STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Thursday, October 18, 2001
The Chair (Mr. Andy Scott (Fredericton, Lib.)):
Welcome to the 29th meeting of the Standing Committee
on Justice and Human Rights. I invite the cameras,
other than those that are stationary, to find their way
to other parts of the building.
Thank you very much.
Our business today is the consideration of 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.
Our witnesses today are the Hon. Anne McLellan, the
Minister of Justice, and the Hon. Lawrence MacAulay,
Solicitor General. On behalf of the committee,
we'd like to thank you for being here today—and
very quickly, after our committee heard that we were
seized with this bill. I will take no more of their
time or yours and ask you perhaps to introduce
officials and make your opening statements.
Hon. Anne McLellan (Minister of Justice and
Attorney General of Canada): Thank you.
Thank you, Mr. Chairman.
Let me introduce the officials for myself and Minister
MacAulay. They are Richard Mosley, whom I think many
of you on this committee know very well; Don Piragoff;
Paul Kennedy; and Ian Blackie.
Minister MacAulay and I are pleased to appear before
this committee as it begins its very important work and
formal consideration of Bill C-36, an anti-terrorism
Mr. Chairman, members of the committee, I wish first of all
to thank you for undertaking the review of this bill.
Before we begin our formal comments this afternoon, we
would both like to state at the outset that if the
committee would like us to return after you have heard
witnesses in the coming days and weeks, both Minister
MacAulay and I would be very pleased to return and
provide what further commentary or elucidation you
might find useful as you go about making your final
recommendations and offering your final advice to the
government in relation to what we all know is such very
Since the introduction of the bill four days ago, it
has received considerable attention from the media, the
legal community, and parliamentarians. The quality of
the debate in the House speaks to the real concern we
all share about the threat of terrorism.
Before commenting on the various measures set out in this
legislation, I would like to underline that the government is
fully committed to fighting terrorism. We must bear in mind the
fundamental importance of the overall goal in all of this.
Some aspects of the bill have received more attention
than others. Some components have generated criticism.
Minister MacAulay and I recognize that. This bill is
obviously intended to respond to a serious threat to
our society, and let me state at the outset that it does
not shy away from confronting that threat directly.
There are many components to Bill C-36. These include
such core elements as a process for establishing a list
of terrorist groups; a definition of terrorist
activity; comprehensive new terrorism offences; new
tools, such as a preventative arrest and investigative
hearings procedures; and new measures to deal with
discrimination and hatred. There are also many other
new measures, including amendments to the Official
Secrets Act, the Canada Evidence Act, the Federal Court
Act, and others. However, today I intend to focus
my comments on the central elements of Bill C-36.
One of the fundamental questions posed this week is:
why do we need Bill C-36? Why do we need new tools to
fight terrorism? Yes, we have hijackings, sabotage,
and murder offences already in the Criminal Code. They
do remain available to us. But terrorism, ladies and
gentlemen, is a special threat to our way of life. When
dealing with groups that are willing to commit suicidal
acts of mass destruction against innocent civilians, it
is necessary to consider whether existing legislative
tools are adequate to the challenge.
As the Prime Minister stated in the House of Commons:
It has become clear that the scope of the threat that
terror poses to our way of life has no parallel. We,
in North America, have been extraordinarily fortunate
to live in peace, untouched by attack. That has
That is the end of the Prime Minister's quote.
The insidious nature of terrorism has dictated the need
for new measures. These measures must have a
preventative focus, because punishing terrorist crimes
after they occur is not enough. Ladies and gentlemen,
the way I very simply explain this is, if we don't
stop the terrorists getting on the plane, it's too
We must be able to disable organizations before they
are able to put hijackers on planes or threaten our
sense of security, as we have seen in recent days with
the scare of anthrax. We must have mechanisms in place
to go after terrorist organizations and put them out
So, ladies and gentlemen, how does Bill C-36
accomplish this? As I have said, the bill does not
avoid the tough questions. To do so would be
irresponsible. A first step in disabling and
dismantling terrorist groups is to identify them. Bill
C-36—and I'm referring you to proposed section 83.05—sets
up a distinct procedure to enable the
Governor in Council to create by regulation a list of
entities that have carried out, attempted,
participated in, or facilitated terrorist activities or
who are acting on behalf of such entities, at their
direction, or in association with them.
This list supports the application of other provisions
in the bill, including the new anti-terrorism offences,
the new offences relating to the financing of
terrorism, and provisions relating to the freezing,
seizure, and forfeiture of terrorist property. I am
the first to agree that this listing procedure must be
carefully designed, and we will hear more from my
colleague, the Solicitor General, in relation to this
process in just a few minutes.
As well, I would like to emphasize that being on the
list does not itself constitute a criminal offence.
Where individuals are charged with an offence, each of
the elements would still have to be proved beyond a
Another core element of the bill is the definition of
terrorist activity. Many of the other elements of the
proposed legislation are directly tied to the concept
of terrorist activity, including the establishment of
the list of terrorist groups and the new terrorism
offences. There are significant legal consequences
attached to terrorist activity, so it is important that
we set them out clearly and that people understand what
we mean by this term.
In fact, we've had a discussion in question period and
elsewhere as to whether the definition of terrorist
activity is sufficiently clear and precise. I look
forward to this committee's deliberations not only
today but as you hear from others as to whether this
definition is sufficiently focused or perhaps
sufficiently broad. Some might say it is too broad,
others not broad enough, and I think that discussion
needs to take place to ultimately assist us in making
sure we are striking at the heart of that activity that
endangers the lives of innocent Canadians, Americans,
and others around the world.
The definition in this bill is detailed. We have
directly confronted the challenge of defining the
target of this legal regime. As I've mentioned, I am
aware of concerns expressed by some, including some
around this table, and therefore I would urge the
committee to consider the definition carefully.
The definition first makes reference to offences that
are set out in the 12 international conventions
relevant to terrorism. This is one form of terrorist
activity. However, we also provide a general
definition. It covers acts that are committed “in
whole or in part for a political, religious or
ideological purpose, objective or cause”, that
are intended to intimidate the public or force
governments to act, and that are intended to cause
serious harm. Harm includes causing death or serious
bodily harm by the use of violence, endangering a
person's life, causing a serious risk to the health and
safety of the public, or causing substantial property
damage likely to result in harm to persons. Thus,
there is a clear connection to acts of violence,
especially threats to the Canadian public.
The intended harm can also include acts intended to
cause serious interference with or serious disruption
of an essential service, facility, or system. But here
it must be noted that we have added an important
safeguard. This definition of terrorist activity does
not apply to lawful advocacy, protest, dissent, or
stoppage of work that does not involve an activity that
is intended to cause other types of harm related to
the violence to persons I have already described.
The examples I have seen in the press of lawful
political dissent being stifled are answered by the
carefully designed criteria designed to exclude this
interpretation. But as I say, I am interested—as I
know Minister MacAulay is—in hearing if you think
it is possible to achieve our goals. We must always
keep that in mind, perhaps suggesting certain
refinements of this language. We are very interested
in hearing that, but always keep in mind the idea that
the objective must be achieved.
The bill goes on to establish comprehensive new
terrorism offences under the Criminal Code. There are
distinct offences of participating, facilitating,
instructing, and harbouring, as well as extensive
offences with respect to the financing of terrorist
groups. For example, with respect to participating, it
will be an offence to recruit an individual to receive
training with a terrorist group.
I would like to observe as well that various offences,
including those relating to facilitation and
instruction of terrorist activity, are specifically
defined as crimes, regardless of whether the terrorist
activity facilitated or instructed is eventually
carried out. This goes back to my earlier point about
the importance of this legislation having a
One of the elements of the bill that has received
considerable attention is that of preventative arrest.
Under this provision, if a police officer believes on
reasonable grounds that a serious terrorist offence is
about to take place and suspects, again on reasonable
grounds, that the arrest of a particular person will
prevent it, then that person can be arrested and
brought before a judge.
The object of bringing the person before the court is
for the court to consider whether restrictions should
be imposed on the person's movements and associations.
The court may impose such conditions or may release
the person without conditions. If the person refuses
to accept conditions, the court may commit him or her
to prison for up to 12 months.
Some have inappropriately and unfortunately likened
this power to those of the former War Measures Act. I
would like to assure the committee that the
preventative arrest measures we are proposing under
this bill would only be available under strictly
defined conditions and would be subject to numerous
procedural safeguards. Save for emergency
circumstances, the consent of the Attorney General
would be required as a prerequisite. The person must
be brought before a provincial court judge within 24
hours or as soon as possible, and a maximum further
period in detention of 48 hours is allowed following an
appearance before the judge. Under the War Measures
Act, by way of comparison, a person could be detained
for seven days prior to being brought before a judge
and detention could continue for 21 days.
I remind colleagues that there are examples in other
free and democratic societies, such as the United
Kingdom and in all likelihood the United States when
they pass their new legislation, where detention is
allowed for up to seven days.
Rather than being similar to provisions under the War
Measures Act, the provisions of this bill are more
accurately compared to existing provisions of the
Criminal Code relating to arrest without a warrant of a
person who is about to commit an offence and release
with a recognizance. We are extending and expanding
these concepts under this bill for the special purposes
of preventing terrorism. Again, I do remind members
that this bill targets acts of terrorism.
Another widely debated element of the bill has been
the provisions on investigative hearings. There are
concerns about the power to compel testimony in these
hearings. I wish to assure the committee that here
again we have included numerous limitations and
safeguards. While a person may be ordered to provide
evidence by the judge, privilege and other laws
relating to non-disclosure would continue to apply, as
would the right to counsel. Also, the evidence will
not be used against the person in future criminal
I think, colleagues, it is important to note that
there is an existing procedure under the Mutual Legal
Assistance in Criminal Matters Act that already allows
us to do this in Canada, namely to gather evidence for
other countries. The United States has investigative
grand juries that perform evidence-gathering functions.
The power we are proposing is not unknown under
the law of Canada or the United States.
extending Canadian law in this area for the special
purpose of terrorist investigations and, as I have
said, subject to appropriate safeguards and
Legislative changes would also be made under the bill
to allow us to better address discrimination and the
communication of hatred within Canada.
I want to emphasize the point made by the Prime
Minister in the House the other day. Discrimination
against persons of any religious or racial or ethnic
background will not be tolerated. Bill C-36 introduces
amendments to the Criminal Code that will allow the
courts to order the deletion of publicly available hate
propaganda from computer systems such as an Internet
The Canadian Human Rights Act will be amended to
clarify that communication of hate messages using new
technologies such as the Internet constitutes a
discriminatory practice, and the Criminal Code
amendments would create a new offence of mischief,
motivated by bias, prejudice or hate based on religion,
race, colour, national or ethnic origin committed
against a place of religious worship or associated
I would briefly like to highlight just a few other
issues. Some have suggested that the provisions of the
bill are not strong enough. It has been suggested that
we create an offence of membership in a terrorist
group. We are not proposing to do this.
As discussed during the debate on Bill C-24 dealing
with organized crime, it would be exceedingly difficult
to define membership. Also the charter risks of
criminalizing membership would be high. Moreover, we
question the necessity of a membership offence, given
the broad ambit of the participation offence we have
provided under this bill, similar to what we did in
Bill C-24 on organized crime.
I now want to address the general question of respect
for the Charter of Rights and Freedoms. I wish to
assure this committee and all Canadians that this bill
has been subject to a very thorough review on charter
grounds and that its measures have been designed so
that they will respect the values embodied under the
charter. These measures have been developed with a
concern for what has been referred to as human
security—a concept our colleague, Irwin Cotler, has
spoken eloquently on in other venues.
We have tailored specific measures to the objective of
addressing terrorism and improving national security.
We have taken into account international law and
the laws of other countries such as the United States
and the United Kingdom and we have adopted safeguards
within individual measures.
Finally, I would point out a provision at the end of
this bill concerning review of these measures. Section
145 requires that, three years after this bill receives
royal assent, a comprehensive review be undertaken of
its provisions and operation. A committee of the House
or of the other chamber, or possibly a special joint
committee, would have one year in which to complete
Only after an appropriate period of time—we think
three years—will we have some evidence of the
effectiveness of these major new laws. Unfortunately,
we cannot expect that terrorism will have disappeared
in three years, but I have no doubt that a thorough
review will be beneficial to all of us at that time.
However, I am aware of the suggestion that for some
clauses, a sunset clause may be more appropriate, so I
welcome the committee's review, not only of this
specific issue, but of the entire bill. Its
provisions are worthy of close scrutiny and of debate.
I also welcome consideration of possible refinements
to the provisions you find in this bill. We must
ensure that the bill is the most balanced and effective
At this point I will turn it over to my colleague, the
Solicitor General, Lawrence MacAulay, but I certainly
welcome your comments and questions at the end of our
Thank you. Merci beaucoup.
The Chair: Mr. MacAulay.
Hon. Lawrence MacAulay (Solicitor General of
Canada): Thank you, Mr. Chairman. It's a
pleasure to be here today with my colleague, the
Minister of Justice.
It's clear to everyone here and to all Canadians that
this is a very important piece of legislation. A great
deal of work has gone into preparing this bill, but a
great deal remains to be done. I know your workload is
already quite heavy and I want to stress how much we
appreciate the committee's quick review of the bill.
The bill is especially important to our law
enforcement and security agencies. They need this
bill, because we need to stop terrorists from getting
into Canada and we need to protect Canadians from
terrorists. As a nation, we must be prepared to ensure
our safety and security. We need more and more
powerful tools to identify, prosecute, convict, and
punish terrorists and those who support them. The
legislation will give us, law enforcement and security
agencies, and the courts, the ability to do so. And our
allies need this bill.
If we truly want to be leaders in the international
effort to deprive terrorists of sanctuary, to shut off
their funding, and to leave them nowhere to turn, we
need to have strong anti-terrorism laws. This is
especially true for our common border. The free flow
of people, goods, and services between Canada and the
United States is absolutely essential for both of us.
The border sees $1.3 billion a day in trade and 200
million border crossings each year. We must prevent
the Canada-U.S. border from being held hostage by the
terrorists, because if we don't, then the terrorists
The Government of Canada has already taken significant
measures to enhance our ability to fight terrorism and
will continue to take any and all necessary measures to
ensure this country remains safe and secure.
Last week the government announced a series of
measures to improve airport security, improve RCMP
capacity to fight terrorism—especially in joint
operations with our neighbours to the south—tighten up
our borders and immigration procedures, and freeze
assets of terrorists.
A full $280 million in new funding has been invested
already. Just last year we allocated $1.5 billion to
the RCMP, CSIS, CIC, and other public safety partners to
ensure they continue to have the tools they need to do
Through the special committee chaired by my colleague,
the Minister of Foreign Affairs, we continue our review
of laws, policies, and procedures. As the Prime
Minister has said, what needs to be changed will be
The whole point of our anti-terrorism plan, which
includes the legislation, is to deter and disable
terrorists. In this regard, our efforts and those of
the United States will be complementary.
Let me make a few remarks about three specific items
in the bill that call for my personal intervention.
The first is the issue of terrorist lists. It will be
up to the Solicitor General to recommend to the
Governor in Council that an entity be listed where
there are reasonable grounds to believe it is
engaged in terrorist activity. Let me be clear that
there is a review mechanism to ensure the integrity of
the listing process. I must review this list every two
years, and the list must be subject to Federal Court
review, thereby building safeguards against abuse.
To defeat terrorists, we also need to choke off their
money supply. This bill goes a long way towards
achieving that. We're going to designate certain
terrorist groups, make it easier to freeze their
assets, prosecute those who give them financial
support, and deny or remove charitable status from
those who provide resources to terrorist groups. We
will cut off financial support for terrorists by making
it a crime to collect or give money, either directly or
indirectly, in order to carry out terrorism.
You will note that we intend to deny or remove
charitable status from organizations that are making
resources available to terrorists, as was the intent in
my bill introduced earlier and now incorporated in Bill
Again, we have ensured that there are checks and
balances. The Solicitor General must sign the
certificate that is reviewable by the Federal Court,
and decisions to deregister must be published in the
As well, Mr. Chairman, to help choke off terrorist
fundraising, FINTRAC will be permitted to
disclose financial information to both the RCMP and
CSIS in respect of terrorist activities. It is crucial
that we collect as much information as we reasonably
can and that we make the best use of that information
by sharing it both at home and overseas.
It is the Solicitor General who must approve the
application by CSIS for this information, and again, it
is a process reviewed by an independent Federal Court
judge. There is no doubt some of the measures we
propose are extraordinary, and that's why we have
indicated significant checks and balances.
Canadians want these measures, but they also want
safeguards to ensure these measures are targeted to
terrorists and those who support them. Yes, we will
give police more tools to investigate and prevent
terrorist activity. Yes, we will make it easier to use
electronic surveillance against terrorist groups, take
steps to protect security information, and detain
terrorists. Yes, we will take measures against groups
that abuse our registered charity system to raise funds
for terrorists. Simply put, a nation must be prepared
to protect itself, to ensure its safety and security,
and that is exactly what we are doing.
The murderous attacks of September 11 show the world
has terrorists who have no regard for the consequences
for their victims or themselves. But if we are to
prevent terrorism to save lives, we need the tools in
this legislation. These methods are targeted directly
at terrorists. But it's also important that the
principle of judicial review and due process be
employed and respected. I believe this bill has found
that balance. It is consistent with the Charter of
Rights and Freedoms, and it responds to the situation
we face after September 11.
I hope all members will support this bill and provide
our legal system and police officers with the important
tools they need to carry out their duties.
Thank you very much, Mr. Chairman.
The Chair: Thank you very much, Mr. MacAulay.
Mr. Ivan Grose (Oshawa, Lib.): Mr. Chairman, on a
point of order, I find the name card for the leader of
Her Majesty's official opposition to be completely
inadequate. Inasmuch as we're on television, I think we
should be able to do better. I hope we can.
The Chair: That's duly noted, Mr. Grose.
As members know, we'll now go to each of the parties
for seven minutes in the first round.
Mr. Stockwell Day (Okanagan—Coquihalla, Canadian
Alliance): Thanks, Mr. Chairman.
Through you, to the ministers, clearly they all
recognize the world has changed since September 11, and
in profound ways. We were all reminded of that, those
of us who were able to be in Halifax yesterday, who
watched the departing ships and saw the families
obviously emotional at the departure of their loved
ones. Also, for me, and I think for many others, it
increases our resolve—and I think for you also, I
won't question that—to make sure, as our faithful
troops go to foreign shores or seas to defend our
freedoms, that we are doing all we can domestically to fight
against terrorism here.
That's why the Canadian Alliance, on September 18,
tabled a number of provisions to do this. I recognize,
for whatever reasons, that the government voted against
those, but now you're moving ahead. Some of those
things we'd suggested have been looked at and in fact
are entertained in the legislation.
My concern—and I preface my question with these
remarks—is that when a safety net is being constructed and
it's designed to catch those who would abuse the
freedoms we have, when you're weaving that net of
safety, you cannot leave giant holes in it. Otherwise,
the good material that's there will be all for naught
because there will be holes. When I think of the
government's own security and intelligence services
repeatedly warning of the need for more rigorous and
efficient immigration and refugee laws and the Criminal
Code provisions to back them up—the government's own
security people—then clearly I see our concerns are
That's why I refer to comments made Tuesday of this
week at an international conference on money laundering
in Montreal. Sergeant Philippe Lapierre
of the RCMP's national security investigation section in
the counterterrorism branch talked about
this, about how terrorists actually do their work
I'm looking to the legislation as we reflect on his
remarks. I'll quote him very briefly.
He wasn't referring to all people coming
here, and neither are we, but he said, for those who
want to abuse the system, “Some [of them] are sent here
with a mission and some people come on their own and
are recruited.” But he said they all have the same
modus operandi. They fall into this means of operating.
The first thing they do is
claim—fraudulently—refugee status. That allows them
to stay here. Then they apply for welfare and medical
benefits. Then often they commit criminal acts such as
fraud and petty theft—again, here's where our
provisions need to be very clear—and then they often
use legitimate business as a front to launder money for
their own activities. I'll leave for
background—although it's your own material—the names
of a number of individuals who have done this, not the
least of whom is, of course, Al-Marabh, a failed
refugee claimant who was not deported or detained. He
was facing criminal charges at the time in
Massachusetts, and there's a possibility he was
involved in these atrocities in New York. I can only
imagine what may have happened or may not have happened
had he been detained.
Quite rightly, as we look at the provisions in the
act—rightly but unfortunately—there are some
necessary but unfortunate restrictions on the liberties
of law-abiding citizens and law-abiding claimants.
It seems to me there is a lack of balance,
a real focus on the taking away of liberties,
unfortunately, of those who are law abiding and law
following. There seems to be a reluctance, which I
don't understand, to detain and deport those who are
here without proper qualifications or possibly here on
a questionable basis, and that's my question. We're
looking at the act. It's very detailed; there are many
Can either minister, Mr. Chairman, direct us
specifically to the new clauses, the new provisions,
that say the authorities have here what they've never
had before—the ability through Criminal Code
provisions or others to detain and if necessary deport
those who are posing a danger to us? Could we identify
that? And could either minister also reflect again on
why there seems to be a focus—there needs to be
some—on an increased police presence here, on the
internal border, but less focus on changes for people
coming in on the exterior or the perimeter border?
So first, the very specific provisions, can you direct
us to those? The minister talked about tools
needed to identify and detain. Let's start with these
provisions here, under necessary Criminal Code backup,
that will be required to identify, detain, and deport
where necessary. Can you direct us to the specific
Mr. Lawrence MacAulay: Thank you very much.
There are clauses not in this bill that we're aware
of, like pre-arrival information, that will be
available. That's in the Senate Bill S-23. It will
require pre-arrival information for people who are
coming to this country. As you are aware, we've put
scanners at the airport that are hooked to the
databanks of the RCMP and the FBI. If the fingerprints
or palm prints of anybody who has committed a criminal
offence are in the databanks of the RCMP or the FBI, it
will immediately come back on these scanners to our
airport entry points. These are some of the provisions
that have been put in place in the last month in order
to upgrade our systems.
Mr. Stockwell Day: Mr. Chairman, the minister is
referring to, and I commend—
Mr. Lawrence MacAulay: That is not this bill, but
you asked what we were doing as the government as far
as putting provisions in place, and this is part of the
Other than that, of course, we have provided, as you
are fully aware, $280 million to a number of different
agencies. We're providing more funding for the RCMP,
so they will be able to—
Mr. Stockwell Day: Mr. Chairman, with respect, I
do appreciate these provisions, and there are added
resources. We've asked for those, and I recognize
that. The use of technology in this day and age is
essential, and I commend the minister for wanting to be
aggressive on those areas, but when the information
comes up on the scanner to the authorities through
fingerprinting or whatever method is used that we have
a questionable individual here, where are the exact
provisions that give the added power now and the backup
of the Criminal Code for that person to be detained,
for as long as it takes—two weeks, three weeks—rather
than letting them walk around and if necessary
The Senate has indicated that those provisions may not
be in what is sitting at the Senate. I'm asking right
here on this, is there anything here?
Ms. Anne McLellan: First of all, Mr. Day, keep in
mind that when we talk about deportation, for example,
it is dealt with under our law in separate
legislation. It's an administrative proceeding under
the Immigration Act of Canada. It is not part of the
criminal law, nor do you find deportation referred to
in this legislation. It was never our intention to
include the issue of deportation in legislation that is
targeted specifically at terrorists.
Clearly, if one is in this country, we
have the vehicle of preventative arrest now in this
legislation, for example. Preventative arrest permits
fingerprinting. It permits the taking of a photograph.
It permits, under judicial authorization, the holding
or detention of someone for up to 72 hours, if a judge
thinks that's appropriate. During that time other
proceedings could be commenced against this person,
including any proceeding under the Immigration Act,
Your question is obviously a reasonable one. It's one
we are all concerned with, in terms of making sure we
don't let those who are terrorists or who would support
terrorists into our country. If they are here, we have
the tools to deal with them before they cause harm to
Canadians or our allies around the world.
We believe this package provides preventative tools.
It supplements, in very important ways, existing
Criminal Code provisions and procedures such as
deportation in the Immigration Act.
The Chair: Thank you very much.
We will go, for seven minutes, to Mr. Bellehumeur.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you
very much. My questions are for the Minister of Justice.
Rest assured that I and my colleagues of the Bloc Québécois
will be examining this bill very attentively, as we regularly do
with all new legislation. We will be looking at this with the
great seriousness the situation requires. I would urge government
members to do the same considering the very particular nature of
Madam Minister, in the course of this past week, you have
been invariably questioned on two very precise issues. The first
is that of the annual review of the act. Considering the
extraordinary powers provided in the bill and the exceptional
nature of this legislation which, I would think, calls for an
equally exceptional treatment, I believe the provisions of the act
should be reviewed each year and not simply in three years' time.
If the three-year review is intended to ensure that the provisions
are indeed being enforced, and if we do in fact have to wait three
years before knowing whether they are being properly enforced,
there is a problem. We would then question the rationale behind the
act. If there is some urgency in having such provisions enacted, it
is because this new legislation will be quickly put into effect and
we should therefore be able to see quickly if it is being abused or
not. A yearly review would then, I think, be reasonable.
We believe that the other fundamental point concerns a time
limit or sunset clause, for which we claim no credit since the
United States have included such a provision in their own
legislation. Madam Minister, you twice mentioned the United States
in your presentation. You cited two examples of what they have
done. One example that you might follow is that of the United
States' subjecting their own legislation to a three-year limit,
which can be renewed for a further two years but with an overall
maximum of five years. If terrorism has not ended within five
years, then they will simply start afresh with a new act.
France, another of Canada's allies, has just enacted
legislation concerning day-to-day security. It goes beyond what the
United States has done since it incorporates a sunset clause with
a December 31, 2003 deadline. I might add that the provisions
enacted in France are not as far-reaching and do not constitute
special legislation to the same degree as the bill currently under
This is to say that I do intend to review this very seriously,
Madam Minister, but I would also ask you to answer me with a
corresponding seriousness. Why are you categorically refusing or in
any case why are you allowing doubt to linger in that regard? I
would like that doubt to be dispelled. And I would like you to give
precise instructions in that regard because my experience with this
committee goes back to 1993. If the political will is not there, we
can share information, we can hear witnesses who come and tell us
the opposite of what you are saying today, but if you have made up
your mind on this, your thinking will not change in this matter.
I could mention the example of the Young Offenders Act. None
of the witnesses from Quebec was in favor of that legislation but
you enacted it nonetheless.
Seriously, Madam Minister, why will you not agree to provide
for a yearly review? Why do some of the clauses in the act, which
provide special emergency powers, not include a sunset clause? I'm
not speaking here of international conventions, for the clauses
concerning them can remain as they are in the bill. Canada should
have ratified them long ago, but why is there no time limit on
these emergency powers? I can tell you that if such a clause were
indeed included in the bill, many Canadians would rest easier
because they are deeply concerned about the enforcement of the
measures that are being put forward.
Ms. Anne McLellan: I have made it very plain that
we in the government considered this issue very
carefully. Our best advice was to go with the mechanism
of a review, by either the House or a joint committee of
the House and the Senate, at the end of three years.
We think three years is a reasonable period of time to
assess the ongoing threat of terrorism. I hope there's
no one naive around this table who thinks terrorism
will be eradicated within three years. It will provide
us with an appropriate period of time in which to
review the utility, effectiveness, and application of
I have also made the point, Mr. Bellehumeur, that
this is one of the issues on which I'm most interested
in the committee's input. I hope you're not suggesting
that the discussion in the United States around whether
to sunset at all or do something less was an easy one.
In fact, the Senate and the House of Representatives
disagreed on that point. The Senate wanted a sunset
clause and the House of Representatives did not. They
passed two separate pieces of legislation. As you are
aware, in the U.S. they now have to conference to try
to conciliate them.
As far as we know at this point, there will be a
compromise reached and there will be a sunset provision
of some years; I understand it might be four years at
this point. It only applies, interestingly, to those
provisions dealing with electronic surveillance.
So I don't want anyone to be under the illusion that
these are easy discussions anywhere. They're
important discussions to have about how we best make
sure that certain of these measures are not abused and
that Canadians' rights and freedoms are not unduly
restrained or limited through their application.
I take that point. That's why I'm most interested in
you considering whether review is the best mechanism.
You don't think so, Mr. Bellehumeur. You're
going to hear from a lot of people who understand the
parliamentary process and other processes, and I would
like your advice. Is the review for some period of
time the best approach? Is the best approach
sunsetting? If so, for how long and of what
provisions? As you yourself agree, Mr.
Bellehumeur, we are not going to sunset our compliance
with UN conventions.
Mr. Michel Bellehumeur: Madam Minister, if you still wonder
what our position is on the issue of the yearly review and the
sunset clause, there must be a problem since we have been very
clear on that point. I hope that the advice that you have received
is different from that which was articulated Monday by your deputy
ministers. On the issue of why there was no sunset clause, we were
simply told that this type of provision is not traditional in
Canada. Well, I do not believe that special legislation such as
this one is traditional in Canada and yet that is precisely the
type of measure that is being enacted. Exceptional circumstances
require exceptional measures and that is the way we should be going
Let me give you one concrete example, and that will be my
final comment. Mr. Chairman, this won't take long. There are many
questions I would like to raise, but let me give one practical
Take the definition of “terrorist activity”. Say there's a
labor union seeking, as a political objective, to intimidate a
government in order to get it to do something specific: say sign an
agreement or address a grievance. Say also this illegal strike,
this illegal pressure tactic results in serious interference or the
paralysis of essential services.
To your way of thinking, if we apply literally the definition
you have included in the bill, can that labor union be considered
a terrorist organization? Is it committing terrorist acts?
Ms. Anne McLellan: No, and I've made that plain.
Mr. Michel Bellehumeur: How, then, can we avoid having that
definition applied to it?
The Chair: Madam Minister.
Ms. Anne McLellan: No. I said, no. I have made
that plain. I think one needs to understand the
motivation that is at work here. This legislation is
targeted at terrorist activity, and we have defined
terrorist activity. That speaks to organizations
or individuals who would carry out their goals through
the use of terror.
If you are suggesting that some judgment will
have to be applied by law enforcement authorities in
relation to certain decisions at the edges, I would
agree with that, although I don't think your example is
one. Your example, it's clear to me, is not
intended to be caught by this definition, and it is not
Keep in mind, ladies and gentlemen, that law
enforcement agencies apply that judgment every day in
this country as to whether they charge and what they
charge. We must be vigilant, I agree, but we must also
understand the context in which we are operating.
As I have said, if this committee can offer
refinements that still achieve our purpose, so we can
strike at the heart of terrorist activity, and if it is
possible to provide language of refinement, my
colleagues and I in the Government of Canada would be
delighted to consider that. We too want to make sure
we do not unwittingly or unintentionally sweep up
legitimate lawful protests, or even protests that may
involve acts of violence, that should be dealt with
under the existing Criminal Code provisions.
The Chair: Thank you very much, Madam Minister.
You'll find the committee is also eager to participate
in that exercise.
Mr. Blaikie, seven minutes.
Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank
you, Mr. Chairman.
I agree with the Minister of Justice that this is not
an easy discussion; therefore we shouldn't too easily
accept the whole notion of the adequacy of a
parliamentary review. I've certainly been here long
enough to see legislation enacted, and I have been assured
many times that a three-year parliamentary review and a
five-year parliamentary review.... I've seen
committees meet and conduct such reviews, make
unanimous recommendations, and have them ignored forever
by the government. I've seen other reviews that were
to take place be delayed for many months or years. So
it's hard for me to accept the notion that a
parliamentary review is sufficient.
If you want to deal with one of the problems you have,
as a government, with this legislation, that's a
question of trust. Unfortunately, you're dealing with
this legislation in a climate of mistrust. We've had
incidents in the last few years where legitimate
political dissent has—at least in the view of
some—not been treated with the respect it was
due. Whether you like it or not, you're dealing with
this in a climate of mistrust.
It seems to me that the sunsetting alternative is one
of the ways of creating trust. It's one of the ways of
saying, “Look, we really mean it. We're not just
trying to fob off a parliamentary review on you. We
really want to demonstrate our sincerity in this.”
I think the minister's already open to it, and if I
read the Prime Minister correctly, he is open to it.
Certainly there seems to be openness on the part of all
parties on the committee here to consider what aspects
of the bill might be sunsetted. I agree with you, it
can't all be sunsetted. We don't want to sunset our
compliance with UN conventions. So I would urge the
minister to consider the wisdom of sunsetting, not just
as being sort of valuable in itself, but also dealing
with that question of trust.
Second is the whole question—and it's related—of
dealing with legitimate dissent. Perhaps this is not
unlike the question Mr. Bellehumeur asked you, but I'm
concerned, as are others, that when you talk about the
bill, you talk about
advocacy, protests, dissent, or work stoppages.
I think many people would like to see more clarity with
respect to showing that this bill does
not intend to deal with things
that already can be dealt with by existing provisions
in the Criminal Code. If violence attends not just
lawful activity.... Let's say you have an illegal
strike, for instance, or a wildcat strike, and
something happens, or a blockade of a road protesting
logging: that could be interpreted in some
circumstances as a threat to the public or a disruption
of an essential service.
I think what people need to know is that this kind of
activity is in no way going to come under the ambit of
this legislation. It would help if you could explain
why or whether that is so, or what maybe we could do to
make that absolutely clear, because that's one of the
real anxieties out there.
Ms. Anne McLellan: As I think I've said in
response to Monsieur Bellehumeur, it is an issue that
we addressed and took very seriously, I can assure you,
in the committee on national security. We
discussed the definition and how we would define
terrorist activity at great length, because we have the
same concerns. That is why the definition appears as
it does. It is cumulative, so that one must meet these
three various levels of requirement, if you like.
But I take your point that in spite of that you can
probably come up with examples where, if you didn't
understand the intent of this provision, you might on a
superficial reading or application think these matters
would be covered. But as I say, what one is dealing
with here is those who would use terror. Blocking a
bridge is not a terrorist activity. It is not
motivated by terror. It is not the use of terror. An
illegal strike is not. When one goes to the streets,
even in an illegal work stoppage, it is not motivated
by terror. While it may be disruptive for some period
of time and may lead to charges, both criminal and
civil, under provincial and perhaps federal law, it is
not what this definition strikes at.
I think we always must return to the focus of terror.
That is what we're dealing with. It is the use of
terror to achieve one's end, whether it is the
intimidation of the public or some part thereof, or to
undermine or call into question or threaten the
national security or public safety. I think those are
important elements. Even an illegal strike does not
call into question national security or public safety.
Mr. Bill Blaikie: Well, Mr. Chairman, in what
time I have left I would certainly urge the minister
and her officials to be open to ways that we might make
that more absolutely clear in the legislation—
Ms. Anne McLellan: Oh, absolutely, I agree. I've
expressed to you as clearly, I think, as I can—
Mr. Bill Blaikie: The bill is as clear as you've
Ms. Anne McLellan: —our intention. But if in
fact there is language that you can think of that will
still achieve our objective, please, we would like to
see it, because we are open to trying to strike at the
heart of terrorist activity and those who would use
terror in such a way as to threaten our country and our
public safety. If there is better language to do this
without narrowing the definition so that we are not
able to act effectively to ensure safety and security,
we are open to consider it.
The Chair: Thank you, Mr. Blaikie and Madam
Mr. Peter MacKay (Pictou—Antigonish—Guysborough,
PC/DR): Thank you, Mr. Chair, and I want to thank both
ministers and their officials for their attendance.
We are happy to have you here.
I have a couple of questions. First, with respect to
the necessity for these new tools, I don't doubt for a
minute that this legislation is required. I have
concerns, as do a number of people, about how, in the
practical sense, the pragmatic application of these new
sections will work to our benefit.
As a former small-town prosecutor, if I had
the choice to charge somebody for an offence,
particularly one that resulted in a murder, for
example, I would question whether it would be
beneficial to proceed under these new sections. It
would fall upon the prosecutor to prove the requisite
mental element relating to the ideological, religious,
or political intent behind the commission of the
offence. I suspect that in the practical sense this
motivation, this new mens rea element, would be
very difficult to prove in some instances.
The same can be said of less grievous offences:
bombing, administering a noxious substance, or
committing any form of mischief. This is a new
requirement, one where the crown is obviously going to
bear the burden of proof beyond a reasonable doubt.
That is my first question.
With respect to two of the more controversial elements
you have identified—preventative arrests and
investigative hearings—are they related? Do
preventative arrests lead to this exercise of
investigative hearings? There is a question in my mind
as to these restrictions that are being put in place
under the preventative arrest sections.
Perhaps more importantly, with respect to the
investigative hearing sections—and I've read through
them a couple of times—you've said quite rightly that
a person retains their charter rights. They retain
their right to disclosure and their right to counsel.
They do not, I submit to you, retain the right to
silence. This individual taken into custody in an
investigative hearing is compelled to give evidence.
That evidence can't be used against them. According to
my reading of the legislation, if the person comes in
and gives a confession or a complete inculpatory
statement, it can't be used against them. If they come
in and say that they did bomb those buildings, you
cannot subsequently turn around and use that statement
against the person in a trial.
They may be compelled to bring physical evidence with
them to the investigative hearing. Can that physical
evidence then, if collected at the hearing, be used in
a trial? It states that judges can't use it other than
for the purposes of contradicting them or for a perjury
charge that might subsequently be laid. There's
question in my mind as to how these investigative
hearings will work. If you could, you might walk us
through that process of investigative hearings.
You've mentioned the grand jury system in the United
States. This takes place before a judge. I would ask
both you and the Solicitor General, given the element
of backlog we currently have in the courts, will there
be new judges appointed as a result of this new process
that's being put in place?
Finally, on this tack of funding, the Solicitor
General has referred in his remarks to the mandate for
tracking terrorism and the necessity of using new means
of tracking terrorism. Necessity brought about by this
legislation will also require new equipment,
satellite-tracking systems, overtime for officers, and
more officers trained in this sophisticated type of
communication. Sophisticated equipment requires a
great deal of training to use.
We have heard a lot of numbers being thrown around by
the Solicitor General about new funding, but what do we
know about CSIS? They will be tasked with much of the
enforcement here and with much of the legwork, if you
will, for tracking terrorism, yet their budgets have
been cut significantly: $74 million since this
government came to power. Over 700 people
have been let go out of that department alone, so
there's a bit of a void. You can put this legislation
forward, but there will have to be some resources that
follow it up.
Finally, for the Minister of Justice, I have a
question with respect to the extradition of an
individual from this Al-Qaeda organization or, heaven
forbid, of someone like Mr. bin Laden himself. If such
a person were to make his way into Canada illegally and
come to the attention of our law enforcement or
security forces and he were taken into custody, he
could not currently be extradited to a jurisdiction
like the United States where the death penalty applies
unless the minister were prepared to waive her
There has been a recent case before the
Supreme Court of Canada the minister is aware of, the
Burns and Rafay case. The minister would be in a
position where she would have to waive jurisdiction
under this precedent in order for an individual like
Mr. bin Laden to be extradited to the United States or
to any other country where they might face the death
The Chair: Thank you very much, Mr. MacKay.
I just want to make the point so we recognize this—
Ms. Anne McLellan: Yes, there are lots of points
here, and my colleague, the Solicitor General, will
respond to the resource issues and the technology
requirements for law enforcement and intelligence
Let me start with the extradition question. I want to
be absolutely clear about this for people so they
understand what the Supreme Court did say in the case
of Burns and Rafay. The Supreme Court said that the
Attorney General of Canada retains a discretion to
extradite without assurances in exceptional
circumstances. When we talk about “without
assurances”, this is the assurance that the death
penalty will not be sought. They acknowledged the fact
that the Attorney General has that discretion and that
he or she should exercise the discretion to extradite
without assurances only in exceptional circumstances.
I or any future Attorney General makes those decisions
on a case-by-case basis. I would determine the facts
and the situation of an individual whose extradition
was sought and on that factual basis I would
determine whether there were exceptional circumstances
I thought justified that person's extradition without
assurances. One will do that in every case. It has to
be a case-by-case determination.
I don't want people to misunderstand. The court
gave that discretion to the Attorney General to
exercise in exceptional situations, and that was an
integral part of the case of Burns and Rafay.
With respect to investigative hearings and preventive
arrest, as I mentioned in my comments very briefly, the
investigative hearing is not new to our law. It is new
in the context of the Criminal Code, but it is not new
to our law. The investigative hearing exists in our
competition legislation, and in fact, as I've already
said, we carry out investigative hearings for other
countries under our mutual legal assistance agreement.
What we are doing is extending the investigative
hearing process to the specific terrorism
issues—focused on terrorism—within the context of our
The investigative hearing involves a judge and in
fact, as my official, Mr. Mosley, has pointed out to
me, also requires the consent of the Attorney General
of Canada as an additional safeguard. But it involves
a judge, and yes, the person is compelled to testify.
Mr. MacKay, I would remind you that in our law as I
understand it—but Mr. Mosley could speak more
eloquently about this than I can—we do not in fact
have rules or constitutional prohibitions against
compellability. We have a constitutional
prohibition in the charter against self-incrimination,
but there's a distinct difference between this country
and the U.S.A. You don't get to plead the fifth here,
but you do get to be protected against
self-incrimination, and that's a key difference.
The investigative hearing is something we believe can
be an important tool in terms of prevention, that is,
in the early breaking up and detecting of possible
terrorist activities and threats so the terrorists
don't get on the plane. If they're on the plane, it's
Do you want me to talk about preventive arrests?
The Chair: Yes, if you could do it in a very
quick answer, because we have a long list and this has
been way over seven minutes.
Ms. Anne McLellan: Yes. I talked about it a
little in my comments. Preventative arrest, again as
I've said, involves significant safeguards. It is a
matter that comes before a judge. It again requires my
consent to proceed except in emergency circumstances.
Within 24 hours you're before a judge.
You're either released, with or without conditions,
within 72 hours, or you're charged.
Will this take additional judicial resources? We
don't know at this point how many cases, how many
investigations, will be based on this new legislation.
However, we made provision in the legislation to
increase the size of the Federal Court if the case can
be made that in fact the workload is such that
additional judges are required. We're very sensitive
to that issue.
The Chair: Thank you very much.
Mr. DeVillers, you have seven minutes.
Mr. Paul DeVillers (Simcoe North, Lib.): Thank
you, Mr. Chair.
Thank you, both ministers, for your attendance with
your officials. It's not in my interest to
cross-examine the ministers, and I'm not very good at
buttering them up, so maybe I'd spend some time
with the officials, if I could.
Ms. Anne McLellan: Okay, Lawrence and I will go
Mr. Paul DeVillers: While in the political theatre
and in the media we're hearing that since the events
of September 11, nothing was being done, obviously
the officials have been very busy, and I'd like to
commend them for the work they've been able
to produce in that length of time.
I'd also like to start developing a legislative record
for potential charter challenges, which I think we're
likely going to see. So I'll address my question
specifically to that aspect, and around the areas I can
highlight—electronic surveillance, the pre-arrest and
investigative hearings in particular—what work was
done in reviewing those provisions through the light of
the charter rights?
Ms. Anne McLellan: I am going to ask Mr. Mosley or
Mr. Piragoff to deal with that in detail, but let me
assure you that, as I have said elsewhere publicly,
this legislation was subjected to the most rigorous
charter analysis. In fact, we took our charter team,
our unit, and in a way that we're doing more and more
now but certainly in this case, integrated them with
our policy people, with our drafters, so that there was
an ongoing assessment and dialogue between our charter
people in the department, our policy people, and our
drafters so that each provision was carefully analyzed.
In fact, the charter people sent back to my policy
people any number of useful suggestions that you see
incorporated here in terms of things like safeguards in
and around the use of investigative hearings and
As you're probably aware, this comes down to a section
1 analysis in terms of making the case that, if we
assume there is a limit, the limit on the exercise of
right is a reasonable one and demonstrably
justified in a free and democratic society. That
is our burden.
Mr. Paul DeVillers: Yes.
Ms. Anne McLellan: I have made and will continue
to make the point that, as a general principle, to be
and maintain a free and democratic society, one of the
fundamental underpinnings of that free and democratic
society is the fact that human beings feel secure.
Human security is integral to a free and democratic
society. Without it, we are hard pressed to
think about how one could sustain something we would
want to call a free and democratic society.
So this is where I start from. Security is not in
violation of someone's rights; security is absolutely
fundamental to everything the charter seeks to
protect and everything we value as Canadians. So
one shouldn't see these things in opposition. There is
a balance required, but they're not oppositional. My
colleague Irwin Cotler can speak about this much more
eloquently than I can, but I see that human security as
so integral, and the maintenance of that, the
preservation and enhancement of human security, as
integral to a free and democratic society.
Rick or Don, you might have some specific issues
you want to put in the mix in relation to one or
another of these items.
Mr. Richard G. Mosley (Assistant Deputy Minister,
Criminal Law Policy
Section, Department of Justice): I'd be pleased
to, Minister, and thank you for the
First, this bill does not address electronic
surveillance to any great extent. It does carry
forward three measures that were first put into the
criminal law code in 1997. They are extended in Bill
C-24, which remains before the Senate, to the new
criminal organization offences in that bill, and they
are applied in this bill to the new terrorism offences.
We'll have more opportunity to explain that at a later
hearing of the committee.
But I want to stress that in working on the new
proposals that are in this bill, specifically
preventative arrests and investigative hearing, as well
as all the proposals, the human rights council and
the Department of Justice were integrated in the
process from the beginning, so that in developing the
policy options for ministers to consider and in
drafting the bill, we were constantly considering what
the charter implications would be for any of these
proposals, and adjustments were made to reflect the
need to respect the rights of the individual.
At the same time, of course, we applied an
effectiveness criterion. If the measure was to be
incorporated, it had to be effective; it had to
contribute to the objective of this package of
But as a note with reference to preventive arrest, for
example, there are numerous safeguards: the consent of
the Attorney General to initiate the process; judicial
supervision of the recognizance process; a “reasonable
grounds to believe” requirement that terrorist
activity will be carried out; the requirement that an
arrest without warrant can only be made where it is
necessary to prevent the commission of terrorist
activity; the requirement to bring the individual
before a provincial court judge within 24 hours; the
limitation of further detention up to 48 hours beyond
that point; and the ability of the person to apply to
the court to vary the recognizance.
Under the investigative hearing, there are also
numerous safeguards. Again, there is the consent of
the Attorney General. The standard where an offence
has been committed differs from the standard where
there are reasonable grounds to believe it will be
committed. There must also be reasonable grounds to
believe the person sought to be compelled to testify
has direct and material information that relates to the
offence, or reveals the whereabouts of the person who
the peace officer suspects may commit that offence.
Before this procedure is invoked, reasonable attempts
must have been made to obtain the information from that
person. The judge may, in the course of the hearing,
impose terms and conditions to protect the interests of
the witness or third parties. A person may refuse to
answer a question or produce anything that is protected
by existing privilege under Canadian law—that's not
the point the minister addressed about the lack of
something comparable to the U.S. fifth amendment.
The key protection in the context of this
investigative hearing is against the use or derivative
use of the evidence in further proceedings. Contrary
to the suggestion that I think may have been left by
one of the questions from Mr. MacKay, an arrest will
only be authorized where the
court has reason to believe the person is attempting to
evade service of process to come before the court to
provide the evidence. So this is not a situation where
the officer will go out and arrest somebody and drag
them before the court.
The Chair: Thank you very much, Mr.
Now I'll turn to Mr. Toews, for three minutes. That
includes both the question and the answer.
Mr. Vic Toews (Provencher, Canadian Alliance):
Thank you—starting now.
I want to comment on the explanation given by the
minister in respect to the Burns and Rafay
decision. She leaves the impression that, with respect
to these exceptional circumstances, her determination
will be final. In fact, she knows it's the Supreme
Court of Canada that will then review her
So she has no discretion. All the discretion rests
with the Supreme Court of Canada in making the final
determination as to whether something is an exceptional
circumstance. I think that needs to be clarified for
the record. She continues to say that, and it's simply
Secondly, in respect of the provisions that my leader,
Mr. Day, referred to, it was indicated that there are
other provisions that deal with the deportation issues.
The bill, I believe it was Bill S-23, was referred to.
What I would like is an undertaking from the minister.
Perhaps the minister or the Solicitor General will
undertake that his officials will provide those
provisions to me at their earliest possible
convenience, so that I can review those particular
provisions. If there are any provisions in this bill,
or in any other bill, I would like to see them, so that
we know exactly what are the provisions they're talking
about, because I find that things are always going
around in a circle. Whenever we go to a bill, they
say it's in another bill. I want to see the
bill, and I want that undertaking from the minister. I
assume I have that undertaking from the minister.
Lastly, in the course of these very brief three
minutes, I want to say that I'm very concerned about
this definition of “terrorist activity”.
Specifically, I refer to the provision on page 13,
which is an integral part of this definition. It
(b) an act or omission, in or outside Canada,
(A) in whole or in part for a political, religious or
ideological purpose, objective or cause,
I have grave concerns, not only from a prosecutorial
point of view, because what does a prosecutor do? Does
he bring evidence to show that a particular religious
group believes it's all right to bomb, or this is
the objective the person had? Wouldn't one think
it is sufficient that you plant a bomb for the purposes
of causing terror, no matter whether it's motivated by
religious, philosophical, or other purposes?
I'm very concerned about our government, and our
agencies, and our courts, looking at the personal views
of individuals, religious views, because I don't want
our courts to go on religious witch hunts or
ideological witch hunts.
I don't care what a person believes. That's the
person's business. What I am concerned about is how he
carries out those beliefs. If they plant bombs for the
purpose of destabilizing our democratic country, that's
I need to be advised as to why we have that clause as
The Chair: Thank you, Mr. Toews.
Ms. Anne McLellan: On the extradition point,
obviously, as with most decisions of ministers or other
government agencies and officials, it can be subject to
review. In this case one presumes it is subject to
review ultimately by the Supreme Court, because if I
were to exercise my discretion to extradite without
assurances the individual would not be facing the death
penalty in all likelihood, that person would
exercise their legal rights to the full extent of the
I hope you're not suggesting we would deny that person
the right to seek this review. But I don't think I
need to remind you, Mr. Toews, that in fact the Supreme
Court would not, I should think, substitute their
decision for mine. They would simply determine whether
I had acted reasonably in the exercise of my
discretion, and if they concluded that I had, then this
would be the decision that stood. They're not going to
be in the business of substituting their decision for
mine, as long as they believe I exercised my
judgment on the basis of reasonableness.
I believe you had other questions in relation to Bill S-23.
Mr. Vic Toews: I just want the answer—
The Chair: Mr. Toews, you're well over three
Mr. Lawrence MacAulay: I can assure you, Mr.
Toews, in regard to Bill S-23, that in terms of the
advance passenger information, we will get that
information for you through Immigration and provide it
Mr. Vic Toews: Thank you.
Mr. Lawrence MacAulay: Through Revenue, I mean.
The Chair: Thank you very much.
Mr. Myers, three minutes.
Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank
you, Mr. Chairman.
First of all, I wanted to thank both the Minister of Justice
as well as the Solicitor General for being
I thought, Madam Minister, that you set the right
tone when you said you would be willing—both of
you actually said this—to reappear at this committee,
because I think what it does is underscore the gravity
of this situation we're in. I think it underscores
your commitment to bring forward solid and good
legislation that goes in large measure to counter the
exact circumstances we find ourselves in as a result of
the terrorist activities.
When I take a look at some of the tough measures, as
you've referred to them, I think of the preventative
arrest measures in proposed section 83.3 and the
investigative hearings in proposed section 83.28, and, in some
respects, I think it's fair to say, and correct me if
I'm wrong, these are new measures actually to
Canadian law, in some respect, and they are quite
extraordinary. But I think given the circumstances that
we find ourself in, they are in fact needed and I think
they're required, and I think they underscore what
Canadians want to have at this point in time. So I
congratulate you for bringing in this legislation. I
think it's very important.
I wanted, though, to ask you the following question.
Given some criticism that the government has taken over
the last little while in terms of getting the
legislation to this point in time, i.e. today at the
justice committee, can you give me a sense of what went
into the planning and the drafting of this legislation
to bring it to this point? Can you give me a sense as
well of the kind of thinking that went in to ensuring
that it will stand charter challenges, which I'm sure
was a major consideration? And can you give me a sense
of where you think this should go and how quickly?
I'd be very interested, Madam Minister, in knowing that
because I think Canadians are interested. Certainly,
people I talk to are. I think it's fair to say
they think we want to be very clear in what
we do, we want to be very thorough in how we've drafted
and looked at the legislation, we want to indicate
precisely where we're going to go, but I think they
want us, too, to act expeditiously. So I'd really like
to hear from you a flavour, if you will, a sense, of
how this all came about and where you think it should
go from here.
Ms. Anne McLellan: It's going to take a lot longer
than three minutes, but I think—
The Chair: You only have one minute.
Ms. Anne McLellan: Some of that I think Mr.
Mosley responded to in response to a question from Mr.
DeVillers in terms of the process undertaken in the
charter analysis. In fact, as I have stated publicly,
some parts of this legislation were already well along,
not only in the planning stage but in the drafting.
For example, there is our implementation of the UN
convention on terrorist bombing. We had largely drafted
those provisions and were planning to bring
them forward in the fall for parliamentary
consideration before the horrible events of September
11. We had every intention of moving this fall on the
suppression of terrorist financing.
So policy work was
well along in relation to that and is related, to some
extent, to the work done by Minister MacAulay and
others on Bill C-16, the charitable registrations law.
So some work began before.
Also, we've been talking for many years and
in many governments in this country about reform of
the Official Secrets Act and possible changes to the
Canada Evidence Act. Indeed, September 11 I
think provided a sense of urgency
for some of the work that was already afoot, but
it also provided the focus for us to take important steps,
such as for the first time defining “terrorist
activity” and “terrorist entity”, and for the first
time putting in place a process that permits us to
designate and create lists of terrorist groups or
So in fact, after September 11, not only was there a
sense of urgency, but it spoke to the fact that we
knew, as of that day, that there were people who would
do things I think we did not believe they were capable
of doing before September 11. And that speaks to why
you see this legislation in the form it is, with some
of the provisions that are here in terms of our desire
to prevent terrorist organizations from recruiting,
from getting a foothold, from financing. As I say, I
think the simplest way for me to understand what we're
trying to do on the preventative side here is that when
they're on the planes it's too late.
The Chair: Thank you very much, Madam Minister.
Monsieur Bellehumeur, three minutes, please.
Mr. Michel Bellehumeur: Madam Minister, when I gave the
example of the labor union a little earlier on, your answer focused
entirely on terror. That is what is on your mind today but that is
not necessarily what stems from the definition included in the
Personally, I'm not sure that six months after the enactment
of this bill, the police, or whoever is called upon to enforce this
legislation in the heat of the moment, will have the same
understanding of its provisions as you have and will be focusing,
as you are currently doing, on acts of terror since the distinction
is not that clearly made.
I understand that you are open to amendment suggestions. We
will therefore be suggesting a number of amendments.
Earlier on, I mentioned that I intend to approach the issue
with the utmost seriousness. Do not construe this as a criticism
because I know that at question period it sometimes happens that a
person will answer with a bit of a political slant. Yesterday,
however, Pierrette Venne, member for Saint-Bruno—Saint-Hubert,
questioned you on the new powers you would have under the Access to
Information Act. You answered by saying that if those powers were
granted to you rather that to the privacy commissioner or to a
judge, as the act presently provides, it was simply to protect the
information you might receive from Canada's allies.
Well, section 15(1) of the Access to Information Act is there
for precisely that reason. Let me read it out:
15. (1) The head of a government institution may refuse to disclose
any record requested under this Act that contains information the
disclosure of which could reasonably be expected to be injurious to
the conduct of international affairs, the defence of Canada or any
The act already provides for that. Madam Minister, why are you
trying to go beyond the act? Why are you giving yourselves new
powers? I would like to receive a serious answer on this since
yesterday you did not give the Bloc Québécois a serious answer.
Yesterday, you were simply engaging in politics.
Ms. Anne McLellan: Monsieur Bellehumeur, yesterday
I gave a very serious answer, and that is, if we are
going to fight terrorism, terrorism is global. It's
not local, it's global.
Mr. Michel Bellehumeur: What about section 15(1)?
Ms. Anne McLellan: No, section 15 in fact
leaves open and creates a loophole in terms of the
possibility of disclosure of information that may have
been provided to us by our allies.
In fact, we know—
Mr. Michel Bellehumeur: No.
Ms. Anne McLellan: —that in relation to these
sensitive matters where one must work with one's
allies—one gathers intelligence, one shares
intelligence—much of this speaks to the national
security of not only this country but other countries,
and to the very lives of perhaps informants and others.
Unless we can guarantee to our allies that this type of
limited, exceptionally sensitive information will not
be subject to public disclosure, we will not get that
information and we will not be able to fight terrorism
as effectively as we should.
Mr. Chair, I believe that under existing access
legislation there is a loophole created, because it
permits the access commissioner to make certain
recommendations, but as far as we're concerned, that is
not sufficient for our allies. We must do what is
necessary to ensure that we have the best information
and that we are protecting that exceptionally limited,
yet exceptionally sensitive, information.
The Chair: Thank you very much.
Madame Allard, three minutes.
Mrs. Carole-Marie Allard (Laval East, Lib.): Madam Minister,
since terrorism poses a very real threat to the security of
Canadians, and considering what happened last September 11th, would
it not be possible to institute a specialized terrorism tribunal
instead of resorting to existing courts? I see here that a Quebec
Provincial Court judge will be able to order the release of someone
who is under arrest. I see that judges from the Quebec Superior
Court will receive new investigative powers. And if I am not
mistaken, you seem to increase considerably, in this bill, the
powers of the Federal Court. Am I right on that point?
I wonder why this is being done instead of creating a special
terrorism tribunal—as, I imagine, other countries have done, and
I think that idea could perhaps be considered—which would be
called upon to judge that type of matter. I cannot really see how
a judge of the Quebec Provincial Court could rule on a release
application filed by an alleged terrorist. Seeing that the
judiciary does not always seems to have a very clear idea of what
the Charter implies, I wonder whether the security of the
population might not be better served by a court expressly tasked
with such matters.
Ms. Anne McLellan: I think the idea of specialized
tribunals or special units within courts probably has
some merit. If you look at organized crime, for
example, I think there is some merit. I know in some
provinces within the superior court, for example, there
is a group of judges with particular expertise in this
area and with expertise in handling complex multi-party
trials. It is not unreasonable to think that we would
want the same kind of specialized knowledge in relation
to dealing with terrorist offences and the challenges
of national security.
As you know, this legislation basically establishes
the principle of concurrent jurisdiction in a superior
court of the province or federally, although there are
some matters that would be dealt with by the Federal
Court of Canada.
The basic idea, and not a bad one at all, is that we
need highly specialized judges to deal with and
understand the complexities and the modern reality of
national security issues and terrorism in particular. I
think we can develop that expertise. I hope the courts
would be open to developing that expertise, whether it
relates to organized crime or terrorism. Both are
highly complex, specialized areas of criminal law.
The Chair: Thank you very much, Madame Allard.
As I understand it, the ministers have to leave but
the officials can stay. We'll be here until 5:30,
continuing the discussion—if committee members wish.
I presume they do. Both ministers, I believe, have
offered to return to see us as we would require.
Ms. Anne McLellan: If I may, on behalf of Mr.
MacAulay and me, I'd like to first of all thank the
committee. You are involved in what the government
truly believes is one of the most important legislative
parliamentary review processes that we—in my eight
years in Parliament, at least—have been charged with.
I know you understand the seriousness and the urgency
On behalf of Mr. MacAulay and me, I also want to
underscore how important it is for you to provide us
with your best advice in some of these areas. We
believe that we have struck the appropriate balance and
that the provisions here are effective and fair. But
reasonable people of good faith can disagree on some of
these matters. Balance is not a scientific inquiry.
Therefore, it's going to be very important for you, in
terms of the work you do, to help us make sure that we
do have the most effective and fairest law. I know you
will take up this challenge expeditiously and
I thank you for your attention today.
The Chair: I can assure both ministers that
committee members are very aware of the importance of
this exercise and are very eager to offer our judgment
to what we will receive.
I thank the ministers, who I understand have to leave.
Mr. Fitzpatrick, for three minutes, to officials.
Mr. Brian Fitzpatrick (Prince Albert, Canadian
Alliance): I just want to mention an unintended
consequence of an event. In my home province of
Saskatchewan, we had a general illegal health strike
about three years ago. Many people really thought
their safety and health were at risk. We were
transporting people to North Dakota, South Dakota,
Alberta, and other provinces to deal with them.
I just want to point that out, because I think the
minister said an illegal strike could not really affect
health or safety or concerns along that line, and I
think people in that situation definitely felt they
were at risk.
The minister said prevention was far more important
than trying to react with something after the effect.
The minister also said this is a global, international
threat. I agree totally with her.
To me, this
means there has to be tremendous cooperation and coordination
between all branches of government to deal
with this matter.
I think the U.S. has recognized
that. They've created this position for homeland
security, and people are going to wait to see how much
power and coordination he has, and so on. But I only
raise it because of...“Man wanted in U.S. over terrorist
links released on bail today”. He's tied with
Hezbollah, and they wanted him in North Carolina.
Quite honestly, I didn't like the response today, saying
that's over in the immigration department.
We have to break down the barriers between
all these departments, and we don't need buck-passing
here. Terrorism is a global threat, and we have to deal
with it on all fronts. That matter concerns me quite a
bit. We have to work together and attack this thing
in a coordinated way. Throwing it back into the
immigration department isn't the answer here.
I'd like to see this act extend into those areas so
that we have a seamless system in dealing with this
thing and we aren't looking at immigration laws to deal
with this sort of problem, because, quite frankly, this
disturbs me. This isn't what we want, a person
out on bail who could be a real terrorist here. We
don't need that right now.
One other question I'd want addressed is, is there a
provision here to take intelligence reports from other
countries such as the U.S. or Great Britain, and so on,
and accept them as evidence in these proceedings,
bypassing the hearsay rule? I think that's very
important. If we have good intelligence on some of
these people, we don't want to get caught up in all the
technicalities of the hearsay rule in dealing with
Those are some of the concerns I have.
Mr. Richard Mosley: First, I don't think the
minister meant to suggest that an incident like a
strike by public health workers could not have serious
consequences. She did mean to point out, however, that
an action such as that is not intended to cause serious
harm or risk to the health of the public. It wouldn't
be a terrorist act within the context of this
On your second point—you mentioned a case, and I'm
sorry, I didn't catch what that particular case
was—we, in the Department of Justice, are responsible
for extradition matters. We work with our foreign
partners such as the United States. We have a unit
within the department called the International
Assistance Group, and we provide assistance to
them and to other countries. They reciprocate when we
are seeking the return, or they are seeking the return,
of an individual who is charged with serious offences
in those countries or who has escaped from lawful
custody. So those arrangements are well established.
Parliament updated the Extradition Act just a
few years ago, and it is working well, from all
accounts that we hear.
That is distinct, of course, from the matter of
persons who are inadmissible in Canada, who may be
subject to deportation. The minister was pointing out
that this is the responsibility of the Minister of
Immigration and is not the subject matter of this bill.
There's certainly a lot of debate at present over the
issue, but this bill is addressing the criminal context
in relation to terrorism.
Finally, on your point about intelligence reports, I
would simply note that, yes, there is provision in this
bill for the information obtained from intelligence
reports, including foreign intelligence, to be used in
certain of the proceedings. In some of those
proceedings, the court may, for example, make a summary
of the information available to the person who is the
subject of the proceedings, rather than the report as a
whole. There are other provisions that serve to
protect from the disclosure of information that could
have a harmful effect on our international relations.
Mr. Kennedy may wish to add to that, because that is
also addressed in relation to charities
Mr. Paul Kennedy (Senior Assistant Deputy Solicitor
General, Policing and Security, Department of the
Solicitor General of Canada): Yes, I will.
I want to speak to just a couple of issues. One is
whether or not there's seamless cooperation amongst
federal enforcement agencies.
There is increasing cooperation. There are a lot of
joint force operations with customs, immigration,
justice colleagues, and federal, provincial, and
municipal police officers. That has increasingly
become the approach we've used in dealing with
organized crime and is clearly the approach we're using
in this area. So we have fostered that cooperation,
effective way to deal with this problem, whether it's
extradition or deportation. So that kind of dialogue
goes on regularly.
I chair, at the assistant deputy minister level, at
least, a committee of public safety departments where
we ensure that kind of dialogue occurs and that we in
fact are adjusting our behaviours to be effective.
As to the other thing, we won't talk about any
particular case, but there is currently provision under
the Immigration Act—I think you'll have the
Minister of Immigration appear later—to allow us the
use of classified hearsay information to have people
removed from the country if they are suspected of being
terrorists. If there was evidence to indicate that a
person was a terrorist, that's one of the grounds that
could be used to justify their detention.
I believe there's a provision in Bill C-11, which is
currently before this Senate, for us to extend those
kinds of provisions to the Refugee Determination Board
so they as well could have the benefit of
classified information that they could hear. So I
think we're working on that issue.
The Chair: Thank you very much.
Mr. Bryden, you have three minutes.
Mr. John Bryden
(Ancaster—Dundas—Flamborough—Aldershot, Lib.): Thank
Do the United States and the United Kingdom have the
same legislated, unlimited exclusion of information
pertaining to international relations, defence, and
security as provided for in clauses 87, 103, and 104?
These are the exclusions of the Access to
Information Act and the two privacy acts. Do they
have the same provision for this unlimited exclusion?
Mr. Paul Kennedy: I haven't looked at their
legislation, so I can't answer that. I think the
American legislation has some of those things in it,
but I'd have to verify that. I don't have it in front
of me. I don't know if Mr. Mosley can respond to that
Mr. Richard Mosley: I believe the U.S. legislation
does contain similar provisions. We'll have to find
them for you, and we'll be pleased to.
My understanding about the U.K. situation is that none
of the information held by their security agencies is
subject to their equivalent of the Access to
Information Act—that issue was reviewed recently in
the context of another matter—the difference being
that they may have provisions for access after 20 or 25
In the historical context, the argument has been made
by some scholars—and in fact, this was addressed by
Professor Wark in one of his reports or
studies recently—that the difficulty with our system is that,
while it may work reasonably well with contemporaneous
information, it doesn't work all that well with
Mr. John Bryden: Yes, but remember what we're
doing with clauses 87, 103, and 104. We're not
only eliminating all oversight; we're eliminating any
timeline for eventual disclosure. My question is
whether these other jurisdictions are doing this
We can look at that later. Let me move on.
Also, that clause says the Attorney General
issues a certificate in order to order the information
withheld. What do we mean by issuing a certificate in
this context? What does the minister have to do? I
can't get that out of the legislation as I read it.
Mr. Richard Mosley: Do you mean the formal process
of issuing a document?
Mr. John Bryden: Yes. Does she have to consult
with anyone, or can she or he do it unilaterally?
Mr. Richard Mosley: It can be done unilaterally,
as framed in this.
There is provision in the Australian
legislation for the issuance of certificates with
respect to national security, defence, or international
relations. If issued by the responsible minister—and
my understanding is that it's not just the Attorney
General—that establishes conclusively that the document
is exempt from
the operation of their statute.
Mr. John Bryden: But if I understand—I don't
want to lose my time. I don't mean to interrupt the
witness but I'm just concerned. You answered the
question. You can do it unilaterally according to this
Mr. Richard Mosley: Unilaterally, yes.
Mr. John Bryden: My final question is—
The Chair: That was your final question.
Mr. Richard Mosley: With reference to the U.S.
legislation, if I may, under the U.S. Freedom of
Information Act, normally decisions made by the
government can be challenged directly in the courts as
opposed to our process where the information
commissioner reviews the decision. But under the act,
the President can issue an executive order establishing
criteria to keep secret matters in the interest of
national defence and foreign policy, and documents that
are classified under such an executive order are
exempted from disclosure under that act. So it follows
an executive order by the President.
The Chair: Thank you very much, Mr. Mosley.
Mr. Bellehumeur, three minutes.
Mr. Michel Bellehumeur: It appears, upon reading this bill,
that it was drafted in English and then translated. I imagine that
the people from the Department of Justice are presently rereading
both versions. I would ask you to read section 83.01(2) which
appears on page 15, and where I detect a difference between the
English version and the French version.
The French version of the paragraph on facilitation reads:
(2) Pour l'application de la présente partie, il n'est pas
nécessaire pour faciliter une activité terroriste:
You can see that they speak here of terrorist activity in general,
whereas the English version is concerned with a terrorist activity
I see a difference. Do you not? It appears, from your
expression, that you see no such difference.
Mr. Richard Mosley: It's not surprising to find in
Canadian legislation differences between the English
and the French, precisely because they are not
translated. I would invite members of the committee who
may some time wish to observe how this process is done
to come to watch some of our legislative counsel. The
way it works is they sit side by side with two
separate computer screens so that they can see each
other's work while they're doing this. The instructing
counsel—people such as my colleagues and myself—sit
on the other side of the table and we have our own
screens. But the two versions are written
simultaneously. Each team has a French-language
drafter and an English-language drafter. Differences,
though, do result. They relate more to the genius of
the language than to any translation, as suggested by
Mr. Michel Bellehumeur: I am not perfectly bilingual but
several members of my party who are have looked at both versions.
There is a difference. You say both texts were drafted at the same
time. I accept that this is so, but can you not see that there is
a difference and that the standard of proof would not be the same
under the two versions?
If you tell me that they both say the same thing, we will
bring in people who will argue otherwise. You were saying that if
both texts are not identical it is simply because of the very
nature of the French and English languages, but in this vast and
beautiful land of ours, which version might a court apply?
Mr. Richard Mosley: Let me say that we have in the
past brought forward motions to amend where differences
have been identified in the bills presented to
Parliament. In the legislative services, jury linguists
are employed whose job it is to compare the two
versions to ensure that they mean the same. That's not
to say that we can't find, from time to
time, differences in meaning.
I would be pleased to take this particular point back
to my colleagues, and we'll review whether in fact
there is a different sense from the two language
The Chair: Thank you very much.
Mr. Ivan Grose: Thank you, Mr. Chair.
My questions were for the ministers and I'll pass.
The Chair: You'll be very popular, Mr. Grose.
Mr. Brian Fitzpatrick: I was interested in the
comments of the minister that security is one of the
most fundamental rights that you can have in a
democratic society. Just a word of caution on that.
I think history would
show that certain regimes sold security in exchange for
freedom and liberty. The Soviet regime was based on
the analogy that we'll take care of you and you'll have
security. Some important people in the past have made
comments that security without liberty is akin to
tyranny and slavery and so on. So I have a couple of
words of caution on that. They're not totally
compatible all the time.
My own view of a democratic society is, yes, security is
important so that we can freely live in a democratic
society. That's why it's important. There is a
balancing between those interests.
What's going on with this anti-terrorist act in terms
of putting resources in place to make this thing work?
All the laws in the world don't mean anything if we
don't have the resources and manpower and womanpower
and so on to make this thing work. That's very
We have a concern too that you might be passing it on
to the provinces once you're finished with the thing.
Terrorism is something special. This isn't something
that should be passed off to the Attorney General of
British Columbia or some such person to deal with. It
should be dealt with by the federal branch in its
The Chair: Mr. Kennedy.
Mr. Paul Kennedy: Maybe I can answer that. I know
Minister MacAulay had a response here. It was to be in
response to Mr. MacKay's question. So I'll pass it
along to you as if I'm the minister in this particular
The minister would have indicated to you that they've
just recently announced $280 million with respect to
anti-terrorism. Within that amount there was $90 million to
increase security at Canadian airports and $10 million
that went to the RCMP for things such as fingerprint
I'd like to stop for a minute to show you how
important that is to us in terms of this particular
area. One of the challenges, if someone arrives at our
customs point at an airport, is they may have false
documentation. They may be people whom you look at and
you're a bit concerned about, but they'll give you
false names and things of that nature. The only thing
we have available to us at this time that will really
identify them would be fingerprints.
Traditionally, the problem is if you take a
fingerprint you have to mail it and do a comparison
check on CPIC. What we want to do is install the
electronic scanners at those airports and points of
entry in 50 major centres within Canada. So when
people come in, they can be referred to by the customs
office in the first instance to immigration.
Immigration can take their fingerprints electronically
at that time. They're automatically compared against a
fingerprint on CPIC. So if there are people who we
know are of concern internationally and so on,
hopefully, we'll have that.
As well, we'd also like to be looking at visual
recognition technology. We have photos that will match
them up. The key thing isn't just the documentation
and the person you're looking at and the name they're
giving you—all of which frequently are false—but it's
also to be able to verify in fact that the individual
is who we're talking about. That, at a very practical
level for us, is going to be key, as well as the
interoperability of our technical systems.
There was $54 million as well for the RCMP in new
technology and increased staffing. There was $49
million for citizenship and immigration. That's
important as we go back to the question about the
connections. We view each of these parts of the public
safety community as having to be supported in order for
us to have an effective net to address this challenge.
If we strengthen our capacity in terms of the borders,
immigration, CSIS, and the RCMP, all that is the
total effort we have.
Mr. Rock as well has announced $12 million to
improve our operational readiness. That's to address
the concerns about biological attack. I was in
Washington yesterday on Capitol Hill and saw the effect
on that particular institution of some of the problems
they're encountering. We've encountered them as well.
That amount is in addition to the $2 billion that in
fact had already been addressed in Budget 2000.
I can indicate on behalf of the minister that there will be
additional announcements to come. But more
in terms of long-term budgetary problems, the
government is looking at what this means with respect
to what the actual resource base should be in the long
term. Those numbers are for the current fiscal year.
We have to look at what's to be done longer term.
The Chair: Thank you very much.
Mr. Owen, you have three minutes.
Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank
you, Mr. Chair.
This is for Mr. Kennedy or Mr. Blackie, with respect
to the charities registration part of the bill, and
perhaps more widely as well. I guess the simple way to
pose the question is, given the other provisions of
the bill, is that part of the bill necessary to comply
with the International Convention for the Suppression
of Financing of Terrorism?
Mr. Paul Kennedy: I certainly believe so.
Otherwise, it would not have been here as part 6
of this particular legislation.
The International Convention required us to address a
whole range of problem areas, in terms of terrorist
financing, and certainly if you read the preamble to
that convention it identifies charities as one of the
sources. We still have the problem that if you are
designated as a charity you have a certain cachet in
terms of legitimacy. The government obviously has seen
fit to afford you this status. You have the advantage
of tax receipts you can give to other people to
encourage it. So the answer is, yes, it is still a
current problem, and it's something we have to do.
We're looking at a full range of techniques that the
state has to have at its disposal to address this
problem. There are administrative actions that can be
taken; there are civil law actions, involving
civil forfeitures, that can be taken; and there are
criminal law actions that can be taken. Each of
these is a tailored regime in terms of the kind of
response you'd want to give.
The charities legislation, in fact, gives the
government a scope of movement that may not
be available if you just looked at the part 1
provisions dealing with seizing and
forfeiture of assets, which can call for the
You may very well have a charity that has been
subject to abuse by executive directors and people like
that, but which is otherwise serving a valuable social
function within a particular community. The provision
we have in part 6 allows the state, by taking away the
charitable status, to then provoke a series of actions
that are called for under the Income Tax Act. These
would allow those assets to be repositioned or
transferred to another bona fide charity. You
may have an institution carrying out a religious or
social function that is important within Canada. This
allows you to have that function continue, but to
remove the evil, if you can call it that, of people
there who are misdirecting those funds, maybe to the
disadvantage of the majority of the members of that
So it gives you a range of options short of saying,
“There it is: you're on a list; we're going to seize
and forfeit everything to the state”. It allows a
measured response, and I think what we want in this
country is a series of responses. Clearly, we may have
other charities that are heavily committed—knowingly,
and on the part of all players—to this particular
activity. Then the appropriate action may be to move in
and seize in entirety the assets. I think all these
things are needed.
As well, with some charities there are additional
advantages where we're concerned—and people have
voiced to us their concern—about the reputations of
some charities that are perhaps being abused by
individuals. The vehicle we have is that once we have
the certificate signed by two ministers, there's an
opportunity for the charity to persuade a judge to bar
publication of the proceedings until such time as a
determination has been made as to whether or not they
are involved in that activity. So there's a range of
Mr. Stephen Owen: Okay. If I could have a brief
supplementary, the concern I was trying to address was
that it seems to me the things that would trigger the
deregistration of a charity would also amount to
criminal offences. I have a concern—I want to think
this through, and maybe you can help me—that we might
be using an administrative procedure to do something
that should properly have been done through the
Mr. Paul Kennedy: The difference is that if you're
a charity, and your objectives, in terms of what the
money can be used for, are very specific—you could
almost call it a strict liability—and it's used for
other purposes, you can lose your charitable status.
Clearly, the Criminal Code provisions require a
knowledge requirement “beyond reasonable doubt”,
because you're stigmatising behaviour, possibly, with
penal consequences. That's not what we're doing here.
What we're saying is, “You're a charity....” As a
matter of fact, any charity, if we could have used this
information publicly—a charity right on its face
whose money was being used for a purpose other than its
proper mandate would stand a risk of losing its status.
Knowledge isn't a factor.
You have a positive obligation to ensure that those
moneys are used for a particular purpose; so take care
how you're doing it. If you're careless and they're
not being used that way, you can lose your status.
So there's a knowledge requirement that you find in the
criminal process—“beyond a reasonable doubt”—that
doesn't exist here.
Our handling of that is consistent with how charities
are generally treated under the Income Tax Act. We
have a regime, though, to protect the classified
nature of our information so that decisions can be
The Chair: Thank you very much.
We're on borrowed time now. I have three questions
left. I'd like them to be very brief, if officials
don't mind, and then we'll have satisfied all of the
Monsieur Bellehumeur, three questions.
Mr. Michel Bellehumeur: In that case, I will stick to a topic
I've already discussed. Since we have to go quickly, I'll not raise
any new issues.
To one of my questions concerning terrorist activities and to
the example I gave of a labor union, the Minister answered several
times that terror had to be involved. I've reread several times the
section concerning terrorist activity or defining what a terrorist
activity is, and nowhere is it stated that such an activity must
involve terror. I see nothing here that has to do with terror.
Would you indicate to me where in the bill terror would be
mentioned? If it is not in the bill, might the Minister consider
including that in the definition?
The Chair: Thank you, Mr. Bellehumeur.
Mr. Richard Mosley: Certainly. I think what
the minister was referring to is that when you're
looking at the definition of “terrorist
activity”—at paragraph (b) under the definition
“terrorist activity” within proposed subsection
83.01(1), on page 13—the total effect of
the motivation in items (b)(i)(A) and (B) and in
subparagraph (b)(ii) of that
definition is what is commonly understood by “to
terrorize”. The motive is contained in item (b)(i)(A)
of the definition, but item (b)(i)(B)
adds “with the intention of intimidating the public”,
“with the intention of intimidating the public”.
The word isn't there. I'm not suggesting that the word
Mr. Michel Bellehumeur: It most certainly is not.
Mr. Richard Mosley: —but the effect is.
Mr. Michel Bellehumeur: But could we add it in? There is a
difference between intimidating and terrorizing someone.
Mr. Richard Mosley: No. With the
greatest respect, if you look at just about
any country that has attempted to define the concept of
terrorism—whether they use “terrorism”, “terror” or
“terrorist activity”—they have used these elements to
describe what terrorism is. It's the same thing in the
United Kingdom statute. It's in the United States
statute. It's in the proposals that are.... That is
the problem, because that concept is very wide.
If you look at the United Kingdom definition, it could
encompass an enormous amount of conduct. They say
(a) the use or threat is designed to
influence the government or to intimidate the public or
a section of the public
(b) the use or threat is made
for the purpose of advancing a political, religious or
They go on then to define “action”. In effect what
they've done is define “terrorism” very broadly and
then “action”. In our definition, we've rolled
everything together, but in an effort to limit the
scope of what “terrorist activity” is.
The Chair: Thank you very much, Mr. Mosley.
Mr. Richard Mosley: Also, let me draw the
committee's attention to the financing of terrorism
convention itself, which in article 2 refers to
what is in effect “terrorism”. It is “Any other
act intended to cause death or serious bodily injury to a
civilian....” It goes on:
“...intimidate a population, or to compel a government or an
international organization to do or to abstain
from doing any act.”
These are commonly understood as the elements of
The Chair: Thank you, Mr. Mosley. Thank you, Mr.
I think we're imposing on the time of the officials.
They agreed to be here until 5:30 p.m. It's now 5:40
p.m. I have two short questions left—Mr. Bryden,
Madame Allard, and then one comment that Mr. Paradis
has asked to make.
Please, Mr. Bryden.
Mr. John Bryden: The word “security” is used
throughout this bill but it's not defined. Am I to
assume that you mean by the word “security” financial
and economic security as well as physical security and
Mr. Richard Mosley: There is an express reference to
economic security in the amendments to the Official
Mr. John Bryden: Then let me refine my question.
The Chair: This is your last comment.
Mr. John Bryden: I'm referring specifically
to the use of the word “security” in clauses 87, 103,
104, and proposed paragraph 273.65(2)(d), which is the
interception of private communication section. All
those clauses use similar if not quite exactly the same
The Chair: Thank you, Mr. Bryden.
Mr. Richard Mosley: I'll refer you back to the
definition of terrorist activity on page 13. At line
37, it refers to “with regard to its security”—this
is the public—“including its economic security”. I
think their intent was to include economic security.
The Chair: Thank you very much. Madame Allard,
Mrs. Carole-Marie Allard: I do not know whom my question
should be directed to, but in view of the principle which would
reduce as much as possible the paperwork imposed on businesses, I
would say that section 83.11, as drafted, would require
corporations, banks and the various organizations listed in
paragraphs (a) through (g), to check whether they might have, among
their clients, persons whose name appears on the list of
terrorists. They would also be required each month to report to the
principal agency or body either the fact that they do not have—
I wonder if we could not simply have them do an audit and
require them to report only in cases where they do have such people
among their clients. If you require them to report each month, you
are creating for businesses too heavy a paper-burden.
The Chair: Mr. Mosley.
Mr. Richard Mosley: There certainly will be an
audit requirement on these companies, there's no
question about that. This was developed very much in
conjunction with the Department of Finance and the
Office of the Superintendent of Financial Institutions.
I think the view was that these companies are
already auditing the transactions they're involved with
on an ongoing basis, but certainly there will be an
additional demand put on them to do this. But that's
part of the price I think Canadian society is going to
have to pay in order to have an effective response.
These ideas were developed not just in the sense of
the effective implementation of the financing
convention, but also the most recent Security Council
resolution on this subject, 1333, I believe of
2001. I would urge the committee to pay close
attention to the language of that resolution. It does
require the member states of the United Nations to take
effective means to freeze terrorist property. In
trying to determine how to do this effectively, the only
way we can take action against terrorist property
is if we're aware that it is being possessed somewhere in
the country. Although the burden may be onerous on the
private sector, it's necessary in our view in these
The Chair: Mr. Paradis, a last comment or question.
Mr. Denis Paradis (Brome—Missisquoi, Lib.): Thank you, Mr.
I would like, first of all, to congratulate the people who
have put so much effort in drafting this bill.
Before we finish, there is a comment I would like to make. I
would like to get back to the example, on page 13, which Mr. Mosley
referred a little while ago. Paragraph (b) of the English version
as drafted states as follows:
an act or omission, in or outside Canada,
(A)in whole or in part for a political, religious
But you don't find in the French version this idea of
“in whole or in part”.
I urge someone from your department to have a quick look at
the English and French versions just to make sure, since we are
dealing here with a criminal law provision, that everything that
you have in the English version is also found in the French and
The Chair: Thank you, Mr. Paradis.
On behalf of the committee, I would like to wish happy
birthday to Hélène Regimbald, our translator extraordinaire.
The meeting is adjourned. We'll see you next week.