STANDING COMMITTEE ON NATIONAL
DEFENCE AND VETERANS AFFAIRS
COMITÉ PERMANENT DE LA DÉFENSE
NATIONALE ET DES ANCIENS COMBATTANTS
[Recorded by Electronic Apparatus]
Thursday, December 6, 2001
The Chair (Mr. David Pratt (Nepean—Carleton,
Lib.)): I'd like to call members to the table so that
we can get started, please. We do have a quorum now.
I'm very pleased at this point to welcome our
witnesses. With us are Colonel Allan Fenske, Colonel
Dominic McAlea, and Jean Boisjoli.
Gentlemen, welcome to the Standing Committee on
National Defence and Veterans Affairs. You've been
kind enough to come here to give us a briefing on the
new bill recently introduced into the
House, Bill C-42, the Public Safety Act. I understand
it is a bill that is going to be before the transport
committee and the justice committee, but you
have been kind enough to come in to provide us with a
briefing on the sections of the bill that relate to
Gentlemen, I'm going to turn the floor over to you,
and I'm sure members are going to have a fair number of
questions once you have completed your statements.
Colonel Dominic McAlea (Deputy Legal Adviser
(Military), National Defence and Canadian Forces,
Department of National Defence): Thank you
very much, Mr. Chairman and members of the committee.
My name is Colonel Dominic McAlea. I'm the deputy
legal adviser, military, from the Office of the DND and
Canadian Forces Legal Advisor. With me is Mr. Jean
Boisjoli, senior counsel, also from the Office of the
Legal Adviser; and Colonel Allan Fenske, who is the
deputy judge advocate general for human resources, from
the Office of the Judge Advocate General. We're here
to explain part 10 of Bill C-42.
Bill C-42 is a companion piece of legislation to Bill
C-36 and what is now Bill C-44, which have been
introduced in the House in light of the events flowing
from September 11. The proposed amendments contained
in the Public Safety Act will help the Government of
Canada, as well as the Department of National Defence
and the Canadian Forces, improve our ability to protect
Canadians from terrorism and its effects, by providing
them with the proper legal tools to do their job.
The first provision has to do with the definition of
“emergency”. The provision found in clause 80 of the
bill would modernize the definition of the term
“emergency”, specifically by adding the words “armed
conflict”, in order to reflect the new security
environment we find ourselves in today.
What constitutes an emergency is defined differently in different
pieces of federal legislation. In the National Defence
Act, we need a clear reference to circumstances of
armed conflict, short of formally declared war, because
a number of important powers in the National
Defence Act that put the Canadian Forces on a more
operational footing to deal with terrorist threats are
tied to the existence of an emergency.
The bill would also modernize the provision of the
National Defence Act dealing with the placing of the
Canadian Forces on active service. Specifically, it
would recognize that action taken under the United
Nations Charter can involve matters other than
collective defence. It would also recognize the
importance of the North American Aerospace Defence
Command Agreement, or NORAD, as a cornerstone of
continental and homeland defence.
In terms of the Reserve Military Judges Panel, these
provisions would establish the Reserve Military Judges
Panel in order to provide the Chief Military Judge with
access to appropriately qualified reserve officers with
prior experience as judges in the military justice
system. By establishing this statutory mechanism for
augmenting the military judiciary, it provides the
military justice system with the flexibility needed to
respond to sudden changes in the number of reservists
on continuing full-time service, changes in operational tempo,
or the mobilization of the reserves.
In addition to
meeting the needs of the Canadian Forces in times of
increased operational commitments, this provision would
also prove beneficial when competing demands or
conflicts severely limit the availability of military
Although the appointment of additional full-time
judges is an option under the current scheme in the
National Defence Act, it's not a practical response
when addressing short-term or temporary increases in
The proposed amendments to the National Defence Act in
Bill C-42 also provide the authority to establish
temporary military security zones to protect Canadian
Forces and visiting forces personnel and equipment that
are located off of defence establishments. Military
security zones may also be established to protect
property, places, and things the Canadian Forces
have been directed to protect.
This bill sets out clear limitations to which the
minister will be subject in designating a military
security zone. The creation of a military security
zone in the opinion of the Minister of National Defence
and on the recommendation of the Chief of the Defence Staff
must be necessary
for the protection of international
relations, national defence, or security. Second, the
purpose of the military security zone is to ensure the
safety and security of a person or a thing within the
zone. Third, the military security zone must not be
larger than what is reasonably necessary to ensure the safety
or security of the persons or things to be protected.
Fourth, the designation of a military security zone
cannot be valid for a period longer than one year
unless it is renewed. These provisions clarify existing
authorities and responsibilities that the federal
government has to protect Canadians and Canadian
The next provision has to do with job protection. The
bill includes job protection measures for reservists in
the event that the government compulsorily calls them
out on continuing full-time service during an emergency
such as an armed conflict. The provisions set out a
framework within which the civilian employers of
reservists would be required to reinstate them at the
conclusion of a period of compulsory call-out. This
amendment ensures that reservists do not have to choose
between possibly losing their livelihoods and breaking
the law that requires them to serve when called.
The next provision has to do with information
technology protection. The departmental and Canadian
Forces information technology systems and networks are
vital to the command and control of the Canadian
Forces. The provisions of this bill would enable the
department and Canadian Forces to properly manage their
information technology systems and networks by allowing
them to ensure that the systems and networks are not
used in a way harmful to defence interests, and to
ensure that they are adequately protected from
intrusion and attack. This is another important tool
for the Canadian Forces. The ability to command and
control the Canadian Forces and the ability to operate
with key allies require that the Canadian Forces have
the legal authority to protect their systems and
The next provision has to do with aid to the civil
power. The bill proposes amendments to the way in
which military assistance is provided to a province
under a request for aid to the civil power. Under the
new provisions, provincial attorneys general would
continue to make their requests directly to the Chief
of the Defence Staff. However, in order to ensure that
simultaneous or concurrent requests for military
assistance are managed optimally, the Minister of
National Defence would be authorized to provide
directions to the Chief of the Defence Staff. This
proposal recognizes the responsibility of the Minister
of National Defence for national defence, and also
requires the minister to consult with affected
Mr. Chairman, members of the committee, that concludes
our overview of the provisions of the amendments to the
National Defence Act. We're now ready to answer any
questions you have with respect to part 10 of Bill
The Chair: Thank you very much, Colonel.
Mr. Anders, do you have any questions?
Mr. Rob Anders (Calgary West, Canadian Alliance):
Yes. With regard to the job protection aspects of this
particular bill, I'd like to ask you whether or not you
feel...whether they be support
staff or people who do something you might consider to be more than
depends on how you split hairs—I know aspects
considered to be
part of the Canadian Forces are unionized.
Will this be increasing
the number of unionized employees who come under
National Defence in its general area, or not?
Colonel Allan Fenske (Deputy Judge Advocate
General/Human Resources, Office of the Judge Advocate
General, Department of National Defence): The bill
isn't specific to this issue at all. What the bill
attacks is the employment relationship between any
civilian employer and a reservist after a reservist has
been called out.
In terms of its potential relationship with a
unionized agreement, the bill doesn't actually
distinguish the types of employment arrangements
that exist between reservists and civil employers,
it covers the whole range. Its intent is to set a
floor and set some principles of minimum treatment for
reservists who are—and I do emphasize
this—compulsorily called out—something we have not
done in recent memory—and then wish to return to their
Mr. Rob Anders: Fair enough.
With regard to the military security zones, I think
they are actually the most fascinating aspect of this.
Can you think of concerns that you might have with
regard to these? As far as I understand it, a zone can be
designated for a period of a year and can be
renewed after that. Some people, certainly in the
media, have expressed concern over the idea that this
is going to be a wide swath with which the government
will be able to declare certain areas under its
purview, to do with them as it wishes. I'd like to see
if you gentlemen have any concerns with regard to the
potential abuse of these powers.
Col Dominic McAlea: The purpose of the military
security zones is to allow the Canadian Forces to
protect something or someone. The examples we
most often cite are things like, for example, the USS
Cole. If you will recall, it was the victim
of a terrorist attack. A boat came up quietly
alongside it and detonated a large explosive charge,
doing significant damage.
This is a tool that we are seeking so that the
Canadian Forces are better able to defend those things
they are required to defend by law. It allows for
defence by creating a buffer zone, if you will, and by
controlling access to it. That's the way in which
I suggest that wide swaths would not be appropriate,
because military security zones are limited
geographically. That is to say, they may not be any
larger than what is reasonably necessary to protect the
thing we are meant to protect, or perhaps a person.
Similarly, they're limited in terms of time. They must
be made in order to protect international relations,
national defence, or security. They have to be done on
the recommendation of the Chief of the Defence Staff.
The Canadian Forces are focused on missions. For that
reason, I suggest that the things that will be
protected will not be wide, they will only be what is
required for the actual mission.
Mr. Rob Anders: I have a question for you. Say,
for example, Quebec was to vote to secede. Do you feel
these measures would allow you to go in to police,
patrol, etc., the power lines that come down from the
hydro projects in northern Quebec that the Cree have
threatened to disable in terms of Quebec secession, or
in terms of the military stores resident
within the province of Quebec? Do you feel this would
give you the authority to act in those matters? Maybe
it wouldn't give it to the Canadian Forces, but would it give the
government the ability to order you to go after those
installations even though they're not particularly
Col Dominic McAlea: I'm glad you asked that
question, because it's a misperception with respect to
what this does. The ability to project a military
security zone doesn't actually give any authority to
deploy the Canadian Forces at all. The existing
authorities to deploy the Canadian Forces are found in
other parts of the National Defence Act, and they have been
with us for some time. The authority to assist
provincial police forces or the authority to respond to
provincial requests for aid to the civil power are
things that have existed for some time. Military
security zones are really neutral with respect to
Mr. Rob Anders: With regard to examples, you
mentioned the USS Cole. Would other examples
in Canadian history merit the government
wanting to use you in this capacity or to have this
type of power available to it? Are we dealing with
one isolated incident, or do you actually have examples of other
concerns that have happened in our history or things
you potentially see as problems?
Col Dominic McAlea: Certainly, the USS Cole
and the events of September 11 have been a lightning
rod for our attention with respect to these things, but
the nature of the operations of the Canadian Forces
have been such that we need more flexibility. Once
upon a time, we could do our job on our bases, but
sometimes we have to leave those bases. When we do,
the equipment and people we take with us need to enjoy
the legal protections clearly set out with respect to
We can spend a while going through potential scenarios
with respect to things that could be protected. I'd be
happy to do so, if you'd like. But the idea is that the
events of September 11 caused us to focus on and
examine the clarity with which we can invoke this kind
of authority. This is why we're seeking greater
clarity through Bill C-42.
The Chair: Thank you, Mr. Anders.
Mr. Claude Bachand (Saint-Jean, BQ): First, I have to say
that, personally, your presentation did not tell me anything new.
It seems that you have merely incorporated extracts from the Act
into your document. However, I understand that all three of you
are lawyers. Therefore, I am mostly going to ask your legal
opinion. As you can no doubt guess, I have several questions
about military zones.
In the proposed section 260.1, right from the beginning, it
states that we can:
...to ensure the security of any person or any object, create
a military security zone by designating all or part of a piece
of land, a body of water,...”
In your opinion, can the definition of "land" be legally
extended to, for example, an entire region such as the Island of
Montreal, to an entire province such as Quebec or to an entire
body of water such as the St. Lawrence River? Can the notion of
“land”, which is not defined in the Act, cover everything I just
listed? That is my first question.
On to my second question. In subsection (2) of the same
section, we read:
(2) A military security zone can only be created in relation to
one of the following elements:
a) defence establishments;
We can't argue with that. But could a military security zone also
be created to protect:
b) materials or goods under the authority of her Majesty in right
of Canada located outside of defence establishment;
Under a legal interpretation, could one end up extending the
military zone throughout Quebec because there are Canada Post
mailboxes all over Quebec. Would it also be possible to expand it
to cover all the areas around aboriginal reserves since these are
under Her Majesty's authority? I need to have this defined more
precisely than it currently is in the Act.
The provisions are described as follows:
c) ships, aircraft or other objects under the authority of any
foreign power legally present in Canada...
I understand that.
If, for example, George Bush comes to Kananaskis with a
military escort to ensure his protection, does this mean that the
Minister could now declare that area to be a military exclusion
zone, a military protection zone and that everyone within a
reasonable radius of about 10 kilometres of this area would be
subject to the charges that are clearly described in the Act?
Those are my first three questions. I know that my time is
limited. I know there will be a second and a third round of
questions but I will have other questions bearing precisely on this
part of the problem, which I will ask at that time. I hope you made
note of my questions. I would like to have an answer, please.
Col Dominic McAlea: Thank you, Mr. Bachand.
If I understood you, you asked three questions as to
whether or not places like an entire island could be
designated, whether or not an item such as a boîte à
lettres could be designated, and whether or not an
international conference that George Bush and his
retinue attended could be so designated. I'll attempt
to answer, but you'll have to understand that there are
constraints because we don't know all the facts.
The idea is that we have to identify what is to be
protected. If we're talking about one person, it's
very difficult to see how an entire island or an entire
region could be designated a military security zone,
because that would not satisfy the requirement that it
be no larger than what is reasonably necessary to ensure the
safety of the person or thing to be protected.
Similarly with respect to the second point, that being
a boîte à lettres, or a letter box, I can't
imagine how we would ever project a military security
zone with respect to a Canada Post mailbox, because I
don't see how that would
trigger the requirement necessary to
protect international relations, national defence, or
Mr. Claude Bachand: I would like to clarify something, sir.
The Chair: Monsieur Bachand, just have the colonel
finish his explanation, and then we can get to your
other comment if any time is left.
Col Dominic McAlea: What I'd like you to
understand is that these zones are
designated lightly. They would only be designated if
the Chief of the Defence Staff felt it was necessary.
He would then go to the minister to seek the
minister's authority. The minister would insist that
the Chief of the Defence Staff show it was
necessary, show that the area requested was reasonable,
show this was relevant, show this was also
necessary for international relations, national
defence, and/or national security, and also show that
the length of time for which the designation was in
place was also reasonable. So my aim in going
laboriously through this is to show that inanimate
objects aren't likely to be designated.
With respect to the retinue of Mr. Bush and Mr. Bush
himself, whether or not a security zone would be
projected around him and his retinue would depend upon
what the security assessment was. If our intelligence
sources told us a very serious threat was planned
against Mr. Bush and is retinue, it's quite possible a
security zone would be projected around him. But if
there were no such threat, the requirement of
international relations, national security, and/or
national defence wouldn't be met, and we would not
seek, nor would we be allowed to have, a military
The Chair: Mr. Bachand.
Mr. Claude Bachand: You speak of a military security zone
which would not be larger than would be reasonably necessary. Are
you able to define what would be reasonably necessary? Do you not
agree with me that it is up to the Minister, based on the
recommendation of the Chief of the Defence Staff of the Canadian
Forces, to determine what is reasonably necessary? Once the
Minister has established this zone, to what extent can an ordinary
citizen challenge what the Minister has decided? It is after all
the Minister who decides what constitutes a reasonably necessary
zone. A reasonably necessary zone could be quite large. It is not
necessary that there be an attack. It is not simply a question of
wanting to reach...
The Chair: Mr. Bachand, I would ask you to get
right to your question, because you're well over your
time right now.
Mr. Claude Bachand: Of course, Mr. Chairman. My question is
therefore the following: In your opinion, what is reasonably large?
Col Dominic McAlea: It would depend upon the nature
of the threat. If the nature of the threat were from
some powerful state or from some non-state actor with
great capability, the military security zone would be
larger than if it were a minor threat. But the minister
does make the designation, and he does it on the
recommendation of the Chief of the Defence Staff.
I suggest that sizes will be self-limiting, because we
don't have the resources to generate and project zones
that are bigger than necessary. Similarly, the size of
the zone in a designation will be reviewable by
courts. A court will be able to look at a designation
and render a decision as to whether or not it's
reasonable. Of course, the minister is also
politically accountable, so I would suggest at least
three separate forces ensure that these zones are not
going to be larger than what is reasonably necessary.
The Chair: Thank you, Colonel.
Mr. Price, for seven minutes.
Mr. David Price (Compton—Stanstead, Lib.): I'd
like to thank you very much for being here today,
because I think this is important. This is not a
normal procedure, since this bill is a transport bill.
But since it does affect certain areas of the National
Defence Act, it's important for us, as the defence
committee, to have a look at it and get comfortable
with it, just in case we feel something should be
added, moved around, etc. That's why we wanted to have
a chance up front to get to talk to you about it.
First of all, in terms of the items that have been
added in this bill and the changes that have been
made, where did they come from? Who decided that these
items should be in the bill? Was it done directly through
National Defence? I'm talking about the different items
Col Allan Fenske: Let me say simply that the
department, in the wake of September 11, did do a very
careful assessment of the adequacy of the legislative
bases for security and the kinds of actions we
anticipated we would have to take. Part of the concern
is to ensure that the Canadian Forces are readily
postured in order to respond to the kinds of threats
we're seeing in the modern security environment. So it
was the kind of assessment you would normally expect
the department to do, this time done in the context of
the events of September 11.
Mr. David Price: So they were definitely in the
I'll go to a couple of things. In clause
80, the words “armed conflict” specifically are added
to the definition of the term “emergency”. It says:
“emergency” means an insurrection, riot, invasion....
You've then added the words “armed conflict”
between that phrase and the words “or war”. I'm just
wondering why you added “armed conflict”, because it
seems to cover an awful lot already.
Col Allan Fenske: I'm glad you asked that
question. Do you have the clause-by-clause form now?
Mr. David Price: Yes, I do have it.
Col Allan Fenske: Good, because we've basically
set that out.
If you can imagine us looking at the events of
September 11, our definition of “emergency”—and I
would underline this—is a definition used for the
purposes of the National Defence Act, and for the
purposes of the National Defence Act only. I can take
you through the seven places where it is
used in the act, but the reason we have that definition is that it
acts as a trigger for a number of human resource powers
that we have. For example, you find the word
“emergency” in the placing of the Canadian Forces on
active service. In our regulations, you find the word
“emergency” in relation to the minister's ability to
call out the reserves, for example.
If you look at the continuum that we have in the
definition, there's a gap. The current definition
basically talks about war, yet if you look at the
practices of states and the kinds of conflicts we've
experienced in the modern security environment, you
don't find formally declared war as something that
occurs with any regularity at all. If you look at the
World Trade Center, you have an attack, great damage,
and no formally declared war. If you go to the
definition, you then ask how you can use your human
resource powers. What we're trying to do with that
addition is ensure that, without a doubt, we have covered that
point on the spectrum and do have access to those
Mr. David Price: Okay, good. And if you do look
at the rest, it also says “whether real or
Col Allan Fenske: That's right.
Mr. David Price: —so that does cover things.
On aid to the civil power, I'm wondering how it was done
before, and what the minister's position was in the
operation before. You're now adding the Minister of
National Defence into it, as if he wasn't in the loop
at all before. Am I misunderstanding that?
Col Dominic McAlea: No, you have it exactly right.
The minister was not in the loop before, and this was
what we saw as the problem. The minister is
responsible for national defence matters, and we
foresaw the situation in which there could be demands
coming to the Chief of the Defence Staff
simultaneously—that is to say, concurrently—for
assistance. It was important that the minister not
be left out of this loop, because there are political
consequences to responding in ways that might be
This is really designed to insert the minister where
required. If concurrent requests for aid to
the civil power are made and these requests are going to affect the
ability of the Canadian Forces to do other things, or
if they are going to have implications for national
defence generally, then we, by this, want to recognize
the role and responsibility of the Minister of National
Defence, and we also want to require consultation with the
affected attorneys general.
The Chair: Very briefly, Mr. Price.
Mr. David Price: The only thing about it is that
he isn't definitely in the loop, there's just the
possibility of him being there. Why would he not be
definitely in the loop?
Col Dominic McAlea: I don't understand your
Mr. David Price: The way it sounds in your
Minister of National Defence would be authorized
to provide directions”—he wasn't there before, but
now he's there if need be. Or is it that he's
automatically in the loop all the time now?
Col Dominic McAlea: He'll be in the loop all the
The Chair: Thank you, Mr. Price.
Mr. Stoffer, for seven minutes.
Mr. Peter Stoffer (Sackville—Musquodoboit
Valley—Eastern Shore, NDP): Thank you, gentlemen, for
Gentlemen, in Bill C-42, clause 80 defines what an
emergency is. It says, “means an insurrection, riot,
invasion, armed conflict or war, whether real or
apprehended”. I'm a bit confused about what the word
“apprehended” means in this particular clause.
Col Allan Fenske: The question addresses simply
whether it's apparent or real. Sometimes you just
don't know. Sometimes the indicia you're seeing
tell you your best judgement is that it's coming, it's
out there. For example, I could take out the word “real”
and substitute “actual”, meaning you're seeing
it happen. If you look at “apprehended”, you're
seeing it about to happen.
Mr. Peter Stoffer: Gentlemen,
many people outside the House of Commons, including
various legal experts and civil right
experts, for example, are very concerned about the
fact that the particular bills that have been before us
may or may not meet a constitutional challenge in front
of the Supreme Court.
Have you had the opportunity, or have you taken the
opportunity, to take what you believe are the legal
definitions in the act to an outside legal opinion to
see if you are indeed correct?
Col Dominic McAlea: We've spoken extensively with
our colleagues at the Department of Justice, and
particularly at the charter section of the Department of
Mr. Peter Stoffer: I'm sorry, I meant outside the
House of Commons.
Col Dominic McAlea: No, we have not.
Mr. Peter Stoffer: Would there be a reason
why you wouldn't?
Col Allan Fenske: That's not something we would
normally do. Depending on the subject matter, the
law officers of the Crown are found in the Department of
Justice and in the Office of the Judge Advocate General.
They are responsible for the legal advice that is
given, and that is the routine way in which it's done.
Mr. Peter Stoffer: That's understandable, but in
these extraordinary times, with three pieces of
legislation being admittedly rushed through the House
very quickly—a lot of it in legalese—in all
honesty, a lot of members of Parliament really don't
have a full grasp of what it actually means in the long
term. To satisfy the
curiosity of Canadians, would it not have been prudent
to have at least done that? I
know it's not normal, but these are not normal bills,
wouldn't you agree?
Col Allan Fenske: Mr. Stoffer, we're here to
explain how the bill works, and we can do that. In
terms of whether or not the minister or the government
might wish to go looking for other consultation
mechanisms or outside advice, that's not something
we can address today.
Mr. Peter Stoffer: Okay, very good.
You talked about what are considered to be reasonable
limits. You've used that expression many times. Of
course, the minister would be under so-called political
pressure in terms of what is defined by that. But I
look at this bill and I see that a situation like Burnt
Church could technically have been turned into a so-called
military exclusion zone.
When you look at Miramichi Bay, you could technically,
under reasonable limits.... It says you want
to protect a person or thing. If you want to stretch
the argument, that thing could be a lobster, for
example. In order to protect the lobster
stocks, they used RCMP and coast guard officials
before—and rather efficiently, as it was termed to us.
Could this not mean such circumstances could be
considered reasonable grounds to protect the entire
Miramichi Bay and the industry in it?
Col Dominic McAlea: That's a good question, and
you're quite right, this bill is guilty of being
written in legalese. That's the nature of the beast,
and sometimes it is laborious to go through it. But if
you do go through it, you'll find that with respect to
protecting lobster, that does not satisfy the requirement
that international relations, national defence, or
national security are in need of protection.
Before the minister designates any area, no matter how
small or how large the military security zone, we have
to jump through a whole bunch of hoops. I suggest that
the lobster one wouldn't even come close.
Mr. Peter Stoffer: But, sir, isn't it reasonable
to suspect that if, for example, workers in the IMP
hangar in Halifax—IMP does military subcontracting
work—went out on strike and the military required
those components in order to do its job effectively....
Suppose the workers were blocking the access road.
Of course, you can get a court injunction to limit the
number of strikers, but with this bill, couldn't you
effectively determine that the area is a military zone?
In just a peripheral view, could that not be
termed...the company could go to the Attorney General
of the Nova Scotia, and the Attorney General could go
to the Minister of Defence, say he needed help, and
recommend the use of the act in order to do that. Could it
not be used in that regard?
Col Dominic McAlea: First of all, the attorney
general of a province may only seek the assistance of
the Canadian Forces in aid of the municipal power if
matters are beyond the capability of the province to
deal with them. I would suggest we're talking about a very
serious matter if an attorney general of a province is
going to do so. Strikes occur all the time, and
municipal or provincial authorities deal with them
without any problem.
With respect to a military security zone, the Canadian
Forces are supplied by many private-sector companies.
The purpose of a military security zone is to protect
Canadian Forces personnel and equipment, visiting
forces personnel and equipment, and things the
Canadian Forces have been directed to protect. I
suggest that the example you've given me just doesn't
satisfy the requirement.
The Chair: Mr. Stoffer, your time has
Mr. Anders, for five minutes.
Mr. Rob Anders: Thank you very much, Mr. Chairman.
Just think, the sooner I start, the sooner you start
up again. How does that sound?
I'd like to ask about clause 82, which talks about
“any action undertaken by Canada under the United
Nations Charter”. I'm wondering whether or not this
document, previous to the amendments, made a specific
mention of the United Nations Charter? That's just a
Col Allan Fenske: The amendment is actually more
of a technical amendment for clarity, to make it
crystal clear that we're talking correctly about the
legal basis. The section involved is the section
used to place the Canadian Forces on active
service. That can be done in a number of cases.
The language as it exists today blends the United
Nations Charter in with other instruments of—and I
underline “other”—collective defence. The United
Nations Charter today is clearly an instrument of
individual and collective defence, so the first thing
we were doing was ensuring that the special nature of
the United Nations Charter is recognized.
The second thing this section does—since we were
there—as my colleague Colonel McAlea said in his
opening remarks, is to give some visibility to NORAD
and to the NORAD Agreement. Beyond that, those are the
only rationales for and the only effects of these
Mr. Rob Anders: I'm going to try to clarify that.
It was generically included in the definition before,
but now it's specifically mentioned.
Col Allan Fenske: We've distinguished between the
UN Charter and other agreements.
Mr. Rob Anders: Understood.
In proposed paragraph 260.1(2)(c), you talk about
a vessel, aircraft or other thing under the control of
a visiting force that is legally in Canada by virtue of
the Visiting Forces Act or otherwise....
If General Suharto, for example, had visited Canada
and had his motorcade or whatever included under the
Visiting Forces Act, does that effectively mean that
instead of having the RCMP policing that particular
scenario, you would be the ones left holding the pepper
spray if the government did indeed enact this and chose
to define that as a military security zone?
Col Dominic McAlea: The Visiting Forces Act is a
vehicle that allows Canada to discharge its
international obligations with respect to the personnel
and equipment of visiting forces. That act is most
commonly invoked with respect to our NATO allies. If a
NATO ship seeks permission to make a port call and the
diplomatic clearance is given, it will come here
pursuant to the Visiting Forces Act. This is the type
of thing we're contemplating in proposed paragraph (c).
We're usually talking about foreign militaries with
which we cooperate, or with which we are allied. The
big one in the first club is NATO, but Canada also
assists many developing countries with military systems
programs, so they would also be found on that list. So
we're talking about allied military forces.
Mr. Rob Anders: Given the way you have carefully
legally worded that, I would take it to mean that if he was
visiting peaceably, he could be included under
Col Dominic McAlea: Yes, if we're talking about
vessels, aircraft, or other things under the control of
a visiting force. We're not talking about heads of
state under this section.
Mr. Rob Anders: Understood.
Compensation is dealt with in clause 84, and in
proposed paragraph 260.1(10) underneath that. It says:
Any person who suffers loss, damage or injury by reason
of the exercise of any of the powers conferred by this
section shall be compensated from the Consolidated
When you say “compensated”, is there any definition
of what that compensation is? Is that a fair market
compensation? Who determines what compensation is? In
other words, could there be compensation for pennies on
the dollar, or is that a recognition of property rights
as I would understand them to be, in that somebody is
compensated at fair market value? How do you determine
Col Dominic McAlea: Fair market value is a very
good way to describe it. Under section 257 of the
National Defence Act, we currently have a similar
provision with respect to damage that results from
manoeuvres of the Canadian Forces. This is something
we do to rapidly and efficiently settle claims. We
did it in Germany all the time. Not having recourse
to the courts, and in order to avoid
the long litigation process, it's done in a way similar to
how claims are settled rapidly and efficiently
under workmen's compensation schemes.
The Chair: Thank you, Mr. Anders.
Mr. Bachand, I understand you've given a portion of
your time to—
Mr. Claude Bachand: No, I haven't given it to him.
I'm asking you to give him the floor before me, but
I'll be holding to my time also.
The Chair: Mr. Stoffer, I understand you're going
to be leaving, so go ahead.
Mr. Peter Stoffer: Thank you, Mr. Chairman.
Sir, I just have one question. Correct me if I'm
wrong, but I get the feeling that the Minister of
Defence can designate any area in the country as a
military security zone. I suspect that if the forces deem
that he wants them to do it, they have to
protect property, a place or a thing that the Canadian
Forces have been directed to protect....
So the minister, himself or herself, can direct the
military to go to a certain area of the country to
designate it a military security zone. Nothing in this
act takes that kind of power away. To me, that puts
far too much power in the hands of the minister, and
that's why I brought up the issue of Burnt Church or a
plant that makes parts or anything else. If the minister
wakes up in the morning and says he's going to make an
area a military security zone, nothing in the act is
Col Dominic McAlea: That's a very good question.
I'm glad you asked it, because it does appear to be a
source of some confusion.
The Canadian Forces are not deployed by virtue of
the military security zone. You should think of the
military security zone as just another tool in the
tool kit of the Canadian Forces in maintaining
The Canadian Forces deploy either because they've been
requested by a province, because a provincial police
force has asked for assistance, or because another
federal government agency or department has requested
assistance, but these are all separate authorities
currently existing in the National Defence Act.
The military security
zone comes into play once we get there and say it is
our tool for achieving whatever mission it is that we've been
given to do. For example, if we're talking about a
nuclear generating plant, we could project a military
security zone around a nuclear generating plant to
prevent terrorists from getting into the plant.
You shouldn't think of the military security zone
authority as a way of deploying the Canadian Forces.
That's not how it happens. It's a tool the Canadian
Forces can use once they are deployed, and deployed
pursuant to all the traditional authorities.
Mr. Peter Stoffer: Thank you, Mr. Chairman.
The Chair: Mr. Bachand.
Mr. Claude Bachand: I have several questions I want to ask you
about what you have just said.
First, there are two things. Assistance to civil authorities
is given at the request of a province. I understand that. In
certain situations which we have experienced in Quebec, whether it
be an ice storm or the Oka crisis, the province asked the
government for the army's help. That's one thing.
Now, the creation of a military security zone is something
else. The Minister can establish such a zone upon the
recommendation of the Chief of the Defence Staff, without
consulting the province. Correct me if I am wrong. Can the Minister
establish a military security zone by himself without consulting
the province? I think the answer is "yes".
Col Dominic McAlea: Perhaps I didn't explain
myself clearly enough in responding to Mr. Stoffer.
The military security zone should be considered just
like, say, a truck or a helicopter of the Canadian
Forces. It's a tool the Canadian Forces use to do
their mission. It's not the basis upon which the
Canadian Forces would deploy to a province. The
Canadian Forces would or would not deploy to a province
based upon existing authorities that have been in the
National Defence Act for a long time.
The minister would not create a zone and then send the
Canadian Forces in. That would be like lying down on
your bed before you placed it in your bedroom.
I don't know why I came up with that example, but....
The Chair: Getting tired, Colonel?
Some hon. members: Oh, oh!
Col Dominic McAlea: You should not think of it as
an enabling power for the Canadian Forces to deploy.
It's an authority for the Canadian Forces to use once
they get there. The mission comes first, followed by
the tool of the military security zone.
Mr. Claude Bachand: You said earlier that you made a
distinction between establishing a military security zone and the
deployment of the Canadian Forces in that zone. If the Minister
decides to establish a military security zone, there would have to
be military personnel to ensure security in that zone. I would
think that the army would have to be there.
While I have the microphone, I would like to ask you the
fundamental question I have been asking myself. All three of you
are lawyers. What would the Supreme Court say if a suit were
brought before them to ask them if there is a violation of the
Charter of Rights and Freedoms? All three of you are telling us
that there would be no problem, that the test could be easily
passed and that the Supreme Court of Canada would say that the bill
does not weaken individual rights and freedoms, among other things,
in the context of the establishment of military security zones.
Col Dominic McAlea: I'm not certain. Is that a
Mr. Claude Bachand: Yes, it's a question.
The Chair: Colonel, I think the question is
whether or not the bill is constitutional.
Col Dominic McAlea: I can assure you we went to
great pains to speak to our colleagues at the
Department of Justice who specialize in
constitutionality and compliance with the Charter of
Rights. The product you see here is the product that
resulted from those consultations.
Mr. Claude Bachand: Do you have legal opinions from the
Department of Justice and, if yes, are they available to the
members of this Committee?
Col Dominic McAlea: We don't have any control over
the files of the Department of Justice, Monsieur
Mr. Jean Boisjoli (Counsel, Office of the Legal Advisor of the
Department of National Defence and the Canadian Forces): The legal
advice is given to the Minister and the relationship is between the
Minister and his counsels.
Mr. Claude Bachand: So, you cannot tell me if you are going to
provide the legal opinion. We have to ask the Minister to do so.
Mr. Jean Boisjoli: That's correct.
Mr. Claude Bachand: Thank you.
The Chair: Thank you, Mr. Bachand.
Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank
you very much.
Thank you very much for attending, gentlemen. It's a
strange request, because the bill currently before the
House, Bill C-42, just came on to the Order Paper
today, so it hasn't even been discussed in the House.
It's unusual that we would have a briefing on something
for which amendments haven't been proposed yet, and
when the fine points of the bill haven't been discussed
in the House.
In looking at some of the questions asked today,
my first question would be whether or not you feel any
amendments are glaring. Are you looking at anything,
or should anything be proposed now that the bill has
had some public exposure and certain points have been
raised? That's the first question.
Col Dominic McAlea: At this stage, I understand
Minister Collenette has expressed an openness to any
suggestions, but we are clearly not at that stage yet.
Mr. John O'Reilly: I'll take the example of
a military zone, because I know it's one of the
contentious items. I always like to look at an
example. The last time I was in Halifax, an
American aircraft carrier was there. It's 28 stories high,
with a 4.5-acre surface on it. It was in the outer
harbour because of the depth of the harbour, so it was
actually at anchor in an area where it created a
tourist attraction. Actually, while I was there, I
think someone was killed because they fell off it or
whatever. But I remember looking at it and wondering
how anyone would come into a harbour
and be protected, because they created a floating
tourist attraction just by being there. Of course, the
USS Cole is an example of what happens when an
allied nation goes into an area that doesn't have a
secure military zone.
When you're looking at this issue, how big would the
military zone be? Would it be all of the harbour in
this case, when that particular vessel is visiting? Is
that how you imagine it? Or would a section
be cordoned off around that ship to keep other
vessels from coming near it? Is that a good example?
Col Dominic McAlea: Any example is a good one if
you're asking a question.
The size of the zone will be a function of the nature
of the threat. At any given time, if intelligence
sources tell us we're expecting concerted attacks by
capable groups, the zone would have to be larger. If
it were in a benign environment, the zone might not
have to be very large at all, but just big enough to
allow, say, a patrol boat to intercept anyone coming up
against the ship.
Mr. John O'Reilly: On the call-up of the reserves
and their job protection, when we did the review of the
reserves, one of the things reservists were afraid of
was that call-up would restrict them from being hired,
because an employer would know they could lose the
person and would have to hire them back even if they
were gone for a year. In my mind, that may restrict
some small businesses from hiring reservists. If they
have a choice between two equally talented people,
they're probably going to take the person who isn't the
reservist if they know they could lose the person on
call-up and then have to give them their job back. Has
any thought been given to that process?
Col Allan Fenske: That question is right on point,
and it's one of the concerns that had to be factored in
to how this portion of the bill was shaped.
You, sir, certainly will be aware that the experience
that the department has had in terms of voluntary
employer support for voluntary call-outs of reservists
has actually been very good.
If you were to look at some of the other countries
that have job protection legislation and have gone
past—and this is the key point—the point of
protection after a compulsory call-out, that's when
they tend to get themselves into the problems of
disincentives for employers. The theory behind the way
in which this bill is positioning the department is that by
confining the scheme to the cases in which reservists are
compulsorily called out—something the government does
not do lightly; it will be a very serious scenario when
that occurs—we're expecting that employers will
recognize that it's serious and something they need to
The other aspect is that as this bill develops during
consultations, we will have to look at the various
shapes and sizes of employers, at the employee-employer
relationship, and at how we develop the definition of
The Chair: Thank you, Mr. O'Reilly.
Mr. Rob Anders: I have a question with regard to
the authority to protect computer systems and networks
from attack or manipulation. When I was visiting with
some of my colleagues down at the NORAD facilities, for
example, supposedly with the downing of the American
plane in China, a number of hackers from the Chinese
mainland attempted to infiltrate or tamper with NORAD
I respect that this was a fairly obvious attempt to
threaten national security, and I think you therefore
need to be able to do what you need to do to prevent
that. However, I also wonder about domestic hackers,
kids, people who promote viruses, those types of people.
I'd like to get your thoughts on that particular aspect
of domestic troublemaking, and how you see this bill
applying to domestic troublemakers.
Mr. Jean Boisjoli: Whether it comes from
abroad or from here, the threat remains the same. We've
tried to draft this part of the legislation in a way
that strikes a balance between the important need to
protect our systems on the one hand, and the need to
protect people's privacy rights on the other hand.
If I may just go through some of the sections
relevant to this, a
a written authorization is needed from the minister to
designate persons by class or individually, for example,
and they have to be specialized people who are
performing duties related to the operation,
maintenance, or protection of the DND/CF computer
systems. It's limited to computer systems, so this is
not about eavesdropping or wiretapping. That's another
issue. The private communications have to be to the
systems, through the systems, or from the systems.
Furthermore, before he authorizes these
things, the minister has to make sure five conditions are met: that
the interceptions are necessary for the protection of
the computer systems and networks, as well as for the
data they contain; that the information cannot be
reasonably obtained otherwise; that the consent of the
person cannot be obtained—and that seems rather
obvious in those cases; that satisfactory measures are
in place to ensure that only necessary information will
be used or retained—the concept of
minimization of information; and finally, that
satisfactory measures are in place to protect the
privacy of Canadians.
I might add that there is a review of this. The
Commissioner of the CSE has been asked to be the reviewing
body for this, and he will report annually to
Parliament, through the minister. The Privacy
Commissioner retains his review functions. So with
respect to your concerns about kids, the question is
not really one of going after kids, but one of dealing with
threats wherever they come from.
Mr. Rob Anders: I had a follow-up to your talk
about the Commissioner of the Communications Security
Establishment. As I understand it, the Commissioner of
the CSE will be able to review the activities of the
department and the Canadian Forces to ensure their
compliance with the law. What I'm wondering about is
the jurisdiction over that. Is that a significant
change in terms of the relationship between the CSE and
the armed forces? Is the CSE assuming control over the
forces in terms of communications and signals and those
types of things.
Mr. Jean Boisjoli: No, not at all. Basically, the
CSE commissioner is here because we looked at
three options when we were drafting this. We felt
we needed a review body, so we first thought
we might go through the Privacy Commissioner. We then
thought we might go through a separate GIC appointee,
but we rejected that because we felt we didn't need
to create further bureaucracy. And then we thought of
the CSE commissioner and retained that option basically
because he has the expertise and is already dealing
with similar areas. Of course, Bill C-42 came after
Bill C-36, so there had to be some form of congruency
between Bill C-36 and Bill C-42, keeping in mind that
this had to be adapted to the needs of the forces, as
compared to the CSE.
The Chair: Thank you, Mr. Anders.
Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Can
it not be effectively argued that under the current
provisions of the National Defence Act, which allow the
Governor in Council or the minister to ask the Canadian
Forces to perform a public service or to provide
assistance with respect to any law enforcement matter,
you could effectively create the same kind of security
zone if that public service or the law enforcement
matter for which assistance was requested dictated the
necessity of such a zone? If that's the case, aren't
we really just fine-tuning the legislation so that
we're talking about something specifically valid, when
that enabling power might already exist at this very
Col Allan Fenske: I'm going to pick up two themes
in that question, Mr. Provenzano, and my colleague is
going to want to touch on it also.
The first point you make is that there is what I would
call a front end to a security zone decision, in that
the Canadian Forces have somehow been called
into a function. You've used section 273.6 of the
National Defence Act for public service duties. What I
would say is that in terms of disaster relief, aid to
civil power, and section 273.6 public service duties,
these are the kinds of things for which there is always
ongoing consultation when the Canadian Forces are
deployed in respect of something like that. I think
that was the first point.
The second point that you raise—or which I believe at
least causes me to want to say something—is the idea
that perhaps this authority exists already to a certain
degree. Part of what is happening—and I'll let my
friend finish this—is that we are elaborating on
common-law authority that already exists. To that
extent, your point is very well taken.
Dominic, did you want to add to that?
Col Dominic McAlea: Yes, thank you very much.
I adopt Colonel Fenske's comments entirely, and I'd
also like to add that I agree with you. What we're
talking about is something that is clarifying and
codifying, not creating something new.
With our provision on military security zones, whereas
there was confusion and lack of clarity in the past, we
now have criteria that we can point to as the bases
upon which these zones will be invoked. We have
accountability, we have transparency, and we have a
plan for compensation explicitly contemplated.
Mr. Carmen Provenzano: I have one other question.
In reading the definition of “emergency”—and I think
I know what your response is going to be, but I'd like
to have it anyway—it says:
means an insurrection, riot, invasion, armed
conflict or war, whether real or apprehended....
My questions arises from some of the questions that
have been posed around the table. By whom is this
Col Allan Fenske: That's a good question. This is
a definition contained in the National Defence
Act. It's a definition that operates as a threshold
for the exercise of certain powers under the National
Defence Act. The question must then be who exercises
The short answer that I would provide you with is that
if, for example—and let me take an example that hasn't
been mentioned yet—there was a decision, because of an
emergency, to prolong the currency of the terms of
service of an individual who was in the military,
that decision could be taken at several levels
within the department if it's an individual instance.
But if it has national implications, you can expect
that the Chief of the Defence Staff, the minister, and
perhaps even the government, will be involved.
Mr. Carmen Provenzano: It is my understanding that
in the final result, the context in which that would be
used would be that of an apprehension by the
minister, whether on recommendation or otherwise, is
that not correct?
Col Allan Fenske: Remembering that ultimately the
minister is responsible for the management and
direction of the department and the Canadian Forces,
the minister doesn't do everything. It will really
depend on the context of the decision, and since we're
dealing with the issue of an emergency, it's most
likely that it will be elevated to the very highest
The Chair: Mr. Provenzano, I'm going to have to
cut you off. You're well over your time.
Mr. Claude Bachand: Mr. Chairman, I have three questions on
the inadmissibility of claims for damages, losses and injuries. To
your knowledge, are there similar provisions in other Canadian Acts
which bar individuals, among others, from bringing suit for
damages, losses or injuries which they have incurred during certain
operations or certain situations?
Likewise, do you consider the fact that citizens are barred
from bringing suit in court constitutes an infringement of the
rights described in the Canadian Charter of Rights and Freedoms?
What would happen to a citizen or a merchant who is in a military
security zone, who incurs damages and who is not satisfied with the
compensation given to him by the Treasury. What do we do with that
individual? Do we just tell him that he has to forget initiating
any legal action even if he is dissatisfied with the compensation?
In conclusion, Mr. Chairman, I would say, in my personal
opinion, this type of bill would allow all sorts of infringements
to the rights and freedoms of individuals. I also think that there
is an enormous danger of a political loss of control. I also think
that we are following the wrong path when we go this far in
restricting individual rights and freedoms.
This is my personal opinion and I was determined that it
appear in the record of these proceedings. I had to do it now.
I would appreciate it if you would answer my three questions.
Col Dominic McAlea: If I understand the thrust of
the question, I understand it to be whether or not
this proposal is contrary to the charter. I
would suggest, Mr. Chairman, Mr. Bachand, that it is
not. This is not an unusual provision at all. It has
existed in the National Defence Act for decades with
respect to compensation for damage suffered in the
context of manoeuvres. But it also exists in many
provincial schemes with respect to, say, workmen's
compensation, which is designed to ensure speedy and
efficient compensation to people without having to
resort to the long litigious process. So whereas it
certainly does represent a limitation on one aspect, I
would suggest it represents a gaining of something on
My colleague has pointed out quite rightly that the
obligation to compensate is quite clear. In the text,
it says, “shall be compensated”. We're talking about
a very high standard here that doesn't exist in other
areas, so what you see is, I think, a balance
between a right to pursue for damages, and the need to
efficiently and effectively compensate people for their
losses. I don't think that goes against the charter.
In fact, similar schemes are present throughout the
country at both the federal and provincial levels.
The Chair: Thank you, Mr. Bachand.
Mr. David Price: On the “Reinstatement in Civil
Employment” section, Colonel John Fraser's special
committee that's going across the country has signed up
quite a few companies willing to go into this
plan. Are the rules in this project similar to what was
asked of those companies? What will happen in this
case? Will they stop recruiting such companies?
Col Allan Fenske: Not at all. Part VII,
“Reinstatement in Civil Employment”, is intended
to complement the ongoing efforts at voluntary
compliance by employers, which a number of indications
suggest have been quite successful. In fact, I've
heard a number of people say so.
I'll hone in again on what has to be the key point of
this. We are talking about the point at which we put
the reservists in the position of having to ask themselves if
they will lose their livelihoods, if they should quit their jobs,
or if they should obey this order. That's something the
government doesn't do lightly, and I think the past
fifty years show that successive governments would not
take this step lightly.
The real issue here is a scheme that is out front
where we can see it, and that, as you can see in part
VII, will be the subject of consultation with
organizations and the provinces later. But it's out
front, positioned, and ready to go if we ever do get to
Mr. David Price: I find it interesting that you've
covered a lot of the spots in it, particularly if
somebody is injured and so on. You have said it would
have to be within ninety days after service. Maybe it's in
here and I didn't see it, but if somebody comes back
with diminished capacity—they get out of the hospital
and still have a permanent disability of some
kind—what happens in that case? Is the employer still
obliged to hire?
Col Allan Fenske: I'm delighted that you should
raise that. One of the things we were very careful to
do was to cover a period of convalescence, number one.
In the text of the bill, you will not find a
principle that will deal with the disability issue that
you're talking about. What we do have in the bill is
provision for a number of exceptions. If you were to
look back at the previous job protection legislation
that Canada has used—in 1946, and again for Korea—you
would find we have created exceptions for
employers. The theory behind not putting that in
the bill was to ensure that consultations would take
Mr. David Price: Thank you.
To describe that security zone, your security zone includes
everything within it. Let's take an example. You
used nuclear power stations before. If you're protecting
that piece of equipment, that means you'd have a
security perimeter around it in case there's a
suspected terrorist attack. Would that also give you
access to the interior of the station at that point, in
Col Dominic McAlea: That would depend—
Mr. David Price: I know it's getting a little
Col Dominic McAlea: The zone is a tool to control
access. You would control access from either the
perimeter or very shortly in from the perimeter. Unless
it was due to some operational requirement, I couldn't see
the forces being in the interior.
Mr. David Price: If it were a case of a person
being protected in the interior, naturally they would
be inside for that, because it's an item or a person
that they could be protecting.
Col Dominic McAlea: That's correct. Obviously, if
we set up a perimeter in that circumstance, we're
protecting both people and things.
Mr. David Price: I just have one other short one.
In clause 87, on computer systems and networks, it says
interception of messages must be authorized in writing.
A written authorization is required for each person,
but is that person ever advised?
Mr. Jean Boisjoli: The authorization is given to
the person or class of persons doing the interception,
so it might not be a personal authorization, it might
be for people working in that area. So, yes, of course
they would know that.
Mr. David Price: No, what I meant wasn't the
person receiving, but the person sending, the person
you're looking in on.
Mr. Jean Boisjoli: No, there's no need for that.
Mr. David Price: Okay, thank you.
The Chair: Mr. Anders.
Mr. Rob Anders: I wanted to follow up on Mr.
Bachand's question with regard to provincial
authorization. I share his view that the federal
government is a creation of the provinces and a
creature of the provinces. When it comes to the idea
of Quebec being interfered with at the discretion of a
minister—who is an appointee of the Prime
Minister—with regard to issues related to the St.
Lawrence Seaway, Montreal, or James Bay and the power
lines, I also put Alberta in that context in terms of
how I would feel if the premier of my province was
being interfered with by a minister appointed by the
Prime Minister when it comes to Alberta's waterways,
Alberta's oil fields, or Alberta's pipelines.
Therefore, I have to side with Mr. Bachand on this.
It's one thing to have established military
installations as they exist in the country now, but if
we're going to be giving the power to the minister to
create military zones, I frankly don't think he should
have the ability to do that without the agreement of
the provinces. I'm issuing that as a thought of mine
in terms of this whole thing, and as something for you
gentlemen to walk away from this with. Nonetheless,
that's a concern that has to be addressed.
When we give agreement or when these powers are
granted, we really don't have any assurances that they
won't be abused. For example, let me put the question
to you this way: If the
Minister of National Defence decides he wants to
go in and declare a special military zone around an
Alberta waterway, oil field, or pipeline, would he do
so or would he be able to do so despite the wishes of
the Premier of Alberta, as the bill is worded now?
Col Dominic McAlea: With respect to your first
question in regard to assurances that the authority
wouldn't be abused, I can assure you that these
designations are subject to judicial review by courts
of competent jurisdiction. If someone or some sort of body
believes a designation is illegal, it could be put
before an independent judge, who would rule upon its
legality. That legality would involve assessments of
reasonableness as set out in the section.
With respect to a waterway or pipeline, the scheme is
that the zones are to be in relation to current defence
establishments, personnel, and equipment of the
Canadian Forces and visiting forces, and things “that
the Canadian Forces have been directed to protect”. I
can suggest to you, Mr. Anders, that it's unlikely the
Canadian Forces would be directed to protect a pipeline
unless some consultations had been held with the
province, and unless a request had been made by the province
Mr. Rob Anders: I have to admit that your
discussion about being subject to judicial review rings
rather hollow if that particular asset that's valuable
to the people of Alberta is already occupied by federal
troops, and especially in the case of Mr. Bachand, to
whom I think this argument is even more pertinent,
frankly, for the province of Quebec.
Col Dominic McAlea: I don't know how to explain
this any more clearly, but the military zone vehicle is
not the vehicle whereby the Canadian Forces would
deploy anywhere. It's a tool used once they get there.
They would be going pursuant to some other
authority, and that is most usually by
invitation—not always, but most usually. These are
existing authorities that have nothing to do with
military security zones.
Mr. Rob Anders: Okay, I'm going to ask you this:
In your legal opinion, even though you don't think this
is usually the case, could this legislation be used to
send federal troops into either Quebec or Alberta?
You're shaking your head.
Col Dominic McAlea: It's just not the right
vehicle. It's like putting your furniture on a lot
before you build your house. It's the vehicle to
facilitate matters once a decision is made, pursuant to
a separate authority, to deploy troops.
The Chair: Thank you, Mr. Anders.
Mr. Carmen Provenzano: First of all, gentlemen,
thank you for
your responses to my earlier questions. I have two,
and possibly three questions as a follow-up. For my
own understanding, I really do need some clarification
on the question, “apprehended by whom?”, in regard to
the question of an emergency that is real or
You gave an answer, but what I would like to ask is a
bottom-line question. Is it possible for anyone other
than the minister to declare an emergency, whether it's
on the basis of a real or apprehended situation?
Col Allan Fenske: That question requires me to
give you a bit more detail than I have.
Mr. Carmen Provenzano: Is the answer yes?
Col Allan Fenske: No, the answer is both yes and
no, because it varies depending on where the term
“emergency” is used in the act.
Mr. Carmen Provenzano: I should ask my other
Col Allan Fenske: Sure.
Mr. Carmen Provenzano: An apprehension is a
subjective perception. It's very subjective. In your
answer, could you indicate to me, sir, who would be
making that subjective determination, and how?
Col Allan Fenske: I can assure you that such a
decision is a government decision given in the context
of an emergency, but if you were to look carefully at
the way the act is structured, there are a couple of
places where it doesn't actually say there must be
a declaration. That's the point. And it has been that
way since 1950.
I can tell you that there was no independent use of
the term “emergency” during the Gulf War. It was a
question that was very carefully looked at, and the
decision on whether or not we were going to treat those powers
as emergency powers was a government decision, and the
fact of the matter was that those powers weren't used
Let me just give you a couple of ways in which the
definition is used, and that might help you to see what
Mr. Carmen Provenzano: Can I ask about one way and
have you respond to it, sir?
Col Allan Fenske: Oh, sure.
Mr. Carmen Provenzano: What petrifies me somewhat
is something that is not likely to occur—and I
certainly wouldn't like it to be able to occur. In
terms of the
very seat of government, does anything in the
legislation exempt or require, for example, any
special procedures to be gone through if some minister
felt Parliament Hill was to be declared a security zone
because of some apprehension of invasion, war, or
Col Allan Fenske: There is absolutely no necessary
connection between the definition of “emergency” as
it is used in the National Defence Act, and military
security zones. That's number one.
Mr. Carmen Provenzano: Could a minister declare
this Hill a security zone? I need to know that.
Col Allan Fenske: I think my friend has been
through that several times.
Col Dominic McAlea: If the Canadian Forces were
directed to protect this area and were deployed to do
so through a separate authority, then that would be one
of the options available for use as a protective tool.
Mr. Carmen Provenzano: In that event, then, under
the provisions of the legislation, you would be able to
restrict access, to enforce complete control within the
security zone, would you not?
Col Dominic McAlea: Right, and if you will, we
protect by restricting who gets in. Anyone who is
authorized to get in can get in, and anyone we are told
to let in is let in.
Mr. Carmen Provenzano: I guess I'm asking you if
you see that we may have provisions here that may
effectively have the potential, under a certain set of
conditions, to obstruct the work of the government? Is
Col Dominic McAlea: I think it would be perverse
if the creation of a security zone had the effect of
obstructing the work of the government. That's not
what's intended. It's intended to be projected to
protect. If access were so tightly controlled as to
affect the work of the government, that would have a
Mr. Carmen Provenzano: My questions are designed
to prevent the perverse, nothing more than that. I'm
concerned that there may be situations that require
some special protocol. It may be that my example could
occur. This Hill could become a security zone because of some
subjective perception or apprehension that it needed to
The Chair: Mr. Provenzano, in an effort to shed
some light on this—although you're over your time—I
would think the Parliament of Canada Act would have
some application under the circumstances, and that the
Speaker's authority would probably—
Mr. Carmen Provenzano: At such a crucial time, I'd hate
to be in an argument over which legislation would
The Chair: In any event, we'll get a quick
comment, Colonel, and then we're going to go to Mr.
Col Dominic McAlea: I had a quick consultation
with my colleague, and he points out the obvious. As
a tool of the government, we're not going to be
employed in a way that is going to frustrate the
Mr. Carmen Provenzano: You're to be a tool of the
minister. It's perverse—
Col Dominic McAlea: This is one of the reasons why
members of the Canadian Forces take their orders from
the Chief of the Defence Staff, and no one else.
The Chair: Thank you, Mr. Provenzano.
Mr. Claude Bachand: The Chief of the Defence Staff also takes
his orders from the Minister of National Defence. If he takes his
orders from the Minister of National Defence and then he passes
those orders on to you... I have to admit this is what scares me a
little bit about this bill. I am also speaking as someone who has
had some experience with the War Measures Act. Many people say that
you can't compare them but it seems to me that there is a danger of
politically manipulating the army with the type of bill that is
I will give you an example of a series of events which could
happen. There could be an apprehended state of emergency, such as
an insurrection or a riot, in Quebec, and the Minister could state
that he is declaring that all of the territory of Quebec is a
military security zone. I think that the Act allows him to do this
without advising the Government of Quebec. At that point, the
Minister would say that there are defence establishments and goods
and properties belonging to Her Majesty in Quebec and that we must
defend these assets. Many people are worried about that, as am I.
As far as I am concerned, there was a certain amount of
political manipulation of the army when the War Measures Act was
invoked. I think that, through this bill, we are setting up a new
formula to try to proceed in the same manner. There are many people
who are going to tell me that I am paranoid but it seems to me that
the Minister has all the necessary instruments to do whatever he
wants to do in the scenario I have just described. It is perhaps a
hypothetical scenario but, in my opinion, it is a scenario that
The Chair: Mr. Bachand, I think we've actually
covered this ground before, but I'm going to allow the
colonel to respond.
Col Allan Fenske: Mr. Bachand, first, we must emphasize that
the word "urgence" or "emergency" is used in seven places in the
National Defence Act. This has absolutely nothing to do with
military security zones. Here are some examples. First, in the
event of an emergency, as provided for in the National Defence Act,
we can create a special force. A special force is a force such as
was used in Korea, where reservists were combined with regular
forces personnel. If I am not mistaken, there were also some people
from another element.
Secondly, according to Section 26 of the Act, if you are
enrolled as an irregular member of the forces, in the event of an
emergency, we can keep you.
According to Section 30, if you have enrolled and you reach
the end of your engagement period, you can leave the Forces. You
can be released within two weeks. However, in the event of an
emergency, we can keep you in the Armed Forces until the end of the
And it goes on, Mr. Bachand.
According to Section 31, the Canadian Forces can be called to
active service in the event of an emergency. The effect of this is
not to recall the forces into service. "On active service" means
that there are certain things that human resources have to do.
Other than that, in the description of our offences, we find
in several locations the definition of "emergency". Has an offence
been committed during an emergency? In such a case, certain things
Mr. Bachand, all this is found in the National Defence Act.
The word "emergency" is not used in any other Section. That's it.
There is no connection between a military security zone and
The Chair: Thank you, Mr. Bachand.
Since I have no other questions on the Liberal side,
Colonel, I have my own question that relates again to
the issue of military security zones, and specifically
to the words in the bill, “in the opinion of the
Minister”. One of my colleagues, Irwin Cotler, has
made some interesting comments with respect to the
evidentiary standard that exists there. As it
stands right now, the bar is fairly low. Can you tell
me why, for instance, you would not have included
wording to the effect of “in the opinion of the
Minister, on reasonable and probable grounds”, in
order to provide some justification, some evidence, for
the establishment or designation of these military
Col Dominic McAlea: Certainly. With respect to
the particular words “reasonable and probable
grounds”, they are most often found in the criminal
law context, and are used as a basis for the arrest of
persons, the laying of charges, and the issuance of
warrants for searching.
You quite rightly point out that the standard here is
a subjective one, but I suggest that it's not
problematic, because of all the safeguards that
currently exist. It's reviewable judicially, and
compensation shall be paid if persons suffer damage.
The tests found in the other proposed subsections,
such as requiring the size to be only that which is
reasonably necessary, are where the objective standards
come in and where the decision can be measured against
objective standards if the establishment of a zone is
reviewed. Of course, the minister is politically
accountable for his decisions, and I suggest that I
don't need to explain to you the effect of that
The Chair: As I understand it, though, the
judicial review is not automatic.
Col Dominic McAlea: No, it's not. For example,
there may be a circumstance in which, because of the
sensitivity, we may not want to even give public notice
of the military security zone. That may have the
effect of telling terrorists where to go next.
And perhaps we haven't emphasized this enough, but the
whole purpose of this section of the act is to help the
Canadian Forces protect Canadians and to contribute to
the international effort to fight terrorism.
That's why we're here.
The Chair: Thank you.
I have one other question with respect to proposed
subsection 260.1(6) of that part of the bill, “Notice
of designation”. Let's go through it:
As soon as possible after making a designation, the
Minister shall, by any means that the Minister
considers appropriate in the circumstances, give notice
of the designation to persons who, in his or her,
opinion may be affected by the designation.
There is no specific time requirement. Again,
it's fairly lax, it's fairly loose. Would you not
agree, or do you think it might be appropriate to
tighten that up from the standpoint of people who
should know, so that they actually do know within a
given period of time, in order to be able to protect
Col Dominic McAlea: Again, this is meant to be
flexible. If you notice, it gives some flexibility
with respect to the medium by which the notice is sent.
For example, we would take a very constructionist
approach and require the designation to be gazetted.
The problem is that the average Canadian doesn't know
how to get access to this, so we tried to create a
flexible mechanism that would allow the notice to be
given by the most appropriate means. It might be a
local radio station, a local newspaper, etc.
The Chair: Thank you, Colonel.
Ms. Gallant, you're on for five minutes.
Ms. Cheryl Gallant (Renfrew—Nipissing—Pembroke,
Canadian Alliance): Reading through the Reserve
Military Judges Panel section, when finding recruits
for the reserves, the thrust seems to be that
attention is being paid to the military justice system.
Rather than focusing on new recruits, we're already
looking at judges. It seems incongruent with what
our focus should be. Can you allay my concerns that
this panel of judges could be doubling for
Col Dominic McAlea: The panel of judges is what it
appears to be. If we face increased operational tempo,
or if we face increases in the numbers of reservists
serving on a continuing, full-time basis, it's
reasonable to foresee that the demands on the military
justice system will also increase. So that we're not
looking at delays with respect to trials and justice,
we want an ability whereby we can call these judges up
so that we can use them if we need them. If we don't
need them, we won't use them.
Ms. Cheryl Gallant: How would these judges be
appointed? Where will they come from? What will be
the process in defining who the judges will be?
Col Dominic McAlea: They would all be officers of
the reserve who had served previously as military
judges. Rather than paying for a full-time judge, the
idea is that we would get a judge just when we need him
or her. Instead of paying full annual salaries when we
don't need them, we pay them 1/251 of what an annual
salary is for a judge, for every day that they sit.
Ms. Cheryl Gallant: So the panel will only be used
under the circumstances of disciplinary action for
Col Dominic McAlea: That's correct.
Ms. Cheryl Gallant: Thank you.
Col Dominic McAlea: For Canadian Forces members.
The Chair: Anything further, Ms. Gallant?
Ms. Cheryl Gallant: No, thank you.
The Chair: Thank you.
Gentlemen, I'd like to thank you for your appearance
today. We now have another item of business that
we have to deal with. I know it has certainly been
beneficial to me to be able to listen to your comments
today. I would say that, judging from the comments I'm
getting from members around the table, it has been very
helpful to them. I hope you consider this perhaps as a
bit of a dress rehearsal for your appearance at the
I am going to take the liberty of circulating the
minutes of this meeting to the chairs of the justice
and transport committees so that they know the sorts of
questions that have been asked today. Perhaps
that will help them in terms of saving some time and
getting on to other issues.
Again, thank you very much for being here. We
appreciate your comments.
Members of committee will have received some
information with respect to possible travel by the
committee in the next couple of months in relation to
the study we're doing on operational readiness.
A memo to that effect should have been circulated to
members, relating to the fact-finding tour of the
committee. I would like to open the discussion, if
there is any, with any questions that members may have.
Ms. Cheryl Gallant: Our senior critic asked me to
pass along his concerns. We would like to be able to
give unanimous consent, but before we can do so, we
have to take care of the issue of the time allotment
for speakers in questioning witnesses.
A proposal had been put forth, and he'd like to see it dealt
with first, before we start talking about financing
The Chair: Well, Ms. Gallant, I have great
difficulty linking the issue of questioning of
witnesses by committee members with the issue of work the
committee is intending to do in terms of fact-finding
missions. Although I can appreciate Mr. Benoit's
position in that regard, I don't think the two are at
all linked. As a committee, we are responsible for
investigating issues related to the Department of
National Defence. That objective, that mandate that
the committee has, has precedence over other
I would class the length of time that members of
committee have with respect to questioning.... The
questioning regime that we have here was agreed to by
the committee's members some time ago. We have expressed
a view at the committee table that we would have
discussions related to the amount of time members have
with respect to questions, but I find it very difficult
to link those two issues. I've heard your comments,
Do you have any other comments with respect to this
Ms. Cheryl Gallant: No. He would just like to see
this cleared up before we start talking about the other
thing. There seemed to have been agreement that we would go
The Chair: Well, in terms of what I heard, I'm not
sure there was agreement. There was a willingness
to discuss the issue, but certainly not agreement.
Mr. John O'Reilly: I think the issue is before the
The Chair: I am reminded that the issue is before
the steering committee, and we have another item
properly before this committee at this point.
Do you have any further comments?
Ms. Cheryl Gallant: No.
The Chair: Thank you.
Mr. David Price: It's just a suggestion, Mr.
As I look here, first of all, we're talking about
visiting Berlin. I stand to be corrected, but as far
as I know right now, the seat of national defence for
Germany is still in Bonn. The Germans want to move it to
Berlin, but I don't believe they've moved it yet.
My suggestion would be that, if possible—I'd leave it
in the hands of the researcher to verify this—we go from
Brussels, to SHAPE—Supreme Headquarters Allied
Powers in Europe—and then on to a location near Bonn
to visit the Rapid Reaction Force. After that, we
could go to France from there, and then over to
England. One of the reasons for that suggestion is
that the French defence establishment is much closer to
The Chair: Thank you, Mr. Price.
Do you have any comments, Mr. Koerner?
Mr. Wolfgang Koerner (Committee Researcher): No,
The Chair: Do we have a motion at this point,
then, Mr. Price?
Mr. David Price: I am willing to move that, in
relation to its study on the state of readiness of the
Canadian Forces, the Standing Committee on National
Defence and Veterans Affairs be authorized to travel to
Brussels, SHAPE, the Rapid Reaction Force in Germany,
Paris, and London, from February 18 to March 2, 2002,
for a fact-finding mission on counter-terrorism; that
necessary staff accompany the committee; and that the
proposed budget in the amount of $208,332 be adopted
for the committee's travel.
(Motion agreed to)
The Chair: Thank you, Mr. Price.
No further items of business are before the
committee. With that, the meeting is adjourned.