Bill C-36 (Historical)

An Act to amend the Canada Pension Plan and the Old Age Security Act

This enactment amends the Canada Pension Plan to implement the existing full funding provision for new benefits and benefit enhancements. It also provides for their calculation, the requirements for public reporting of those costs and the integration of those costs into the process for setting the contribution rate.
It changes the contributory requirement for disability benefits under the Canada Pension Plan for contributors with 25 or more years of contributions to the Canada Pension Plan, to require contributions in only three of the last six years in the contributory period. Other contributors will continue to have to meet the existing requirement of contributions in four of the last six years in their contributory period.
It also makes changes to the Canada Pension Plan of an administrative nature to modernize service delivery. It authorizes the Governor in Council to make regulations respecting the payment of interest on amounts owing to Her Majesty under Part II of the Act. It also addresses anomalies in the Act, amends the penalty provisions and clarifies certain language used in the Act.
In addition, this enactment amends the Old Age Security Act to authorize the Governor in Council to make regulations respecting the payment of interest on amounts owing to Her Majesty under the Act. The enactment also eliminates the ability of estates or successions to apply for income-tested benefits and ensures that sponsored immigrants are treated the same for the purpose of determining entitlements to income-tested benefits. It also corrects anomalies in the Act, amends the penalty provisions, modernizes and simplifies the application and delivery of the Old Age Security program and clarifies certain language used in the Act.

The House resumed from March 2 consideration of the motion that Bill C-36, An Act to amend the Canada Pension Plan and the Old Age Security Act, be read the third time and passed.

Human Resources and Social Development

[Monte Solberg, Conservative, Minister of Human Resources and Social Development]

Mr. Speaker, in fact this government has moved to provide all kinds of new services, including the universal child care benefit that goes to 1.4 million families on behalf of 1.9 million children. That is a tremendous help to many, many families, and that comes on top of a universal reduction of the GST, which puts money in the pockets of every Canadian.

Even today we were to be debating Bill C-36, which extends benefits to the disabled and helps seniors. This government is moving to help Canadians of all kinds while the previous government failed on every front to do that.

Canada Pension Plan

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, this is a very important bill, so I am surprised that nobody has asked the other members who have been talking about Bill C-36 any questions. It will give some of our seniors a better future while others, who are not included in this bill, will face a worse one.

You know how much I care for our seniors in both Quebec and Canada because my family, my father is from Saskatchewan. I therefore have a very close connection to people living in the rest of Canada outside of Quebec. In my opinion, all seniors who have contributed to making Canada and Quebec what they are today should be given due consideration and be enabled to experience the end of life with the dignity they deserve in return for all they have given us in the past.

For a long time now, we have been asking the government to improve access to the guaranteed income supplement. For a long time, we have been demanding that the government make it easier for seniors to top up their revenue with the supplement. Previously, people could not get the guaranteed income supplement unless they made a formal request every year. Many people just could not collect it.

The committee that studied this issue in 2001 found that more than 380,000 people in Canada were not exercising their right to ask for the guaranteed income supplement because they were illiterate, or unable to see well enough to read the forms, which were difficult to understand. They may not have had access to resources to help them understand their rights, or they were simply speakers of other languages who did not understand their rights with respect to the guaranteed income supplement to the old age security program.

Bill C-36 will correct some of the problems facing our seniors. However, it does not correct all of them. We would have liked to have had the government and the Liberal Party on our side, in order to be able to correct some serious inadequacies. Some amendments were even made to the bill, to the effect that, now, some Canadians and Quebeckers who were entitled to the guaranteed income supplement no longer are.

Yet, these are people who are Canadian citizens, people who contributed to our society, people who came here believing they would find justice and fairness, in many cases, unlike their experiences in their country of origin.

Today, we realize that the Conservative Party and the Liberal Party did not want to admit that the amendments would restrict access to the guaranteed income supplement for Canadian citizens who are sponsored by someone else.

I find this quite deplorable, since we are talking about the most underprivileged people of all. Simply because an individual is sponsored by someone else does not always mean that that individual has better living conditions. Often, people are sponsored by individuals who, in good faith, wanted to bring them here to give them a better life. We are now seeing that, over the years, many jobs have been lost due to the ineffectiveness of the governments in place. They have failed to act in files such as the textile and manufacturing sectors. Furthermore, it has often been those Canadian citizens who are from somewhere else, who were born elsewhere, who have suffered those job losses.

Despite their best intentions, these people cannot always meet the needs of the relatives they brought here in order to give them a better life. I find the situation deplorable because these people contribute every day and pay taxes like everyone else. If they suddenly cannot meet their families' needs, it is not because they are not trying.

It is because our government was not smart enough and did not take the necessary steps to ensure that the manufacturing sector and the textile sector could provide decent jobs for these people over the long term.

This bill seeks to increase the number of third parties who can receive confidential information.

The government and the Liberal Party have refused to support the Bloc's amendment, which would not allow an increase in the number of third parties with access to confidential information. The law already provides for an authorized representative. Now, the bill refers to “any other individual authorized”.

I worked with seniors for many years. Many times, I saw children, siblings or neighbours of seniors cruelly abuse this right. They blackmailed the senior into signing documents that would give them access to information. Not only were they able to obtain relevant information, but they could also access bank documents and so on.

I do not understand why the government wants to expand access to seniors' confidential information to include any authorized individual.

Despite everything, this bill is sufficiently beneficial that we support it. However, we will have to be very vigilant and make sure that, in future, we have the opportunity to amend these clauses that seem slightly abusive to us.

Vulnerable seniors have no recourse available to them. They have no voice. We here, in Parliament, are their voice. We are the only ones who can help them get what they are entitled to. We should not abdicate that responsibility. It is a responsibility we must accept respectfully and vigorously.

If we do not, your mother, my mother and the parents and relatives of everyone here in this House will suffer and be deprived, because as a government, we did not do our best for them.

We have been fighting for a long time for seniors who have been mistreated and unable to receive the guaranteed income supplement. This bill is designed to further limit seniors' chances of obtaining retroactive guaranteed income supplement benefits.

Last year, on the eve of the election, the government voted by a majority for full retroactivity to be granted to older persons who were entitled to the guaranteed income supplement. Unfortunately, I no longer sense this desire for fairness, I no longer sense this desire for justice from the members of the government. This surprises me greatly because the position of the Liberal Party was very clear on this not so long ago. However, we no longer see this desire for fairness.

I hope that we can discuss this issue further and that the people who were swindled out of this money, some $3 billion, can receive this money. Some $13 billion has just been invested in weaponry and $3 billion and change in airplanes. Furthermore, it wants to invest a few billion dollars in procuring jeeps.

Do those who provided us with the life we have today not deserve to have some money spent on them? Do these people not deserve some of the money we have in such abundance? There are surpluses every year. Annually, the government ends up with staggering surpluses, which it applies to the debt.

Of course some of this money can go toward the debt, but it is essential that we recognize the importance of the older persons who came before us, who allowed us to be here today, who, because of their actions and their courage, are the reason we are here today.

I do not see that in many of my colleagues in the government or in the Liberal Party, and that disappoints me tremendously. I would hope that this changes over the coming year. I am just one person, but all my colleagues in the Bloc Québécois feel the same way I do, that we have to render justice to our seniors, to those who are isolated, alone and have no voice. We have to render justice to all those who came before us. We have to ensure they get justice. I can guarantee that most hon. members in the government and in the Liberal Party would sleep a lot better at night if we could render justice to these people.

When the committee conducted its study, it discovered a number of very disturbing things as far as older persons are concerned, a number of things that were more than disturbing because some seniors were living in total denial. Today, a very high number of older persons choose to die than simply survive or just get by.

More and more seniors are committing suicide, and this is unacceptable in a society like ours. It is unacceptable in a society as rich as the one we live in. It is awful to think that some seniors believe that suicide is better than living, that there is nothing left worth living for. I am ashamed to see that we do not care more than that, that we do not make an effort to give our seniors what they deserve. This bothers me and makes me very uneasy. We have comfortable lives, we cannot deny that. How many of our seniors can live comfortably?

In Laval, where I am from, there are 40,000 seniors, and 38% of those 65 and up are over the age of 75. This segment of society is the worst off, because these people do not usually receive the Quebec pension plan, do not receive any pension, do not receive anything. This category of people is increasing exponentially. In my riding of Laval alone, 12,000 people are over 75. There are more than 12,000 people between the ages of 75 and 90, even 100. One woman even recently celebrated her 104th birthday.

Quite often, these people may have retired 20 or 30 years ago. At the time, they thought they would live until the age of 70 or 75, because back then that was the life expectancy. So, they thought that if they lived until 70 or 75, they would be OK with what little money they had.

Now, they have reached the age of 90 or 95, and they have been without an income for 20 years. They thought they would die 20 years ago, but they are still around and they have very little income. Those with some capital can earn 1%, 2% or 3% in interest. That is not nearly enough for a decent living.

The cost of rent, food and drugs has increased. These people must visit the doctor more often and, since they no longer drive, they must do so by taking a taxi. This means that their related costs, their daily costs are very high, yet, a number of these people do not get the guaranteed income supplement and only get a pittance from the old age security program.

That is not how I want to grow old. That is not how I want my life to end. That is not how I want my mother to go.

I hope that everything we said about our elderly will be taken into consideration. I hope that people will think about this issue.

Yes, I do want Bill C-36 to be passed, because the part of the bill where it says that the guaranteed income supplement will automatically be renewed after the first claim is important. Many people did not know that they had to present a new claim every year. At least, they will get that. We have been asking for this for a long time, and I am pleased that, at last, it is included in the legislation.

The government could have gone further and be more generous. It has the means to do so. It chose not to. Still, the Bloc Québécois will continue to lead the fight, so that those who are entitled to it get full retroactivity. We will continue to lead the fight, so that the elderly are treated in a fair, responsible and respectful manner by this government.

[Charles Hubbard, Liberal, Miramichi, NB]

Mr. Speaker, it seems unfortunate this morning that we came here with great intent to speak to Bill C-36, with the primary purpose of improving the lives of pensioners, those Canadians who have been unfortunate to receive or be a victim of disabilities and yet the parliamentary secretary introduces into this debate discussion on political appointments.

He seems to think that the great purists are on his side of the House but I am sure if Canadians were to review the appointments that his party has made, even the reference to his recent person, there certainly are political affiliations with most of those appointments.

However, today we are talking about Bill C-36. We know that every day, workers contribute to a healthy public sector and to private sector success. What they expect in return from our governments and within society is that their efforts will be respected and rewarded, both now and in later life.

In 2021, Canadian seniors over the age of 65 will constitute approximately 18% of our population. That compares to the year 2000 when seniors were only about 12.5% of the population of Canada. We do have a serious problem with demographics and, hopefully, as our country grows, we will see more new Canadians, larger Canadian families and the fact that we can maintain the demographics that are needed for a good society.

Today the federal government is addressing key issues affecting older workers and tomorrow's seniors. The income security of future retirees must be protected by good, sound public pension plans. I am proud to say that to address the evolving needs of Canada's seniors, the Liberal government made significant investments to ensure this over the last number of years. In fact, in 1997 the government restructured the Canada pension plan to meet the increased demands of an aging population to ensure its future sustainability and to stabilize contribution rates. Experts were called in and they determined that changes were needed to make the Canada pension plan sustainable for at least the next 75 years.

Those reforms were carried out by our government at the time and they made Canada one of only three countries in the world that offered a public pension plan that was sound and would be available into the far future.

As a government, we put our wallet, our money, the finances of this country, into this plan. We invested more than $28.5 billion into old age supplements and guaranteed income supplements on a yearly basis. We pledged to increase the guaranteed income supplement for seniors by some $36 per month for single seniors and $58 per month for couples. This was a promised $2.7 billion investment that directly benefited some 1.6 million Canadian seniors.

As a government, we also committed more than $2 billion annually in direct tax credits, such as the old age credit and the pension income credit. As Liberals, we also created a new employment insurance benefit, the compassionate care program, which allows family members to take time off work to provide care for seriously ill loved ones without suffering sudden income or job losses.

Also, it is probably interesting to note that in terms of our EI legislation, the member for Sydney—Victoria has a private member's bill that would enable those who become sick or are off work for long periods of time because of sickness, to draw EI benefits for more than the 15 weeks allowed at present.

As well, under the new horizons program, we offered funding for community projects to reach out to valuable seniors and to keep seniors active in their communities.

As a Liberal government, our commitment to seniors could not be clearer. We felt that seniors were a very important part of our group and that they must be paid the proper respects for the efforts that they make and have made on behalf of all Canadians.

Income security is just that, security for seniors. I join today to make every effort to ensure that all eligible Canadians receive their benefits in a timely and efficient manner.

As a party and as a member of Parliament, I am very pleased to support Bill C-36 and its provisions for simplifying access and a better delivery of benefits to seniors. Working Canadians need government action to ensure that every citizen has the right to retire with dignity, comfort and enjoyment.

Today's seniors deserve the best care we can give to them with unqualified financial security. Our party has always worked in that regard. We strongly support Bill C-36. Hopefully, we can proceed with the legislation and have it made the law of our country.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, the thing all Canadians need to realize is that the bill was a result of consultation with seniors. Seniors themselves were the ones who encouraged us and members of the committee to enact the changes that we see before us in Bill C-36.

As I mentioned in my opening remarks, not all of their proposals are contained in this bill but a majority of them are. The primary benefit is to streamline the benefits that seniors will receive. It has been for too long a very convoluted and complicated process.

My colleague from Winnipeg Centre earlier mentioned the frustrations that many seniors feel and experience when applying for benefits. The primary purpose of the bill is to streamline the process and the ability for seniors to receive those benefits they richly deserve.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I thank the parliamentary secretary for outlining Bill C-36. However, he did touch on the issue of Canada pension plan disability. I wonder if he shares the same frustration that we have had as members of Parliament when constituents come to us looking for help with their CPP disability.

Virtually everybody who applies for CPP disability gets turned down on the initial adjudication, no matter what the merits of their case would be. It is only on appeal, and usually on appeal with the help of their member of Parliament, that we ever break through this barrier, this complete wall that has been put up in terms of access to CPP.

I do not say this as a criticism for the current government. This has been the case for a decade or more. Somebody, somewhere within Canada pension plan disability, sent a memo around to the adjudicators saying to deny every claim and that if applicants want to come back and appeal, maybe they will consider the merits of it then. I defy anyone to show me a single Canada pension plan disability claim that has ever been granted on initial application. It does not exist.

I would like to know what specifically the government could do about this or what it even may be doing in Bill C-36. If there is some progress to be announced in association with the eligibility for CPP disability within Bill C-36, I would like to hear about it.

Also, briefly, would he not agree that at this point in regard to the Canada Pension Plan Investment Board it is time for beneficiary representation on that board?

An 11-person board now controls investment worth $140 billion on behalf of Canadians and we have no representation on the board. It is made up of patronage appointments, largely, people who have no particular experience with investment banking. In fact, one of those 11 people is the Liberal that I beat in the 1997 election. His soft landing was to get put on this new Canada Pension Plan Investment Board. He was a history teacher.

I wonder if there is not some interest in putting a labour representative, a beneficiary representative, somebody to represent the Canadian public, on this all important investment board that is investing our money.

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, it is a pleasure to rise in this place today to speak to Bill C-36. I should let you and members of this place know that I am pinch-hitting for my colleague, the parliamentary secretary to the minister, who is storm stayed in the bowels of Pearson airport with many of our other colleagues.

In any event, I am thankful for the opportunity to speak to this very important bill. I say it is important because Canadians, particularly seniors, look to our excellent public pension plan for the income security they need and deserve in their retirement years.

It is important for Canada's new government as well. This legislation is part of the commitments we made to Canadians during the last election.

Delivering on that commitment is a way in which we reinforce the trust Canadians have in their government. This is an important change. Canadians are happy to have a government that is following up on what it promised by getting it done.

This bill is also important because it strengthens the public's faith in the government's capacity to serve as a good steward of the Canada pension plan and the old age security program.

Canada's population is aging at an unprecedented rate. The number of seniors is expected to double in the next few decades. It has been urgent for some time that governments develop the policies, programs and services that will meet the evolving needs of seniors, both for today and in the future.

Our government, through Bill C-36, is doing just that. We introduced a number of important amendments to the old age security and the Canada pension plan. At this stage of the bill, it is important to acknowledge the progress we have made.

While this government and the Prime Minister have shown tremendous leadership in delivering what we promised, I am pleased to acknowledge the cooperation of all parties in providing input on the bill before us today. I want to thank each member of the Standing Committee on Human Resources, Social Development and the Status of Persons with Disabilities for their excellent work and collaboration in advancing this bill. While there were some proposals that did not make it into the bill, we are all better informed by the contributions of the members for Chambly—Borduas and Hamilton Mountain.

Ultimately, the bill we have before us benefits Canadian seniors and long term contributors applying for CPP disability. I think they will pleased with the collegial work that took place on their behalf.

I was watching the news on Tuesday night, and in fact, right after the committee's consideration of Bill C-36. There was a segment on the latest Statistics Canada report entitled “A Portrait of Seniors in Canada”. The news story was very positive. Seniors in Canada today are healthier. They are living longer. They are much more active. Many are exercising three or four times a week. And seniors well into their seventies want to keep working.

Seniors have a powerful voice, and this government is listening. What resonates with me is their strong belief in remaining able and active members of Canadian society. I was so proud when at the end of the news report a man said, “I have my old age pension and I have my Canada pension plan...what more do I need?”

We as parliamentarians should not rest on our laurels. We have a responsibility to ensure our pension programs remain stable, sustainable and generous. I believe, and I think members of this House would agree, that we are accomplishing exactly that through this bill.

This bill comes from Canadians. They were the ones who, through their letters, their emails, their meetings with us and their organizations, made a point of saying that they needed these changes. They are changes that will make a difference in their lives, changes that will alleviate some of their frustration and changes that recognize their unique circumstances. They are changes that make sense to all members of Canadian society and treat them all fairly while ensuring that we maintain their trust in their public pensions by remaining fiscally responsible, transparent, and accountable, accountable to them, the seniors of this country.

Our public pension system is something we can rightly take pride in. It plays a vital role in ensuring the economic well-being of millions of Canadians. Public pensions deliver over $54 billion to Canadian seniors each year.

We are proud of the fact that our pension system has been an important part in dramatically reducing the level of poverty among seniors. In 1980, almost 21% of seniors lived on low incomes. Today that number has dropped to less than 6%. Like our health care system, our public pension programs are part of the Canadian way of life. They are defining features that we all cherish.

This bill will improve the delivery of pension benefits for seniors and enhance eligibility for Canadian pension plan disability benefits for long term contributors to the plan. Frankly, it will improve access.

My biggest sense of pride as a parliamentarian, and I am sure this sentiment is shared by all parliamentarians, comes from participating in a democratic process whose end result makes a meaningful difference in the lives of Canadians. These changes go a long way to doing just that.

In particular, the proposed lifetime application process for the guaranteed income supplement means that seniors will never have to reapply for the benefit each time their income increases or decreases. This will greatly ease the frustration of certain seniors and will ensure that those who file their income taxes will receive their benefit in a timely manner.

When a person applies for his or her old age security pension or Canada pension plan, that person is establishing a relationship with us that will last for the rest of his or her life. Expanding the group of third persons who can assist seniors with their pension benefits means that extended family members will be able to play a more active role and assist their loved ones whose first language is not English or French or who may have trouble reading or writing. I think seniors will very much welcome this change.

However, easing eligibility rules for long term Canada pension plan contributors will assist thousands of individuals to qualify for disability benefits in future years. This means that applicants with a long history of attachment to the labour force who become severely disabled can count on CPP disability to be there when they need support. I am particularly pleased that this important change is a result of federal-provincial-territorial collaboration.

Clearly, we always need to need to do more. I want to thank my colleagues and the witnesses who appeared before committee, who offered excellent suggestions on ways in which to improve our outreach activities and who acknowledged that legislative changes only go so far. There is clearly a responsibility, aside from our legislation, to get the word out to explain our pension programs and to work closely alongside community groups.

Seniors are valued members of our society. They are the reason we enjoy our country as we know it today. After their lifetime of hard work, we want to ensure that seniors can continue to have a good quality of life without having to constantly worry about their financial security. They deserve our utmost respect and consideration. We have an obligation to ensure that public pensions respect their needs.

Ultimately, I think this bill goes a long way in effecting the kinds of changes that seniors need and have asked for. I am grateful to all members for their support in moving forward on this bill expeditiously.

The House proceeded to the consideration of Bill C-36, An Act to amend the Canada Pension Plan and the Old Age Security Act, as reported (with amendment) from the committee.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, today we will continue the debate on the Bloc opposition motion.

Tomorrow I hope to start and conclude the debate on the third reading stage of Bill C-36. This relates to the Canada pension plan and old age security.

Next week and the following week will of course be constituency weeks and members will be working in their constituencies while the House is adjourned.

When the House returns on Monday, March 19, it is my intention to call the report stage of Bill C-10, the mandatory minimums penalty part of our agenda to make communities safer; Bill C-42, An Act to amend the Quarantine Act; Bill S-3, to do with defence; and Bill C-33, relating to income tax.

At 4 p.m. on Monday, March 19, the Minister of Finance will present his budget, as he has previously advised the House. Tuesday, March 20 will then be the first day of the budget debate. Wednesday will be day two.

I am currently asking that Thursday, March 22 be the last allotted day subject to any need to reschedule given that we are three weeks away from that day.

Human Resources, Social Development and the Status of Persons with Disabilities

[Dean Allison, Conservative, Niagara West—Glanbrook, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 10th report of the Standing Committee on Human Resources, Social Development and the Status of Persons with Disabilities, or as we like to refer to it, Bill C-36, An Act to amend the Canada Pension Plan and the Old Age Security Act, as was agreed upon on Tuesday, February 27.

[Marla Israel]

I think, generally speaking, words are important—I would definitely agree with you—and the obligation of the “shall” provides an obligation on the part of the minister to disregard circumstances that could arise where it would be warranted, for example, to provide an individual with an application form.

Now, I have to say that from a departmental perspective, as I said, the automatic renewal of GIS, the measures that are taken in Bill C-36, will I think go a long way to ensure that seniors will not be placed in a position where they have to apply through a paper application.

But let me give you a circumstance where the flexibility in the “may” may be warranted. For example, we rely on income information that is provided to us from the Canada Revenue Agency. If an individual has, for example, applied for the benefit in the past and could be in a situation where certain life events have changed—let's say their income information has changed—we're relying on the information that is provided by the Canada Revenue Agency. If that individual claims that the Canada Revenue Agency has not assessed their income appropriately, then what happens is we'd be obliged to accept the CRA income and potentially not have a senior be eligible for a GIS benefit because their income, as assessed by the Canada Revenue Agency, would be too high.

So you proactively go out and you initiate an application form for the individual. They provide us with the income. Ultimately, if the reassessment of CRA deems them to have income that's too high, there will have to be a reassessment of that situation. But I think the flexibility is something you want to ensure, with the proviso that you take every effort that is necessary to avoid an application process.

[The Chair, Conservative, Dean Allison]

Pursuant to the order of reference of Tuesday, January 30, 2007, Bill C-36, An Act to amend the Canada Pension Plan and the Old Age Security Act, will now go clause by clause.

I'll ask everyone to get their bills and their pieces of paper out, and we'll get started with the clauses.

I see that in clause 1 we have no proposed amendments, so I'll just call the question, unless someone wants to speak on it.

(Clauses 1 to 3 inclusive agreed to)

(On clause 4)

Anti-terrorism Act

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am pleased to participate in the debate on the motion to extend the provisions of Section 83 of the Criminal Code, which, if they are not extended by a vote of the House, will lapse and die. Arguably, if there is a need for these types of provisions, new legislation will need to be introduced, thereby creating a gap in our law, if it is the will of the House and the government to proceed in that way.

These particular sunset provisions were added to the Criminal Code by Bill C-36 after extensive justice committee study and public debate. I was very involved in the work of the justice committee and I do have some personal knowledge of those events at that time.

The sunset provisions were inserted at the insistence of a number of people, including members of the House, for two possible scenarios. The first was the possibility that the provisions, which were quite new to the Criminal Code, might be misused in some way. It turns out that the sections have not been used and therefore have not been misused.

The second reason was in the event that the sections were not needed. Over time it was felt that the perceived need for this type of procedure might not be there and if the conspiracy that gave rise to this legislation was to end, diminish or calm, it could be argued that these more robust procedural provisions might not be necessary and that our ordinary laws might prevail and be usable.

In my view, I do not think either of those circumstances have occurred. There has not been a misuse of the provisions and the conspiracy that gave rise to them has not ended or calmed. I will speak to that later in my remarks.

One could say that these provisions were certainly not enacted because they were not needed. If they were not needed, they would not have been enacted. In fact, the public servants and parliamentarians who generated the legislation could see the need at that time and that is why they were enacted. One could argue that circumstances have changed and that is part of the subject of debate here today.

Why were the sections needed five years ago? I think the reason relates to the fact that there was an acknowledged gap in our criminal law, our common law, that simply evolved through the passage of time. Prior to the last century, the subject of security of the state was in the hands of the king. In fact, it was listed among the king's prerogatives and the king actually did take care of that kind of business.

We have all read history books and seen the movies. The king and his forces would actually detain and arrest people who were conspirators against the state. I suppose they did not make fine distinctions in those days whether it involved a conspiracy, a sedition, a subversion or a treason. These were all components of the common law in those days. The king simply would detain the person, perhaps arrest the person and make use of the dungeon and eventually liquidate the conspiracy.

After we entered into the 20th century, with the growth of civil liberties and written constitutions, it became apparent that our citizens needed rule of law. Commonwealth jurisdictions then adopted what were then known as the war measures acts. When the state entered into a serious war conflict, it relied on special legislation called the war measures act. It was used during the first world war and the second world war.

Eventually, in the modern context, those pieces of legislation were seen to be a bit too draconian for peacetime and therefore were dropped. We no longer have a war measures act. As a result, the legislation we relied on through the Korean War and the two world wars up to about the 1960s is no longer there so that the state cannot rely on any special provisions. It must use the criminal law.

We then had the terrible events of 9/11. Roughly 300 or 400 miles from here as the crow flies, we witnessed the events in Washington, New York and Pennsylvania. Following that, other events occurred in Bali, Madrid, Philippines, London and an almost event in Los Angeles. These events have been ugly. They were terrorist attacks, killing and maiming many and creating the maximum in violence, disruption and disorder. That is the nature of the threat.

As I mentioned, we do not have the provisions that used to be contained in the war measures act, and not only do we not have those, but in years gone by the state could rely on conspiracy laws. However, with the evolution of modern evidentiary rules, it becomes very difficult to convict for a conspiracy. As a result, because the sections have fallen into disuse, not many police or crown prosecutors are good at using them and the courts are not comfortable with them.

I would also point out that we no longer have grand jury investigations. These were part of our criminal process. A grand jury would be invoked, put in place and would investigate allegations of a criminal act or a conspiracy before they actually occurred or just after they happened but before criminal charges were laid. Two or three decades ago our jurisdiction stopped using the grand jury procedure.

At the end of the day, our laws have given up on the war measures act, the law of conspiracy and grand juries. My point is that there has been, by happenstance, a gap in our law. In peacetime, our laws work quite well. We are always reforming them but our laws generally are up to the test, but when the state gets into a conflict or it is at risk, it would be my view that the state needs to rely on a different set of provisions. These sunsetted provisions in Bill C-36, the Anti-terrorism Act, were intended to fill the gap.

It is also worth noting that all of our major allies had to do the same thing. This is not just a Canadian story. Our allies in the U.K., the United States of America and Australia all had to legislate to fill this gap in their laws as well. That is a notable thing and we in the House should take note of it. This is not a circumstances peculiar to Canada.

It is important to segregate things which are not politically, legally connected. I have read some of the debates and I have seen some of the media on this. We are not dealing with investigative warrants under the Security of Information Act. We are not dealing with investigative warrants taken out by CSIS to deal with threats to the security of Canada under the CSIS Act. We are not dealing with continued detention under the Immigration Act. We are not dealing with security certificates, which are removal procedures under the Immigration Act. All of those things are outside the envelope of what we are dealing with here.

We are dealing with two sections. The first one, the investigative hearings section, is both retrospective and prospective in its stance. It can look in the rear view mirror at threats and offences and terrorist activities that happened previously, or prospectively or pre-emptively into the future. The second one is the detention with recognizance section and that is pre-emptive in perspective. In other words, it does not look backward. It is there for the purpose of pre-empting an imminent terrorist attack.

I have tried in my own layman's way to conjure up a scenario when these sections would be used. This is one thing that is actually missing from the debate and I am not sure why. I am curious why security professionals or government officials have not offered a scenario which would explain a bit more clearly how and why these sections would be used. I realize that security professionals do not want to alarm the public. They do not want to reveal existing procedures. They are under oath to keep their information inside a security loop. These are probably some of the reasons we have not had that element of this debate.

It is also notable that this country's security apparatus is populated by officials who do not have the power of arrest. This is a very important distinction here. Most people think that CSIS officials can run around and scoop people off the street. The fact is they cannot legally or otherwise. CSIS officials are not even armed. They do not arrest people. The only people who arrest in this country are peace officers, that is, police officers. All the security professionals on the job are not able to make an arrest, whether it is at CSIS or CSE or in transport. They must be peace officers before they can arrest anyone.

As we develop our intelligence data, it is important to realize that if there is going to be any pre-emption of a terrorist attack by an arrest, it would be done by a policeman, not by our security apparatus. Most of the information we get involving security and intelligence comes from the broader security and intelligence apparatus. Some of it comes from police intelligence, but the bulk of it comes from our security and intelligence apparatus and our allies. That is a very important and indispensable function.

Because we do not have a scenario here, I am going to suggest the scenario of a border attack somewhere on the Canadian border. I do not think I am being right off the page here in suggesting there could be an attack. I do not have to go into any gory details; let me just say that an attack is possible and that the attack is imminent. Let me suggest that police and authorities may not have all the data needed to obtain a Criminal Code warrant for any of the existing provisions in the Criminal Code. They may have only one or two persons identified. They may have a possible target identified. They may have detected part of a cell and a likely target. They may not be able technically to connect all of the dots necessary to obtain a Criminal Code warrant. If they can, then they can take out a Criminal Code warrant and make an arrest.

Let me suggest as well that this data has not come from their own sources, but has come from an intelligence agency or an allied intelligence agency. I will assume for the sake of my scenario that the information is credible and real.

Given the potential for massive violence and disorder, pre-emption becomes the order of the day. It becomes a priority. If people are not sure what massive violence and disorder is, they should think about what happened in London, Madrid or New York City, just to get the flavour of what this is.

Under these sections a peace officer using credible data, probably packaged by an intelligence agency, either domestic or ally, would then present the information very quickly to the attorney general of a province. If some members think that is time consuming, some of our constituents have to wait sometimes to see an MP or to see a cabinet minister, but I can say that getting through to the attorney general of a province on a matter of priority happens very quickly. I have had the pleasure of dealing with an attorney general on a matter of that nature, and it was a very prompt and a very quick turnaround time. The information is then packaged for an attorney general, who must provide consent in writing. The information is then taken to a judge, who must also sign off and issue the warrants.

The procedure for the use of these sections is judicially supervised in the beginning. It is consented to by the attorney general representing the government. It is managed by a peace officer, police officer, subject to the Criminal Code. The entire process in both sections has been judicialized. It is totally judicially supervised. There is a warrant, a judge, an attorney general, and a totally judicialized procedure. It looks awfully charter compliant to me.

It has already been mentioned that our courts have agreed that these procedures are charter compliant. An argument that the charter is a reason that these sections should not be renewed, in my view, respectfully to all of those who feel that way, is not on; I do not accept that. There may be other issues involving civil liberties that concern them, but certainly not the charter, at least not in a way that I have heard in this House or in the courts up to now.

There are some side notes worth noting. Both the committee of this House and the committee of the Senate have reviewed these provisions and have reported back confirming their support for the provisions.

Also, there exists, as I pointed out earlier, an arguable symmetry between the provisions that we have enacted here and the provisions enacted by our major allies. They operate on the assumption, and I know there was collaboration back at the time these sections were enacted, that our legislation bears some analogy to their own, that when we deal with our allies, they will have the ability to act quickly, and when they deal with us, we will have a similar ability to act quickly.

If these two sections are to lapse, it is arguable that our legislation will not be so symmetric, will not coincide with the legislation of our allies. Since the threat of conspiracy persists, and I am informed that it does, they may be curious as to why we would allow these two sections to lapse.

I would attribute the argument that the sections have not been used to good intelligence work and good luck. Both of those have contributed to that. Regarding the suggestion that the sections are not needed, one only has to look at weekend reports from the United Kingdom, where public reports are that the threat level there is as high as it has ever been.

With all due respect to many in the House who are concerned about the civil liberties aspects of this, I hope the record will show that these sections are charter compliant and that they are there for the benefit of Canadians as a whole as a protection order. I hope colleagues will take all of that into consideration in the vote.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, it is a great privilege for me to rise and speak to this motion. I must say that I feel rather ashamed. I was here in the House in 2001 when we had the debate. I remember very well all the questions raised by the hon. member for Laurier—Sainte-Marie, who was the opposition leader at the time, as well as those of our justice critic, Michel Bellehumeur, the hon. member for Berthier—Montcalm.

We were worried about a number of things. The first was the very definition of terrorism and a terrorist act. I do not want to return to all that because the Supreme Court did not rule on it. The other extremely important questions that we raised had to do with procedural fairness, the right to a full and complete defence, and how best to achieve a laudable objective. We need to remember the situation in 2001 and how concerned we were, especially in view of what had happened in the United States. We know how close the historical bonds have been between Canada and the United States, bonds that led a former Canadian Prime Minister to say of our relationship that geography made us neighbours but history made us friends.

We could not remain unmoved by the collapse of the twin towers and all the information pouring forth about terrorist networks, real or potential. I would like to thank the hon. member for Marc-Aurèle-Fortin, by the way, for all the vigilance he has shown.

The speeches we heard this morning are pretty amazing in some respects. I should say, first, that for me the Liberals and the Conservatives are the same. We need to remember what the Liberals were saying. The Bloc was very clear. Not that we were great seers or prophets, but we did anticipate a few things. Some provisions of the bill that was being introduced, Bill C-36, were obviously incompatible with the basic principles on which our justice system is built.

I remember very well the questions and comments made by the justice minister at the time. They were even more unacceptable in that she was a former professor of constitutional law who had written articles on legal guarantees and procedural fairness, which I had had occasion to read.

The Liberals and Conservatives were animated by a common desire to move as quickly as possible and respond to the emergency because the situation was indeed very worrisome.

I read the Supreme Court ruling from beginning to end. What the Supreme Court told us is that in a democracy, and in a system where the rule of law means something, the end never justifies the means. As parliamentarians, we must respect that. The Conservatives and the Liberals were of one mind; we realize, with hindsight, that their position does not stand up to our most basic principles of justice.

It is demagogy, to some extent, to rise this morning in this House and to make it seem as though there are those who are concerned about the safety of citizens and those who are not. All parliamentarians in this House are concerned about the safety of citizens. However, it may be that, in our work as parliamentarians, we have to propose measures that push the boundaries when it comes to how we perceive the evidence or how we see the process unfolding.

I was in this House when Bill C-95, the first anti-gang bill, was adopted in 1997.

The definition of a criminal organization then was: five individuals who, in the past five years, committed offences punishable by more than five years' imprisonment.

At that time, there was also a sense of urgency. However, I would never have thought about rising in this House and voting for this bill, which was to be revised by Bill C-24, if the principal condition of the law had been to deny the accused access to all the evidence. That is the problem with this bill. I am surprised that no government members have noted this fact.

We will have an opportunity to mention this: the Criminal Code does contain mechanisms for preventive detention. First, common law recognizes this principle and the Supreme Court has recognized it several times. We need not go very far. Section 495 of the Criminal Code—if my memory serves me correctly—allows a police officer to arrest, on reasonable grounds, a person he believes has committed or is about to commit an offence.

Later, of course, the individual will have a trial and can be represented. All legal guarantees will be offered and justice will be served the way it should be in an adversarial system, in other words, the public prosecution lays charges and provides evidence and the accused can defend himself or herself. Getting to the truth is what this confrontation should be all about. That is not what is being proposed in the antiterrorist provisions.

We are not against the fact that measures are needed. I am sure that the hon. member for Marc-Aurèle-Fortin never said anything of the sort. We acknowledge that some individuals may pose a threat to national security. It is true there are terrorist movements.

I remember attending lectures given by researchers from the Raoul Dandurand Chair in strategic and diplomatic studies. We know that terrorist movements have been at work and that they will be in the years to come. We are even told that the largest terrorist movements, which constitute the worst threat to the security of modern states, are those with religious motivations.

We know all that. We are not questioning the fact that in legislation, whether in the Immigration Act or in other legislation, a minister may be asked to review situations where individuals will have to be deemed threats to national security. We recognize that and we agree that in all modern countries, particularly in vast countries and countries where borders are porous, it is acceptable for these provisions to exist.

Nonetheless, there is something quite unbelievable in these provisions. The Supreme Court said that the way in which the antiterrorist provisions are set up, in their wording and the way the courts are called to interpret them, some procedural guarantees are being breached. I will come back to that.

This leads to the following question. Can these terrorist movements be dismantled by using the provisions in sections 83.27, 83.28, 83.29, and 83.3? Why have these provisions not been invoked? Logically speaking, just because they have not been invoked yet does not mean they will not be in the future, but this is nonetheless a measure of their immediate relevance.

Under the existing Criminal Code—as we were reminded—an individual can be arrested without a warrant. It even sets out that in individual can be brought before a judge, compelled to enter into a recognizance to keep the peace and prohibited from contacting certain individuals. This is set out in section 810 of the Criminal Code.

Section 465 even includes a provision that allows for the arrest of individuals on the basis of conspiracy alone and because there is a risk they will commit acts at a later date. It is not as though we are completely without any other legislative recourse, or as though there is nothing in our existing legislation.

Something is very troubling. While we may not agree on how our political system operates, we cannot deny that there is a recognized tradition of respect for human rights. This includes Diefenbaker's Canadian Bill of Rights, the Canadian Human Rights Act adopted in 1977 and, more recently, the Canadian Charter of Rights and Freedoms.

In the National Assembly, in 1982, at the time the Canadian Charter was debated, we did not agree on the management of linguistic rights. Nor did we agree on section 27 pertaining to the enhancement of multicultural heritage. We nevertheless recognize the charter as a tool for the protection of human rights, particularly for judicial guarantees, which, moreover, already exist and were already set out in the Quebec Charter of Human Rights and Freedoms. We recognize that it serves as a tool for the promotion and enhancement of human rights.

As legislators, how could we have let ourselves become distracted? The Bloc Québécois cannot be blamed because, based on the recommendation of the leader of the Bloc and our justice critic, we voted unanimously against BIll C-36.

Why did we vote against Bill C-36? Because we did not believe that an individual could receive a fair trial without access to the evidence, especially the most important pieces of evidence, the ones supporting the charges or leading to a guilty verdict. The Supreme Court spoke of “sensitive information”. That was the main problem with the proposed law.

I would like to quote what the Chief Justice of the Supreme Court said on page 54. A unanimous ruling is significant, after all. In a decision written by Madam Justice McLachlin, the court said:

I therefore conclude that the IRPA's procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter.

This is serious. Legislators should be very concerned about this paragraph. I have difficulty understanding the government's obstinate refusal to recognize the proposed law. Of course, the Conservatives were not responsible for creating it; the Liberals were.

I hope that all Parliamentarians in this House will acknowledge that things have been taken too far, that due process is not happening and that even though we have a general duty to protect our fellow citizens, we must have safe communities. Specifically, we must protect our fellow citizens from possible terrorist attacks.

The court will explain what it means by the “principles of fundamental justice” embodied in section 7. This section is well known to us all. It concerns life, liberty and security of the person. The Supreme Court will say that those rights cannot be interfered with. First and foremost, we must ensure an impartial hearing.

The Supreme Court considered the question of the evidence being introduced ex parte, that is, the judge reviews the evidence, but not in the presence of both parties, specifically, defence lawyers for the person named in the certificate.

Is it not troubling to know that a person who does not appear before the judge—a judge who has reviewed the evidence, including the sensitive information—cannot refute that information, cannot correct the facts, cannot explain them, cannot respond to the quality of the information provided and the credibility of the informants?

Not only did the Supreme Court say that it was a miscarriage or denial of justice, as must exist for section 7 of the Charter to apply, but it also said that judges hearing the evidence ex parte are placed in a position where they cannot be impartial. Is this not tantamount to asking them to be investigators?

The court said that not allowing a person detained under a certificate to receive all of the evidence and be able to refute, explain and correct it, and to question the source of the evidence infringes section 7.

The court did not say that security certificates are unnecessary. Over the next year, the court invites the legislator to review the way in which certificates are issued. It is interesting to remember that the court gave the United Kingdom as an example. In committee, this was even brought to the attention of parliamentarians. The court even gives Canadian examples where the members of a House of Commons subcommittee, who were hearing from employees of the Canadian Security Intelligence Service, were able to respect the security and confidentiality requirements and still carry out their parliamentary work.

The court also has the following observation, and again I will cite Justice McLachlin. Furthermore, no parliamentarian or minister has provided an explanation for this. I hope they will during our exchanges later. Justice McLachlin said, “—Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person's interest—as was formerly done for the review of security certificates by the Security Intelligence Review Committee, and is presently done in the United Kingdom...has not been explained”.

The United Kingdom has also passed antiterrorist provisions. The court wonders why we did not take the same route. The court proposes a compromise between complete denial of access to sensitive information about the person named in the security certificate and the possible confidential nature of certain information in thwarting terrorist attacks, in other words a procedural fairness requirement, a requirement for respecting basic justice. The court says that if we want to maintain these balances, these powers that have to be balanced between national security, confidentiality of certain information, but also the rights of those who may be charged—who are in fact charged in some cases—then we need access to information. I hope the government will take this into account during the review it has been given one year to do.

In closing, I cannot believe that people were detained for five or six years. I am running out of time. However, we have to remember that different rules apply depending on whether the person is a permanent resident or a foreign national when it comes to a review of detention. A permanent resident gets this review within 48 hours and every six months. A foreign national can be imprisoned for 120 days without ever having their detention reviewed. As the Supreme Court pointed out, this does not make any sense.

I will stop here, but, once again, I believe there is no reason to be proud today of Bill C-36. In my opinion, this House would have been better advised to listen to the Bloc Québécois when it gave these warnings. Fortunately, the Supreme Court was able to take an informed look at this legislation that offends human dignity and the best we can do is to review it.

[The Acting Chair, Liberal, Michael Savage]

Thank you very much.

Thank you, Mr. Lessard.

Those are the questions for today. I'd like to thank the witnesses for coming in person, and also Mr. Bajwa for appearing from Mississauga. Thank you very much.

I will remind committee members that amendments for Bill C-36 are due tomorrow at noon.

I thank the witnesses, and I thank the members for their indulgence.

We are adjourned.