforcement capacity to deal with terrorist threats. It has been our experience, based on our investigation into the tragic events of September 11, that this is not true. Notwithstanding our efforts, it has become evident that there are significant obstacles preventing law enforcement organizations such as the RCMP from detecting, deterring, and destabilizing terrorist groups. Traditional investigative tools are inadequate. It is our view that Bill C-36, the proposed anti-terrorism act, will make a significant contribution to the ability of law enforcement to fight terrorism in this country and abroad.

More specifically, Bill C-36 will criminalize terrorist financing, establish a procedure to freeze, seize, and forfeit proceeds for and proceeds of terrorist activities or groups. It will enhance our ability to protect sensitive information. It will create new investigative tools and allow for preventive arrests when needed to address the serious threats posed by terrorists groups and those who would carry out terrorist activities. It will establish a means to identify and list terrorist groups.

The draft legislation proposes limits be placed on the activities of police, and as exists now, police actions are subject to the limits placed on them by the Charter of Rights and Freedoms. Let's be very clear. We are not talking about, in any way, shape, or form, acting or behaving outside of the charter and freedoms of this country.

To sum up, I want to underscore that the RCMP is very supportive of Bill C-36. Not only does Bill C-36 provide the necessary tools for law enforcement to help combat terrorist activities, but it also provides important safeguards to ensure that the exercise of these powers is not solely at the discretion of law enforcement officers. You are all aware of the involvement of the Attorney General and judges in every step of this process.

You have heard me say many times that, at the RCMP, our role is to uphold the law and to strike that balance between the protection of society and respect for individual rights. We constantly strive to make how things are done as important as what gets done. Our behaviour as an organization and as individuals must at all times be based upon integrity, honesty, professionalism, compassion, respect, and accountability. Our values must reflect those of Canadian society, and I believe they do. We will not abandon this important goal.

Thank you for the opportunity to share with you today the RCMP's views on the proposed legislation.

The Chair: Thank you very much, Commissioner.

We'll go directly to questions, the first from Mr. Sorenson of the Canadian Alliance, for seven minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you to the Commissioner and Mr. Elcock for coming in. We appreciate your time here. Obviously these are busy times for you, and probably a time when very close scrutiny is paid to the RCMP, as well as to CSIS.

Mr. Commissioner, you talked about Bill C-36, and you spoke about how it would help you in your responsibility and the RCMP's responsibility. You talked about the dollars. You said the money was good, but you could use even more. That kind of brings into line what I would like to question you about.

A couple of weeks ago the Solicitor General announced this big package of funding. Part of the funding was $770,000 for the emergency response team. There was $8 million given for scanning equipment to the airports, to the border control, all those areas. We saw the big lump of dollars put in there, and $1.5 million for fingerprinting and for card-conversion technology, to upgrade the criminal records system.

• 0945

We know that a lot of the money has been earmarked for technology. We understand that the terrorists have high technology, and we would expect the same from our RCMP and others who are maintaining law and order in this country. But there have really been no significant numbers put on personnel. We see where the dollars are being funnelled or directed towards the technology, but we question how many personnel are to go through that and use that technology.

As the commissioner may know, in our party we have for a long time advocated an increase in spending, and that's one of the questions I would have for you. Will you be receiving any money that is tagged for additional RCMP officers? That's the first question.

The second also deals to a certain degree with that. The Canadian Police Association issued a press release saying that they call on the government to stop playing a shell game with Canadian security. One of the concerns they had was that although we see all the new resourcing with all the new RCMP officers at the airports, these RCMP are basically being pulled away from other areas of concern. They were fighting crime. They were in the communities dealing with organized crime. Will there be more RCMP hired and trained to deal specifically with emerging threats of terrorism?

As well, in light of numerous articles from recent years in which former commissioners of the RCMP have spoken out about understaffing, what kind of personnel numbers are we going to be looking at? We hear about Regina. There are no new training courses going on there. They're basically maxed out already. The personnel issue was my second question for the commissioner.

Then there's one for Mr. Elcock. Again, a lot of it goes to the resourcing, and we see that from 1993 right to 2000 the budget of CSIS was reduced. In the last few years there have been some marginal increases, but by far most of what we've seen in the budgets over the last six or seven years has been reduction.

I'd just like to quote for Mr. Elcock from the CSIS 2000 public report, which says:

Up to now, CSIS has been able to risk-manage the challenges. However, the terrorist events of late 1999 underscored the continuing requirement to review efficiency within the context of the existing threat environment, with particular emphasis on the allocation of human resources. More than ever, the Service must rely on risk management, concentrating resources selectively and precisely on the major issues, while assessing new and emerging threats.

Basically, what the report is saying here is that given the risk that's there, we have to take a look and risk-manage. We're evaluating each threat through that whole idea of risk management.

Last Friday the Solicitor General announced another $10 million for CSIS, but little of this will be used for more agents. My question to Mr. Elcock is, does CSIS have an adequate number of agents to analyse the information we've received? Also, as to this technology, in one of the reports it says that we have a mountain of information and not enough analysts to go through it. My question is with regard to the skilled analysts it takes to go through this mountain of information.

Mr. Zaccardelli.

Commr Giuliano Zaccardelli: Mr. Chairman, I think I remember the two points that were made in the question. Obviously, we are very pleased with the resources we have been given by the government. This is not just with respect to the terrorist activities; for several years now the government has been giving us some substantial increases in our resources.

The specific funds you refer to, as I mentioned, are about $64 million, and this money is not all for one area. It is a balanced approach we've taken, and it's not just about technology. There's technology, infrastructure, and also human resources, but it's also been very clear that the government has said—and Mr. MacAulay has clearly said—that this was the first wave. This is the first phase. We have active discussions ongoing now for further resources, and I am pleased with that.

Could I use more? Yes, I could. The government, as I said, has been very responsive to our needs as we deal with this.

• 0950

We are increasing the number of people in the organization based on the resources we get, but it is also very important that we've working in a very collaborative way with other departments, other agencies, with CSIS, for example, since September 11. And we've probably never looked at the problem in the same way before. We have looked at other federal agencies and at our provincial and municipal partners. We are leveraging those collective resources in the interests of Canadian security as a whole.

Yes, there are more resources, but how you use those resources is also very important, and we have really made substantial improvements in that area. I'm very pleased with what I have, but we do need more resources, and that's being looked at.

You mentioned risk management, and I'm sure Mr. Elcock will address that very clearly. We're in the business of managing risk. That's what we do. We have never had the resources to do everything we want to do, but we want to make sure that we have the very best intelligence. Then we can know what's going on and can proactively respond to situations in order to deal with the most serious crises the organization is facing.

Yes, we have made reallocations of resources, but that's what risk management is all about. We have redeployed certain resources from certain parts of our work or parts of the country to respond to this serious threat. That's what's expected of us. That's what Mr. Elcock and I manage on a daily basis, balancing these resources to best respond to the needs of the country. I'm very satisfied that we're doing the best we can.

Again, and I've said this many times, Canadians are the safest citizens in the world, and that's because of the intelligence services in this country and the law enforcement agencies in this country.

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

Mr. Elcock, did you want to comment?

Mr. Ward Elcock: I would just add to what the commissioner said. As noted in the question, we did receive some additional moneys last week. Those are short-term moneys. As the commissioner pointed out, the government is considering additional requests from us and other organizations and will make decisions in the short term about additional resources, more long-term resources.

The Chair: Thank you very much.

Madame Venne.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Thank you, Mr. Chairman. Good morning, gentlemen.

Last week, the media reported on the interesting story of one Abdellah Ouzghar and I would like to give you a little background information about his case. Last April, Ouzghar was sentenced to five years in prison by a Paris criminal court for, among other things, associating with criminals involved in plotting a terrorist act. INTERPOL had already issued two international warrants for the arrest of Ouzghar. These warrants listed Hamilton as his current address.

Pursuant to the Extradition Act, the RCMP was supposed to temporarily detain this individual until such time as France could prepare an extradition order. Yet, a little more than a year passed following the issuance of the first arrest warrant and nearly six months elapsed after Ouzghar had been condemned in France before the RCMP finally got around to arresting the suspect last October 12.

In view of the fact that the new provisions in Bill C-36 respecting preventive detention further to an arrest without warrant would appear, to some, to be a necessary mechanism in the police's arsenal to combat terrorism effectively, can you tell us, Commissioner, how this matter would have been dealt with differently if Bill C-36 had been in force when INTERPOL issued its first warrant?

Commr Giuliano Zaccardelli: I wouldn't comment if the matter could have been handled any differently, but I can tell you that when another country issues an arrest warrant, the RCMP does not respond immediately. France must make a formal request to Canada. The request is submitted to the Justice Department and once it has been reviewed by departmental officials and once it has been determined that it complies with Canadian law, the Justice Department then contacts us and asks us to try and arrest the individual in question.

In all instances, we must ensure that we comply with Canadian law, that is with the provisions of the Canadian Charter. There can be no exception. The mere fact that INTERPOL has issued an arrest warrant does not mean that we can go out and immediately arrest that individual. As I said, the request must be submitted to the Justice Department and once the department has determined that the request is in compliance with the law, then we can respond.

As far as Bill C-36 is concerned, we need to weigh all of the facts. Each case must be examined separately. The RCMP does not spring immediately into action. The law clearly states that the Attorney General must be involved and that an application must be made to a judge. The RCMP is not authorized to act without the approval of the minister and the courts. It's very important to remember that.

• 0955

Ms. Pierrette Venne: You're telling us then that the Justice Department dragged its heels on this matter.

Commr Giuliano Zaccardelli: Not, that's not what I'm saying at all.

Ms. Pierrette Venne: Fine then, I understand.

Commr Giuliano Zaccardelli: I said that certain procedures must be followed and that the law must always be upheld.

Ms. Pierrette Venne: My second question is also about preventive detention and arrest without warrant. The proposed new section 83.3(4) of the Criminal Code stipulates the following:

(b) the peace officer suspects on reasonable grounds that the detention of the person is custody is necessary in order to prevent the commission of an indictable offence, where the act or omission constituting the offence also constitutes a terrorist activity, the peace officer may arrest the person without warrant and cause the person to be detained in custody—

In my opinion, the expressions “reasonable grounds” and “suspects” are not easily reconcilable. I would even venture to say that they are oxymorons. Moreover, the law recognizes that in order to obtain a warrant to search someone's premises, reasonable grounds must exist. Merely having suspicions is not grounds enough.

Therefore, what distinction do you draw between “reasonable grounds” and “suspicions”. Given that the two expressions appear incompatible, which one will your officers look to when the time comes to apply this particular provision of the Criminal Code?

Commr Giuliano Zaccardelli: First of all, before applying the new legislation, if that happens, we will of course consult with Crown attorneys. Except in certain rare instances, we have to go to court to obtain authorizations. Our requests will be reviewed by a judge. An RCMP officer cannot act without first obtaining the consent of the Attorney General and going before a judge. Certain procedures must be followed before we can act.

There are a few exceptions. If it becomes necessary to arrest a person without going before the court, the person detained must be brought up before a judge within 24 hours. The act makes provision for this in rare instances, but in the majority of cases, the prior consent of the Attorney General and the judge is required.

Ms. Pierrette Venne: I'm talking about the particular provision which says that a person may be arrested without warrant. There appears to be a contradiction of sorts between the words “reasonable grounds” and “suspects”. For the time being then, you cannot answer my question, except to say that you will consult with the Justice Department attorney.

Commr Giuliano Zaccardelli: We don't consult our department's attorney. Ultimately, the court judge is the one who decides if reasonable grounds exist. He is the one who decides if there are reasonable grounds to proceed. The RCMP or peace officer does not act alone. The peace officer is not the person who decides the appropriate course of action. Without the authorization of the court, we cannot proceed.

[English]

The Chair: Thank you, Madame Venne, and Commissioner Zaccardelli.

Bill Blaikie, you have seven minutes.

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

I have a few questions to ask Commissioner Zaccardelli. With respect to the clause of this new Bill C-36 that provides for preventive detention, preventative arrest, or whatever, presumably the government, when it was designing this bill, was consulting with the RCMP. I wonder if you could tell us whether you have a file or some other information with respect to the kinds of things you might have been able to prevent had you had this provision before, rather than only now, with this bill.

• 1000

Is there some history of the need for this? Are there particular terrorist acts that would have been prevented in the past had this provision been available to the police? Where does it come from?

Commr Giuliano Zaccardelli: I'm not going to speculate, Mr. Chairman, about the past and so on. Our position, our support for this bill, is obviously based on what happened on September 11. The world changed on September 11, and we have to take that into consideration. I believe Canadian society has changed too, and the government has taken that into consideration.

Certain things happen in society, and then we react. The law is something that is alive. It changes on a regular basis. What we do is try to have the best balance of the laws we need in our society in order for us to have a peaceful, free, and democratic society. The government has chosen to examine this issue. We were consulted, and we gave our advice, just as many other people have given their advice, all sectors of society. That's what democratic societies do. They take everybody's views, including the views of the police, and then parliamentarians pass the laws. After that, we try to apply them as best as we can.

As Madame Venne has just said, we then take them before a judge, and we have all kinds of review mechanisms to make sure that how we apply the laws is consistent with the Charter of Rights and Freedoms in this country.

Mr. Bill Blaikie: People have had a lot of concerns, and one of them has to do with the way this bill might be used to curtail legitimate political dissent. It might be used to characterize and then prosecute as terrorism certain acts that normally might arise out of a situation of dissent or protest. I'm referring to acts of violence or of damage to property that might, and should, otherwise be dealt with through the Criminal Code but that may now—or at least, this is the worry—be dealt with under the aegis of this particular act.

What is your view on this? A number of examples have been used—i.e., violence associated with illegal strikes, with blockades, and with anti-globalization protest. Do you see this bill in any way being applied in those kinds of situations, or are they outside the ambit of this particular legislation?

Commr Giuliano Zaccardelli: Well, Mr. Chairman, I believe they are absolutely and totally outside the ambit of this legislation. However, I believe it's important that we ask those questions. I think it is a legitimate question, a legitimate concern, to see how this law is going to be applied.

We live in the freest, most democratic country in the world. This legislation is in no way meant to address public dissent in this country or any such thing. This legislation is meant to deal with very limited, serious acts that really call into question the very fundaments of our society and that try to destabilize it. It's meant for serious acts of violence based on certain things. This is in no way whatsoever aimed at reducing dissent or discussion in this country.

I understand the concerns, and I can assure you as the commissioner that there are clear directions that have been given. Those are the directions we have been given from Justice Canada. In no way will this be applied in the way some people have described. I understand those concerns, and we have to discuss them openly. We have to deal with that. This law is meant to get at the most heinous crimes anybody can perpetrate in our democratic and free society.

Mr. Bill Blaikie: Do I still have some time, Mr. Chairman?

The Chair: You still have a couple of minutes left, Mr. Blaikie.

Mr. Bill Blaikie: I think this comes within Mr. Elcock's purview, as it has to do with the clause in the bill that would establish for the first time a clear legislative basis for the CSE. Is that something that comes under your...?

Mr. Ward Elcock: No, Mr. Chairman. I believe the chief of CSE is testifying before the committee later this week.

Mr. Bill Blaikie: But certainly it's not unrelated to the work CSIS does. Would that be fair to say?

Mr. Ward Elcock: I wouldn't describe it quite that way. We don't duplicate each other's work. We do work together, but we don't duplicate each other.

Mr. Bill Blaikie: So you don't have an opinion on this?

Mr. Ward Elcock: In terms of...?

Mr. Bill Blaikie: Whether it's a good idea or not.

• 1005

Mr. Ward Elcock: The issue of some legislative base for CSE, and if that is not a complete legislative base, has been an issue of debate for some time. The government decided to move ahead with this provision.

Mr. Bill Blaikie: I'll go back, then, if I have just a few seconds left, to Commissioner Zaccardelli. I think it's important to further explore this concern.

And I want to make it clear, it's not just legitimate peaceful dissent. Sometimes, with legitimate peaceful protests, you either have elements within them that plan violence, or things become violent unintentionally. It's one or the other.

Where there is violence, and particularly where there's intended violence, I in no way mean to suggest that this kind of violence should be tolerated, or not prosecuted, in some cases. But it's a question of whether it will be prosecuted as it normally would have been prior to September 11 or prior to the passage of this bill, or whether somehow that kind of violence will now be prosecuted under the provisions of Bill C-36, and therefore be regarded in this entirely new and different way.

I wonder if you can lend any more clarity to that distinction, or to the view of the minister that this kind of activity is not covered by this bill. The minister has said, well, it's anything that inspires terror, and used words like “destabilize”, etc. But that's not what's in the bill. It doesn't say that. It just says things that are intended to intimidate the public. A lot of things can come under that description.

Commr Giuliano Zaccardelli: I totally support the minister. If I can add one other thing, when the police are investigating normal criminal matters—remember, this bill is directed at terrorist activity—under the law we have the authority to lay charges; to bring prosecutions against individuals who commit criminal acts.

In this particular case, because it is such a unique situation, the police do not have the authority to initiate an arrest without the authority of the Attorney General, and then it must be reviewed by a judge.

Two additional safeguards have been brought into this, and that is very important to keep in mind. In normal circumstances in a criminal matter, the police officer can investigate and arrest. In this case we don't have that. You have to clearly identify it as being related to serious terrorist activity. That's totally different from the rest of our system. That's why you have the safeguards of the Attorney General's permission and then a court review.

We also have a series of other reviews. As you know, the public complaints commission has the ability to review our actions.

The police are very highly scrutinized in their work and in what they do, so I believe the right balance has been struck here. That's not to say the question and the concern you've raised, sir, are not important.

The Chair: Thank you very much.

Mr. Peter MacKay.

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

I want to thank both the commissioner and the director for being here. We realize this is probably one of the most trying times in your careers, and we certainly value the time you're spending with us today.

On your last point, Commissioner, with respect to charges that currently exist under the Criminal Code—I'm thinking specifically of charges pertaining to public safety, such as murder, mischief, disrupting government activities—I have a concern that the way the wording appears in the new provisions will set a very high threshold for police and crown prosecutors to get over in obtaining convictions. In particular is the wording with respect to political, religious, and ideological purposes, and the necessity to prove that motivation before obtaining a conviction.

I could foresee police officers, for example, choosing to pursue charges under the traditional—if I can call them that—sections of the Criminal Code, rather than creating this new burden of proof that they or the Crown will have to prove beyond a reasonable doubt. So I would be interested in your comments on that.

• 1010

With respect to the resources allocation, I think you said quite correctly and aptly that everyone's priorities have changed and we have revisited many of these priorities. I'm wondering if your department, in working through some of these priorities, has revisited situations like the gun registry, where so much money has been spent on officers pursuing this, and the time it has taken for officers to participate fully and enforce the gun registry; the Airbus file, which is still outstanding, as I understand it; and the abolition of the ports police, and whether your department's stance has changed on that.

Further to the resources issue, surely you would be the first to acknowledge that there will be an increased need for information gathering through new equipment, satellites, more personnel, overtime, and surveillance. You will recall what happened in western Canada during the Wiebo Ludwig investigation, where it seemed quite obvious there simply weren't enough resources to provide enough surveillance.

Can you comment on whether some of the priorities under your purview have been revisited as a result of September 11?

Commr Giuliano Zaccardelli: Thank you, Mr. MacKay.

Mr. Chairman, I love the way parliamentarians ask ten questions in one. It's hard for me to keep track of them all.

I'll try to deal with all of yours, Mr. MacKay. On your first issue, about the test or standard we have to meet, remember that after all is said and done with this law, to move the case through court we still have to meet the test of beyond a reasonable doubt. This is another tool. It is not the silver bullet; it is not the tool that's going to solve all our problems.

Obviously we have access to the Criminal Code and other laws that are available to us, but this is simply another tool in our arsenal that will help us do our work. Will it solve all our problems? No, but in those rare key cases where we need this type of legislation, it will help us.

We will evaluate and proceed on the best way to deal with this type of activity. Sometimes we may choose to go the Criminal Code route, for whatever reason, but that will be done on a case-by-case basis, in consultation with our partners and Justice Canada, to proceed in a way that serves the best interests of Canadians.

In terms of prioritization, as I've said—and I know Mr. Elcock and I talk about this all the time—sure, September 11 has changed our lives. We've had to reallocate and reprioritize. There are some things we were doing before September 11 that we aren't doing right now. But this issue moved to the head of the list, and it will continue to be there until we are able to wrestle this situation to the ground.

We balance. Every day I change priorities. Some things I move ahead on, some things I put on the back burner. That is something we manage in collaboration with our partners. We really try to do this in a coordinated way.

Are some things not getting done? Yes, and I'm managing that risk. Will some of that fall off the table? Hopefully not, but some of that may. We try to allocate the bulk of our resources directed to the most serious issues we face in this country.

Mr. Peter MacKay: Thank you for the answer.

Mr. Director, along the same lines, it appears that there were some inadequacies in previous legislation, particularly surrounding the criminalization of terrorist acts and terrorist fundraising efforts.

Gathering information abroad in a pre-emptive way appears to be a new priority, and is something other countries are looking at as well, in terms of revisiting allocation of resources. Is this an area your department is concerned about and looking at—namely, increasing our ability to gather information abroad, more so than in the current structure of things, by assigning CSIS officers to foreign desks in embassies that have large territorial responsibilities?

Will the reallocation of resources we have seen earmarked currently meet that capacity? I think you both alluded to, in one form or another, the fact that you can never have enough resources in the line of work you do. But are you satisfied that you will be able to meet this new challenge of information-gathering abroad? Will CSIS officers be given that expanded capacity to gather information?

• 1015

Specifically, will your department be looking to hire individuals to work as agents who come with the specific knowledge of these hot spots, these areas in the world where, sadly, we've identified that terrorism is most likely to flourish? Will you be looking to hire individuals with specific knowledge of the Islamic or Muslim world?

The Chair: Mr. Elcock.

Mr. Ward Elcock: Mr. Chairman, there are a couple of misconceptions.

Officers who are seconded or posted abroad to various missions are there purely in a liaison function or to assist the Department of Immigration. They're not there in an operational capacity. To the extent that we carry out operations abroad, we use personnel not associated with any of the missions. We would use people from Canada if we had to do anything abroad. We do in fact operate abroad whenever we think it's in our interest to do so and wherever we can collect information that's necessary. The mandate of our act allows us to do that and we have done that for years.

In terms of increased collection, that's clearly in some cases the best way to go after certain targets. There's no question about that. The reality of resources is that those operations are, by definition, more expensive, more dangerous, and more risky than others, so you do them in accordance with the resources you have. Whether we will have additional resources is an issue the government is still considering. That will, to some extent, determine the future direction of operations.

The Chair: Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chairman.

I first of all want to thank Director Elcock as well as Commissioner Zaccardelli for appearing today.

I wanted, Commissioner, to thank you for your opening comments in the sense that I believe when you indicate you're looking at a sustained and measured response in a balanced way, consistent with the values of Canadians, that sends a very strong message to people in this country. These are trying times, as you know. There's a lot of hysteria, and in some cases, people might argue, paranoia. Other emotions are also at work here.

I want to congratulate you. Since September 11, any time I've seen you on television, for example, I think you've given the impression of stability and a no-nonsense approach. You're taking this very seriously, as you should. I think that's really important.

I have two questions for you. The first is with respect to preventive detention, which is proposed section 83.3, and the second is with respect to investigative hearing, proposed section 83.28.

First of all, they are new measures. Secondly, some people have argued that they're extraordinary and perhaps they go too far.

I want to ask you whether or not, based on our charter, and section 1 of the charter, that argues that those kinds of measures are in fact appropriate if they are proportionate to what is taking place in society... I wanted to ask you if, for the record, you could confirm that is your position. I believe I've heard you already say it is, because you support the legislation. I think it's important that we have it on the record categorically that this in fact is, in consistency with the charter, proportionate to what is transpiring in society.

Secondly, because again this has been a public debate, I'd like to ask you about the sunset clause of some of these measures versus a parliamentary review, as outlined in the legislation in three years, for example, or if you have some thoughts about whether or not it should be earlier or later. I'd like to hear, for the record, your thoughts on whether or not some of these measures should be sunsetted or whether in fact they should be under parliamentary review as outlined.

Commr Giuliano Zaccardelli: Mr. Chairman, I am not a lawyer, I'm not a legal scholar, and I'm certainly not a charter scholar or a section 1 scholar. As the commissioner and as a layperson in this area, I can say without question that I support those two new measures we've been given. I support them because I know they are new measures and they do give us some extra powers.

As the commissioner and a non-legal expert, I believe the legislation that's been brought in has the right balance. It gives me great assurance that I have to go, or a police officer does, to the Attorney General to get permission, and then it is subject to review by a court. I think there's a lot of assurance in those two steps. That is the safety there.

• 1020

I understand the concerns, as I've said to Mr. Blaikie before on a number of these issues, but I believe there is a good balance here. I support those, for the record.

The devil is in the detail, obviously. It's in the application and how we approach this that will be really the most important thing. The training that we've already started in preparation for this is very important so that people understand what this is, so that police officers understand that this is an extraordinary measure that responds to extraordinary times and situations. I believe we're going to strike the right balance and we are going to apply it in those very rare circumstances where it will be applied.

In terms of your second point, if I'm not mistaken it's not actually a sunset, it's subject to review. Again, I have no issue with that. I wish I could say in three years we won't have an issue here, but everything tells us this is going to be a long, protracted issue that democracies are going to be facing.

I certainly support any review of any legislation. This should all be reviewed, but I also support the fact that the reviews have to take into consideration the needs of society's law enforcement agencies to be able to do their jobs. And I think all that will be aired out, whether it's in three or five years, or whenever they do the reviews.

Mr. Lynn Myers: Mr. Chairman, I want to be clear that some of the arguments have been on the sunset provision, that in fact it would be automatic that it would end. Others argue and certainly a lot of people suggest that there should be a parliamentary review instead, so I'm hearing that you agree with a parliamentary review.

Commr Giuliano Zaccardelli: That's for parliamentarians to decide. I just apply whatever law is available to me. I'll be looking forward to seeing your debates on the issue.

Mr. Lynn Myers: Finally, Mr. Chairman, I was heartened to hear both the director and the commissioner talk in terms of going to the government to request additional money. As you know, over the last number of years we've spent about $1.5 billion in security measures, and recently hundreds of millions.

As you pointed out, Commissioner, the times have changed, and as a result, priorities have shifted. It seems to me that you have a good case to make and I believe you should make it. Hopefully, at the end of the day the right thing will be done in terms of additional resources.

The Chair: Thank you, Mr. Myers.

Now to Mr. Cadman.

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

To Commissioner Zaccardelli, you made a comment on the government's response and on how you appear to be okay with it. Given that your predecessor, Mr. Murray, complained many times about inadequate resourcing owing to successive cuts, I want to ask whether the government response to this crisis merely restored what was previously cut. Or do we actually see new money, and is that money adequate? In other words, have we merely restored what has been previously cut over the years, or do we see new money here?

Commr Giuliano Zaccardelli: The exercise of providing additional funds to law enforcement over the last several years in my view has not been to restore the past, because I don't think you can ever go back and restore the past. What the government has done, and what we've tried to do, is look at the future. In the last several years we've looked at our environment and we've made requests to the government, and they've responded.

What happened on September 11 was a change in our environment. We've made a request to the government and the government has responded. As Mr. Elcock and I have both said, we have more money. Do we need more money? I believe we do, but the government has clearly indicated they are looking at that and seriously examining those requests, as we speak. I am confident we're going to be treated fairly here in this process. Yes, I can use more money, but that is being discussed as we speak.

I don't believe the moneys we've had in the last two or three years have really been to...because you never go back. Those moneys have been used not to do what we used to do in the past. Those new funds have been used to respond to the situations that have changed since those difficult times we went through. I'm pleased with that.

• 1025

Mr. Chuck Cadman: I have one more question, Commissioner. Could you tell us if in fact RCMP members are involved in interdictive actions abroad, and if so, how many people are involved?

Commr Giuliano Zaccardelli: I'm sorry, I didn't catch that.

Mr. Chuck Cadman: Interdiction abroad, offshore, in other countries; involved in interdiction, in activities to try to prevent things before they actually come to Canada.

Commr Giuliano Zaccardelli: We are based in Canada but we operate all around the world. We carry out criminal investigations in cooperation with law enforcement agencies everywhere around the world based on the legal authority we have here in Canada. I constantly have people all over the world carrying out criminal investigations.

So I can't speak to the specific nature of that, but we do it on a regular basis right around the world.

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

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you Mr. Chairman.

Thank you, both of you, for attending this morning. I particularly thank Mr. Elcock for his eloquent opening statement.

Voices: Oh, oh!

Mr. John McKay: Proposed section 83.05 is a listing of terrorists. To telescope this process, and possibly too much, you become eligible to be on a list of terrorists because the Solicitor General has reasonable grounds to recommend to his cabinet to recommend to the Governor in Council that you be gazetted. That's essentially the process. In the process, then you are notified, and within 60 days you have an opportunity to go before a judge and respond to a summary of the evidence.

My first question, directed to Mr. Elcock, is what are are reasonable grounds? What are the objective criteria for reasonable grounds? It's quite clear that probably among most members of Canadian society, the first 10 on the list of terrorists could probably quite easily be agreed to, and the next 10, reasonable people might well disagree on. And on the next group after that there may be quite substantive disagreements. So the first question is, what are going to be the objective criteria?

Second, is the listing of terrorists going to be determined by how they affect Canada, or will we simply list terrorist groups according to the lists of our allies, or more? In other words, are we going to adopt a CIA list, are we going to adopt a British list?

The third question has to do with related terrorist groups or related groups that front terrorist organizations. I'll give you a specific example. Will an organization like the IRA, which many of us would agree is a terrorist organization, or will an organization associated with the IRA, or appears to be associated with the IRA—i.e., Sinn Fein—be on this list of terrorists, particularly given that Sinn Fein occupies positions of government in Northern Ireland?

I see these decisions as very difficult, extremely difficult, very problematic in many instances. I'm quite curious as to how you can describe to us what will be the reasonable grounds for the listing of these terrorist entities.

Mr. Ward Elcock: I think the concept of “reasonable grounds to believe” is a concept that is fairly well entrenched and fairly well understood in our law and English and American law, so I don't know that it presents any particular challenge.

The issue in any particular case will be whether the evidence supports that reasonable grounds to believe. It will be, in the first instance, up to us to put together a sufficient case to justify to the Solicitor General that there are reasonable grounds to believe. Given that there is an appeal process, I'm sure the Solicitor General will be looking hard at that, because he's not going to want to be in a position of having courts overturn every decision to add a name to the list.

There'll be a process. It will involve us putting forward the evidence that we believe establishes the nature of the organization. That will be, I believe, a Canadian list. The organizations here are not necessarily always the same as they are everywhere else, so by definition there will be a Canadian list. I'm sure that's what the government would want to have.

In terms of front organizations, that's ultimately a decision based, again, on whether there are reasonable grounds to believe this front organization is indeed part of the terrorist organization, or associated with it. It'll have to meet that test. In a sense, you can't answer the question until you have a case in front of you and you say, is this a “reasonable grounds to believe” case or is it not?

• 1030

The Chair: Thank you, Mr. McKay.

Madame Venne.

[Translation]

Ms. Pierrette Venne: Commissioner Zaccardelli, you stated earlier that section 83.3 covered two steps prior to the arrest of an individual and that the final decision did not rest with the officer himself. You referred back to subsection (1), which stipulates that the consent of the Attorney General is required, and to subsection (2), which says that a peace officer may lay an information before a judge.

Yet, pursuant to subsection (4), the peace officer may choose to arrest a person if he “suspects on reasonable grounds” that that person is about to commit an act that constitutes a terrorist activity. The act in question has yet to be committed. In such instances, the peace officer may arrest the person so that he can be “taken before a provincial court judge”.

Therefore, the decision does really rest with the peace officer in this instance and I merely wanted to point that out to you. The peace officer is the one who decides if there are reasonable grounds to suspect that individual.

Therefore, let me put my question to you again. How will the peace officer interpret certain signs or what directives will he be following to determine if there are reasonable grounds to suspect a person?

Commr Giuliano Zaccardelli: Obviously, we will be issuing some directives. We will be consulting with our lawyers who will help us interpret the legislation. What matters is that the person detained in custody is brought before a judge within 24 hours.

Ms. Pierrette Venne: But the person is already in custody.

Commr Giuliano Zaccardelli: Yes, but someone has to initiate the process. That's why, under our system, the peace officer must decide if his interpretation of the law is correct. You are absolutely correct on that score.

Ms. Pierrette Venne: Fine, thank you.

I was wondering if, under such circumstances, a peace officer could have determined, at the Summit of the Americas in Quebec City, that there were reasonable grounds to suspect that a particular demonstrator was poised to commit a terrorist act. Would that have been possible?

Commr Giuliano Zaccardelli: No, but anything is possible. Can a peace officer—

Ms. Pierrette Venne: That isn't reassuring.

Commr. Giuliano Zaccardelli: I understand. However, the peace officer who find himself in a given situation must initially believe that someone is about to commit a terrorist act and that therefore he must respond. However, he must take care not to violate the Charter of Rights.

Ms. Pierrette Venne: I realize that.

My next question is for Mr. Elcock. Obviously, the duties and obligations set out in the mandate of the Canadian Security Intelligence Service must be respected. You are required to advise the department and government agencies of any activities about which you have reasonable grounds to suspect that they pose a threat to national security. If you receive threats to Canada's national security, you have an obligation to pass along this information. First of all, to whom to you convey this information?

Let's hypothetically assume that you receive some information which leads you to believe that our national security is compromised. Again, to whom do you convey this information so that immediate action can be taken to counter this threat? Who in fact will be responsible for taking some action?

[English]

The Chair: Mr. Elcock.

Mr. Ward Elcock: Mr. Chairman, that would depend entirely on the nature of the information. If, for example, it was information that related to a threat to an airplane or a regular passenger flight, then that information would be provided to Transport Canada amongst others, but specifically to Transport Canada. They would be provided with a threat assessment, not only the information but an assessment of whether the information was accurate and reliable and so on in order that they could take whatever action was required, including possibly upping the security requirements for the flight or whatever action they felt was appropriate. The same would be true in other areas. It depends on the nature of the information and the area it affects.

• 1035

[Translation]

The Chair: Thank you, Ms. Venne. Now then,

[English]

Mr. Owen, three minutes.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Director, Commissioner.

Let me perhaps add some nuance to Madame Venne's question and look at the specific situation where exigent circumstances exist. I'd perhaps address this to you, Commissioner Zaccardelli. The police officer has the suspicion that a terrorist activity is about to take place and executes a preventative arrest. Then we go to the definition of terrorist activity, because of course his or her suspicion must relate to that terrorist activity, and we look at the various conditions in proposed paragraph 83.01(1)(b).

First of all, as Mr. MacKay had mentioned, we have religious, ideological, or political purpose. Actually, I don't have the difficulty that he expressed with respect to proving motivation. I think these types of groups tend to go overboard in expressing their motivation along those lines through manifestos, or taking responsibility, or whatever for terrorist acts.

But then we go through this, and in proposed subparagraph 83.01(1)(b)(i)(B), it could be for intimidating a part of the public with respect to economic security, and then over to proposed subparagraph 83.01(1)(b)(ii)(E), we have the serious disruption. But the serious disruptions in that proposed section are qualified by lawful protest, dissent, stoppage of work, and such. This suggests to me that there may be lawful ways to seriously disrupt, and if there are lawful ways to seriously disrupt there must be unlawful ways. The unlawful ways could be trespass, mischief, and these other Criminal Code offences.

It has been suggested that the qualification of “lawful” protest could give rise to those activities that could trigger an arrest without warrant for what we would traditionally see as perhaps not lawful but at least part of the culture of civil disobedience, which is part of the political makeup of our democratic country. So my question is, and it builds on Madame Venne's, how do you protect an individual involved in unlawful but civil disobedience that could disrupt some segment of the population's economic interest?

The importance of the question I think is not dealt with by the fact that we have to bring the person before a judge within 24 hours. It's actually 24 hours or a later period without delay; it could be more than 24 hours. But the very sense in our society that people should not be arrested without charge or without warrant is a very serious one, even if it were only a limited period of time. I wonder how you would interpret for your officers that section (a), where the behaviour was clearly unlawful but perhaps not able to be dealt with easily by other sections of the code and normal police practice.

The Chair: Thank you, Mr. Owen.

Commissioner Zaccardelli.

Commr Giuliano Zaccardelli: Again, Mr. Owen, on your last point about arrest, the police often do arrest and then lay the charge. We don't immediately lay a charge upon arrest. We arrest somebody who we believe has committed an offence, or in some cases we believe has committed an offence; that's clearly within the law right now.

Mr. Stephen Owen: A suspicion of an offence.

Commr Giuliano Zaccardelli: This is a new element here that has been introduced, and it is very clear. You're absolutely right, but again, what the officer has to do, as they do in all cases, is they have to understand the law and apply the law within the charter. This is very clear. There are clear safeguards; the appearance within 24 hours, having to get the authority from the Attorney General, having to come before a judge and so on. Those are all there.

This is not aimed at lawful dissent. This piece of legislation is not even aimed at unlawful assembly or whatever, or disruption of conferences. Clearly that is not what this legislation is aimed at.

• 1040

Somebody mentioned the Quebec summit, for example. With all due respect, I saw nothing at the Quebec summit that would even come close to amounting to the type of activity the legislation is aimed at.

That's not to say there couldn't have been. A riot doesn't qualify for the application of this type of legislation. This is legislation that is meant to be used in the most severe cases where there is a real or serious threat of harm to people and property that goes to destabilization of our democratic society in some cases.

I see this type of legislation being used very rarely. I don't foresee patrol officers out there applying this legislation, if I can be so bold. This is going to be applied in very rare circumstances by highly skilled officers, in full consultation not only with their senior officers but with the legal system, which takes into account all the safeguards we've been talking about here.

So it has to be put into context, but I appreciate the question.

The Chair: Thank you. We'll come back, Mr. Owen. We're well over your time.

Mr. Hill.

Mr. Jay Hill (Prince George—Peace River, PC/DR): Thank you. I'd like to follow up on that as a start, Mr. Chairman.

You just said, Commissioner, “rare circumstances” and if I heard you correctly, “experienced senior officers”. I think many people have been led to believe that for this new law and its method of implementation to make society safer, we need to have adequately trained officers out there who clearly understand the law. It certainly was my understanding that any officer would be able to utilize this law if he or she had sufficient evidence that a terrorist act was going to be committed. But it seemed to me that in response to Mr. Owen's question you're saying the opposite; that it's going to be a few select officers, highly experienced and highly trained, who will be utilizing this new law.

Commr Giuliano Zaccardelli: Mr. Chairman, if I've caused any confusion, I'd like to correct it.

Obviously the law is the law, and any police officer can apply it. But the reality is this is not a situation like parking violations where you have thousands of violations every day. That is the distinction I'm trying to make here.

Obviously these are very serious matters that are going to be used for really exceptional situations. You have highly sophisticated investigators and intelligence officers who work on these types of cases. The chances of every constable on the street applying this legislation—although if they see a serious event, they have absolutely every right, and they're expected to react—the chances are that most of the people who will be working on this type of activity tend to be more sophisticated and well-qualified people who make their living working in this area.

The Chair: You have one minute, Mr. Hill.

Mr. Jay Hill: Just one quick question then, I guess, Mr. Chairman.

Obviously the investigation is still under way, so you're restrained in how much you can comment, but let me follow up on this with reference to the officers investigating in Fort McMurray. You're leading me to believe they would be, to use your term, highly sophisticated officers who would come in from outside to investigate in that particular instance. Isn't it local officers who are conducting that investigation in Fort McMurray?

Commr Giuliano Zaccardelli: No, what I'm saying is all police officers can be involved at any given time. When a situation happens... In what happened in New York, for example, who responded first? It was the men and women in uniform who responded to the situation. So a whole series of people get involved, and then the investigation obviously is taken over by more serious and experienced investigators.

Obviously, in Fort McMurray, when we're talking about that situation, the local police officers on the ground were first responders. Then it escalates and moves up depending on what's required to deal with the situation. So you have a series of people involved for different reasons at different times in any situation.

The Chair: Thank you, Mr. Hill.

• 1045

[Translation]

Mr. Paradis, you have three minutes.

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Thank you, Mr. Chairman. Welcome and thank you for coming, Mr. Elcock and Commissioner Zaccardelli.

I'd like to begin by discussing two or three points with Commissioner Zaccardelli. On the subject of airports, we have seen how, in the past, the RCMP were not involved much in airport security. They were replaced by so-called airport security services. In light of what's been happening, do you intend to assign more RCMP officers to airport duty?

Secondly, regarding customs posts, I represent a riding that has a total of eight US border crossing points. According to the information we've received, last year, approximately 21,000 persons with criminal records were denied entry from the United States into Canada, while nearly 14,000 persons were turned away from the US at the Canadian border.

I don't want to get into a numbers game, but small communities such as Bedford in the Eastern Townships were once home to an RCMP post. The United States operate border patrols. As far as policing is concerned, we are somewhat under-serviced because policing services, like many other public services, have been centralized and the response time is now fairly long.

I would appreciate your comments on those two points, Commissioner.

Commr Giuliano Zaccardelli: Regarding the reduced RCMP presence at airports, this was the result of a government decision. Ultimately, the decision rests with the government. The Department of Transport is responsible for airport security and departmental officials are the ones who decide what kind of security to institute at airports, what kind of requirements to put in place, and so forth.

I can tell you that since September 11, talks have been taking place and the government is reviewing its position. To my knowledge, no decision has yet been made.

I can understand people's concerns, but one must remember that in the case of airports like the ones in Toronto and Montreal... Peel Regional Police is responsible for security in Toronto. It's not as if there was no police presence at all. The Peel Regional Police is very efficient and capable, as is the RCMP, of handling the situation. In Vancouver, the RCMP still ensure a presence at the airport because this facility is located in an area over which the RCMP has jurisdiction.

Regarding your second question, I agree with you. We don't want to play a numbers game either, but ultimately, the question does arise. We need to take a close look at the police manning border crossing points. However, as we know, and this is my opinion as well, it's not a matter of posting 10,000 police officers and 10,000 soldiers along the border. The important thing is to have an intelligence service that keeps us apprised of goings-on. This is one area in which we must cooperate with the Americans. Customs stations must be equipped with technological advances as well as with the proper number of RCMP and customs officers.

As I see it, the key thing is to have the resources and the multidisciplinary teams capable of responding to incidents at the border. Otherwise, assigning police or customs officers to border points is not an effective solution. Ensuring a presence is very important. However, we often hear how the Americans are going to assign 10,000 police officers to border duty. That is not the way to respond to a threat. The solution is full-time multidisciplinary teams capable of responding to the most serious threats anywhere along the border.

The Chair: Thank you, Mr. Paradis and

[English]

Commissioner Zaccardelli.

Mr. Toews, three minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Commissioner Zaccardelli. You've indicated you fully support the government's action in respect of Bill C-36 and the provision of resources. Mr. Myers, the parliamentary secretary to the Solicitor General, praised your position effusively, one might say.

My concern is this. Without in any way impugning your integrity—and I certainly don't—since you are a civil servant, in fact a deputy minister in the Department of the Solicitor General, how can members of this committee be assured that your opinion reflects your independent judgment as a skilled police officer, rather than simply as a very talented government bureaucrat properly carrying out the instructions or orders of his minister?

• 1050

In light of the broad, sweeping powers Bill C-36 grants to police, isn't it crucial that there be a clear separation between the RCMP and the government—and especially the minister—as recommended by Justice Hughes in the APEC report? I have very broad concerns about the powers given to police when there isn't that separation between your political masters and your police functions.

Commr Giuliano Zaccardelli: Mr. Chairman, this is a very important question, and I'll try to be as detailed as I can. As you rightfully said, I am a public servant, not an elected official. I am accountable to the minister and, through the minister, to Parliament. That is very important; I am accountable at all times to the minister for how I run the organization, how I use the resources, and so on.

As the commissioner—and as a peace officer, which gives me my authority—I have a certain independence. That independence is recognized in law in the British commonwealth system that we operate under, more or less. It means that in terms of operations I cannot be directed or told what to do when it comes to investigations, arrests, and so on. In that area, I have clear independence from the minister and from government. Nobody can direct me in that area.

Mr. Vic Toews: In respect to that point, then, that was certainly the position of the government in respect of APEC, and we clearly saw contrary findings by Justice Hughes indicating that there was inappropriate interference with the RCMP by political people. We're now dealing not just with the APEC issue; we are dealing with very broad, sweeping legislative powers given to you. I respect the RCMP, and I want to do everything we can to enhance your credibility and protect not only you as an agency, but the safety, security, and civil rights of Canadians.

Commr Giuliano Zaccardelli: Well, sir, again I appreciate your comments, but I can assure you that in no circumstances have I ever been directed or given any type of instructions relative to operations or investigations that the RCMP conducts. Obviously, there is a relationship involving the RCMP, and myself as the commissioner, because I am accountable to the minister, as I said before. When you move from the strictly criminal investigative matters, there is a relationship between the government and the RCMP.

When we talk about major conferences, for example, such as the G-8 or the Quebec summit, the decision is one the Government of Canada takes—to have a conference. My responsibility is to provide the appropriate security for that conference; to ensure that the elected officials who meet there can have a conference and meet in peace and security. I also have the obligation to ensure that the public who are there to peacefully demonstrate or express their views have the same type of security, which I provide. That's a difficult issue to balance at times, as we see from what's gone on around the world, but we try to do the best we can.

Under those circumstances—and I'm very much aware of Justice Hughes' recommendations—he did make two recommendations that I did not support and did not agree with. He said I should recommend to the government that my authority and my independence under the law be enacted in statute. My position was, I do not support that, because the common law clearly states that I am independent, and the Supreme Court has recently said, as the Stinchcombe decision and other decisions have clearly stated, that I am totally independent in that regard.

He also said we should legislate my authority when it comes to providing security for major conferences. My position was we didn't need that, because I feel very comfortable with the authority I have to manage all these conferences from a security perspective, and that's the only thing that I am interested in. I don't see any inconsistencies in what Justice Hughes says, what the courts have said, and the position I have taken. I do not get directed, in terms of investigations, but I am accountable to the government in terms of managing the organization and how the resources allotted to me as the head of the RCMP are used.

The Chair: Thank you, Commissioner Zaccardelli.

Mr. Bryden, three minutes.

• 1055

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): Thank you, Mr. Chairman.

This is a question for each of you. Clause 87, 103, and 104 enable the minister to prohibit the disclosure of certain information pertaining to international relations, defence, and security forever—that is, without any kind of independent review by an information commissioner or by the courts, and this goes on indefinitely. My question to you is, do your organizations, in security only—we're only looking at domestic security—do things that should never see the light of day, or should never be subject to review by Parliament, or anyone outside government?

The Chair: I see that you're fighting over who gets to answer the question.

Mr. Elcock, I think, is going to eloquently respond.

Mr. Ward Elcock: I don't know how eloquently, Mr. Chairman.

There's no question that we have information in our system, information derived from foreign sources, in some cases.

Mr. John Bryden: Which ones?

Mr. Ward Elcock: Well, you can't think of a domestic security situation without thinking of foreign sources, particularly in this country. In most cases a lot of the information is from foreign sources collected by ourselves, or provided by others. Inevitably in our files there is a lot of that mixed into the system, so you can't separate it out.

At the end of the day the decision on whether to have such a provision is obviously one for the government and not for us, but clearly the importance of protecting that information is from our point of view paramount.

Commr Giuliano Zaccardelli: I totally agree with what Mr. Elcock has said. Obviously, on the law enforcement side the situations where we absolutely have to protect certain information is probably not as vital—and I'm not an expert in this area—as it is, or it doesn't happen as often, but there are clearly situations where from a law enforcement perspective we have to protect certain information from the full disclosure that comes in, for instance, in Stinchcombe.

But I believe there has to be a process, and I don't mean to protect it that I make that decision. I believe there has to be a process in place where certain judges, or certain courts have access to that information, but can guarantee that disclosure does not go beyond the system that is in place. It's a fine balancing act, but there are situations that require... Lives can be at stake in situations that require the limitation on disclosure.

Mr. John Bryden: I'm not concerned about the limitation, I would agree with limitation, but the question ultimately is, should there be non-disclosure forever of domestic security information? I appreciate there's foreign information, but we're talking about a clause that says there will be disclosure never—not 50 years, not 75 years, not 100 years.

Is this, Mr. Elcock, something that you think is really necessary?

Mr. Ward Elcock: At the end of the day, Mr. Chairman, the decision on whether that clause stands or not is a decision for parliamentarians, not for us. The decision to put it in legislation is a matter of policy on the government's part. The importance of protecting certain kinds of information, in some cases that may indeed threaten people's lives, or may be potentially embarrassing for other governments that have provided the information were it known that it had been obtained and so on, is from my point of view paramount. Certainly I support the need to protect that information.

The Chair: Thank you, Mr. Bryden, Commissioner, Director.

Now to Mr. Hill for three minutes.

Mr. Jay Hill: I just want to get into one other area. One of the big concerns, obviously, since the tragedy of September 11 is the safety and security of all Canadian citizens. We just have to look no further than Parliament Hill to see the increased security. Certainly I think most of us would support those actions.

But one of the concerns I hear from constituents is where are the resources coming from to have, for example, the extra Mounties on Parliament Hill, or at the borders, or at the airports, or sky marshals? I believe there are Mounties on planes now to Reagan international airport in Washington. Are we just robbing Peter to pay Paul? Because I don't think we had a whole bunch of Mounties sitting somewhere on a shelf that weren't doing any productive work.

Maybe you could just help me out on that issue. Are we covering it off with overtime, or how are we doing that? Is there other work not being done that they were doing before?

• 1100

Commr Giuliano Zaccardelli: The simple answer is that it's all of the above. Obviously, we've had people working a lot of overtime, literally working without time off, right throughout the country. It's not just the RCMP; it's CSIS, Immigration Canada, Transport Canada, Customs, and so on. That's what we do in a crisis. We respond to the crisis and we do what has to be done to ensure the safety of Canadians. That is being done.

As you said, we've also redeployed people from other areas of lesser priority because of September 11. There is some low-level priority work that isn't being done the way it was being done before, or it's not being done at all. You're absolutely right.

I don't have one Mountie sitting on a shelf waiting to go to work. That's the reality; that's how our systems work. I often look around the world and I marvel at some countries that are able to put 20,000 police officers or people in uniform on the street on the spur of the moment. I don't have that ability. And I'm glad I don't have those resources hanging around waiting to be called to work.

We rely on good intelligence and well-trained, competent people working in collaboration with all our key partners. That's what makes Canada the safest country in the world.

Mr. Jay Hill: With the extra financial resources that are belatedly coming your way, what's going to be the timeline? How long does it take to get a new officer trained and in the field? Perhaps you can help us understand this.

Obviously, this redeployment or these officers working increased overtime can't go on forever. If we see this staying, if it's not just a crisis for a month... I mean, everyone can dig deep and do the job for a month. If it goes on for quite a period of time, how long does it take to get a new officer trained and into the field?

Commr Giuliano Zaccardelli: The short answer is it takes six months to put somebody through training in Regina, but that's not a fully qualified investigative officer after six months. If you want a seasoned, experienced officer with 20 years under his or her belt, it's going to take you 20 years to produce that. That's the reality, and I'm sure Mr. Elcock will say the same thing. We don't produce highly competent, qualified people overnight. We work with that. We make reallocations, we redeploy. We start training more, based on the resources we're given. So that's what we do.

Again, we have done this extremely well in this country for a long time. I'm very confident we are able to respond to this situation we're facing, to reassure Canadians that although it is more dangerous out there, it is still the safest country in the world.

The Chair: Thank you, Commissioner, and Mr. Hill.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Mr. Zaccardelli, I was very concerned this morning, reading media reports that the United States is again considering—and there's a good chance they will be implementing—exit and entrance controls of some nature, which would have a significant impact on our land border crossings because of additional time.

This would strangle our border crossings. They were certainly tied up in the initial days after September 11, which had a significant impact on our Canadian economy. You indicated that perhaps 10,000 additional officers on the border isn't the solution. It's better technology and better coordination of resources.

What measures are being or could be undertaken to reassure our American friends that such measures are not necessary? Hopefully, we would not implement these...still admitting their right to preserve the integrity of their borders, as we wish to preserve the integrity of our borders.

Commr Giuliano Zaccardelli: I'm not sure I'm totally qualified to answer that question completely. Canada wants to be reassured that those people who are coming here from wherever they're coming from have been cleared and so on. So the Americans are going to impose certain conditions that they always do, and it's their right to do. We have to respond to that.

The way we have been doing this in this country is to demonstrate to the Americans that we take this threat very seriously, and that has been done. I believe that is the answer, the way to deal with this. We have responded effectively to working with the Americans in terms of sharing intelligence and working collaboratively in an integrated fashion across the border with law enforcement agencies and other departments.

Customs has been doing much more work. The Department of Citizenship and Immigration has been doing much more work. I think there are a lot of discussions in this country. You, Parliament, and ministers have done a lot more work in terms of dialoguing with your colleagues. The business community has done a lot more. So it's a series of things.

• 1105

Ward and I are doing our part in terms of talking to our counterparts, reallocating scarce resources to ensure that there is more security, there is more collaboration. So a whole series of things has to be done so that we dispel this perception that somehow we are weak. We are not weak. We are no different from any other country in the democratic world in terms of protecting our borders and ensuring that we not keep people who shouldn't be in our country in our country.

So we've done as well as anybody else, but we must continue that effort, and where possible enhance that. We are enhancing that by the fact that the government has responded to the resource request we have submitted.

The Chair: Thank you very much.

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Gentlemen, the provisions for listing terrorists and terrorist organizations and also for mistaken identity permit judicial review. I also think with this battle on terrorism we should err on the side of caution.

I wonder if I can have your comment or reaction to my belief that organizations listed by our allies—the U.K., the United States, and other NATO allies—should be automatically included on our lists.

Mr. Ward Elcock: Mr. Chairman, the test for adding somebody to the list of terrorists is clear in the act. As long as it meets the test, then we will be looking at all of the names, including those that our allies have added to similar lists, to determine whether or not they in fact meet the test. I assume in most cases they have systems like ours, that will depend on evidence and facts and information that they believe is reliable. Therefore, the justification will probably be similar in our case as in theirs.

Mr. Brian Fitzpatrick: Another question I have on another area is the suppression of financing and the assets to assist terrorist organizations. I know under the legislation that if anyone in Canada is in possession of assets or property of a terrorist organization, they are required to report immediately to both of your organizations.

In addition to that requirement, there's another requirement where a whole host of organizations are required to report on a continuous monthly basis to the organizations that govern those organizations. It could be provincial bodies with insurance and so on. I would anticipate seeing thousands and thousands of reports being filed every month to provincial organizations and federal organizations that govern these bodies. What are they supposed to do with these mountains of information they're going to receive? Are they expected to ship them over to your department so you can sort through them?

I'm asking that question because if the law clearly requires those organizations to immediately report to you two individuals on any terrorist assets they have, why are we introducing this other concept of making these monthly reports to organizations, which I don't really think are much connected to the war against terrorism?

Mr. Ward Elcock: The rationale, Mr. Chairman, is to ensure that the organizations that are in fact responsible for supervising financial or other institutions are in fact informed about the nature of some of the people who are dealing with those institutions. Presumably, if the organizations themselves hadn't let us know, those supervisory organizations would advise us or the police of any information that came to their attention.

At the end of the day, in trying to deal with people in a terrorist milieu who are in this case fundraising, the only way you can actually deal with it is by making sure that you have information, and that the information is provided and shared broadly.

The Chair: Thank you.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Obviously this legislation contains a lot of provisions of concern to many Canadians. There are charter concerns, and we're going to be hearing from other witnesses about that. But if and when the legislation is passed, I think its ultimate test, in both Canadian public opinion and ultimately in any judicial reviews, will be the justification for these extraordinary measures, given the terrorist threats.

• 1110

I wonder if Mr. Elcock could describe to us—obviously without any personal information—the nature of those threats, and whether in fact some of these measures are justified.

Mr. Ward Elcock: Mr. Chairman, at the end of the day, the issue of whether they're justified is an issue for Parliament to pronounce on.

In terms of the enforcement agencies' need for tools, particularly since this legislation doesn't include any additional powers for us, I think it's undeniable that we need tools to deal with the people the law enforcement agencies have not yet been able to deal with. But I'm not sure whether the courts will indeed see endless numbers of people charged. There are not that many terrorists in Canada—not thousands or millions. The reality of legislation like this is that it will not only give the law enforcement agencies new tools, it will probably have a chilling effect on some organizations that have been collecting money or supporting terrorist operations around the world. To some extent, we've already seen that in some of our intelligence operations.

Mr. Paul DeVillers: But what is the nature of these threats? What are we threatened with?

Mr. Ward Elcock: As I've said before, I think terrorist organizations have traditionally been in Canada to collect money and adherents—to plan terrorist operations abroad, and to recruit people to operate them. You only have to think back to the Air India incident, the Narita bombing, or some other operations with connections to those parts of the world.

For some groups—in particular the terrorists in organizations such as Al-Qaeda, and some of the Egyptian, Somalian, and Sudanese groups associated with them—the reality is that their particular target is the United States. As we saw in September, there's no question that their focus is the U.S. They've said publicly that they're determined to strike at the United States.

But those groups have adherents in virtually every country in the western world—certainly in Canada and the United States. So the possibility can't be discounted that they have planned other actions or will take actions at any time. That's a reality that both we and the police work with every day.

The Chair: Thank you very much.

Mr. Sorenson, three minutes.

Mr. Kevin Sorenson: A couple of newspaper reports quoted Mr. Fadden of the Privy Council. He suggested that it was perhaps time for Canada to look at broadening its capacity for collecting foreign information, whether through CSIS or under the auspices of Foreign Affairs. Obviously the Canadian Security Intelligence Service is limited in its scope. It doesn't have the mandate to collect espionage information abroad.

My question to you is, do you believe the government should form a new group, or do you think CSIS has the ability to broaden its scope? As well, should the government establish a formal office of national security, headed perhaps by a cabinet minister, to help coordinate these intelligence sources? We've seen it in the past, in Kim Campbell's administration, I believe, this concept of a super-ministry.

Do you think perhaps it's time now to consider bringing together some of these different groups, Mr. Elcock?

Mr. Ward Elcock: On the second point, ultimately that's a decision for the Prime Minister, not for either me or the commissioner. The reality of the system we have in this country is that it works very well. The cooperation between organizations and departments is very good. Whether that would be added to by having an additional coordinating minister is a decision the Prime Minister would have to take.

• 1115

On the first issue, again, let me correct a misconception. Perhaps the misconception results from the fact that proposed section 16 of the bill refers specifically to foreign intelligence. The provisions say that CSIS may collect foreign intelligence in Canada only when requested to do so by the Minister of Foreign Affairs or the Minister of National Defence.

For the purposes of the CSIS Act, the definition of “foreign intelligence” isn't the same definition that you would find in a dictionary. Most people think of foreign intelligence as information collected outside the country, and domestic intelligence as what's collected inside the country. But that has nothing to do with the CSIS definition of foreign intelligence.

Under the CSIS Act, the reality is that threats to the security of Canada—such as espionage, terrorism, counter-proliferation, all the rest—come under section 12. It doesn't matter whether we collect it in Canada or somewhere else abroad: as long as it's a threat to the security of Canada, it's within our mandate.

The courts have defined “security of Canada” fairly broadly. So if a situation is threat-related, for our purposes there's no distinction between foreign intelligence collection and domestic intelligence collection. We have the authority to do both.

But that mandate only operates with respect to threat-related information—as distinct from nice-to-know information, such as what price country X is prepared to pay for wheat from Canada this year. That's information that might be very useful to the government, but I can't collect that outside the country. I can only collect that inside the country.

The Chair: Thank you very much.

Mr. Cotler, for three minutes.

Mr. Irwin Cotler (Mount Royal, Lib.): Commissioner, suppose you arrest a suspected terrorist because you believe the person has information that could prevent an imminent terrorist act—what's been called the “ticking time bomb” situation. We know that police and security forces in other democratic countries, such as the United Kingdom and Israel, have used coercive interrogative techniques, the application of physical pressure, to extract information in that kind of situation.

If you were faced with that situation, would you issue instructions to your people that such coercive interrogative techniques, the application of physical force, is impermissible under all circumstances?

Commr Giuliano Zaccardelli: Absolutely. The charter will be respected, people's rights will be respected, at all times, without any exception.

Mr. Irwin Cotler: The second question is, do you believe the investigative hearing provisions in the bill violate the basic principles of due process, as we have come to know them, in that individuals could face imprisonment for refusing to provide the necessary information to authorities?

Commr Giuliano Zaccardelli: I think people have referred to the fact that this process includes protection against self-incrimination. Nothing they say will be used against them. We're all familiar with the grand jury process in the United States. There are other acts in Canadian law—I believe the Competition Act provides for that. So I accept that this is taking it a step further. But on balance, I believe this is a required tool in very, very exceptional circumstances.

The Chair: Mr. Cadman.

Mr. Chuck Cadman: Commissioner Zaccardelli, a practical question. At the Douglas border truck crossing in southern British Columbia, if police attendance is required at the border, it's normally drawn from the Surrey detachment—and the officers there have to be pulled off the streets.

Do you anticipate any increased demand for police attendance at the borders as a result of this? If so, will the municipalities that contract with the RCMP be taken into account? Will they be consulted as to the impact on their ability to police their streets?

• 1120

Commr Giuliano Zaccardelli: Mr. Chair, that's a very good question. We have put together integrated teams at key strategic locations throughout the country. These are multidisciplinary teams—we have not only the RCMP but also Immigration, Canada Customs, CSIS personnel, and so on. And we are also integrating some of the local police officers. We see clearly that there will probably be an increase in demand.

For example, we know right now that INS, the U.S. Immigration and Naturalization Service, is going to triple its presence at the border. Obviously, that's going to generate more work. It's going to require us to respond, and there'll be more work generated out of that. The government has given us some extra resources to deal with it, and they're going to be giving us more—so I believe we will have an effective response capability. We have also enabled those communities to keep most of their own resources working locally.

But remember, those officers actually help their local communities by participating in some of these multi-integrated units. At times they may work outside the community, but they're actually helping the community, because they're dealing with situations involving criminal or terrorist activity that would impact on the community.

So we have to understand that it's important for Surrey to look after Surrey—but Surrey is affected in many ways. If Surrey helps in other parts of the lower mainland, they will be helping themselves.

Mr. Chuck Cadman: Can I assume then that that municipality of Surrey itself would be consulted?

Commr Giuliano Zaccardelli: Absolutely. As I said in my opening statement, one of the things we've been doing is having ongoing dialogues right across the country—with provincial governments, departments, and agencies, and also with mayors and municipal departments.

Mr. Chuck Cadman: Thank you.

The Chair: Thank you very much, Mr. Cadman, Commissioner.

John McKay for three minutes.

Mr. John McKay: Thank you.

I'd like to go back over Mr. Elcock's answer to me earlier on.

First of all, with respect to the statement of reasonable grounds, I think “reasonable grounds” is clearly understood in the local provincial court—though what reasonable grounds are in this context might well be open to interpretation. But it's clearly understood what constitutes evidence: in the provincial court, it's “beyond a reasonable doubt”. I suspect that the evidence you'd be putting forward is less than beyond a reasonable doubt, and possibly less than beyond a balance of probabilities. It might all be based on gossip, hearsay, and rumour.

Frankly, the appeal process is quite circumscribed—not a process within our understanding of what should happen. The problem here is that while we may probably agree on the top ten organizations, the next ten may well be while they're gazetted. That will be the damage. Once you gazette an organization, 98% of the ballgame is over. They will be destroyed, their reputations will be trashed, their ability to carry on what some might in fact think of as legitimate activities will be circumscribed. The fact that they may get off the list in two years is probably cold comfort.

I wonder why there is such resistance to a more open process with respect to some of these designations. For instance, the Americans have legislation that's called the Anti-Terrorism and Effective Death Penalty Act. I wonder what an ineffective death penalty act might be.

Some hon. members: Oh, oh!

Mr. John McKay: Apparently, Congress can also pass legislation that revokes designations. So given that this legislation is primarily directed at fundraising activities, and given that it's likely to be challenged by a judge who will ask whether it's reasonable and proportional under the circumstances, what are your views with respect to formally involving legislators in revoking designations?

Mr. Ward Elcock: Mr. Chair, at the end of the day, that's for legislators to decide one way or the other—the members of this committee among them.

• 1125

From my point of view, I deal with the legislation that's there. We don't put forward rumour and innuendo as reasonable grounds to believe, to demonstrate a reasonable-ground-to-believe case. We've not done that in the past and I don't intend to do that in the future.

Ultimately the courts will be looking at the reasonable grounds to believe that are advanced for adding any specific name to the list, and if they don't accept that reasonable grounds to believe have been met, then presumably those names will fall off the list.

It's not in my interest to advance names that are going to fall off anybody's list. We will make sure the list and the evidence that supports adding any name to the list is good evidence.

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

Could we try to keep the last two or three questions short so that everybody who has a follow-up can get it in?

Mr. Toews.

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

For years the RCMP has been unable to fulfill its complement in respect of contracts where it has an obligation to provide resources to provinces—for example, Manitoba, where I have some experience. For years, even though the province offered all the money, had all the money on the table, the RCMP was simply unable to fulfill the requirements for constables or other officers.

The issue of resources interests me quite a bit, because suddenly we have here the indication that we have sufficient resources, that it's just a matter of risk managing. I'd like to know from the commissioner whether, including long-term disabilities, pregnancies, or other non-voluntary leave, you are presently up to strength—that is, full complement—in respect of every Canadian jurisdiction where you have contracts to provide RCMP services.

Secondly, what is the total amount of resources, both in terms of manpower and financial, that you as an organization have committed to the administration and enforcement of Bill C-68, the long-gun registry?

Those are two separate questions.

Commr Giuliano Zaccardelli: With respect to the first comment, about the RCMP not being able to fill their contract obligation, there was a short period of time for several years where we did leave some positions open. We did not have the resources to fully fill those positions. That position no longer exists as of two years ago. The federal government gave us every dollar we needed to honour fully our side of the contract.

Unfortunately, in some parts of the country, we have provinces that have not been able to come up with their resources to match the federal dollars. I fully understand that all governments are under financial pressures. That is the situation that exists in this country right now. The federal government has committed and is funding every dollar that is required under the contract.

Mr. Vic Toews: So just for clarification, if there is a shortage of constables or other officers in any jurisdiction in Canada, the fault lies with the provincial government in not providing sufficient dollars.

Commr Giuliano Zaccardelli: I don't want to use the word “fault”. I'm simply saying governments make decisions to fund certain resources within their means. The federal government is there and is ready to match their portion of whatever the provincial government wants to fund.

Mr. Vic Toews: So there's no problem with the federal commitment. The problem is a policy decision by provinces.

Secondly, on the issue of resources on Bill C-68...

Commr Giuliano Zaccardelli: I can't tell you what resources we have allocated to that bill. That is a bill, and our members apply it and enforce it based on priorities and workloads, and so on.

Mr. Vic Toews: Can you commit to providing me with that information if it's available in your department?

Commr Giuliano Zaccardelli: I will try to get that information for you.

Mr. Vic Toews: Thank you.

The Chair: Mr. Bryden.

Mr. John Bryden: I have a question for Mr. Elcock.

The Access to Information Act already has a very powerful exemption covering information received from foreign sources and security information whereby, before it can be disclosed, the foreign government has to be consulted and agreement obtained. So I would ask you, why is that inadequate? Why do you need an exclusion that basically takes out any involvement of independent oversight here in Canada at all?

Mr. Ward Elcock: I don't mean to sound as if I'm ducking the question, but at the end of the day, the decision to include that provision is a decision for government. Government has made the decision that it would protect that kind of information absolutely.

• 1130

From our point of view as an organization, protecting that information is always desirable and has always been paramount for us. The best protection we can get is the one we would like to have.

Mr. John Bryden: Is that total exclusion, with no possibility of review by the courts, no possibility of review by anyone? Is that what you're looking for?

Mr. Ward Elcock: Well, that sounds pretty complete, but...

Mr. John Bryden: Do I have one more question, just a quick follow-up question?

The Chair: You have less than two minutes.

Mr. John Bryden: Changing the subject, again to you, Mr. Elcock, does this legislation provide enough tools to track the financial activities of not-for-profit organizations that may be fundraising for terrorists abroad?

Mr. Ward Elcock: In terms of our own powers, some of the tools don't add powers for the kinds of investigations we do. In that sense, we already had powers to do them. But it will give us access to information from FINTRAC. Their mandate is expanded, so that there will indeed be, we hope, additional information on terrorist fundraising that will allow us to do our job better. Yes.

The Chair: Thank you, Mr. Bryden.

Thank you, Director.

You have twenty seconds, Mr. Sorenson.

Mr. Kevin Sorenson: Yes.

Mr. Zaccardelli, you're our commissioner of the RCMP. Basically you're our top cop. And yet you say some things have to be put on a back burner. It's of huge concern to me, to my riding, and to my party, when the organization in charge of law enforcement is saying there are things that get put off the table or on the back burner. And yet in other ways we see even RCMP officers are being used as park rangers.

The force is dangerously undermanned, and basically—

The Chair: A question, Mr. Sorenson.

Mr. Kevin Sorenson: —is it inadequate to carry on the fight as it is now, without asking for more individuals to come in and serve? It's a question of the personnel again.

The Chair: You have about 20 seconds.

Commr Giuliano Zaccardelli: Mr. Chairman, I thought I made it very clear several times that we have asked for and received more resources and are in active discussions with the government to obtain additional resources. The government has said they will provide the resources we need.

The reality is that nobody has all the resources to do everything he or she may want to do. I don't know of a law enforcement or security agency that has all the resources. But we do have to priorize at times and put some things off because of certain priorities. We have had to make some serious reallocations because of this new threat. Obviously there are some things that won't get done until we are able to better balance that.

So we have asked for more resources and the government has committed to giving them to us. As the commissioner, I am very pleased about that.

The Chair: Thank you very much, Commissioner and Director.

I would like to put one very simple question, following on Mr. Owen's intervention earlier. I think I heard you say you are no way interested in equating unlawful protest necessarily with terrorism; that in fact you see the distinction in the same terms as Mr. Owen was questioning. I think Mr. Blaikie brought up the same question earlier. So if, in the invitation we've received as a committee to amend the legislation, we are able to identify that distinction more clearly to the satisfaction of those who would like to be satisfied on that count, that would not present a problem for you, would it?

Commr Giuliano Zaccardelli: Absolutely not, Mr. Chairman.

The Chair: Thank you very much to both our witnesses. As always, it's been a pleasure. And I'm glad that Mr. Elcock's eloquence has been identified for the record.

I'm going to suspend for five minutes to allow our next witnesses to join us at the table.

• 1134

• 1140

The Chair: I will call the 30th meeting of the Standing Committee on Justice and Human Rights back to order.

We have joining us now, George Radwanski, the Privacy Commissioner of Canada, who will be speaking for something less than ten minutes, I understand.

I would ask everybody to be quite judicious in their questioning because we only have an hour; he has to appear before another committee right after this. So to make sure that everybody gets on, I intend to enforce the seven-minute rule with some deliberation.

Mr. Radwanski.

Mr. George Radwanski (Privacy Commissioner of Canada): Good morning, and thank you very much for this opportunity to appear before you.

I have said since I took on this position just over a year ago that I believed privacy would be the defining issue of this decade for a whole variety of reasons. It may well be that in the light of the developments since September 11 this will be even more the case, because privacy is a fundamental human right, recognized as such by the United Nations, and of course in our own laws. It is a core value of Canadian society.

How we respond with regard to fighting terrorism while at the same time safeguarding our core values will be really a key determinant of whether terrorism succeeds in the goal it has, which is undermining the very nature of our society.

Let me be very clear from the outset. As Privacy Commissioner, and as an officer of Parliament, I have absolutely no intention of opposing or even trying to stand in the way of measures that are appropriate and necessary to enhance the security of Canadians in our current circumstance.

At the same time, however, it is equally my duty as an officer of Parliament and as the Privacy Commissioner to speak out loud and clear against any unnecessary violations of the privacy rights of Canadians in the name of combatting terrorism.

I would suggest to you that any specific measure that is introduced in the circumstance that would restrict or limit privacy needs to be tested carefully, calmly, on a case-by-case basis against several criteria.

First, it has to be demonstrably necessary to address a specific problem. Second, it must be demonstrable that it is likely to be effective in addressing that problem—in other words, that we're not doing things simply to make ourselves feel safer rather than be safer. Third, the degree of intrusion or limitation of a fundamental right like privacy has to be proportional to the security benefit being pursued or to be derived. Finally, it should be demonstrable that no less privacy-intrusive measure would suffice to achieve the same result.

That being said, I find overall this legislation to be a well-balanced, well thought out effort to enhance security to give law enforcement authorities the measures they need to be able to effectively seek to combat terrorism, while at the same time respecting privacy rights at a maximum possible.

I say “on the whole” because there is one set of provisions that give me enormously grave concern. I requested from the Minister of Justice and received a briefing last week in advance of the release of the bill telling me the general directions that would affect privacy. My suggestion was that if there were areas of concern, it would be better to try to see if there were privacy-friendly ways of addressing it before the fact.

In the course of that briefing, I was told that there would be a provision enabling the Minister of Justice as Attorney General to issue a certificate that would prohibit the release of personal information under the Privacy Act for reasons of security, international relations, or defence considerations. This was explained to me as being necessary in order to ensure that other countries would not hesitate to provide Canada with very sensitive anti-terrorist information.

• 1145

I pointed out at this time that as an ombudsman I don't have the power to order release of information, and in fact there are absolute exemptions for things like national security under the Privacy Act, and in fact in the private sector legislation as well. The most I can do in any event is advise, and where that exemption is claimed, there's an injury test that's outside even discussion. But in any event I can't release.

The explanation I was given was that yes, that's true, but because my findings can then be taken to the Federal Court for review, there was a possibility, however remote, that some Federal Court judge might decide to release highly sensitive information, and for this reason there had to be such a provision, because otherwise other countries might be spooked even by the hypothetical possibility.

I could live with this, if that's as far as it goes, because, as I say, I don't have the power to release anyway. The difficulty is that the way clauses 103 and 104, dealing respectively with the Personal Information Protection and Electronic Documents Act and the Privacy Act, are drafted, it goes far beyond that. I'm most concerned with clause 104, the Privacy Act that governs the federal government.

In the first part, clause 104, the amendment, which would be 70.1, says:

The Attorney General of Canada may at any time personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.

It then goes on to say:

This Act does not apply to information the disclosure of which is prohibited by a certificate under subsection (1).

It is the second provision that gives me the greatest concern. What this means in effect is that if the minister issues a certificate, first of all, and the act does not apply, not only can the information not be released, which it wouldn't anyway, but there is no longer oversight.

The Privacy Commissioner can no longer review the information in question, as I can now, and of course I'm security cleared to the highest level, I can see CSIS files, whatever. The Privacy Commissioner would not even be able to recommend to the minister on a case-by-case basis that maybe the certificate is too broadly drawn, or that maybe some information could be released to the individual. Bear in mind, we're only talking about releasing to individuals information about themselves under the Privacy Act. There would be no such oversight.

Of even greater concern is the fact that the way these two provisions are now drawn, there is nothing in the law to prevent a minister from issuing a certificate pertaining not to an individual but to an entire agency or department, or for that matter to the government as a whole.

The way the law is written, the minister could issue a certificate that says disclosure of information by CSIS, the Canadian Communications Security Establishment, or a department of government, or indeed all departments of government, could be taken off the table. At that point, not only would there be no possible disclosure and no oversight of that, but according to this all the other provisions of the Privacy Act would not apply. So there would be no limitations on how the information could be used, combined, shared, disclosed.

In effect, these provisions could be used to nullify the Privacy Act by ministerial fiat. Without getting into the question of whether there would be any intent to do so, there should not be in the act a back door mechanism to gut or take out of commission all or part of the application of the Privacy Act.

The one final thing I do want to emphasize briefly is that these amendments have been treated in effect in tandem with amendments to the Access to Information Act. I think, without commenting on the merit of those, they need to be regarded separately for three reasons.

First of all, privacy is a fundamental human right. Access to information, while important, is an administrative right. Secondly, there is a distinction between access to information about government and the activities of government pertinent to a security situation. In a time of war, it's not abnormal to have restrictions on the information disclosed by government.

Disclosure to individuals of information about themselves and the application of a fundamental right to privacy is a different matter, from the point of view of permitting individuals to ensure that information is accurate.

• 1150

Finally, if there are provisions saying in effect that the Access to Information Act does not apply if a certificate is issued, this means only that no information can be issued. If this applies to the Privacy Act, it means that other aspects of a fundamental right are also abrogated; aspects around the collection, use, sharing, combining, etc., of information and privacy protections are removed outright.

So without commenting on the appropriateness, I'm sure my colleague, the access commissioner, has very legitimate concerns about the other. But I ask you to look at them separately on their respective merits, and I'll close on that note.

I've tried to speak quickly. I apologize for that, but I was told I didn't have much time.

The Chair: You were inside of ten minutes. Well done.

Mr. Toews, at seven minutes I'm bringing the gavel down regardless of whether you've got an answer or not, so frame your question to give some time for the witness to give an answer.

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

Mr. Commissioner, I appreciate your attendance here today and your expression of concern over the clauses, primarily 103 and 104, of Bill C-36.

I've also had occasion to review your news release, which outlines those concerns very briefly. As I understand it then, you're telling this committee that not only do the clauses I've referred to oust the review authority of the Federal Court, but also deprive the Privacy Commissioner of any authority even to audit or to review the minister's exercise of her powers in issuing a certificate.

You're not even in a position to be able to—without any legal obligation—simply look at the information and say, “Now, Madam Minister, this appears to be going beyond issues of national security or international relations or defence.” You can't even provide her with the independent, confidential advice you routinely now provide to other ministers. Is that correct?

Mr. George Radwanski: That's correct, nor would I be able to review a number of these things and without disclosing details say I have a concern that certificates are being too broadly used. But even beyond that, beyond this case-by-case problem, there is the problem that the minister could issue a certificate under this language, not pertaining to an individual case, but pertaining to an entire agency or department.

Therefore, for instance, although we now have oversight over the Communications Security Establishment, and my predecessor in fact audited it, and we do have oversight over CSIS, a provision that says where a certificate is issued the act does not apply means there could be no privacy oversight at all over the activities of an agency, or a department, or all departments.

Mr. Vic Toews: Can you, Mr. Commissioner, tell us of any security concern you might be aware of given your virtually unfettered access now to confidential information, given your high security clearance? What security reason could there be in depriving you of this right to oversee the minister's actions, to ensure that she is in effect looking at the right criteria? If the bill were to be amended, Mr. Commissioner, to what extent would you consider it reasonable that your powers to audit and review the legislation be restored, bearing in mind the legitimate concerns of defence, of international relations, and national security generally?

Mr. George Radwanski: Well, the first part of the answer to your question is we now do have access to the most sensitive, confidential files about an individual and there has never been, obviously, any breach of security. Since this provision as written came to my attention, I have of course expressed my concern vociferously to the minister's office and the justice department.

The only rationale they were able to give me as to why I shouldn't have oversight—and I requested a meeting with the deputy minister and it appears his schedule doesn't permit it yet. The only rationale I was given informally was that if the information were in my possession, a Federal Court judge might order me to disclose it, which frankly doesn't hold water.

• 1155

Mr. Vic Toews: Yes, but can't we just make an amendment to ensure that doesn't happen? If we can usurp your jurisdiction in that summary a fashion, can't we usurp the jurisdiction of the Federal Court in a similar fashion?

Mr. George Radwanski: Well, in fact, I do have an amendment I would suggest in place of the amendment they're suggesting, and that would be to create new subsections 51(4), 51(5), and 51(6). Proposed subsection 51(4) would say, in place of what they have now:

The Attorney General of Canada may at any time following an application to the Federal Court under section 41 or 43 personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.

And then proposed subsection 51(5) would say:

The Attorney General shall cause a copy of the certificate to be served on (a) the person presiding or designated to preside at the proceeding to which the information relates, or if no person is designated, the person who has the authority to designate a person to preside; (b) every party to the proceeding; and (c) any other person who in the opinion of the Attorney General of Canada should be served.

And then under proposed subsection 51(6) the Statutory Instruments Act would not apply to a certificate under proposed subsection 51(4).

Mr. Vic Toews: That seems eminently reasonable. What's the minister's response, then, to your suggestion?

Mr. George Radwanski: I have not had the opportunity to meet with the minister or to present the suggestion to officials. I had requested an opportunity to meet with the minister or the deputy minister and senior officials prior to meeting with this committee in the hope of being able to come to you and say there was a problem but we've resolved it.

Regrettably, I was told that the schedules of those concerned don't permit that until later in the week. At this point I have to present you with a problem rather than with a solution and, barring further developments, ask this committee to ensure that the privacy law is not needlessly gutted.

Mr. Vic Toews: Thank you. I appreciate that. I assume the minister's officials will bring your amendments to her attention. We'll have the benefit of her thoughts on the matter shortly.

Mr. George Radwanski: Thank you.

The Chair: Thank you very much.

I see that you are reading off the amendment. Perhaps you could table it with this committee so we could circulate it to everybody here.

Mr. George Radwanski: The difficulty, Mr. Chairman, is that we only completed the wording this morning. I haven't had a chance to translate it, and I wouldn't want to distribute something in just one language. The clerk has a copy. I'm in your hands on how we do this, but I don't want to violate the Official Languages Act.

The Chair: We'll see this translation. The clerk has a copy, and when it's translated it will be made available to everybody.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much, Mr. Chairman.

Thank you for taking time out to meet with and share your concerns with us.

As I understand it, the legislation currently contains mechanisms which prevent you from disclosing information that might affect national security. The decision to disclose such information would rest with a Federal Court judge. You're recommending the status quo, except in cases where an individual goes before a Federal Court judge and the minister believes it would be preferable not to disclose this information in the interests of national security. It would issue a certificate for this specific information.

Mr. George Radwanski: That is correct. I'm told the problem resides at the Federal Court level. That's where we need to look for a solution.

Mr. Michel Bellehumeur: That's quite clear. The way facts are presented can be highly constructive. I also think that proceeding in this manner would reassure many people.

Furthermore, if I understand correctly, the duties and your mandate are affected specifically by clauses 103 and 104 of Bill C- 36. Your comments focussed on these draft provisions in particular. Am I correct?

Mr. George Radwanski: Other provisions in the bill also affect privacy rights. Electronic surveillance is only one example. To my mind, striking a reasonable balance between security requirements and privacy rights... No one likes to see restrictions imposed on privacy, but when these restrictions are reasonable, I have to accept the situation, given the present circumstances.

• 1200

Mr. Michel Bellehumeur: Given the present circumstances, to use your own words, if it's necessary to restrict certain individual and privacy rights in the interests of our national security, do you feel that the provisions which specifically deal with individual rights and privacy rights - rights which stand to disappear if these provisions were enforced - should be made permanent? Or, should we insist instead on bringing in some kind of amendment to ensure that these newly imposed restrictions on personal rights are only temporary and will apply only for as long as the unusual circumstances that you mentioned prevail?

Mr. George Radwanski: With your permission, I will answer the question in English, to be more concise.

[English]

In general, I certainly think it's good to review laws from time to time, particularly when they touch on rights and the restriction of rights. So I certainly wouldn't complain about that.

The provisions that touch on privacy rights, other than this one that should be, of course, temporary... Although you could argue, at least subject to review, that at no time should it be possible, in any way, to disclose information that is sensitive to national security or defence. And a judge shouldn't be able to make such a disclosure, if it is sensitive.

If you look at the other provisions, for instance, the provision that would allow the Communications Security Establishment to intercept the Canadian portion of a conversation with someone who is under surveillance as a known or suspected terrorist abroad, there's a certain logic to that. If we're trying to combat terrorism, then there's not a compelling logic that the body charged with monitoring such communications would have to disconnect if they happened to connect with someone in Canada. If anything, it's of greater concern to us.

There is a concern, of course, and that's why overseeing is so important, to ensure that such interception is used only for the purposes of combating terrorism. If, for instance, there is no pertinent information about terrorism, then information about the Canadian end of that call is not kept and the details of the conversation aren't kept, and if someone discloses other personal information, it is not recorded.

The short answer to your question is it's always a good idea to look at anything that affects privacy to make sure it still makes sense. Perhaps there is less of an urgent argument for a sunset provision on these kinds of things than there is, for instance, on other things that specifically suspend civil liberties or permit detention and so forth.

[Translation]

Mr. Michel Bellehumeur: Upon examination of Bill C-36, even if we look at the examples you provided concerning electronic surveillance by the CSE or otherwise, there are nevertheless differences between procedures pursuant to the Criminal Code and actions pursuant to Bill C-36, if only in so far as suspecting someone is concerned. It is much broader than the statement “reasonable grounds to believe”.

Doesn't it bother you, as Privacy Commissioner, to know that these elements could become the norm, that if there is no provision... A distinction must be made between reviewing provisions and sunset clauses. The two are markedly different, in my view. If there is no time limit on certain provisions, do we not run the risk that the provisions contained in Bill C-36 will become the norm in Canada?

The Chair: Thank you, Mr. Bellehumeur.

Mr. George Radwanski: Generally speaking, this bill contains numerous provisions affecting individual rights. It's important to have a review process in place. As for rights affecting information of a personal nature, aside from the provisions that I have highlighted today, I find there is a reasonable balance between security and privacy rights. I doubt that a great deal will change in the space of three or five years. There will always be security questions as well as concerns about the balance between electronic surveillance and individual rights. I find the balance in the bill to be quite reasonable, aside from the provisions that I identified.

• 1205

[English]

The Chair: Thank you very much.

Mr. Blaikie for seven minutes. I'll bring it to your attention when it's six minutes, Bill.

Mr. Bill Blaikie: I'll try to be shorter than that, Mr. Chairman.

The Chair: Thank you.

Mr. Bill Blaikie: I don't really have any questions for the Privacy Commissioner, in terms of detail. I just wanted to comment that I think he has made a very serious charge, if you like, against the legislation—whether intended or unintended by the drafters—that it has this loophole in it, or the possibility in it of seriously rendering the Privacy Act inoperative.

If we have at our disposal an amendment that's been suggested by the Privacy Commissioner, I just want to say it should be taken very seriously. I'm sorry to hear that the Minister of Justice or the Deputy Minister of Justice, on such an important matter, hasn't been willing to find the time to meet with the Privacy Commissioner. As he himself suggested, that would have facilitated our work here. I hope that after this committee meeting they'll be more open to meeting with you in an expeditious way, because it seems to me the problem you've pointed to is a very serious one.

Without getting hypothetical, what action or recourse do you feel you have, as the Privacy Commissioner, if the government doesn't listen on this issue? The whole raison d'etre of your job and the responsibilities you've been entrusted with are put at risk here, by your own admission. So what other courses of action do you think are open to you, in terms of challenging what is clearly a threat to the very thing you've been entrusted with?

Mr. George Radwanski: That's a very good question. The short answer, I suppose, is that I am an ombudsman; I don't have direct powers. The powers I have are the powers of the credibility, or lack thereof, of the arguments I bring to bear, and whatever moral authority one can muster on the basis of the force of those arguments.

The first recourse I have is the one I'm exercising now, in asking this committee to recommend amendments to address this very serious problem. Amendments don't have to come, obviously, from the minister. They can come from this committee and the Senate, and I will certainly encourage that.

The second recourse, beyond dealing with you folks as an officer of Parliament, is my power to inform the public at large. Since this problem came to my attention, and since I wasn't able to get assurances from the minister's office that it was an oversight they would at least undertake to remedy, my recourse is to make it known.

I've given ten media interviews since this problem came to light and I wasn't able to get it immediately resolved. You may be assured I will give a great many more interviews, and speeches. I'll do everything in my power to make Canadians aware that from a privacy point of view, in an otherwise well-balanced and well-thought-out bill, there is this unnecessary and unjustifiable incursion or back door into the Privacy Act that could, at least hypothetically, destroy its effectiveness.

I will make the point that this is a country based on the rule of law, where we do not want, even on paper, in laws, the power for a minister to, in the worst-case scenario, repeal or abrogate a law by ministerial fiat. The most I can do is make that argument with all the vigour at my disposal, and hope it has resonance.

• 1210

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

Mr. MacKay, seven minutes. I'll bring it to your attention when it's six, to give the witness a chance to answer.

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

I want to thank Mr. Radwanski for being with us and for speaking out, not only here at the committee, but as you have done in past number of days since this came to your attention. I know you were in the Maritimes, and coming from that region we certainly appreciate hearing from you directly on such an important matter.

The sense I get from listening to your presentation today and hearing your argument previously is that this isn't personal. This is very much an affront to the Office of the Privacy Commissioner itself. You set out what I recall from law school days as the Oakes test that is to be applied when rights such as these are to be infringed upon—the proportionality and whether other mechanisms or methods could be applied that would infringe to a lesser degree.

I can't help but get from your presentation today and its tone that this provision—I think you've put it in the context of supporting the others, being well balanced, and understanding the need for national security—really cuts you and your office completely out of the loop, and by virtue of that cuts judges similarly out of the loop.

Is it a stretch to say the minister is saying that on issues of such huge national importance that could threaten national defence and security, they don't trust anybody outside of the executive branch of government; they don't trust the Privacy Commissioner, and they certainly don't trust a judge not to disclose this in a time of heightened security risk? That to my mind severely undermines the authority and the relevance of your very office.

If you can't be entrusted to keep information of such a privileged nature, if your office isn't the repository of these important national secrets and can't be trusted to guard them vigorously—you've in some ways spoken against your interest by bringing this out—it really shakes the very foundations of the purpose of the Privacy Commissioner.

Mr. George Radwanski: Let me be very clear on one point. I'm sure you didn't mean it the way some might interpret it, but not only is it not personal, I don't regard it as an affront to my office; I regard it as an affront to the privacy rights of Canadians.

The concern isn't about the powers of my office, as such. It's that Parliament has rightfully recognized under the Privacy Act, and more recently under the private sector law—

Mr. Peter MacKay: But you're there to protect those rights.

Mr. George Radwanski: Yes. I just want to be clear that it's not about powers or lack of powers in any other sense.

With regard to the Federal Court—because you touched on that—it may be germane to point out that based on the quick review I asked for, in the nearly twenty years that the Privacy Act has been in effect there were only four instances we were able to track down where the Federal Court used its review power to order some disclosure of what had previously been claimed exempted.

If the concern is to assuage worries by other countries, partners, and security that some ill-advised judge might release information, I don't think restricting that ability with a certificate will do grave harm.

I'm not persuaded it's necessary, because I think we have pretty reasonable judges in this country, but I don't think the harm to privacy rights would be that great. As long as there is oversight of some form, if they feel they have this specific problem, I can live with that solution, which is what I told them last week when it was raised. But having no oversight, as you say, is a whole different matter.

• 1215

Beyond that—I notice the questions so far haven't focused on it—I really want to emphasize that it's not only the way it's worded about the release of information to individuals about themselves, and it's not only about oversight. It is about the possibility that because this provision says that where a certificate is issued the Privacy Act does not apply—not just the access provisions of the Privacy Act—

Mr. Peter MacKay: This wipes it out completely—

Mr. George Radwanski: —it could take out the restrictions on the collection of information.

In the worst-case scenario—and I'm not suggesting that's the plan, but laws should not permit grotesque loopholes—a minister of justice, under this provision, could issue a certificate prohibiting the disclosure of information by all departments. Then the Privacy Act would not apply to any information. Then government, as a whole, could collect information any way it wanted, combine the information it wanted, and disclose to anybody it wanted.

So hypothetically this law, as written, could permit the creation of a big-brother file on every Canadian, for instance, with all the data. It could permit government to disclose any information about you to anybody it wanted—to your employer, your insurer, you name it.

I'm not saying that would happen. I'm saying we don't draft laws, particularly in such a sensitive area, that permit the total or even partial repeal of an act of Parliament by ministerial fiat. It has to be drawn narrowly enough to fix only the particular problem that was cited as a need.

Mr. Peter MacKay: In that broadest example, you're saying the minister could cloak the entire government in the necessity to comply with the Privacy Act.

I know what you're asking for in terms of the amendment you've presented, and I think it's a very reasoned amendment. Barring that amendment being accepted, would you be satisfied with at least sunsetting this, as Mr. Bellehumeur has said, so in calmer times this extraordinary protection of government information would at least, by necessity, have to be re-examined by Parliament—not reviewed, because we know that these reviews can be side-stepped—for passage?

Mr. George Radwanski: The short answer is no.

If something is unjustifiable and unnecessary, it should not be in place for three years, two years, or six months. If something is justified, there's room to say this is an emergency measure and it meets the tests, but let's see if we still need it in a while. But if something makes no sense and would be an unacceptable elimination of privacy rights, don't do it at all.

Let me be very clear that with these worst-case scenarios, I wouldn't want any suggestion that I'm saying this particular minister has a personal scheme, or the government has a scheme to use it in this way. I am saying it's wrong to allow that door to be opened with no need.

The Chair: Thank you very much.

Mr. Bryden.

Mr. John Bryden: I'd like to share my seven minutes with Mr. McKay, Mr. Chairman, if that's okay, so we can speed along here.

The Chair: That's very generous of you both.

Mr. John Bryden: I'd like to pick up on the other Mr. MacKay's remarks.

I notice in proposed subsection 70.1(1) it says the minister issues a certificate, but how do we know what's in that certificate? Mr. Radwanski made the point that if the minister issues the certificate prohibiting certain information from being disclosed, or suspending the Privacy Act, what's the check on that minister doing whatever she or he wants, with respect to the suspension of information?

Mr. George Radwanski: As this is drawn, there is none.

If it were done the way I am suggesting, the check would be that the power of oversight would remain, which is to say that the Privacy Commissioner could still look at the information, but could not disclose it under any circumstances. The Privacy Commissioner could never disclose any information, but could say to the minister privately, “Look, there are parts of this that are reasonable to disclose that can't possibly touch on security. Won't you consider it?” Or the Privacy Commissioner could say “I have now had occasion to review 10 or 20 certificates, and I am really concerned they are being used to cloak matters that have no conceivable bearing on security or any of the other categories.” That's all. But that's more than nothing. It's the minimum there should be.

• 1220

Mr. John Bryden: But wouldn't it be more effective to put the control in the first section and require the Attorney General to consult the courts to make sure that the courts have some oversight over the issuing of the certificates, so that we know that the Attorney General isn't abusing the power?

If I understand your amendment properly, the Privacy Commissioner would come in after the fact. What we want, surely, is some control on the Attorney General, whose power, I note, exceeds the authority that exists in the United States. Even the Prime Minister would not know or would not need to know what is in their certificate. Surely there has to be some check on the certificate itself.

Mr. George Radwanski: If you can persuade the minister and the justice department and the government of the merit of that position, you will certainly have my blessing.

I am dealing with reality as I see it. The government has said one of the imperatives it faces is that foreign countries will not share information if they have the slightest concern that some process might compel its disclosure. It's not for me to argue this is not the case. Faced with that, if their objective is to preclude disclosure by the Federal Court, then obviously the answer from their perspective isn't to give more power to the Federal Court. The answer is to ensure it doesn't do at the same time five other things that are even greater cause for concern than preventing this review, which is so seldom exercised anyway.

The Chair: Mr. McKay.

Mr. John McKay: Thank you again for coming before us.

Clauses 6, 7, and 8 basically parallel the electronic surveillance clauses that are applicable to organized crime. With organized crime you have some sort of a general direction in your investigation. With terrorist activities you may or may not have some general directions in your investigations. In drafting what a terrorist group means, particularly a listed entity, the bill says in proposed paragraphs 83.01(2)(a), (b), and (c):

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

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

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

(c) any terrorist activity was actually carried out.

If you put the electronic surveillance sections up against what constitutes a terrorist group and terrorist activities, I'm wondering whether, as Privacy Commissioner, you have some basis for concern beyond what would be of concern in a normal criminal investigation. Is this a one-year fishing expedition that anybody can go on and all kinds of people could be effectively swooped up in a net? As a practising politician, I may well be in contact with a group whether I knew it or not. And similarly, reporters may well be swept up in an investigation whether or not they knew they were in fact talking to any entity.

Have you directed your mind as to whether a distinction is to be made between the activities of organized crime and the activities of terrorist entities as such, and whether in fact those would intrude into the privacy rights of Canadians in as yet unanticipated ways?

Mr. George Radwanski: I would certainly start from the premise that activities of terrorists are at least as frightening or as much cause for public policy concern, and I would say a great deal more frightening than even organized crime, given what we've seen on September 11 and what we're seeing since. So certainly it would be hard to argue that the measures to combat terrorism should be less stringent or less effective than those with regard to organized crime.

The issues you're raising are very legitimate questions about civil liberties and how people may be caught up in various definitions and so on. My mandate is only privacy. I have to impose on myself the discipline of not commenting on broader civil liberties issues. I'll stick to that.

From a privacy perspective, I can't tell you that these matters strike me as unreasonable. From a civil liberties perspective, there are obviously arguments to be made pro and con, but it's simply outside my province to engage in that discussion. Frankly, I try not to even think about it, because I should be looking only at privacy.

• 1225

The Chair: Thank you, Mr. McKay.

Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I would say there's a fairly big assumption behind both of those provisions you've referred to, namely that governments don't abuse their power. I think it would be fallacy for us to accept that assumption, because history shows that's not the case. Governments, even democratic governments, have a tendency to abuse power from time to time. Based on that, I would say that your proposals at the very least have a good deal of merit. I certainly hope the Minister of Justice will seriously look at those recommendations.

It looks as if in this century we have a new paradigm, and that's terrorism. It's a reality. There are many people—and I'm one of them—who feel you need to have permanent anti-terrorist legislation in place to deal with this threat. This is a new venture for us. We've never done this before. We're on a path we've never been on before. So we're not exactly sure where the road is going to take us.

There's a lot of debate about whether the whole legislation should be reviewable, should be subject to sunset or sunrise clauses, or whether we should be looking at selective provisions of the act to determine whether some should be subject to review and some should be subject to sunset clauses.

I don't necessarily agree with the Prime Minister's statement that sunset clauses are not good because terrorism is permanent. Sunset clauses to me would require governments, if they thought those provisions were absolutely necessary, to reintroduce them as legislation, bring them through the parliamentary process, and have a full debate on those things again. In some cases that may have a lot of merit, because ultimately we're in a democracy, and democracy should prevail.

I'm wondering what your comments are. Do you have some guidance on how we should view this act in terms of review, sunset and sunrise clauses, and so on? What do you think would be appropriate with this type of legislation, given the fact that it will probably be permanent legislation?

Mr. George Radwanski: As I see the issue, it's not for me to comment on the act as a whole. My only appropriate role is to comment on the act as it touches on privacy rights. With regard to the privacy rights provisions, my situation really is as follows. With the exception of these clauses about which I'm concerned, most of the others strike me as being a reasonable balance. With regard to those particular provisions, I can't argue passionately for a sunset clause, because I think they make sense on the merits. Sure they should be reviewed, but I can't tell you whether we desperately need a sunset clause on those.

On the other hand, the clauses that concern me because they would unnecessarily and unjustifiably gut the Privacy Act in the private sector act in exactly the same way, in parallel. This is even less justifiable because I don't think foreign governments share a heck of a lot of anti-terrorist information with private corporations or the retail sector, for example. That's a whole different argument. But on those provisions, sunset requirements don't do it for me, because they should never be passed into law in this form anyway.

On the parts that come under me, I can't really give you much of an argument about sunset issues. But they certainly are very pertinent to other parts of the bill.

The Chair: I want to thank the commissioner for giving us this time and I want to thank members of the committee for their prudent exercise of time that has been available to them.

I'll suspend for enough time to allow our next witness to find his way to the table.

• 1229

• 1233

The Chair: I call back to order the 30th meeting of the Standing Committee on Justice and Human Rights. We are considering Bill C-36.

Our next witness is Mr. John Reid, from the Office of the Information Commissioner of Canada. I see that Mr. Reid also has invited some guests, who he will no doubt introduce.

We have an hour. I hope we can keep opening comments inside ten minutes, give or take a minute, and then I will turn... I see Mr. Bryden indicating his desire to ask a question. Actually, his name has been on the list for eleven days.

Mr. Reid, welcome, and please proceed.

Mr. John M. Reid (Information Commissioner of Canada): Mr. Chairman and members, thank you very much for this opportunity to come before you.

I'd like to introduce my colleagues: Daniel Brunet, general counsel; Alan Leadbeater, deputy commissioner; and Dan Dupuis, who is the director general, investigations and reviews.

I would like to get right to the point, Mr. Chairman.

Proposed subsection 69.1(1) of the bill would authorize the minister at any time “to issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security”. That same provision states that the Access to Information Act would not apply to such information. As a result, the minister, by issuing a certificate, would have the unfettered, unreviewable right to cloak information in secrecy for an indefinite period of time. I say “unfettered” because clause 87 contains terms that are undefined and overbroad in describing when the Attorney General may properly issue a certificate.

• 1235

The Privacy Commissioner has suggested that the form of words used in Bill C-36 would enable the minister to remove from the right of access the records of entire departments. I don't disagree with him that the loose wording leaves open the potential for an overbroad application. I say “unreviewable” because clause 87, by removing information covered by a certificate from the coverage of the Access to Information Act, also removes the authority of the Information Commissioner and the Federal Court of Canada to independently review the information to determine whether or not secrecy is justifiable.

For those of you who want to understand the legal mechanisms at play, I refer you to subsection 36(2) and section 46 of the Access to Information Act, a copy of which has been circulated to you. These sections state that the right of the commissioner and the court to examine records supercedes any privileges under the law of evidence or any restrictions in any other statute, including the Canada Evidence Act. However, this powerful right to examine records only applies to records “to which this act applies”. That is precisely why the amendment proposed in clause 87 of Bill C-36 states that the Access to Information Act does not apply to information covered by a certificate.

It's my strong belief, based on a review of 18 years of experience under the act—experience during times of war and crisis, involving exchanges of highly sensitive information among allies—that our Access to Information Act poses no threat whatsoever to international relations, national defence, or the security of Canada. Sections 13, 15, and 16 of the act contain powerful, broadly worded exemptions from the right of access, designed to ensure that no information will be disclosed that would be injurious to international relations, the defence of Canada, or the efforts of Canada to detect, prevent, or suppress subversive or hostile activities. I invite you to read these provisions, copies of which are in the act, and you will see the detailed and robust protections Parliament had the foresight to include in the act.

There's a reason why these areas were carved out of the Access to Information Act. In this country, we have experienced acts of terrorism—bombing, kidnapping, assassination—and they were still fresh in the minds of governments and legislators, of which I was one, in the 1970s and the early 1980s when the access act was framed. When the act was written, as now, we were a net consumer of intelligence, mostly from the United States, and we understood the need for protections that would be reassuring to our allies.

We simply do not have to respond to the current terrorist threat by going further. For example, the Americans have not made, nor do they propose to make, any changes to their Freedom of Information Act as a result of what happened on September 11. Only last week the U.S. Justice Department confirmed that there was no proposal to remove any records from the coverage of the United States Freedom of Information Act, nor to limit the right of the courts to examine records and to review refusals to disclose. For the Americans, it's business as usual.

From all the public explanations given by the minister and her officials concerning the motivation for this proposal, it would appear that the government itself has no doubt that the Access to Information Act contains fully adequate protections for information the disclosure of which could injure international relations, defence, or security. Their explanation is that since our scheme contains a right of independent review, the government cannot give its allies a 100% ironclad guarantee that information provided by them to Canada will remain secret.

Now, this explanation puzzles me and concerns me. Our major allies and suppliers of intelligence information themselves operate under freedom of information legislation. They understand that the purpose of these laws is to remove the caprice from decisions about secrecy, by subjecting such decisions to a legislative and judicial system of definition and review.

I find it hard to believe that the government of any one of our major allies would insist as a condition of information sharing that decisions about secrecy in Canada be entirely free of the rigours of statutory standards and independent review. In the conversations my office has had with our allied jurisdictions, it is our understanding that they all want the same thing: they want the simple assurance that what needs to be protected can be protected. None of them doubts Canada's ability to do so under the existing Access to Infromation Act.

• 1240

A recently completed independent review commissioned by the Minister of Justice and the President of the Treasury Board gave unequivocal assurances as to the strength of the protections for national security information contained in the Access to Information Act. Professor Wesley K. Wark of the University of Toronto in a study entitled Access to Information Act and the Security Intelligence Community in Canada states:

Public demand under access can be countered by the application of major clauses of exemptions, both mandatory and discretionary, offered under the act. In the security and intelligence realm, the principle exemptions of relevance are Section 13 (Information obtained in confidence), Section 15 (International affairs and defence), Section 16 (Investigations, threats to the security of Canada, Section 21, (Advice and Recommendations). Altogether, these exemptions are a formidable defensive mechanism in the hands of the community to protect secrets. Both the Canadian Security and Intelligence Service and the Communications Security Establishment, the two main collectors of sensitive intelligence in the community, regard the Access Act as offering sufficient protection.

Later in his report Professor Wark goes on to say, and I quote:

The Security and Intelligence Community must continue to have at its disposal the power to apply exemptions under the Access Act to protect information whose divulgence would be harmful to national security and the conduct of international affairs. The current access exemptions provide powerful and sufficient tools to allow for such protection.

Since 1983 the Access to Information Act has been reviewed in great detail by a standing committee of Parliament, an ad hoc committee of the House of Commons, two information commissioners—most recently in 2000-2001—and at least three separate reviews by public servants, the most recent being the task force on the Access to Information Act, which is still under way. Never, not once, in any of these reviews, has it been suggested that sections 13, 15, and/or 16 of the Access to Information Act are insufficiently strong to enable the government, with confidence, to protect information the disclosure of which could be injurious to international relations, the defence of Canada, or security. Never once, during all of these studies, has it been suggested that independent oversight by the Information Commissioner and the courts somehow puts vital secrets at risk.

In the 18 years since the Access to Information Act has come into force, inappropriate disclosures of security and intelligence information have not been the fault of the Access to Information Act. In those rare occasions when it has occurred, the fault lay with indiscreet ministerial aides, former intelligence operatives turned authors, misplaced briefcases and computers, and at times, revelations by ministers. These are quite proper reasons for attention of the Official Secrets Act, but certainly not for the measures proposed in clause 87 of the Bill C-36.

Even if there were some reason to be concerned about the sufficiency of the existing exemptions to protect sensitive information, would the government's proposed solution be appropriate? Would it strike the right balance between protecting Canadians from terrorists and protecting them from state abuse? In my view, the government need not remove both steps of independent review in order to allow itself to prohibit disclosure of certain records. Since the Information Commissioner is by law bound to conduct his investigations in private, maintain all information in confidence, and make only recommendations, he has no power to disclose information at all, and there is no need for the minister to impede or curtail the commissioner's powers to examine records in order to enable her to prohibit public disclosures. It is only the Federal Court that has the power to conduct proceedings in public and order the public disclosure of the withheld records.

Mr. Chairman, in the interests of time, I'll skip over the next three or four paragraphs and come to my conclusion.

Despite the background that I have elucidated, I am not one of those who believes that the purpose of clause 87 of Bill C-36 is to dictate the outcome of cases before the courts that I have referred to in my written text. My belief is that the minister and the government will entertain changes to this provision of the bill if they honestly believe that the goal of protecting Canadians and Canadian allies against terrorism can be accomplished by less intrusive means. My fervent hope is that my comments will help reassure honourable members, and through you, the minister, that clause 87 of Bill C-36 does not strike the right balance and should be withdrawn.

• 1245

If this provision is not withdrawn, it should be focused by specific reference to the provisions of sections 13 and 15 of the access act. It should not prevent the Information Commissioner from examining information during the course of his investigations. Moreover, any provision that would diminish existing avenues of independent review should be limited to the shortest possible period of time.

The Chair: Thank you, Commissioner Reid.

I'll go first to Mr. Fitzpatrick, for seven minutes.

Mr. Brian Fitzpatrick: Just to be clear on this point, Mr. Reid, if I'm hearing you correctly, you're saying under the present legislation, with your ability to review whether a document should or should not be disclosed, there really isn't anything there that would threaten national security or any of these other interests that are important in fighting terrorism.

Mr. John Reid: That's correct. In the current regime, the legislation is very robust and very strong. It provides protection. The Information Commissioner can see all the documentation in question, and consequently, the information is never released by the Information Commissioner. All of our dealings are done privately; therefore, there's never been a release of information that could be in the slightest way embarrassing to the government.

We have just gone through a case in the Federal Court of Appeal in which the accusation was made that these documents could not be provided to the Information Commissioner because there was a possibility they could be revealed. The Federal Court of Appeal looked at that and concluded the Information Commissioner had never released any information, nothing had ever been leaked from his office; therefore, that was not a reasonable grounds for their appeal.

Mr. Brian Fitzpatrick: Is there any chance, if a matter left your jurisdiction and entered the Federal Court system—you mentioned their proceedings are open—that information could be endangered through that process?

Mr. John Reid: Generally speaking, our experience has been that the Federal Court, when it gets information that is in dispute, always maintains that information privately. It's done confidentially and it's never disclosed in public.

Mr. Brian Fitzpatrick: Have you made any specific recommendations to the justice minister on your concerns, and what would those be?

Mr. John Reid: We had a meeting with the deputy minister of justice last Thursday, I believe. We're trying to understand the reasons for these provisions, what the department is trying to protect, so we had a discussion on that basis. During that time, we suggested if they were really concerned about these things, there was a way of going about it by amending certain sections of the act for greater certainty to protect the certificate. We have had that discussion.

Mr. Brian Fitzpatrick: Have you had any response in regard to your concerns?

Mr. John Reid: No.

Mr. Brian Fitzpatrick: Do you expect to receive some?

Mr. John Reid: We hope so.

Mr. Brian Fitzpatrick: Okay.

When I look at proposed subsection 69.1(2), the interpretation of it, I can see particular pieces of information being subject to a prohibition. But from the evidence I've heard, the way these things are worded, it's open to a minister to basically put a blanket prohibition against the release of any information from a government department, and just close the whole department off. Are you concerned this brush might be too wide in the way it's worded?

Mr. John Reid: I am concerned that those expressions are not defined. The only place in Canadian legislation where they are defined is in the Access to Information Act.

• 1250

One of the things I have suggested is that there should be a reference to those definitions of “security”, “information from a foreign country”, and “military secrets” that are defined in the Access to Information Act so we would all know what it was the minister had control over with her certificates. At the present time, because the definitions are so broad, it is very difficult to understand what information would not be subject to the certificate.

Mr. Brian Fitzpatrick: Is there anything in the legislation that gives us some clear guidance of what this national security thing is all about, where it ends?

Mr. John Reid: To my knowledge, when phrases are not defined, it becomes very difficult to say what the limits are.

Mr. Brian Fitzpatrick: So it's pretty much in the eye of the beholder how far those definitions go?

Mr. John Reid: That's correct. It's in the eye of the beholder who issues the certificate.

Mr. Brian Fitzpatrick: As a member of Parliament, being in the opposition, I have found it frustrating at times to obtain information in normal times. Is this going to make the job of parliamentarians more difficult as well?

Mr. John Reid: In respect of information of security and what not and information covered by these certificates, yes. It will be an absolute prohibition against that information being made available—forever. It's a permanent prohibition as the act is written today.

For example, if you look at the other series of information that's excluded from the act—that is, cabinet confidences—that prohibition ends after 20 years. In this case there's no termination point.

Mr. Brian Fitzpatrick: The Privacy Commissioner was here and he basically said at the very least he would like the ability to review the certificate without disclosing the information, and make a report back to the minister. Would you agree with him, or would you like to see something go much further than that?

Mr. John Reid: Well, the Information Commissioner and the Privacy Commissioner have similar powers in the sense that we can look at documents that are in dispute, but we cannot release them.

My concern is the way this act is set up, there is no form of accountability for the person who has the power to issue the certificates. I agree with the Privacy Commissioner that any system that is put in place to provide some accountability would be a very good thing, and I would agree with him further that the way you provide that accountability is by allowing an independent officer of Parliament to provide it.

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

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Mr. Reid, thank you for taking the time to meet with us. Quite frankly, your presentation, a written copy of which was given to us, is exceedingly clear. I'm confident that you and the members of your entourage have followed the debate in the House of Commons and listened to the questions put to the minister regarding this matter in particular.

I recall that my colleague Pierrette Venne, the Member for Saint-Bruno, and I asked a very clear question, citing section 15 in the process. Like me, you heard the answer to the question which in some respects contradicts what you said this afternoon. I've read this section and we have consulted with other individuals. I believe your interpretation is the correct one.

My question is as follows: Supposing the minister, for all sorts of reasons, was unwilling to amend clause 87, and, as you yourself mentioned, it becomes a permanent prohibition over time. Supposing the following amendment is made to subsection 69(1) of the Access to Information Act—

• 1255

I'm sure you have anticipated my question and that you are ready for it. Wouldn't you agree that, in the event the minister is steadfast in not wanting to amend this clause for all kinds of reasons that she doesn't wish to share with you, perhaps a sunset clause should be inserted so that after a set period of time, whether three, four or five years - I'm not sure exactly how much time, but we are recommending three years - we revert to the old legislation and to our old procedures. As the Prime Minister himself stated in the aftermath of September 11, we must get one with our lives and not give in to terrorism.

Would that be a wise decision? I realize that your scope of action is limited. You have reviewed the bill in its entirety , but, like the Privacy Commissioner before you, with an eye to those provisions in particular that affect your mandate. In your case, clause 87 affects your mandate and your legislation. Would you at least feel more confident in the legislation if a sunset clause were incorporated into this provision?

[English]

Mr. John Reid: It would give me some comfort. Absolutely. But in my judgment, the government has not yet put a case to justify that clause, even for three years or for a sunset period of time.

We looked at what our allies have been doing, and our allies all have freedom of information acts that are not being amended; they are not being changed. Nobody in their acts has the power of certificate that is ascribed in this act. We are going to a system of relative freedom when compared to our allies, who are going to basically maintain business as usual in freedom of information legislation. The question that has to be posed is, why are our allies not making similar changes to their freedom of information and privacy legislation? Why is it necessary for the Government of Canada to go to such extreme lengths to cripple our legislation?

[Translation]

Mr. Michel Bellehumeur: I think we understand each other very, very well. Like you, I feel that the federal government didn't need to bring in this particular amendment. Consider how our allies have responded. Moreover, the Access to Information Act already contains clear provisions precluding the disclosure of information that might be injurious to national security. I think we already enjoy broad protection and there is no justification for amending the legislation. You are absolutely right and you have my full support on this.

I have no further questions, Mr. Chairman.

[English]

The Chair: Mr. MacKay, you have seven minutes.

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

Thank you, Mr. Reid and all your officials. We certainly appreciate the time and effort you've taken to be here and to present your very forceful case for removing or amending this particular clause. I think it's become apparent in just the last 20 minutes that we are going very far afield by comparison to other countries in curtailing the flow of information Canadian citizens have a right to expect.

Without ascribing any black-hearted motives or political nefarious intent, I'd say this particular section, according to yourself and according to others, gives the minister by virtue of this certificate the ability to dam up and stop the flow of information on their choosing and with no justification. Is that correct, that they—they being the minister or the government—are not required to give any explanation for why information would not be disclosed on request if they invoke the power of a certificate?

Mr. John Reid: That's correct.

Mr. Peter MacKay: We'll use the case that is currently before the courts. I don't expect you to comment to any great degree, but with that type of information, the Prime Minister's agenda book, by virtue of this certificate being invoked, the government could say we're not giving you that information; disclosure is being refused for the purposes of protecting international relations or national defence or security. That blanket definition necessitates no further reasoning whatsoever. It is simply issued, and information is then denied.

• 1300

Mr. John Reid: That's correct, because most terms are not defined in the act. They are defined by the person who issues the certificate.

Mr. Peter MacKay: So if and when that were to happen, your office and the Office of the Privacy Commissioner as well are essentially cut out of the loop entirely, and you have no recourse, even as an officer of Parliament. Yet you are an officer who is to act on behalf of parliamentarians very often as a court of appeal, if you will. By virtue of denying you and by virtue of denying members of Parliament and in fact all Canadians such information, the government has completely gone into a bunker when they issue a certificate.

Mr. John Reid: It's also important to recognize that when a certificate is issued, it not only takes the Information Commissioner out of the loop, it also takes the courts out of the loop. There's an absolute prohibition throughout the whole system of reviewing any decision that is taken after a certificate has been issued. The effect of the certificate is much more extreme than what you described.

Mr. Peter MacKay: Again, this question may cause some need for speculation. Aside from a national security threat or something that would paralyse the government or pose a threat of the type we saw on September 11, what else would necessitate essentially telling the Canadian people that the government can't trust the Privacy Commissioner or the Information Commissioner with this type of information?

Mr. John Reid: I can't speculate on that.

Mr. Peter MacKay: You said earlier in your remarks that you had consulted with other countries and that there was clear indication that there was no paranoia on their part that by disclosing information to Canada they would feel particularly vulnerable, nor would there be any reluctance on the part of any of our allies to provide information to this country because of the current information safeguards that are in place. You saw no indication of that whatsoever?

Mr. John Reid: That's correct. Our discussions, however, were with the people who were the protectors of the freedom of information legislation in their jurisdictions. We didn't talk to the people who were in the intelligence community; we talked to the people who were responsible for their freedom of information. We thought that if in fact the government did have a concern about the way information was handled under these regimes, every other country that had that kind of intelligence would be moving to change their legislation as well, and we would take the position that if in fact other countries were doing that, then our arguments would not be as strong as they are. What we found was that no country we consulted has been changing their legislation at all, so we look upon that as an indication that there's no requirement to change our legislation either.

In fact, if you take a look at the United States legislation with respect to its security provisions and compare it to ours, what you will find is that ours is a much tighter and better drawn series of limitations than what you find in the American legislation.

Mr. Peter MacKay: Mr. Reid, you mentioned the United States. Can you just give us an idea of what other countries you would be able to make that statement about?

Mr. Alan Leadbeater (Deputy Commissioner, Office of the Information Commissioner of Canada): Australia, New Zealand, and the United Kingdom are the countries.

Mr. Peter MacKay: There is a clear contradiction here, because the very reason given by the department and by the minister is that this is intended to reassure our allies, and you have just named several major allies who haven't taken these steps and haven't indicated that they have concerns about our information flow.

Mr. John Reid: That's correct.

Mr. Peter MacKay: Thank you.

The Chair: Mr. Bryden, you have seven minutes.

Mr. John Bryden: Thank you, Mr. Chairman.

I might just ask in passing, in the United States doesn't the President have the power to order an exclusion of information?

Mr. John Reid: He does have the ability to issue an exclusion, a certificate, but that is fully reviewable with information before the courts. Where a certificate is issued in Canada, the courts and the Information Commissioner have no power of review because they are denied the information.

• 1305

Mr. John Bryden: On that point, am I correct in my understanding that this certificate provision we have here enables the minister to keep secret the very nature of the secret she's keeping secret?

Mr. John Reid: Indeed.

Mr. John Bryden: Okay, thank you. I wanted to be clear on that.

Can you comment on how this clause 87 compares to section 69 of the Access to Information Act, which also involves an exclusion? There is no certificate required under section 69 of the Access to Information Act. Is there any relationship between the two clauses?

Mr. John Reid: Yes, there is. Right now section 69 operates to exclude from the act—and exclude Canadians' access to—all cabinet documents or cabinet confidences for 20 years. This section says that information that is covered by a certificate also goes into section 69 and is excluded, but it's excluded forever.

Mr. John Bryden: Now, would we be able to do a little tinkering here? If we made that certificate reviewable in the same sense it is in the U.S. example with the President and if we time-limited it for say 15 years, after which time of course it would revert to a normal exemption, would that at least go partly along the way to making this a little more acceptable to you?

Mr. Alan Leadbeater: Why would you need the certificate in that circumstance? If you have a reviewable exemption, why need a reviewable certificate?

Mr. John Bryden: I'm merely suggesting that an exclusion obviously exists in the United States, and suspecting that sometimes we do like to model ourselves as a government on what happens in the United States... I will note that it's the President who gets to issue the certificate, whereas here we'd allow a mere cabinet minister to do it, which if I understand correctly means that in fact that cabinet minister can issue a certificate without the Prime Minister even knowing.

Mr. John Reid: That would seem to be the case.

Mr. John Bryden: That would seem to be the case. Again, what I am coming back to is that if we're going to have the exclusion that's described here, one that's similar to what does exist in the States with the President, can we make it a little more palatable by giving it a time limit of say 15 years? We could make the certificate authorizing the exclusion reviewable by the courts or even the Information Commissioner.

Mr. John Reid: That would be an important safety belt.

Mr. Alan Leadbeater: Mr. Bryden, with respect to section 69 and the parallel, section 69 has, as you may recall, a very detailed description of what a cabinet confidence is. It may be that if you wanted to draw that parallel, in order to have detailed definitions of what constitute international relations and national defence and security, the legislation could simply make reference directly to sections 13 and 15 of the act the way section 69 is referred to in the Canada Evidence Act with respect to certificates about cabinet confidence.

Mr. John Bryden: As a final observation, Mr. Chairman, I do notice—if I can just carry the thought—that I don't see anything in this legislation that confines it to the bill itself. I think that the point the gentlemen are making is that what's needed, among other things, is to define clause 87 so its terms are confined to Bill C-36. Is that correct?

Mr. John Reid: That's correct, and the other point I want to emphasize is that it doesn't do you any good to have a certificate that can be reviewable if there are no definitions as to what information is covered by the certificate. If the certificate says that it can be anything about national security, then what could any court or any information commissioner who had the responsibility of reviewing it say about a word or an expression that is undefined? As Mr. Leadbeater said, what you have to do is make sure that those definitions are there and that they are tight, so we all know what they mean.

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

Mr. Fitzpatrick.

• 1310

Mr. Brian Fitzpatrick: I have a couple of comments.

Maybe I'm wrong, and people can correct me on this, but my experience has been that when governments create things, it's not very often they eliminate them someday later on.

Another problem I have, given the evidence you've given this committee, Mr. Reid—and I thank you for it—is that we live in a constitutional democracy, and it's my belief that, especially in a democracy, it's dangerous to give anybody a blank cheque without any check or balance built into that. I take it from the testimony you're giving before us today that this is your concern with this legislation as well.

Mr. John Reid: I agree with that.

Mr. Brian Fitzpatrick: Just to be clear on your testimony, too, I don't want to take your words somewhere they weren't intended to go, but if I heard you correctly, sir, you were saying the best thing to do here is fix this problem up front and deal with it. We've hashed this thing out, and I think you've made a lot of good points. And then we don't have to get into lengthy debates about whether we should have sunset clauses and stuff for things that might appear rather draconian on the face of it. Is that what your position is, that we don't need to go this way, that the legislation we have already addresses the concerns the government may have?

Mr. John Reid: That's correct. Both the Privacy Act and the Access to Information Act give the government all the bona fides they require. It provides all the definitions and an independent review, and it provides it in an atmosphere where no information can come out and where the power to release is not in the hands of the information or the Privacy Commissioner. So the government maintains its position all the time when it's being reviewed.

At the same time, by leaving it as it is, you have an opportunity to have somebody independent, but a parliamentary officer, review the activities under this particular clause so that there can be a proper statistical reporting at some point in the annual report of the commissioners.

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

Mr. Owen, you have three minutes.

Mr. Stephen Owen: Thank you, Mr. Reid, Mr. Leadbeater, and colleagues.

With respect to your view—and perhaps Mr. Leadbeater can answer this more specifically on the U.K. situation—I believe there is a provision that the home secretary can issue a public interest immunity certificate, which, in my experience, at least, which is a little out of date now, could be used for the very same purpose. I wonder if you came across that, that the home secretary issues them. It may be a matter of customary constitutional practice that this is issued. I wonder if you're familiar with that.

Mr. Alan Leadbeater: My understanding is that there is a certificate procedure in Great Britain, but it is reviewable. We have undertaken with the other place where we appeared this morning to provide that committee with a little chart of how these things are dealt with in the other jurisdictions, and I'd be happy to do that for you at the same time.

Mr. Stephen Owen: That would be very helpful.

The Chair: Is that it, Mr. Owen?

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: No. It's crystal clear.

[English]

The Chair: Mr. Blaikie or Mr. McKay?

Mr. John McKay: I take it, basically, the sum and substance of your position is that, at best, this section isn't needed; at worst, it's overreach.

What is the legal meaning of “protecting international relations”? I would sort of understand “national defence”, and I would sort of understand “security”, but “international relations” seems to be an awfully big hole into which you could fill an awful lot of information.

Mr. John Reid: Because the terminologies are not defined in the act, they basically mean anything you choose to have them mean. They can mean the most innocuous information; they can mean the most highly technical secrets. But since you don't define them, they can mean anything.

• 1315

“Security” can mean anything. “Military secrets” can mean an awful lot. That's why, if you look at the Access to Information Act and at the definitions that I have quoted to you in the act, if you reference those words to those definitions, then you will have definitions. Then when the certificates are issued, at least one would know what they were covering. It would be precise, and you could have a review system set up that would be able to be more direct and precise.

Mr. John McKay: Is there a meaning for “international relations” in your governing legislation, the Access to Information Act?

Mr. John Reid: Yes, indeed.

Mr. Alan Leadbeater: In the act now, there are two sections that deal with it. One is a mandatory exemption for any information provided in confidence by a foreign government or an agency of a foreign government. There is no injury required to be shown; it just simply has to be provided in confidence.

Then there is section 15, which is an injury-based exemption, that contains five pages of examples and descriptions of situations that may give rise to this injury. So there's not one neat little definition, but rather, a five-page list of examples of situations that could give rise to this injury.

Mr. John McKay: What is the meaning of “The Statutory Instruments Act does not apply to a certificate made under [this] subsection”? Does that mean this section can't cross-reference over to your bill or any other legislation?

Mr. Daniel Brunet (General Counsel, Office of the Information Commissioner of Canada): Are you asking about the impact of proposed subsection 69.1(2)?

Mr. John McKay: No, proposed subsection 69.1(3).

Mr. Daniel Brunet: Proposed subsection 69.1(3) says “The Statutory Instruments Act does not apply to a certificate made under subsection (1).” I don't have a copy of the Statutory Instruments Act, but it refers to the mechanism of registration of all orders and regulations adopted by government.

One interpretation of the wording in the Statutory Instruments Act would make any certificate issued by the Attorney General in section 16.(1) applicable, so they would have to register these certificates under the mechanism provided under the Statutory Instruments Act. That's why it's excluded.

Mr. John Reid: It doesn't have to be registered.

Mr. Daniel Brunet: It doesn't have to be registered. That's the effect of proposed subsection 69.1(3).

The Chair: Thank you.

Mr. Blaikie, or if not, then Mr. MacKay.

Mr. Peter MacKay: As a follow-up to my colleague Mr. McKay's question, then, in your mind, is there a way we could sufficiently define or put in place some parameters of instances where the Attorney General could justify denying or issuing a certificate denying the free flow of information, and would that satisfy you? Could we also include in that definition a request from another country that would flag information that was in the possession of the government?

I know this isn't an ideal way to do it and it's a cumbersome process, but if this is in fact the government's intent, as it says, to protect information that may come into its knowledge from our allies, is there not a way we could flag it, and to a large extent, allay fears that the government may just be saying, we're not giving it to you because we don't want to and we can define it broadly?

Mr. John Reid: Mr. Leadbeater has a scheme in mind.

Mr. Alan Leadbeater: I think it's just the same way that certificates are now used in section 39 of the Canada Evidence Act, which relates to cabinet confidences. It simply allows the clerk to certify that a particular record meets the definition of cabinet confidence in our act.

This section could be similarly done. The Minister of Justice could certify that a particular document falls within sections 13, 15, or 16 of the act. Once that certification was done, that would then be, for all intents and purposes, conclusive, subject to whatever review is left in the legislation.

Mr. Peter MacKay: Thank you.

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

Mr. Bryden.

Mr. John Bryden: Just for clarification, if I can express it—I'm a little confused about it myself—do we not need the Access to Information Act in order to assess independently the impact of clauses 103 and 104 on the Privacy Act?

• 1320

Mr. Radwanski explained how these acts regard it, and all that sort of thing, and we can't see what would be happening. So isn't that all the more reason that we need the Access to Information Act, in order to track the government's activity with respect to the information that's excluded as a result of clauses 103 and 104? Is that clear?

Mr. Alan Leadbeater: I understand the point you're getting at.

If someone wanted to know the numbers of times certificates have been issued, what government bureaucrats had written down in terms of their evaluation of their impact, and so forth, that would be information that could only become accessible through the Access to Information Act.

Mr. John Bryden: So that's all the more reason for us to fix up clause 87, because it negatively impacts even worse on clauses 103 and 104.

Thank you.

The Chair: Thank you very much.

Mr. Fitzpatrick, for the final question.

Mr. Brian Fitzpatrick: I'm concerned about unintended consequences again and how things will be different.

A lot of colleagues in my caucus like to go down to the border, for example. There are tie-ups at the border, and they go down there and talk first-hand to customs officials to find out how they see things and how we can improve the system, and so on. Since Mr. McKay raised the point, “international relations” seems to me to be a rather wide brush here. If some sort of prohibition goes out to the customs officials, that's not going to happen any more. Those individuals are effectively going to be muzzled, and if you have a constituency right next to the border and your community is really getting hurt with backlogs of trucks, and so on, you're not really going to be able to talk to anybody at the border to find out what could be done about the problem.

So I'm very concerned about how far this thing could go. The definition is way too wide the way it has been presented in this section.

Mr. John Reid: As a former legislator, I am always worried about lack of definitions in legislation. Secondly, I look at it and say, well, if it's not broke, don't fix it, and there doesn't seem to be anything wrong with the Access to Information Act or the Privacy Act that requires a significant amount of surgery. And lastly, my experience has been that when things come down in omnibus pieces of legislation, they never get corrected; they are embedded. I would tend to look at these kinds of changes as being permanent, whether there was a sunset clause or a parliamentary review, and I think you have to approach it with that in mind.

The Chair: Thank you very much.

There was a reference made during the course of discussion, with perhaps Mr. Bryden, with regard to additional information that's being made available to members in the other place. I think it's a grid in terms the international comparables. If you could make that available to us, it would be much appreciated.

I thank the witnesses for being here today, and colleagues for their patience as well.

I have a couple of housekeeping chores I'd like to bring to your attention, please.

Tomorrow afternoon at 12:30, it is confirmed that we will have Professor Paul Wilkinson, who is the chair of the government commission charged with reformulating Britain's anti-terrorism legislation. I know the timing is a little unusual for this committee, but he's in North America and available at that time, and that's the only time he could be available. He's also the founder of the University of St. Andrews Centre of the Study of Terrorism and Political Violence.

From 1 p.m. until 1:30 p.m. tomorrow, following Mr. Wilkinson's departure, we will be doing a little bit of business, because we've received a number of new potential witnesses. I will seek direction from the committee as to how quickly or not we want to bring our work to some end, because the introduction of a large number of new witnesses will affect that. I am in your hands on that front.

I would also bring to your attention that this afternoon at 3:30 we have, from the Communications Security Establishment, Keith Coulter, and the Minister of National Defence. Tomorrow we have, as I mentioned, Professor Wilkinson. Tomorrow afternoon we have Wesley Wark, Martin Rudner, Patrick Monahan, and Alan Borovoy, and we have panels again on Thursday.

On that point, if anyone else has any witnesses they want to bring forward, they should make sure they do.

The meeting is adjourned.

APPENDIX

[English]

Remarks by Hon. John M. Reid, Information Commissioner of Canada

Mr. Chairman, honourable members of this important committee, I am grateful for the opportunity to share with you some concerns I have about certain provisions of Bill C-36 and to answer any questions you may have about the effect of Bill C-37 on the Access to Information Act. I am accompanied by my Deputy Commissioner, Alan Leadbeater; my legal counsel, Daniel Brunet and my Director General, Investigations and Reviews, Dan Dupuis.

This committee's work is being conducted in the context of, and urgency associated with, unprecedented challenges to the health and security of Canada and her allies—especially the United States of America. So, too, the work of the Minister of Justice and her officials, in developing Bill C-36, was part of a race against time to give Canada strong legal tools to combat terrorism. To her great credit, the Minister has made it clear that, while she wants a package of antiterrorism measures to be passed expeditiously, she wants the measures to be carefully tailored to the threats and minimally intrusive of the rights and freedoms which are the hallmarks of our free and democratic society.

This honourable committee, I feel sure, sees its role as helping the Minister achieve that goal. As an officer of Parliament and a witness before this committee, I, too, hope to assist the Minister by providing constructive criticism.

Let me, then, get to the point. Section 87 of the Bill would authorize the Minister “at any time” to “issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence of security”. That same provision states that the Access to Information Act would not apply to any such information.

As a result, the Minister, by issuing a certificate, would have the unfettered, unreviewable right to cloak information in secrecy for indefinite periods of time. I say “unfettered”, because section 87 contains terms that are undefined and overbroad in describing when the Attorney General may properly issue a certificate. The Privacy Commissioner has suggested that the form of the words used in Bill C-36 would enable the Minister to remove from the right of access the records of entire departments. I don't disagree with him that the loose wording leaves open the potential for overbroad application. And I say “unreviewable”, because section 87, by removing information covered by a certificate from the coverage of the Access to Information Act, also removes the authority of the Information Commissioner and the Federal Court of Canada to independently review the information to determine whether or not secrecy is justifiable.

For those of you who wish to understand the legal mechanisms at play here, I refer you to sections 36(2) and 46 of the Access to Information Act. These sections state that the right of the Commissioner and the Court to examine records supersedes any privileges under the law of evidence or any restrictions in any other statute (including the Canada Evidence Act). However this powerful right to examine records only applies to records “to which this Act applies”. That is precisely why the amendment proposed in section 87 of Bill C-36, states that the Access to Information Act “does not apply” to information covered by a certificate.

It is my strong belief, based on a review of 18 years of experience under the Act—experience during times of war and crisis, involving exchanges of highly sensitive information among allies—that our Access to Information poses no threat whatsoever to international relations, national defence or the security of Canada. Section 13, 15 and 16 of the Act contain powerfully and broadly worded exemptions from the right of access designed to ensure that no information will be disclosed which would be injurious to international relations, the defence of Canada or the efforts of Canada to detect, prevent or suppress subversive or hostile activities. I invite you to read those provisions, copies of which have been handed out to you, and you will see the detailed and robust protections which Parliament had the foresight to put into the Act.

There is a reason, of course, why the Access to Information Act carved out this important area of secrecy. In this country we have experienced acts of terrorism—bombing, kidnapping, assassination—and they were still fresh in the minds of governments and legislators in the late 1970s/early 80s when our access law was framed. And when the Act was written, as now, we were a net consumer of intelligence, mostly from the United States, and we understood the need for protections which would be reassuring to our allies.

We simply do not need to respond to the current terrorist threat by going further—the Americans have not made, nor do they propose to make, any change to the Freedom of Information Act in the wake of September 11, 2001. Only last week the U.S. Justice Department confirmed that there was no proposal to remove any records from the coverage of the U.S. FOIA nor to limit the right of the courts to examine records and review refusals to disclose.

From all the public explanations given by the Minister and her officials concerning the motivation for this proposal, it would appear that the government itself has no doubt that the Access to Information Act contains fully adequate protections for information the disclosure of which could injure international relations, defence or security. Their explanation is that, since our scheme contains a right of independent review, the government cannot give its allies a 100 per cent, iron-clad guarantee that information provided by them to Canada will remain secret.

This explanation both puzzles and concerns me. Our major allies and suppliers of intelligence information themselves operate under freedom of information laws. They understand that the purpose of these laws is to remove the caprice from decisions about secrecy, by subjecting such decisions to a legislative and judicial system of definition and review. Personally, I find it hard to believe that the government of any one of our major allies would insist, as a condition of information sharing, that decisions about secrecy in Canada be entirely free from the rigors of statutory standards and independent review. In the conversations my office has had with our allied jurisdictions, it is our understanding that they all want the same thing: They want the simple assurances that what needs to be protected can be protected. None of them doubts Canada's ability to do so under the existing Access to Information Act.

A recently completed, independent review (commissioned by the Minister of Justice and President of Treasury Board), gives unequivocal assurances as to the strength of the protection for national security information contained in the Access to Information Act. Professor Wesley K. Wark of the University of Toronto, in a study entitled: The Access to Information Act and the Security and Intelligence Community in Canada, states:

Public demands under Access can be countered by the application of the major clauses of exemptions, both mandatory and discretionary, offered under the Act. In the security and intelligence realm, the principal exemptions of relevance are Section 13 (Information obtained in confidence), Section 15 (International Affairs and Defence), Section 16 (Investigations, threats to the security of Canada), Section 21 (Advice and Recommendations). Altogether, the exemptions are a formidable defensive mechanism in the hands of the community to protect secrets. Both the Canadian Security and Intelligence Service and the Communications Security Establishment, the two main collectors of sensitive intelligence in the community, regard the Access Act as an offering sufficient protection. (p.14)

And, later in his report, Mr. Wark states:

The Security and Intelligence Community must continue to have at its disposal the power to apply exemptions under the Access Act to protect information whose divulgence would be harmful to national security and the conduct of international affairs. The current Access exemptions provide powerful and sufficient tools to allow for such protection. (p. 18)

Since 1983 the Access to Information has been reviewed in great detail by a standing committee of Parliament, an ad hoc committee of the House of Commons, two Information Commissioners (most recently in 2000-2001) and at least three separate reviews by public servants (the most recent, and ongoing, being the Task Force on Reform of the Access to Information Act). Never, not once in these reviews has it been suggested that sections 13, 15 and/or 16 of the Access to Information Act are insufficiently strong to enable the government with confidence to protect information the disclosure of which could be injurious to international relations, defence of Canada or security. Never once, during all these studies, has it been suggested that independent oversight by the Information Commissioner and the courts somehow puts vital secrets at risk.

In the 18 years since the Access to Information Act has come into force, inappropriate disclosures of security and intelligence information has not been the fault of the Access to Information Act. In those rare occasions when it has occurred, the fault lay with indiscreet Ministerial aides, former intelligence operatives turned authors, misplaced briefcases and computers and, at times, revelations by Minister. Those are quite proper reasons for attention to the Official Secrets Act but not for the measures proposed in section 87 of Bill C-36.

Even if there were some reason to be concerned about the sufficiency of the existing exemptions to protect sensitive information, would the government's proposed solution be appropriate? Would it strike the right balance between protecting Canadians from terrorists and protecting them from state abuse? In my view, the government need not remove both steps of independent review in order to allow itself to prohibit disclosure of certain records. Since the Information Commissioner is, by law, bound to conduct his investigations in private, maintain all information in confidence and make only recommendations (not orders) for disclosure, there is no need for the Minister to impede or curtail the Commissioner's powers to examine records in order to enable her to prohibit public disclosures. It is only the Federal Court which has the power to conduct proceedings in public and order the public disclosure of withheld records.

If the Minister believes that the courts might interpret the Access to Information Act in such a way as to compromise international relations, national defence or security (a belief entirely without foundation, in my view), then that ought to be the focus of her legislative intervention. By leaving he Information Commissioner's review powers intact, a mechanism would be in place to enable an independent body to assess, and inform the public about, the appropriateness of uses of the certificate by the Attorney General—all of this without risk of disclosure of the information covered by the certificate.

I hasten to emphasize that, even this middle road, in my view, is unjustifiable. We can and should trust the power of the exemptions contained in the Act. We should trust the common sense and integrity of he judges of the Federal and Supreme Courts who review decisions taken by government to invoke those exemptions.

Before concluding my prepared remarks, I wish to refer to the allegation made in several quarters that the provisions of section 87 of Bill C-36 were intended as a mean-spirited attack of retribution on the Access to Information Act and Information Commissioner. This allegation finds its roots in a rather public controversy between my office and the Crown concerning my right to examine certain records during the course of an investigation. After the issue made its way all the way to the Supreme Court of Canada (where leave to appeal was denied) and my right to examine the records was affirmed, the Crown continued to withhold some records by issuing a certificate pursuant to sections 37 and 38 of the Canada Evidence Act, alleging that it would be injurious to international relations, the defence of Canada and national security for these records to be seen by my office.

I have challenged the validity of those certificates in the Federal Court and I fully expect, once the Court has seen the records (as it now may) and understands the absolute confidentiality they would be accorded in my hands, that this last impediment to my investigation will be removed. However, if Bill C-36 passes in its present form, the Minister will be legally able to issue a certificate covering the records which are in dispute and neither the Federal Court nor my office will ever see these records.

Despite this background, I am not one of those who believes that the purpose of section 87 of Bill C-36 is to dictate the outcome of these cases currently before the courts. My belief is that the Minister and government, will entertain changes to this provision of the Bill if they honestly believe that the goal, of protecting Canadians and Canadian allies against terrorism, can be accomplished by less intrusive means. My fervent hope is that my comments will help reassure honourable members of this committee and, through you, the Minister, that section 87 of Bill C-36 does not strike the right balance and should be withdrawn.

If this provision is not withdrawn, it should be focused by specific reference to the provisions of section 13 and 15 of the Access to Information Act and it should not prevent the Information Commissioner from examining the information during the course of his investigations. Moreover, any provision which would diminish existing avenues of independent review, should be limited to the shortest possible period of time.

Thank you.