Proceedings of the Special Senate Committee on
Issue 1 - Evidence - Meeting of March 26, 2012
OTTAWA, Monday, March 26, 2012
The Special Senate Committee on Certain Government Bills, to which was referred Bill S-7, an Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, met this day at 1 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
The Chair: Honourable senators and people in the viewing audience, this is the first meeting of the Special Senate Committee on Certain Government Bills in the First Session of Canada's Forty-first Parliament. Today we are honoured to welcome the Honourable Robert Nicholson, whose department has created the act before us. He is our Minister of Justice and the Attorney General of Canada.
Mr. Nicholson is accompanied by Glenn Gilmour, who serves as counsel with the Criminal Law Policy Section of the Department of Justice.
Bill S-7 the Combating Terrorism Act is a 30-clause bill which seeks to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act to better protect Canadians against terrorist activities. The bill received second reading in the Senate of Canada where it was initiated on March 8 and is before us today for the first time as a committee.
The minister, who has some other obligations this afternoon, will be with us for about an hour. Mr. Gilmour will stay on to answer any questions that we are not able to put to the minister because of the time constraint. I assume that as we go through our deliberations, we can seek to have the minister return at some point where his expertise will be of immense value to us.
Mr. Minister, we will ask you to make the opening comments to introduce the bill.
Hon. Robert Nicholson, P.C., Q.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much. I am here today to testify with respect to Bill S-7, and reiterate our government's commitment to safeguarding Canada's national security.
Terrorism will continue to be a threat for the foreseeable future and we must provide law enforcement officers with the means to anticipate and respond effectively to acts of terror.
The bill seeks to re-enact the investigative hearing and the recognizance with conditions provisions in the Criminal Code, this time with additional safeguards to protect the rights and freedoms of Canadians.
It also includes additional improvements to the Criminal Code, the Canada evidence Act and the Security of Information Act.
As you know, the investigative hearing and the recognizance with conditions provisions were part of the Criminal Code from late 2001 until they expired on March 1, 2007. This bill seeks to re-enact these original powers. The provisions in Bill S-7 mirror the provisions in the former Bill C-17 at first reading in the previous Parliament.
The investigative hearing provision would allow the courts, on application from a peace officer, to compel someone with information about a past or future terrorism offence to appear for questioning. These hearings would be intended for gathering information on terrorism offences, not to charge or convict a witness with a terrorism offence.
The recognizance with conditions provisions would allow a peace officer, with permission from the courts, to compel someone to appear before a judge in order to prevent terrorist activity.
The use of investigative hearings and recognizance with conditions would be available under strictly defined conditions and subject to numerous procedural safeguards, including the requirement that it has the consent of the Attorney General.
This bill also proposes to create new substantive offences making it illegal to leave or attempt to leave Canada to: knowingly participate in or contribute to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity; knowingly facilitate a terrorist activity; commit an indictable offence for the benefit of a terrorist group; and commit an indictable offence that is also a terrorist activity.
Our government has been unwavering in its commitment to protect Canadians and to support the global fight against terrorism. That is why we work closely with our international partners to combat terrorism and its perpetrators.
The proposed new offences would send a strong deterrent message, strengthen the hand of law enforcement to mitigate threats and increase the penalties for this type of conduct.
In addition to the creation of these new offences, the bill proposes an amendment to the harbouring offence currently found in section 83.23 of the Criminal Code. It seeks to change the maximum penalty from 10 to 14 years where the applicable terrorist activity constitutes a terrorism offence for which the person is liable to imprisonment for life. In all other cases the maximum penalty for that section would remain 10 years.
A similar change would be made to section 21 of the Security of Information Act, which is the offence of harbouring or concealing someone who commits an offence under that act.
The bill also proposes amendments to the Canada Evidence Act in order to reflect the judgment of the Federal Court in the case of Toronto Star Newspapers Ltd. v. Canada, which was released on February 5, 2007. In this case, the court took the remedial action of reading down certain provisions so that the mandatory confidentiality requirement applies only to ex parte hearings under the regime.
Finally, the bill proposes that the duration of the Attorney General's certificate pursuant to section 38.13 of the Canada Evidence Act be reduced from 15 years to 10 years. Under the Canada Evidence Act, the Attorney General of Canada can issue a certificate prohibiting the disclosure of information for specific purposes. The proposal that we have incorporated into this bill is in response to recommendation 35 of the 2007 House of Commons committee report on the review of the Anti-terrorism Act.
As well, the Attorney General of Canada may issue a fiat to take over any prosecution where sensitive or potentially injurious information, as defined by the Canada Evidence Act, is involved. Recommendation 37 of the House of Commons Subcommittee on the Review of the Anti-terrorism Act urged that the Canada Evidence Act should be amended. It sought a requirement from the Attorney General of Canada to table an annual report on the usage of the fiat and certificate provisions. This bill proposes to enact that recommendation.
I should note, Mr. Chair, that the bill also proposes a number of technical amendments, some of which respond to recommendations of the 2006 and 2007 reports of the parliamentary review of the Anti-terrorism Act.
Mr. Chair, it is essential that we outline some of the key safeguards that have been added to the original recognizance with conditions and investigative hearing provisions. These provisions have been the subject of considerable review as part of the parliamentary review of the Anti-terrorism Act. When the Special Senate Committee on Anti-terrorism reviewed the former Bill S-3, the government agreed to bring the recognizance with conditions provisions in line with the Supreme Court of Canada's decision in R. v. Hall. Second, with regard to the investigative hearings, the bill provides that in all cases a judge would have to be satisfied that an investigative hearing is warranted on the basis that reasonable attempts would already have been undertaken to obtain information by other means. Previously, this safeguard only applied to future terrorism or possible future terrorism offences, not past ones.
Finally, this bill would propose, through the application of section 707 of the Criminal Code, to limit the period of time in relation to which an arrested person can be detained for an investigative hearing. This was unclear or open- ended in the last incarnation of this bill, and so we are bringing it in line with the current provisions of the Criminal Code.
Mr. Chair, our government is committed to safeguarding our national security while at the same time protecting the rights and freedoms of Canadians. Parliament has seen and debated many of these measures. Our approach strikes an appropriate balance.
Thank you for your time.
The Chair: Thank you very much, minister. Before I call on the deputy chair to begin questioning, I want to express my own appreciation to the government for the changes they have made in this legislation based on court rulings, recommendations from the other place and from this committee over time. We appreciate that very much. I will ask this one question.
In the prior consideration of previous versions of this bill, the one that was brought in by the Chrétien administration, then lapsed and was considered anew, we noted that while the government of the day thought that the provisions were Charter-proof, in fact, various court decisions indicated there were some difficulties. I note with appreciation that the government has responded to some of those court rulings in this present draft. Can I take it as given that it is the view of Her Majesty's government that this bill does conform completely with the Charter of Rights and Freedoms?
Mr. Nicholson: It is the view of Her Majesty's government that it complies with the Charter and the Canadian Bill of Rights.
Senator Joyal: Sometimes it is easily said, Mr. Minister, that it is a different game when we are before a court and the court must adjudicate on the word of an affirmation that the bill is soundproof.
Mr. Nicholson: We have outstanding lawyers that will make that case for us, senator, if ever called upon.
Senator Joyal: The reports of the Supreme Court of Canada are full of decisions whereby the government, and not only the present government but previous ones of any stripe, contended that the bill was foolproof, but especially anti- terrorism legislation has been found non-compliant with the Canadian Charter of Rights and Freedoms.
This was not my first question, but I will go on with it. New offences are created by clauses 6, 7 and 8 of the bill, offences that are defined by leaving Canada to participate in activity of a terrorist group or to facilitate terrorist activity.
Mr. Nicholson: Or even attempting to leave.
Senator Joyal: My first question is about section 6 of the Charter of Rights and Freedoms. As you know, Canadians can leave Canada any time they want, and the Government of Canada does not exercise any control of any Canadian who leaves Canada. When you leave any airport, for instance, you do not have to register with the government and the government does not keep any report of a Canadian citizen leaving. How can you be satisfied that those clauses would not be open to challenge under section 6 of the Canadian Charter of Rights and Freedoms?
Mr. Nicholson: Senator, the situations are always questions of fact and questions of proof. If an individual has the mens rea to participate in a terrorist activity or a terrorist training camp outside of this country, it would be a question of establishing the proof beyond a reasonable doubt that it was the intention of the individual to commit that type of crime.
Senator Joyal: How could you stop someone from leaving Canada when there is no control over who leaves Canada? Any Canadian citizen is free to go and come back.
Mr. Nicholson: It is always a question of evidence, as you know. If law enforcement agents were given information that an individual had made plans and those plans could be established as to what and where and why that individual was going, in each case it has to be proven.
Senator Joyal: Yes, but even so, when you say you have to prove the mens rea, the mens rea is not reading the intention of the person. How can you be satisfied that someone is leaving Canada with the intention of going to a training camp in Pakistan or Yemen or any other country?
Mr. Nicholson: Senator, you and I could come up with a dozen different ways in which they might be able to establish that that is what the individual was doing. There would be evidence surrounding that in each individual case as to what, why and where this individual was going. As you know, with all offences criminal in nature, all the elements of the offence must be proven. They have to be proven beyond a reasonable doubt. Again, it is a question of gathering information. It is not just leaving the country; it is attempting to leave the country. If information came to law enforcement agents that this individual was going to leave the country for the purposes of participating in some sort of terrorist activity or terrorist training camp, again it would be caught by this section.
Senator Joyal: Have you been able to review the cases of the Supreme Court in relation to section 6 of the Charter?
Mr. Nicholson: We review all decisions of the Supreme Court.
Senator Joyal: Have you personally reviewed it?
Mr. Nicholson: I am briefed on a regular basis on all aspects of the judicial system in this country; you can be assured of that.
Senator Joyal: Were you informed that this is one of the sections of the Charter for which there have been fewer judgments in the past 10 years?
Mr. Nicholson: Again, senator, I am satisfied that on the analysis that goes into all of these, and the advice that I have been given and the feedback that I have got, that this completely complies and will better protect Canadians.
Senator Joyal: You introduced this bill by stating that — I think these were your words — the government wants to anticipate. This committee, in its earlier existence, heard from various sources of information about the importance of the threat in Canada about security. Could you tell us that at this stage you have privileged information that compels the government to introduce that kind of bill or to resuscitate the investigative hearing or preventive arrest on the basis of new information since this committee heard testimony from CSIS about the type of threat and the extent of the threat in Canada?
Mr. Nicholson: As you know, the Canadian Security Intelligence Service report for 2009-10 I think has very clearly identified that the potential threat of terrorism continues, senator, and it is something that is of concern to all Canadians. I, for one, hear this on a regular basis from people who are quite concerned about what is taking place. Again, when I get together with my international counterparts, I know that they are equally concerned about the threat of terrorism. We all hope and wish that there was not this threat, but as contained in the reports, under Canada's counterterrorism strategy, the CSIS public report continues to point out that terrorism is a very real threat to Canadians.
Senator Joyal: Mr. Minister, I am not questioning that the terrorist threat does not exist. Everyone recognizes it. My question is more specific. Is there any new information where the level of threat in Canada has increased since this committee heard from CSIS witnesses and CSIS representatives about the importance and the imminence of threat in Canada?
Mr. Nicholson: Again, you say you have questioned CSIS. In their reports they say this continues to be a major threat here and throughout the world.
Senator Frum: As you speak, it is hard not to think about the recent events in France where the terrorist was trained abroad.
Mr. Nicholson: It is not going away, senator; you are right.
Senator Frum: In a case like that, in Canada, if an individual goes abroad for terrorist training, is that currently a crime under the Canadian Criminal Code?
Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, there is an offence in section 83.18 of the Criminal Code, which is the offence of participating in or contributing to the activities of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or commit a terrorist offence.
This, conceivably, is an offence that could be committed overseas. There is in section 7 of the Criminal Code a provision by which a court can establish extraterritorial jurisdiction in such cases.
I will go back to say that the offence in section 83.18 talks about knowingly participating in or contributing to the activities of a terrorist group. It then also has a subsection that further defines what contributing to or participating in a terrorist group is. That includes receiving training. This can happen either in Canada or outside of Canada.
Under section 7 of the Criminal Code, there is a specific provision dealing with the ability of a court to establish extraterritorial jurisdiction over a number of terrorism offences that are committed abroad. If the criteria were met in that particular case, then ostensibly, even though the offence might be committed abroad — say, as someone attending a terrorist training camp abroad — the Canadian courts would have jurisdiction to prosecute for that offence here.
For example, the specific subsection I am looking at is subsection 7(3.74) of the Criminal Code, which states that:
Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada that, if committed in Canada, would be a terrorism offence —
— other than certain terrorism offences that do not apply in this case —
— is deemed to have committed that act or omission in Canada if the person
(a) is a Canadian citizen;
(b) is not a citizen of any state and ordinarily resides in Canada; or
(c) is a permanent resident . . . .
For example, if a Canadian citizen goes abroad to commit the offence of knowingly participating in or contributing to the activities of a terrorist group by, say, receiving training, which is the way subsection 83.18 is defined, then our courts would have jurisdiction to prosecute that offence, provided that criteria is met.
The Chair: That is for a Canadian citizen or permanent resident; is that right?
Mr. Gilmour: Or someone who is not a citizen of any state but is ordinarily resident in Canada.
The offence would not take place outside of Canada. The new offences that we propose are for cases where a person is about to leave Canada to go abroad. The person is already here in Canada — physically present. Therefore, the courts would automatically have jurisdiction to prosecute that offence.
Mr. Nicholson: This in addition to the existing provision. It is to capture all the activity, or potential activity, so that we are not in a position of waiting for some of these things to take place.
Mr. Gilmour: The important difference is that is we make it a specific crime to leave or attempt to leave Canada for the purpose of carrying out certain kinds of terrorist activity, and we have made the punishment more appropriate for that offence.
The Chair: Can I assume, therefore, that if this crime is created as a new offence to the Criminal Code, conspiracy to commit that crime is also an offence?
Mr. Gilmour: The general provisions of the Criminal Code dealing with criminal liability would presumably apply. It would be up to the courts to decide whether, in the specific circumstances of the case, it would be too much an extension of the criminal law to have them deem it an inchoate offence.
Senator Frum: The attempt to attend a training camp would be considered a terrorist offence; is that right?
Mr. Gilmour: The definition of a terrorism offence in section 2 of the Criminal Code makes specific reference not only to the terrorism offences themselves but also to conspiracy, attempt, counselling, and the commission of the offence.
Senator Frum: Does training fall into that?
Mr. Gilmour: Someone who seeks to obtain training in a terrorist training camp abroad would fall within the definition of "seeking to participate in or contribute to the activities of a terrorist group.'' The definition of the offence is someone who is attempting to leave or is to leave Canada for the purpose of committing the offence that we already have — "knowingly participating in.''
Under the new offence, the person can be prosecuted for that new offence and be subject to a maximum penalty of 10 years in jail, whereas before they could only be subject to the maximum penalty of 5 years in jail if they fell within the definition of attempting to commit the offence of knowingly participating in and contributing to the activities of a terrorist group.
My apologies, I hope you were able to follow that.
Senator Frum: I did. Thank you.
Senator Marshall: Thank you, minister and Mr. Gilmour, for being here today. I want to speak about the sections that talk about the accountability to Parliament, specifically clauses 11 and 24. Clause 11 amends the Criminal Code, specifically the reporting requirements imposed on ministers. Clause 24 amends the Canada Evidence Act with regard to reporting.
Minister, could you explain what precipitated those changes? Under clause 11, the Attorney General of Canada and the Minister of Public Safety both have to report separately to Parliament, but there are new requirements imposed on them. Could you indicate what precipitated that?
Mr. Nicholson: It seems to me this was a reasonable suggestion that has been made. There have been a number of hearings in both houses of Parliament, as you may know, senator, and we have had these recommendations. Recommendation 17 of the special Senate committee report suggested that we do that. Again, as I have done over the years when reasonable suggestions are made by either house, we look at them very carefully. As you can see, it does get incorporated in there.
I think it is appropriate that both I and the Minister of Public Safety report on an annual basis with respect to this matter. As you can see, there is a five-year sunset provision in there, as well, which is another part of your question.
Again, I think it is appropriate on a regular basis for parliamentarians to have a look at these provisions and see if they should continue.
Senator Marshall: What about clause 24, the clause that amends the Canada Evidence Act?
Mr. Nicholson: I thought that was the annual reporting one.
Senator Marshall: There are two annual reports.
Mr. Nicholson: A recommendation has been made to require the Attorney General to issue a report on the usage certificates and the section 38 fiats. The fiat permits the Attorney General to take over the prosecution. That is consistent with other federal prosecutions now and again. This is an appropriate amendment, as well.
The Chair: The purpose is that Parliament would know exactly how many of these instruments have been used by the Crown, and the circumstances.
Mr. Nicholson: There is no question that these increase the transparency with respect to the usage of these provisions, and I think there are good amendments.
Senator Marshall: Is there a deadline; are there due dates, or is it just sometime after the fiscal year end? I am looking at the actual amendments there now.
Mr. Nicholson: There are no specific due dates, senator.
Senator Marshall: It simply has to be done annually; is that right?
Mr. Nicholson: On an annual basis, yes.
Senator Andreychuk: I have three questions. I think Senator Joyal and I — and I cannot remember if Senator Day was there when we started in 2001 — remember that investigative hearings were the approach that the government of the day took as the least intrusive as compared to other governments. We looked at the U.S. model, the French model, and others. Even though investigative hearings did not fill our criminal law in the cases that we had honed, we thought they were the best balance at the time between protecting citizens from terrorist activity and also maintaining some accountability for the system.
Are you still of the view that the investigative hearings approach is the best? I say that with the background that I think it is good that the courts have commented and that you have responded, because no one had an answer in 2001, and we are feeling our way towards what would be a proper balance. In that context, do you still believe the investigative hearing approach is better than any other that you have come across?
Mr. Nicholson: It is certainly consistent with a number of our allies and those to whom we traditionally look to see how they handle it. The Americans have had a long-standing grand jury system to obtain information, which is a form of investigative hearing.
There are those who have suggested, for instance, that the British model of investigative hearing is far stricter and more restrictive in terms of possibly protecting the rights of an individual than the Canadian model. They have them in Australia and South Africa. A number of countries have them. Whenever we come forward with these, we always compare what we are doing to other like-minded countries, and certainly this is consistent and reasonable with respect to the regimes in place in other countries.
Senator Andreychuk: Going to this new section of leaving or attempting to leave Canada with the intent and purpose of committing an act or omission outside of Canada, I am thinking of those who will have to enforce this bill. It troubles me that we talk about the leaving first and the offence second. In many of our sections in the Criminal Code, you define what the actual act will be, then you look at the absconding part of it and it puts the emphasis here on leaving. It seems to me that will leave many people at the border trying to figure out why people are leaving rather than having done good investigative work and saying, "We have been tracking this person of interest because we believe he will commit an offence,'' and then you go to the leaving part of it.
I am wondering if a reworking of the wording would be more helpful than the way it is put. As I say, I have been on the front lines, and people get trained. Then they get a lot of on-the-job experience, and that is sometimes where the problems are.
Mr. Nicholson: I know someone to your right who has had a lot of training in these investigations, and that is Senator Dagenais.
Senator Andreychuk: I used to pick up the cases from him.
Mr. Nicholson: I am sure they were in good shape when they arrived.
In any case, as was pointed out by Mr. Gilmour, this supplements the existing provisions of the Criminal Code about participating in a terrorist activity outside of Canada's borders.
That being said, of course, the information could be obtained as to what the intentions of an individual are in an investigative hearing or a recognizance with conditions, if there is evidence. Obviously, these are other ways evidence can be obtained, but it seems to me we are closing a gap in the laws of this country to get that individual about whom evidence has come forward that he or she is about to participate in some sort of a terrorist training camp, for example, to cover that off. I do not think it is one before the other. I mean, these are just the tools that we are providing for law enforcement agencies with the appropriate judicial oversight, and, again, it is a complete package before you.
Senator Andreychuk: My concern is someone at a screening device in an airport is found to have something that is not what a normal citizen would carry. Who will make the assessment that that person is leaving at that point? I fully understand the cases where you have built your case and you are tracking. However, I am thinking of the Nigerian case. The father went to the proper authorities and the government was aware, yet the person boarded. The comments at that time were that he should not have boarded the plane; he should have been stopped then. I presume that is the kind of case you are talking about.
Mr. Nicholson: I do not comment on specific cases, but if you are asking me about gathering evidence, it is a question of what evidence comes to the authorities. If anyone shows up at an airport and is about to participate in a criminal activity, there are provisions right now if you are participating and are smuggling drugs, for instance, through the scanners. There are measures in place to intercept that individual, to ensure that he or she faces legal proceedings as a result of that. What we are saying with respect to this provision that has been added to this bill is that if there is evidence, again, it comes in many ways. You are right that it is difficult for people right at the borders to make these determinations, and we are not saying any of these things are simple, but if the evidence is there and it comes to their attention, then the appropriate investigations and proceedings will take place.
Senator Andreychuk: Are you contemplating protocol changes at the border for security?
Mr. Nicholson: Again, anything like that would come from Public Safety, but this is just another change to the Criminal Code that would have to be enforced along the terms of other changes to the criminal acts.
Senator Andreychuk: The filing of the instruments is an issue that has been raised in the past. Many groups said they wanted to know how often you resorted to using the instruments within the act, and so you responded also to the House of Commons and the Senate on that. It is the public's right to know, but there was a lot of discussion about the fact that the sheer threat of using these sections might be an abuse. Are you satisfied that that has not occurred, that you are going as far as you can on the matter of transparency?
Mr. Nicholson: Any time you bring in any provisions to change the criminal law of this country, you hope that it does act as a deterrent for individuals and that there are serious consequences for participating in any type of criminal activity. It is certainly your hope that that is the case. That being said, we know that terrorism is a continuing threat to Canada and other nations. What we are doing here, among other things, is ensuring that tools are there for law enforcement agencies either to intercept or to prosecute those individuals who participate in this kind of activity; so, yes, I am satisfied.
Senator Mitchell: My question would be a concern of many Canadians, which I am sure you share, Mr. Minister, and that is that people become inured with these kinds of special powers. They are forgotten. They become more and more an encroachment on our rights in a very insidious way, and that needs to be protected. It has been often said that the solution to some of these kinds of problems is often worse than the disease itself.
From what I understand, there will be a report by the ministers to Parliament and to both sides, but is there some sort of external review, a public body or a specific committee of Parliament that would have this role specifically? I know that was a recommendation several years ago, but that does not seem to have been returned. I know in some jurisdictions there is an outside independent reviewer who presents the case and that that has many positive ways of addressing this concern that I have outlined. That is to say, they can raise the number of times these powers have been used. They can comment on where the powers might have been abused, where they have gone too far. They can continually highlight from an objective point of view. I am not saying that the government itself would not be honest about this, but, clearly, it will have a perspective.
From another perspective, they could highlight in ways that would always bring to people's minds that these powers exist and should not be taken for granted. We should not become inured to them because they can erode fundamentally important human rights and freedoms that we have, as you have said many times, that men and women around the world are fighting to defend every day.
Mr. Nicholson: I do not agree that this is an insidious intrusion of individuals' rights. One thing that you will find, I am sure, in your study of this is that there is judicial intervention and oversight throughout this. Indeed, there is a mandatory review every five years of this particular provision. We make exceptions to the Criminal Code all the time, and it is truly an exception for reports to be made by two ministers of the Crown to Parliament once a year and then having a mandatory review of these within five years, in any case. There is quite a bit of oversight.
There is nothing stopping a study being undertaken by the committee before the five-year period of time, when the report is tabled by both the Minister of Public Safety and the Attorney General. You are the masters of your own agenda, so again, by all means, have a look at this. You may want to study this every year, if you like. It is our hope that the terrorist threat is such that these are not necessary, but the tools are there if it does come to the attention of authorities.
Senator Mitchell: Why would you be reluctant to establish a committee specifically with this role that could, for example, have a high level of security clearance? Because parliamentary committees do not have security clearance, so there are many things they could never look into even if they wanted to.
As for a judicial review, someone has to have the money to take it to a court, and who does that?
Mr. Nicholson: Quite a few people actually do judicial reviews, and they report to the Attorney General's office on a regular basis. That being said, it seems to me that it was reasonable to have the annual reports done by two ministers with a five-year review. I thought that was reasonable, and it is over and above what you generally get when there are changes.
If you look at the bill, you will see there is judicial oversight and safeguards in place. We have made clarifications that have been recommended to us, so it seems this has been a very reasonable approach. As you say, there are other ways we could do this, but it seems to me this was reasonable.
Senator Dagenais: If I understand correctly, when a police officer has reasonable grounds to suspect that someone has information that could lead to a terrorist act threatening the safety of citizens, he could obtain a warrant to force that individual to submit to questioning. During such a questioning, who would ask questions? Would it be a judge, a Crown attorney, a CSIS agent or the lawyer for the person being questioned?
Mr. Gilmour: Presumably it would be a Crown attorney. The power that you set out to arrest only arises in certain situations; for example, if there is information the person is about to abscond before coming to the investigative hearing.
As mentioned, the arrest without warrant power was in the original version of the bill back in 2001 with regard to the investigative hearing. We have now added to this bill the reference to section 707 of the Criminal Code so that it is clear that someone who is arrested pursuant to that warrant cannot be held indefinitely pursuant to that warrant. He would be treated like any other witness, such as an absconding witness, who is required to testify at a criminal trial. That is an additional safeguard we added.
The provision itself for the investigative hearing also clearly states that the person has the right to counsel during the proceedings. It also contains some additional strong safeguards, several of which were in the original legislation back in 2001. I think the one that comes to my mind especially is the protection that anything the person says or anything derived from what the person says cannot be used against that person except in cases of perjury or giving contradictory evidence.
When the investigative hearing was challenged before the Supreme Court of Canada in 2004, the majority of the Supreme Court ruled that as a result of that particular protection, there was no violation of the right to self- incrimination. It also pointed out that that protection was stronger in terms of having the derivative use immunity protection in the statute for the investigative hearing than is actually the case currently in common law. It was a very robust protection set out in the statute that governs the investigative hearing. These safeguards, in addition to the additional safeguards that the minister has mentioned, continue to be in this legislation.
Senator Day: I have a couple of points of clarification that I am wondering if you had noticed. One of the points has been brought to our attention under clause 12 of the bill, which are the new sunset provisions for the investigative hearings and arrest without warrant.
Under proposed subsection 83.32(1.1), in English it says that there "shall be'' a review by the appropriate committee of the House of Commons and the Senate, whereas in French it says "peut être'' — there "could be'' or "may be.'' Has that been brought to your attention and you intend at some time to bring an amendment to rectify that? Am I misinterpreting the French?
Mr. Gilmour: Thank you for bringing that to my attention because the intent was to have a mandatory review, so the English "shall be undertaken'' —
Senator Day: Line 27, "peut.''
Mr. Gilmour: We will certainly check on that.
Senator Day: Perhaps you could let the clerk know.
Mr. Gilmour: Certainly the policy is to use "shall,'' so that is something that we will look into.
Senator Day: Thank you.
Carrying on with the review aspect, there is a similar section in the bill. I am looking at proposed subsection 83.3(10) on page 10. I am looking at the various prohibitions.
When someone is arrested without warrant and they go through the preliminary within 72 hours and that is all done, the judge may impose certain conditions for up to 12 months afterwards. That is provided for herein, as I read it. At lines 14 and 15, I thought it was interesting that crossbows should be included as a specific item. That seemed to be getting down to a rather detailed type of armament that someone might be prohibited from having, not a bow and arrow but a crossbow or sling shot. Is there a particular case you were trying to cover with that one?
Mr. Gilmour: No, senator. The reason for the reference to such a detail like crossbow is because when these provisions were originally created back in 2001, they borrowed from existing peace bond provisions in the Criminal Code found elsewhere, such as there are peace bond provisions dealing with if someone fears a serious personal injury will befall them, they can go to court to have a peace bond issued against a person.
Senator Andreychuk: There was a case that that came from.
Senator Day: Then that was incorporated.
Senator Andreychuk: It was incorporated into the Criminal Code and then moved over. It was a horrific case.
Mr. Gilmour: That is the reason it is there. It was basically borrowed from the existing peace bond provisions in the Criminal Code, which presumably had been amended to make a specific reference to the crossbow.
Senator Joyal: You remember we heard about it in 2001.
Senator Day: I do not remember that, but I would have thought you might have found a more generic term that covered firearms.
Senator Andreychuk: Read the case.
The Chair: When Senator Day entered the Senate, there were only crossbows; there were no guns.
Senator Day: I wonder if you have an outline of what can and cannot be done for someone who is under this restraint order for 12 months. How will we know whether that person can be fingerprinted, for example? Will that person be fingerprinted? Do you leave it entirely up to the judge to determine, or will there be an outline so legal counsel will be able to say, "you cannot do this'' or "you can do that,'' that kind of thing?
Mr. Gilmour: Depending on the further witnesses that are called, this might be something that may be brought to your attention, but we decided that the general principle is what should apply here, which is that the judge may impose any reasonable condition. What would be reasonable would depend on the facts and circumstances of the particular case.
The Chair: There is jurisprudence about what constitutes "reasonable,'' as quoted by both sides.
Mr. Gilmour: Presumably there would be jurisprudence and other peace bond provisions as to what constitutes reasonableness that might have application here; but we did not come up with, for example, a long list of conditions that could be imposed, which some countries had done in the past. The U.K., in their former control order regime, had a long, non-exhaustive list of conditions — 16, I think — that could be imposed. They have since amended their legislation to limit that quite dramatically, but we felt that the overriding principle is what is important here, the reasonable condition, and it would be for the judge to determine that case.
It may be the judge might decide a person should not communicate with someone, for example, but it is up to the judge to make that determination based on the facts and circumstances.
Mr. Nicholson: This is what they have done in the past. That is all we are asking.
Senator Day: As we get into this we will understand it more clearly.
I have two other points dealing with the same area. There is concerns proposed subsections 83.3(11) and (12) and the phrase "the condition.'' It seems to me that subsection (10) has quite a few, but "the'' is underlined so "the condition'' must presumably include all or part of those conditions.
My final question relates to proposed subsection (13). If you can answer both of those for me, that would be great, but if you cannot, we will talk about it later. Subsection (13) refers to "the judge,'' which to me means you have to go back to the judge that originally set the conditions as opposed to other sections of the act that said the judge or another judge of the same court. In this instance, is it intended that you must go back to the same judge?
Mr. Gilmour: The way it is set out seems to create that interpretation, but that again is something we could look at.
Senator Day: I would think you might want to look at that.
The Chair: I want to thank the minister for making himself available to us. We will continue with round two with the officials from the department, and if we have further questions or issues, we will set another time when the minister might join us in the future.
Thank you again, minister, for making time.
Senator Joyal: I deplore that the minister is leaving because I wanted to bring to his attention — and I will share my views with Mr. Gilmour — that when you quoted recommendation 17 of this committee, namely that the Minister of Public Safety and the Attorney General have to report yearly to Parliament, it was just half of the recommendation. The second half of our recommendation is that a standing national security committee of Parliament be established to receive and review those reports, and to act appropriately. In fact, the chair of our committee, Senator Segal, and I at the invitation of the High Commission of Britain had the opportunity to meet with the members of the British parliamentary committee on national security that has been in existence since 1994. We were informed that one of the most effective ways to maintain the level of consciousness of the public and parliamentarians over issues of security is by having the opportunity not only to receive the reports that are mentioned in sections 11, 12 and 24 of the act but other reports from agencies of government that are involved in security — the RCMP, CSIS, Transport Canada, the Department of Foreign Affairs and so on — so that in fact the perception of security is maintained all through life of Parliament. The U.S. committee has been in existence since 1973, so it is very experienced. It is with that in mind that we recommended that the government reintroduce former Bill C-81 that was introduced in the Thirty-eighth Parliament with the unanimous support of all sides of Parliament, and it has been a permanent recommendation of this committee since its first existence in 2001.
Personally I am still of the conviction, and I do not know if the chair shares my views, that that should have been included in the bill we are contemplating today because it is the complementary aspects to those reports. It is good in a way to have the reports, but if they stay on the table of the clerk and no one takes care of them, it is meaningless, for parliamentarians at least.
I am strongly of the view that the section of former Bill C-81 that was the result of a unanimous and permanent recommendation of this committee be included in Bill S-7, the legislation that we are contemplating today.
As I said, there are precedents in other jurisdictions, especially the like jurisdiction of Westminster in Britain. I think the chair can testify to that as well. That, to me, is one of the key elements of bringing the public consciousness about security always to a prime level of visibility in parliamentary debates. I still personally am of the view that that committee should be part of the permanent structure of Parliament, and there is enough experience on the kind of composition of that committee to ensure that there is continuity on it, that there is a high level of security among its membership. We discussed that with our British counterparts, and I could not but more insist on that very recommendation that was part, in fact, of the 11, 12 and 24 that we have the glass half full on this one; but I am still of the opinion that the government should reconsider that, and especially if we are in the Senate with an S bill, we can contemplate to amend the bill along those lines.
The Chair: Mr. Gilmour, would you care to comment on that? I realize as a public servant that is an interesting area for you.
Mr. Gilmour: I would just have to say thank you very much for those comments and I will certainly bring them to the attention of the minister. I am afraid I cannot comment further.
Senator Joyal: There was another recommendation, Mr. Gilmour. It might be more technical, but I think you might want to comment on this one, which is another former recommendation stemming from this committee in the past, which is the amendments that you brought to the Canada Evidence Act, section 38 and 38.16. We recommended that before there be a closed hearing or non-disclosure hearing that a special advocate should be part of the procedure to be sure that the rights of the person under consideration be protected. Why did you choose not to receive or accept that recommendation from this committee?
The Chair: Why do you think the government chose not to do so?
Mr. Gilmour: The reason is that the government has, as you know, brought in the special advocate regime in relation to the security certificates under the Immigration and Refugee Protection Act, and I think we would prefer to see how that particular regime works in relation to that particular act before considering whether or not it should be applied to other areas. That is basically all I can say right now.
The Chair: So I understand what you are saying, you are not saying that an explicit decision was made not to have a special advocate process. What you are saying is that there is a special advocate process in place with respect to the minister's certificates and that that would need to be evaluated before any subsequent decision would be made about a broader application elsewhere. Is that the purport of your response?
Mr. Gilmour: That is the purport of my response, yes.
The Chair: Thank you very much.
Senator Joyal: Are you not also preoccupied by the fact that that could be challenged in court on the basis that the special advocate did not exist before, as you know?
Mr. Gilmour: As you know, the special advocate regime is currently being challenged in court. I guess, at some point, we will have to decide what the rulings of the courts are with regard to that procedure.
Senator Joyal: If I understand what you are saying, it is that you are not opposed, in principle, to the process of the special advocate being part of that procedure. You are opposed on the basis that the status of the special advocate and its role are not totally confirmed by the court. You prefer to wait until the court decides to act upon those.
Mr. Gilmour: I do not think that is what I am saying, senator. I am saying that the government has introduced a special advocate regime into the security certificate regime under IRPA. Whether or not to expand the security certificate regime or whether to use something else, such as an amicus curiae, is a decision for the government to consider. Part of that decision would be being able to reflect on how the current special advocate regime is working in IRPA.
The Chair: Senator, may I go to Senator Andreychuk? We can come back to you for a third round.
Senator Joyal: I was looking at Senator Andreychuk because I do not want to put her on the spot — and I apologize to Mr. Gilmour — but I remember very well the discussion we had at previous meetings of this former committee on this issue.
The Chair: You have certainly given her a hint on where she might go with this.
Senator Joyal: No, no, I do not want to put words in her mouth.
Senator Andreychuk: We went through the special advocate or amicus curiae or anything else you were going to put in there so that there would be some review of a private investigation. Basically, it is confidential, and our system needs to be scrutinized in a democracy as much as individuals need to be. However, there were a lot of problems with the special advocate. Who gets on to the special advocate list? How are you curtailed in your activity? There was a push- back from lawyers who found it very difficult.
Are there any other ways in this system, other than the review that you are talking about, through which we can be assured that the system works, as contemplated in the act?
Mr. Gilmour: As the statute is currently worded, I would say no. The mandatory parliamentary review set out in the bill would be the primary mechanism for assessing the utility and need for the recognizance with conditions and the investigative hearing.
Senator Andreychuk: It has been some time since I have looked at witnesses brought before courts. Is the person being brought before an investigative hearing somewhat like they would be when you hold a witness? They have access to counsel, right? Here, they would not.
Mr. Gilmour: The investigative hearing provision specifically states that the person has the right to counsel. That safeguard was put in back in 2001. It is specifically set out, along with other guarantees for the person's rights.
For example, he is not required to divulge any information that might be governed by the law of privilege or any law relating to non-disclosure of information. That is also set out in the investigative hearing. There are fairly robust safeguards for the protection of the individual who does answer questions at an investigative hearing.
Senator Andreychuk: He would know the scope of the use of that information, that it cannot be used against him, et cetera, in a trial?
Mr. Gilmour: That is right. As I mentioned, there is a very robust provision that prevents the use of any answer that the person may give at the investigative hearing against the person in any criminal proceeding. As I mentioned, the Supreme Court expanded that, in the Air India case in 2004, to include extradition and deportation hearings as well. Also, anything derived from the information the person provides cannot be used against that person in any criminal proceeding or extradition or deportation hearing.
The only exception set out in the statute is in the cases of perjury or giving contradictory evidence because you want to be able to protect the integrity of the criminal justice system.
Senator Andreychuk: Another area I wanted to go into was the conditional releases going back to a particular judge. It seemed to me that that is what you would want because that judge receives a lot of information, some of it from sources that need to be protected. You would want any amendment or change in any of the releases to go back to that judge — unless the judge were not available, incapacitated, or what have you — so that you have a continuum for the benefit of the public and of the person. I can think of a number of cases where that has happened. You were a little unclear. Did you intend to have the release back before the initial judge or any judge? I would appreciate getting clarification of that.
Mr. Gilmour: Right now, it is clear from the wording that you go back before the original judge because of the reference to "the judge.'' The proposal was to expand that so that the person could go back either before the judge or another judge at the same level of court.
Senator Andreychuk: You were backing off, and you were looking at it. What I want to know is which way you were going because I happen to favour returning to the initial judge.
Mr. Gilmour: I will take both views back to my colleagues and discuss it further.
Senator Joyal: I do not think we have a definitive answer from you on that one.
Senator Andreychuk: Reflect on that one.
Sorry, Senator Joyal, you were questioning.
The Chair: I wonder if colleagues would permit me to ask a couple of questions. I will then come back to Senator Joyal.
If Senator Dallaire, who is a member of this committee, were here today, he would be seeking assurance from you with respect to the linkage between this legislation and what we have seen in the news. For example, reports might say that young people from a particular community have been involved in the terrorist activity somewhere in the centre of Africa or have gone over for that purpose. Clearly, this legislation would be aimed specifically at individuals who would be contemplating doing that.
Someone who was detained by law enforcement because it is believed that they are committing, or have committed, a criminal offense would be treated, if they are under the age of majority, as a young offender in the normal course of the Criminal Code. Am I to understand that there would not be any specific constraint upon the courts, other than would otherwise exist in the Criminal Code, relative to a younger person who might be involved in this kind of punitively illegal activity?
Mr. Gilmour: The answer is in the Youth Criminal Justice Act, which specifically provides that that act takes precedence over any other act of Parliament so that if it is a young person, someone over 12 years old but not yet 18, then they would be dealt with under the youth justice provisions, and the procedures —
The Chair: As you understand it, nothing in this legislation would interfere with that core provision?
Mr. Gilmour: That is my understanding and belief. If you look at section 14(1) of the Youth Criminal Justice Act — and I hope I am quoting the title correctly — it makes it clear that that supersedes any other act of Parliament. Section 14(1) establishes the exclusive jurisdiction and says:
Despite any other Act of Parliament but subject to the Conventions Act and the National Defence Act, a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person, and that person shall be dealt with as provided in this Act.
They would be treated by that system.
The Chair: Thank you for that, Mr. Gilmour.
I had another question that really falls upon the first question of my colleague Senator Joyal, which is really around the issue of enforcement. I assume that when a law like this is contemplated and new legislation is presented, at the same time some thought is given over in public safety and in the various police and other organizations as to how its provisions would be enforced. Provisions providing, for example, for the gathering up of evidence based on a criminal event for the purpose of laying a charge; that is one aspect of it. There is always the preventive aspect; that is, the aspect of a law being used to keep bad things from happening, which a lot of Canadians would hope would be the way in which our laws are used with respect to terrorism.
As we do not have exit controls, as was pointed out by Senator Joyal, has the department given any thought to what the preventive enforcement aspects might be that accompany this piece of legislation, or would that be a matter to be pursued in other ways with colleagues from Public Safety Canada, the RCMP, Canada Border Services, as part of our hearings going forward on this legislation?
Mr. Gilmour: My answer will be in two parts. First, it would probably be useful for you to have persons from Public Safety Canada and the RCMP to testify as to the preventive steps they take.
One of the issues that I have been involved with, and others not only within the Department of Justice but also within other departments, has been in the area of outreach into the communities. As you may know, there is an organization called the Cross-Cultural Roundtable on Security, which was established back in 2005. It is comprised of 15 representatives of various ethno-cultural and religious groups from across Canada. In recent years it has been very active. Members of the round table have been active in outreach activities into various communities. I have had the opportunity and delight to participate, in 2011, in six outreach events that have been organized by the round table not only with newcomers to Canada but also, to some extent, with youth. In fact, just a couple of weeks ago I participated in two outreach events in Hamilton and St. Catharines with members of the Muslim communities who we visited back in October and they invited us back again. If I could just maybe have a minute, I will just describe those sessions.
The Chair: By all means.
Mr. Gilmour: Representatives from various agencies were there, such as, the Department of Justice, Canada Border Services Agency, CSIS and the RCMP. It was an opportunity for both youth and adults to meet with these representatives and to ask questions of them about what they do, their roles and responsibilities, and to raise questions about concerns they might have in the community.
For the outreach events we had most recently in Hamilton and St. Catharines, it was an opportunity for the youth and adults to engage in interactive sessions. For example, for the Department of Justice, a colleague of mine and I presented a short quiz on Canadian law which went from general questions about the Constitution of Canada, what it is and the Charter, to some questions dealing with the anti-terrorism legislation. We have found, for example, at some of these outreach events that there are misconceptions about some of the powers that some of the agencies might have. For example, that CSIS has the power to arrest people, which CSIS does not have. The RCMP has also been engaging in a national security outreach program as well, on its own.
I think it is important that these types of initiatives continue because they are a useful way not only to impart information to the communities but also to hear back from the communities about the kinds of concerns that they may have about legislation. It is an effort to build up trust within communities that may feel alienated.
The Chair: Or unfairly targeted, as the case may be.
Mr. Gilmour: Yes, or unfairly targeted. We found most of these outreach sessions to be, in our view, quite successful.
Senator Joyal: I will follow up on that.
Mr. Chair, you might remember that this committee recommended, in one of its reports, measures that the government and that all government departments involved with security should take in terms of monitoring the policies to prevent racial profiling.
If I may plead two times on the same objective, I think that a standing committee on national security could be monitoring those kinds of policies that you have described, which you feel are useful to involve the community. We have been told at this committee — and the chair will remember — by representatives of CSIS and by police forces around the country, Montreal police, Vancouver police, Toronto police, Ottawa police, how important it is to involve the community to establish the basis of understanding of the rule of law in Canada and how citizens are called upon to contribute to the peace and security of the country. I think what you say is a fair illustration of a standing committee so that we could monitor the situation on a regular basis, with the various government departments, to ensure that the experiences you had in Hamilton or in other parts of Canada are followed up elsewhere. That is, where there are communities where there is a perception that they might be more fragile or more vulnerable to the kind of discourse or message that calls upon people to resort to extremism. We have been told again that that is where the greatest threat lies in Canada — not imported threat, but home-grown threat among communities in Canada.
I am still of the strong conviction that it is an initiative that would be helpful to serve what you have seen as being helpful in maintaining the kind of cooperation that we would look for.
Mr. Gilmour: If I might be so bold, perhaps one of the witnesses you may wish to call upon would be the chair of the current Cross-Cultural Roundtable on Security, Dr. Myrna Lashley, from Montreal. She could talk about the round table and outreach initiatives and its work to date.
Senator Day: I have another point of clarification. I noticed the clause that provides for the right to counsel in investigative hearing, but I do not see a similar clause — perhaps you could help me find that — under "recognizance with conditions.''
Mr. Gilmour: There is no clause that you will find there because this is a variant of the other recognizance with conditions provisions found in the Criminal Code, in section 810 and section 810.01. There is no specific reference there to right to counsel. I think it is just borrowing from those provisions, to assist in the creation of this one.
Senator Day: You are not concerned that the argument will be because there is a specific clause under investigative hearing, and that clause is excluded under arrest without warrant, that it is intended that that right would not be there?
Mr. Gilmour: I had not considered that, senator, but will certainly reflect on that.
Senator Day: You mentioned "any evidence derived'' in investigative hearings. On page 6, about line 23, you stated "no evidence derived from the evidence obtained.'' Has that been interpreted? "Derivation'' is a pretty wide-ranging term. Have there been any interpretations of that that we could rely on?
Mr. Gilmour: I hope you do not mind, senator, if I am a bit wordy here as I give you a quote. I mentioned the Supreme Court of Canada judgment in 2004 which upheld the constitutionality of the investigative hearing. There are two paragraphs I would like to partially quote from that may assist. Other than those two quotes, I will not be able to give you any further information.
Senator Day: Which case?
Mr. Gilmour: This is the case called Application under s. 83.28 of the Criminal Code (Re),  2 S.C.R. 248, 2004 SCC 42. The case is readily available online on the Supreme Court of Canada website.
I will quote partially from paragraph 72 and paragraph 73 of the decision. The court was examining this particular subsection dealing with use and derivative use immunity. The court said, at the beginning of paragraph 72:
Section 83.28(10) provides both use and derivative use immunity to the individual named in an order for the gathering of information. Section 83.28(10)(a) provides that no answer given or thing produced shall be used or received against any criminal proceedings against that person, save prosecution for perjury or giving contradictory evidence. Derivative use immunity is provided for in s. 83.28(10)(b). Indeed, the protection in para. (b) goes beyond the requirements in the jurisprudence, and provides absolute derivative use immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented in evidence against the witness in another prosecution even if the Crown is able to establish, on a balance of probabilities, that it would have inevitably discovered the same evidence through alternative means.
It is a very robust protection. Then in paragraph 73:
It is clear from the above discussion that the procedural protections available to the appellant in relation to the judicial investigative hearing are equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings, such as criminal trials, preliminary inquiries or commission hearings.
I cannot provide you with more information about what "derivative'' means in the context of case law.
Senator Day: That confirms my point that that could be interpreted very broadly, so that is a huge protection for anyone involved or required to be involved in investigative hearings.
Mr. Gilmour: The Supreme Court of Canada interpreted it very broadly.
Senator Day: My other point is to help you. You agreed to that issue of "the judge'' and we were looking at arrest without warrant, page 10, subclause 1.3, "the judge may,'' and I mentioned that earlier in the act that we are looking at, Bill S-7, there is another clause that says "the judge,'' meaning the judge who made the order or another judge of the same court, and that is found at page 5, subclause 7, at the bottom:
The judge who made the order, or another judge of the same court, may vary the terms and conditions.
One is varying terms and conditions with respect to investigative hearings, the other with respect to arrest without warrant, and I was arguing for the integrity of the legislation as the reason I brought that to your attention.
Mr. Gilmour: Thank you very much, senator.
Senator Joyal: The point is that a judge who is part of that procedure is made aware of information in the course of the process of a hearing that another judge would vary would not have the exact access to the same information. That is why I think there is a nuance between the two. Maybe I am wrong in interpreting it that way, but it seems to me it is reasonable to interpret it in a way that the judge who continues to be involved in the decision is the judge who has exactly the same knowledge of all the aspects of the procedure from the beginning; in other words, to protect the person's rights.
Mr. Gilmour: As I say, thank you very much for those comments, and we will reflect on it further.
The Chair: They will go back into the hopper of amendments that Her Majesty may want to bring to this committee before we are finished our discussions, I take it.
Mr. Gilmour: Possible amendments.
The Chair: Possible amendments, fair enough.
Senator Joyal: I have two more questions. The first one relates to clause 2 of the bill. Why did you decide to change the definition of "terrorist activity'' in the Criminal Code to include the very specific reference to "air navigation facility''? Were you of the opinion that the present definition would not be sufficient to cover that?
Mr. Gilmour: Are you talking about clause 2?
Senator Joyal: Yes.
Mr. Gilmour: That is because the original legislation had actually contained some errors. It did not include, for example, a reference to, if I recall correctly, (g), and so this was just meant to correctly align.
Senator Joyal: It is not expanding on the definition.
Mr. Gilmour: It is not meant to expand on the definition; it is mainly to fill a gap that occurred. At one point, if I recall correctly, I think there was an amendment made that inadvertently deleted one subsection. If you do not mind, I have something here that may help to explain it. I will take just a second.
Senator Joyal: While you are looking into your papers, I might make some comments because this committee wrestled with the definition of "terrorism,'' what was terrorism and terrorist activity, from the beginning. When I noticed that in the clause I wondered whether we missed something because there was a field of activity not covered, or is it because you want to be more precise in the way that that particular offence could be spelled out more clearly so it would be easier to proceed in court? I did not know exactly why you came back with that one.
Mr. Gilmour: The reason is simply the amendments ensure that the appropriate references to the offences under section 77 of the Criminal Code are made in those paragraphs. For various reasons, they were inaccurate references made to section 77 so it was an oversight in the original legislation and it is just meant to correct that oversight.
Senator Joyal: Does it change the definition or widen the definition in the way it is in the code at present?
Mr. Gilmour: No, it does not. Paragraph 7 basically deals with the extraterritorial jurisdiction aspect, but it does not affect the definition of "terrorist activity.'' It does not affect the definition of any of the terrorism offences so they are not affected by this.
Senator Joyal: You might have been aware last week that there was a situation in France whereby a terrorist killed seven policemen and children in a synagogue. The President of France made a statement, and I will read it in French if you want, calling for amendments to the French Criminal Code. He called for two specific amendments to the French Criminal Code. The first one is:
Anyone who consults routinely Internet sites promoting terrorism or hatred and violence will be punished under the Criminal Code.
I will translate that in a rough manner. Anyone who, in the regular way, would consult Internet sites that make the apologies for terrorism or hate or violence would be punished under the Criminal Code.
Is it your opinion that at present the Canadian Criminal Code would cover that kind of activity? Someone would regularly consult Internet sites that would make the apologies for violence; in other words, someone who has the habit of visiting sites that promote violence or terrorist activities.
Mr. Gilmour: I think a lot depends on the facts and circumstances of a particular case. As I mentioned, there is the offence of knowingly participating in or contributing to the activities of a terrorist group for the purpose of enhancing the ability of any terrorist group to carry out or facilitate a terrorist activity.
There is a case in the province of Quebec called R. v. Namouth where someone participated with an organization that was essentially the propaganda arm of al Qaeda. He was convicted of the crime essentially of counselling. Sorry, I think he was assisting the group by putting material up on this particular jihadist website. The judge determined that the group he was assisting was a "terrorist group,'' as defined in the Criminal Code. The person was found guilty in part of the offence of knowingly participating in or contributing to the activities of terrorist groups. It would depend on the facts and circumstances of the case as to whether it could be proved beyond a reasonable doubt that the person knowingly contributed to or participated in the activities of a terrorist group for the requisite purpose of enhancing the ability of any terrorist group to carry out a terrorist activity.
That is really all I can say. It would depend on the facts and circumstances of the case as to whether the activities of a person fell within that particular provision of the Criminal Code.
Senator Joyal: I can understand. In the case you have described, there is a link between the person who visits the sites and a terrorist group outside. However, someone would be in front of his or her computer and would be just visiting sites regularly that promote terrorism, hate or violence activities. Could that person be found guilty under the Criminal Code of a related activity to terrorism?
Mr. Gilmour: If the facts did not prove beyond a reasonable doubt that the person was knowingly participating in or contributing to the activities of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out any terrorist activity, then the person would not be caught by that particular terrorism offence. I cannot go into more detail than that, I am afraid.
The Chair: I have a final question, if I may, which is the question that is always posed, no matter which government is in power or when this kind of legislation comes forward. It is the kind of question that is very hard to respond to, but I will give you the chance.
If the investigative procedures had been used extensively in the past five years, there would be people who would be critical for the excessive use of that instrument. When they are not used, as has been the case in this particular circumstance, even though there has been a law in place since 2001, the argument is made: Well, if you have not used it in the past, why would you possibly need it in the future? It is one of those no-win situations for government. I am not asking for a political view because that is not fair, given that you are a public servant, but I am asking for your technical advice to the committee: In your judgment, the circumstances that would have made the investigative procedures necessary and appropriate when first recommended have not changed sufficiently for us to demure from that approach. In your judgment, you are not aware of any circumstance that would have changed the exigencies relative to law enforcement and protection of the public from the first attempt over where we now sit as it is being reintroduced. I do not mean to shape an answer but I am trying to shape a question.
Mr. Gilmour: Senator, as Minister Nicholson pointed out, both the annual report of CSIS and the threat assessment found in the recently used counterterrorism strategy indicate that terrorism is still a continuing threat to Canada. On that basis, I would argue that these tools continue to be needed. You are right: If you do not use these tools, the criticism is that they are not needed. On the other hand, I suppose, it is much like an insurance policy or having a fire extinguisher in your house. You hope that you will never have to access the insurance money or have to use the fire extinguisher; but one never knows what will happen — when an emergency will arise or a situation will develop — where these powers may be needed to try to prevent a terrorist act or to help investigate further a terrorism offence.
The Chair: Mr. Gilmour, I would like to express our thanks for your generosity of time and clarity of responses. We appreciate the time you made available to us today.
Colleagues, before you is a one-paragraph report that merely consolidates what we discussed at our first meeting: That this committee shall not be known as the Special Senate Committee on Certain Government Bills, which sounds like a rather Kafkaesque effort to hide what we are doing. Rather, we would recommend in our first report that the committee be known as the Special Senate Committee on Anti-terrorism.
Senator Tkachuk: That was the previous name.
The Chair: It is not a change in any way, shape or form and is consistent with our last discussion. Should colleagues in the Red Chamber choose to accept our report and concur therein, we will be the Anti-terrorism Committee doing our work as we have done in the past.
Senator Day: Should we be number two?
Senator Joyal: No, number six.
The Chair: I have a motion. Do I have support from colleagues of the committee?
Hon. Senators: Agreed.
Senator Andreychuk: Have you canvassed this with both leaders in the Senate?
The Chair: Yes, and they are comfortable with this.
Senator Day: Should it be brought forward, they would be comfortable.
The Chair: Indeed.
The steering and agenda committee will meet. We have extensive recommendations on witnesses. We will try to put together a schedule for further consideration of the bill and the different witnesses that might be brought forward. For any colleagues who have not had the chance to offer any suggestions with respect to witnesses and for those who may be watching who have thoughts or ideas, they are all very much appreciated.
Senator Andreychuk: I would like to have added the issue of protocols with border security. I have concerns about the administration and leaving the airport should not be the same as a criminal offence in here. I would like to know how the training will be and whether protocols are being contemplated to be amended at airports, et cetera.
Senator Joyal: On the same point, it will be a matter of how those new sections will be interpreted and what kind of circular of information will be spread.
The Chair: That is right, as well as what memorandum of enforcement will go forward for provincial and federal police forces and border services pursuant to the provisions of the bill.
Senator Andreychuk: That is very important. Rather than the intent of what the government is doing, it is how it will be applied.
Senator Tkachuk: We made no decision on when we will be meeting, have we?
The Chair: We have not made any further decision on the schedule. I can report that I was unable to get support from the whips on both sides for Tuesdays.
Senator Joyal: I can share the first reaction I got on our side, Senator Tkachuk. Essentially, there are five committees meeting on Tuesday and the maximum capacity of the Senate is to hold five committees in one day. Adding a sixth committee would have been going over.
The Chair: There are clerks and many others involved.
Senator Joyal: I am not a position to comment on the substance of the answer, but that is what I received as an answer. We might want to review that.
Senator Andreychuk: For those of us who live far away, if you are going to do it on Mondays, take travel time into account. It is impossible these days, and it seems to be getting worse.
The Chair: I understand. You are suggesting a later start in the afternoon might facilitate the matter.
Senator Tkachuk: Otherwise, travel is on Sunday night.
The Chair: Fair enough.
Senator Joyal: I am very open to that, Mr. Chair. I have much sympathy for our colleagues who travel far away. Those of us in Montreal or Toronto are at hand, more or less, but for other senators it is more difficult.
The Chair: We will take that into consideration and try to work with the schedule.
Senator Andreychuk: Tuesday evening would not work either with the five committees. Is that correct?
The Chair: I do not know the answer to that. I have had difficulty making any progress for Tuesday, and I have been trying very hard to do so.
Senator Day: On Monday afternoon, the Defence and Security Committee starts at four o'clock and the Official Languages Committee at five o'clock.
The Chair: Would 1:45 p.m. work?
Senator Tkachuk: It would work.
Senator Andreychuk: You could start without us.
The Chair: We do not want to start without everyone here.
Senator Tkachuk: One o'clock would be fine. Anything later than that would be too late.
The Chair: We will work with that.
(The committee adjourned.)