Bill S-7 (Historical)

Justice for Victims of Terrorism Act

An Act to deter terrorism and to amend the State Immunity Act

This enactment creates, in order to deter terrorism, a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. The enactment also amends the State Immunity Act to prevent a foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of actions that relate to its support of terrorism.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you very much, Mr. Chair.

My question is for Mr. Toews, Minister of Public Safety. On Bill S-7, which seeks to deter terrorism, the documentation provided yesterday contains an analysis of the reallocation of money for the department of foreign affairs. That is what it says, it's done.

As for Bill S-10, which also pertains to public safety, there are costing details affecting foreign affairs, among others. That bill, by the way, has to do with trafficking in a controlled drug or substance.

I want to know whether an analysis was done on the additional costs the department of foreign affairs would have to incur under Bill C-5 for the international transfer of Canadian inmates abroad.

Business of the House

[John Baird, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, with respect to your ruling yesterday, we are working right now as we speak to comply on that issue and we will be responding in short order.

We will continue debate today on the Bloc opposition motion that began this morning.

Tomorrow, we will call for third reading of Bill C-55, the new veterans charter bill. I appreciate that there has been support for the passage of that bill. It is important for Canada's veterans and I am pleased that we have been able to come together on that.

Following Bill C-55, if time permits, we would debate Bill C-54, protecting children from sexual predators; Bill S-7, the justice for victims of terrorism; Bill C-8, the Canada-Jordan free trade agreement; Bill C-12, the democratic representation bill, which is an important bill for my premier in Ontario and particularly for the people in both Alberta and British Columbia; Bill C-46, the Canada-Panama free trade agreement; Bill C-57, improving trade within Canada; Bill C-43, RCMP modernization; Bill C-52, investigating and preventing criminal electronic communications; and Bill C-50, improving access to investigative tools for serious crime.

With respect to the business for next week, I will be, among other places, working hard in my constituency for the people of Ottawa West--Nepean.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you, Mr. Chair.

I really appreciate our two guests bringing their expertise here today.

I'll begin with Mr. Larocque. Of course, Mr. Grossman, if you'd like to respond as well, I'd be pleased to hear from you.

I presume that both of you gentlemen are familiar with Senator LeBreton's bill, Bill S-7. There are similarities here. I think it would have been a more effective bill had they seen fit to add what Professor Cotler had in his, in regard to genocide, crimes against humanity, and so on. I think Canadians as a whole would be quite shocked once they came to understand the comfort, perhaps, that we can say we give to other countries where the leaders are involved with torture. I'm sure they'd be shocked and there would be a certain level of disbelief.

One of the things that is a concern, though, is getting into an area where in legislation we start talking about designating terrorist countries. Then we get into who's a terrorist and who's not a terrorist and, of course, certain western nations tend to be selective in their choices. As an example, I was in Saudi Arabia in 1979 for six months, and I saw people there who were subjected to torture by their own government for a variety of reasons.

Think about the fact that the people involved with 9/11 came out of Saudi Arabia, but we're not saying that Saudi Arabia is a terrorist place, and then again we have thousands of people who go to Cuba each year, and countries choose to designate Cuba as a terrorist state. There's a balancing that has to be done. I mean, if you talk about the renditions out of the United States to Syria, it's very troubling.

How would you reconcile this situation? Or should we be designating terrorist states at all?

[Matthew Eisenbrandt, Legal Coordinator, Canadian Centre for International Justice]

Thank you.

Distinguished members of this committee, I also want to express my sincere thanks for the leadership you have shown on the need to ensure that there is access to Canadian civil courts to sue governments such as that of Iran for their torture when there is no other justice option available. We very much appreciate this opportunity to be with you today to discuss how to achieve this.

I'm the legal coordinator for the Canadian Centre for International Justice. I've held this position for three years. Previous to this I served for more than five years as the legal director of the Center for Justice and Accountability, a U.S.-based non-profit organization that also works to prevent torture and other severe human rights abuses by helping survivors hold perpetrators accountable through legal cases.

I have worked on CCIJ's intervention as a friend of the court in the Kazemi case to provide legal analysis about the issue of state immunity. And I coordinated a workshop of leading Canadian and international legal scholars and practitioners who came together at the University of Ottawa in 2008 to discuss what changes were needed in Canadian law to allow torture survivors in Canada to have access to justice.

Having endorsed Bill C-483, we thought this committee would be interested in hearing some of the key arguments in favour of this legislative change and the responses that can be given to what we anticipate may be some of the questions or concerns raised by your colleagues as you discuss it with them.

First, it is important to note that there is a global trend away from immunity in civil lawsuits. Most countries--including almost all civil law countries, which make up two-thirds of the world--do not have legislation providing immunity to foreign governments. Many also allow victims to file civil claims in conjunction with criminal prosecutions of torturers and war criminals.

Courts in the United States have heard dozens of lawsuits concerning torture and other atrocities. The U.S. Supreme Court recently ruled that the United States immunity law, which is very similar to Canada's, does not grant immunity to individual officials. Italy's top court has ruled on several occasions that Germany is not immune in lawsuits for Nazi-era abuses. Even though the U.K. House of Lords did apply immunity in a torture case, that decision is now on appeal at the European Court of Human Rights.

An important United Nations committee has underlined the trend away from immunity and pointed to Canada as being in violation of its international legal obligations in this regard. In 2005 the United Nations Committee against Torture, the body charged with overseeing the proper implementation of the Convention against Torture, made it clear that the convention requires all states to provide civil remedies to survivors of torture.

Canada and most other countries have ratified the convention. And the committee pressed Canada to “ensure the provision of compensation through its civil jurisdiction to all victims of torture”. This was shortly after the Ontario Court of Appeal found that Canada's State Immunity Act barred a claim against Iran for the torture of an Iranian man, Houshang Bouzari, who is now a citizen of Canada, in a case we described during our last appearance. In other words, this UN committee was indicating that Canada should not grant immunity in torture cases. The committee has reinforced with several other countries in recent years this position that all victims of torture must be provided access to justice according to the torture convention.

The trend away from immunity in civil cases follows the elimination of immunity in most criminal cases concerning human rights atrocities, both internationally and in Canada. The Statute of the International Criminal Court and the legislation in Canada and around the world that allows for war crimes trials in criminal courts explicitly prohibits anyone in any rank of government from claiming immunity. Ensuring that immunity does not bar access to justice in civil cases for the same acts is a natural extension.

A second point in favour of Bill C-483 is that Canadian parliamentarians have already recognized the need to create exceptions to the State Immunity Act, with several exceptions already written into the act and a new one under consideration.

One of the exceptions in the State Immunity Act is for commercial activities. A second, the one that we have been discussing, which was used by the Quebec Superior Court to give Stephan Kazemi the opportunity for a remedy, is for involvement in injuries and property damage that occur inside Canada.

In recent years several proposed legislative amendments have also attempted to create an exception to the state immunity doctrine for terrorism, the most recent including Bill C-35, Bill S-7, and Bill C-408.

In June 2009, then Minister of Public Safety Peter Van Loan introduced to Parliament Bill C-35, an act to deter terrorism and to amend the State Immunity Act. One of the primary goals of this bill was to create a new exception to Canada's state immunity law so that it cannot prevent lawsuits in Canada against foreign governments for certain acts of terrorism.

Bill S-7 is an identical bill introduced after the prorogation of Parliament. It was introduced in the Senate in April 2010 by Senator Marjory LeBreton and was recently passed by the Senate and has had first reading in the House of Commons. This bill will allow lawsuits for alleged acts of terrorism that occurred on or after January 1, 1985, the year of the Air India bombing, in which 280 Canadians died.

Again, Bill C-483 is a natural extension. If foreign governments can be sued for commercial activities and for injuries and death they cause inside Canada, why would we not permit them to be sued for the torture and murder of Canadians outside Canada? If a new exception for terrorism proceeds, it should go hand in hand with an exception for torture and other violations of international law of this magnitude.

A third point in favour of the bill is its strong potential for the deterrence of torture, war crimes, and other atrocities. Throughout history these horrendous crimes have been committed with no accountability. But that has begun to change in recent years with the creation of the International Criminal Court and the launching of both criminal and civil cases around the world.

If governments and their officials know they will face justice in a court of law, they will be less likely to commit abuses. Not all of these international crimes will be completely prevented, in the same way that our domestic laws do not prevent all crimes. By the same token, one can only imagine how much more crime there would be if there were no police or judges to enforce domestic law. The same logic applies at the international level. If there is even the smallest possibility that increasing international enforcement measures could help prevent a future Darfur, Congo, or Burma, we must do all we can to provide justice.

Finally, it is important to note that Bill C-483 would remove immunity and thus allow civil claims for four types of acts that have already been criminalized in Canada. The bill would remove immunity in cases alleging acts of torture, genocide, crimes against humanity, and war crimes. Parliament has already criminalized these four human rights violations in the Criminal Code and the Crimes Against Humanity and War Crimes Act passed in 2000 when it ratified the International Criminal Court Treaty. By amending the State Immunity Act, Bill C-483 would merely permit survivors to seek compensation and redress from the states that commit these criminal acts.

Those are some of the key points that can be raised to make a compelling case for the passage of Bill C-483. Bill C-483 was also carefully crafted to address potential challenges, and I will briefly review two key points in this regard.

First, it is possible that someone will ask whether the amendment will throw open the metaphorical floodgates and swamp Canadian courts with lawsuits about human rights abuses that occurred overseas. The answer is no. The number of lawsuits will be limited. As with all civil cases in Canada, judges will have to be assured that a lawsuit has a connection to Canada and the province in which the case is brought. Even if a connection exists with the Canadian province, a lawsuit will proceed only if Canada is the best forum. If another country is in a better position to hear a case, perhaps owing to the location of witnesses and evidence, and if that country protects due process rights, a Canadian court can dismiss the lawsuit. As a result, Canadian courts will take on only those cases in which Canada is both the best forum and the last resort.

The language of Bill C-483 explicitly confirms that lawsuits for torture and other serious international crimes will only be permitted once all remedies have been invoked and exhausted in the country where the abuse has happened. Any civil litigation lawyer in Canada will advise a potential client about these limitations.

The number of lawsuits will also be limited by the fact that the evidence necessary to bring this kind of lawsuit is often challenging because of the obvious lack of cooperation by authorities in the affected country. It is also difficult to find witnesses and ensure their protection. The psychological trauma suffered by most torture survivors is an additional barrier, and many people lack the necessary financial resources.

The number of cases to proceed in other countries in which civil litigation for torture and other atrocities is permitted has been limited, likely due to a combination of these factors. At the same time, many survivors with whom we work talk about the importance of knowing that Canadian courts are open to these kinds of claims, even if they themselves will not be proceeding with a lawsuit.

A second potential critique of attempts to amend the State Immunity Act is the perceived impact on Canada's diplomatic and trade relations if Parliament signals its willingness to take foreign governments and individual officials to court. In response, one can point out, as I have described, that most countries of the world do not have legislation comparable to the State Immunity Act to provide protection from litigation, and that when the issue has been litigated, some courts have refused to apply immunity to civil claims for the most grievous violations of human rights. Clearly, these countries do not view their commercial and diplomatic interests as being at risk because of the possibility that someone in their country might sue Iran or other human rights abusers.

The U.S. and Italian models show that although some countries have protested lawsuits targeting them or their officials, there is little evidence that lawsuits have led to major diplomatic retaliation. In addition, there should not be an explosion of cases against Canadian allies that provide proper redress through their own courts. As I mentioned, Canadian courts can dismiss those cases. With countries that are not close allies and do not respect the rights of their citizens, civil lawsuits provide another effective tool to convince them to change their ways.

If the goal of deterring future abuses is in fact achieved by these cases, the United Nations and foreign affairs departments around the world will have fewer situations of human rights violations raising sticky diplomatic issues.

You may also wish to point out to colleagues that with the State Immunity Act, as it currently reads, a very embarrassing and frankly outrageous situation arises for the Government of Canada. This committee heard Stephan Kazemi, a Canadian, describe how the torture and death of his Canadian mother has resulted in so many years of pain and suffering in the prime of his life. In the same year, he was in court to seek some measure of justice at great emotional cost, with CCIJ and Amnesty International as Canadian charities using scarce resources to support him. There was the Canadian government using Canadian taxpayers' money to stand on the opposite side of the courtroom to argue against Stephan's right to proceed with his case for his mother's torture and murder, because it needed to defend its law, the State Immunity Act.

Great pains were taken to express that Canada was not condoning the human rights record of the Government of Iran, but the practical result is that it contributes to the commission of human rights abuses. There are people being raped, beaten, and killed in the same Iranian prison right now as we sit here. Rather than seeking dismissal of these worthy cases, Canada has the power and obligation to help bring these abuses to an end.

We hope the image of what Bill C-483 means in terms of human lives is what will stay with you, and we hope that you will act quickly across parties to ensure its prompt passage. We have background materials and copies of our statements to leave with you to help you do that.

Thank you so much for the opportunity to discuss this very important issue with you today.

[Mark Holland, Liberal, Ajax—Pickering, ON]

I'm asking on Bill C-4, Bill C-5, Bill C-16, Bill C-17, Bill C-21, Bill C-22, Bill C-23B, Bill C-30, Bill C-35, Bill C-37, Bill C-38, Bill C-39, Bill C-43, Bill C-48, Bill C-49, Bill C-50, Bill C-51, Bill C-52, Bill C-53C-54, Bill C-59, Bill SS-6, Bill S-7, Bill S-10.

What are the costs? What are the head counts? What are the implications? Why won't you give them to Parliament?

Disposition of Abolition of Early Parole Act

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Mr. Speaker, I would like to participate in the debate on the motion to prevent debate on the content and substance of Bill C-59. I find it rather odd that the Bloc has supported the government's attempt to stifle any attempt at debate on the substance of this bill.

No one in the House can accuse the Liberals of not supporting the idea of eliminating parole eligibility after one-sixth of the sentence is served for economic crimes. Two years ago, my colleague from Bourassa, our candidate in Saint-Bruno—Saint-Hubert and our member for Lac-Saint-Louis participated in a press conference with several of Earl Jones' victims to call on the government to quickly bring forward a bill to eliminate parole eligibility after one-sixth of the sentence is served, especially for criminals who commit major fraud and have multiple victims.

No one can accuse the Liberals of not supporting that idea. I think it is really dishonest of the government to make that kind of accusation when it knows very well what the Liberals' position is. This was pointed out by my colleague from Notre-Dame-de-Grâce—Lachine.

Now I would like to talk about the debate and the fact that the Conservatives and the Bloc members want to limit the scope of the debate. Just seven months ago the members of the Bloc rose in the House to criticize the government for doing the exact same thing it is doing now with Bill C-59. The government moved a motion to block debate.

Last June, the member for Saint-Maurice—Champlain rose in the House to criticize the government for moving a motion to block debate on the Canada-Colombia Free Trade Agreement Implementation Act. The Bloc member for Hochelaga also rose to oppose a government motion to block debate on Bill C-9, the Jobs and Economic Growth Act, by imposing time allocation.

We are opposed to this time allocation motion because we believe that Bill C-59 addresses a very important issue. Furthermore, for two years now, the Liberals have been calling on the government to eliminate parole eligibility after one-sixth of the sentence is served for economic crimes like those committed by Earl Jones, Vincent Lacroix and others.

I think it is a shame that some would have people believe that the Liberals do not want to protect victims. That is simply not true. When the government introduced Bill C-21 on economic crimes and it was referred to committee, the Liberal justice critic proposed an amendment to the bill to eliminate eligibility for parole after one-sixth of the sentence in cases of economic crime. The Conservatives and the Bloc defeated the motion.

Every MP is entitled to his or her opinion on bills that we are called on to debate in the House. It is a fundamental aspect of the democratic process. The operative word here is “debate”, and the collusion between the Conservatives and the Bloc is preventing us from acting as responsible parliamentarians.

We would like to hear from experts. We want to know how this bill will truly address a gap in the law, how it will do justice to victims, how this bill will improve the chances of rehabilitation for those who once lost control of their lives.

Perhaps we should indeed eliminate parole after one-sixth of a sentence for offenders who have committed serious economic crimes and left a number of victims.

However, for non-violent criminal acts that are not fraud, we believe that evidence has shown that parole after one-sixth of a sentence has been very effective and that the rate of recidivism is much lower.

We will never know what the experts might have said since this closure motion eliminates any chance to consult experts. With this government so eager to control everything, it has become somewhat of a tradition to just pass a bill without any idea of the facts that might call it into question.

The Liberals are against this closure motion. It is not justified, and we regret that the Bloc has decided to join the Conservatives to limit the debate on this bill. As far as the substance of the bill is concerned, in the past and still today, no one could accuse the Liberals of not showing their support for eliminating parole after one-sixth of the sentence for economic crimes.

In order to illustrate the government's intellectual dishonesty, I would like to present a chronology of the Conservatives' failures in their so-called fight against crime.

I am referring here to the various bills that have died on the order paper for all sorts of reasons or that have remained in the House or at committee indefinitely.

Here they are. Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, died on the order paper when Parliament was prorogued; Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), died on the order paper before the House had a chance to vote on it; Bill C-26, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime), also died on the order paper. It is certainly not the opposition that forced the government to prorogue Parliament.

Bill C-31, An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to make a consequential amendment to another Act, died on the order paper, and Bill C-36, An Act to amend the Criminal Code, on the faint hope clause, died on the order paper before being brought back this session. One committee meeting was held on Bill C-46, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, before it died on the order paper. Bill C-52, An Act to amend the Criminal Code (sentencing for fraud), which is related to Bill C-59, the bill we are dealing with today, died on the order paper when Parliament was prorogued. Bill C-58, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, died on the order paper. The prorogation of Parliament killed many bills.

Among the bills introduced by the Minister of Public Safety was Bill C-34, the Protecting Victims From Sex Offenders Act, which also died on the order paper. The bill to deter terrorism and to amend the State Immunity Act died on the order paper. Bill C-43, An Act to amend the Corrections and Conditional Release Act and the Criminal Code, died on the order paper. Bill C-47, An Act regulating telecommunications facilities to support investigations, died on the order paper. Bill C-53, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other Acts, died on the order paper. Bill C-60, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America, died on the order paper.

To date, no meetings have been held to discuss Bill C-16, An Act to amend the Criminal Code. Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), was given first reading 51 days after Parliament was prorogued, and the committee still has not met to discuss that bill.

Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), was fast-tracked at committee in just one meeting and still has not reached second reading. Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, was given first reading 64 days after Parliament was prorogued, and the government delayed it for 26 days at report stage because of the debate on the short title.

Bill C-48, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act, was given first reading 89 days after Parliament was prorogued, and we are still waiting for the next step. Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders), was given first reading after 94 days, and we are still waiting. First reading of An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act took place 243 days after Parliament was prorogued. Bill C-53, An Act to amend the Criminal Code (mega-trials), was given first reading and nothing more.

Bill C-54, An Act to amend the Criminal Code (sexual offences against children) only made it to first reading. Bill C-5, An Act to amend the International Transfer of Offenders Act was introduced at first reading by the Minister of Public Safety 15 days after prorogation. Two committee meetings were held and nothing has happened since. As for Bill C-23B, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts, we are still waiting. After a few meetings on the subject, the minister was supposed to come back with amendments that he felt were necessary in order to make the bill more comprehensive and definitely more respectful. Bill C-39, An Act to amend the Corrections and Conditional Release Act and to make consequential amendments to other Acts was introduced for first reading 104 days after prorogation and we still have not met in committee to discuss it. Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act was introduced for first reading 232 days after prorogation and there it remains. Bill C-52, An Act regulating telecommunications facilities to support investigations was also introduced for first reading 243 days after prorogation and we are waiting for the next step. The Senate introduced Bill S-7, An Act to deter terrorism and to amend the State Immunity Act for first reading 49 days after prorogation and we are still waiting for the next step. Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts was introduced for first reading in the Senate 60 days after prorogation. Bill S-13, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America was introduced for first reading 237 days after prorogation.

I am pointing this out to prove that it is not the opposition parties that are slowing the process down. For all sorts of unknown reasons, the government introduces these bill and then goes no further with them.

To conclude, I would like to question the justification for Bill C-59 and the fact that the Conservatives and the Bloc felt this was urgent enough to warrant this closure motion, which is an affront to parliamentary dialogue.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I certainly agree. The process that is being used is denying members their right to debate government legislation and bring the interests of Canadians to bear on that legislation. That is a fundamental right. In fact, it is our responsibility under our system of responsible government to do that.

The member is also right that in order for us to be able to do the analysis and bring the appropriate scrutiny to bear on bills, we have to know how much these government initiatives cost. That is why the finance committee demanded that the costs be revealed by the government.

I do not often give the Liberals credit, but in fact past Liberal governments gave us five-year projections. I am going to take a minute to remind the House what bills are at stake. There are: Bill S-2, An Act to amend the Criminal Code and other Acts; Bill S-6, An Act to amend the Criminal Code and another Act; Bill S-7; Bill S-9; Bill S-10. There are 18 crime legislation bills in total and the government will not provide to members of the House the costs of implementing this legislation. It is unconscionable and it denies members the ability to do their jobs properly.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I listened closely to the comments of the member in this chamber, and I am a bit surprised, because he is actually engaging in substantive debate around the bill to which the time allocation motion applies. However, what is really before us in the House today is the time allocation motion itself and the government cutting off the amount of time for debate on the bill.

We should not be debating the merits of the bill itself at all, yet I just heard the member say that all kinds of crime bills have been stalled at committee.

Let me give the House a number of the bills that have now passed through the Standing Committee on Justice and Human Rights: C-4, C-5, C-16, C-17, C-21, C-22, C-23A, C-23B, C-39, C-48, C-50, C-51, C-52, S-2, S-6, S-7, S-9 and S-10. Can the member really suggest that the crime agenda of the government is being stalled?

Some of us would argue they are the only bills we have been dealing with in the House. I wish the member would return to what we are really debating here tonight, and that is the time allocation motion, not the substance of the government's crime agenda.

Standing Committee on Finance

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am saddened today to feel the obligation to rise to address comments with regard to the question of privilege raised by the member for Kings—Hants on February 7.

It is like the movie Groundhog Day. Anyone is familiar with that movie knows it was very successful. American actor Bill Murray relives the day over and over again until he learns his lesson.

It appears the government is reliving the same thing and forcing all other members of the House of Commons and Canadians to relive the same days we experienced back in 2009-10 with regard to a request from the special committee on Afghanistan for the production of documents from the government. The government resisted that. It took a question of privilege to be raised in the House. It took comments from many members of the House. It took considerable reflection and study on your part, Mr. Speaker, before you made a ruling that there was a prima facie case of privilege in that regard.

Yet, again, we are faced with the exact same situation today.

If I look at the timeline, the House of Commons Standing Committee on Finance tabled its 10th report on Monday, February 7. The member for Kings—Hants, pursuant to that report, raised the question of privilege of which we are now all aware.

I want to concur with the arguments raised by my colleague for Kings—Hants, as well as those raised by my colleagues from Mississauga South and Windsor—Tecumseh on the issue.

However, I wish to note a number of points. I also wish to address, in particular, the issues of cabinet confidence and the requests with regard to all the justice bills. It is important to do so, particularly with the time of events and the government's response to date to the committee's requests for the production of documents. We have not yet heard the government's response in the House with regard to the question of privilege.

On November 17, 2010, the Standing Committee on Finance passed a motion, ordering the Government of Canada to provide the committee with five-year projections of total corporate profits before taxes and effective corporate tax rates from the 2010-11 fiscal year until the 2014-15 fiscal year, inclusive. The November 17 motion also ordered the government to provide the committee with certain financial information pertaining to justice bills, which I will enumerate.

As all members in the House know, I am the justice critic for the official opposition. Therefore, all the information, all the documents requested through the motion of the finance committee have direct pertinence to the committee on justice and human rights. Those justice bills were Bill C-4, the youth criminal justice bill, Bill C-5, Bill C-16, Bill C-17, Bill C-21, Bill C-22, Bill C-23A, Bill C-23B, Bill C-39, Bill C-48, Bill C-50, Bill C-51, Bill C-52, Bill S-2, Bill S-6, Bill S-7, Bill S-9 and Bill S-10.

The motion specifically requested:

—detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing.

Members are now aware, by the issue of privilege raised by the member for Kings—Hants, that the motion established a deadline of seven calendar days, which ended on November 24, 2010.

On November 24, Finance Canada replied to the committee, and I will read the department's response in its entirety because it is quite important, particularly to any Canadian and any member sitting in the House who takes his or her work as an elected official representing Canadians, a sacred duty in fact, to know the response. It said:

Projections of corporate profits before taxes and effective corporate income tax rates are a Cabinet confidence. As such, we are not in a position to provide these series to the Committee.

The department claimed it was not in a position to provide these documents to the committee because, according to the government, these documents were a cabinet confidence. That is the heart of the matter. Do the documents requested constitute a cabinet confidence and, if so, are they excluded from the rule of the House of Commons, the power and authority of Parliament, to require documents to be provided?

As the House knows, because it has been mentioned by others in the House who have commented on the issue of privilege raised by the member for Kings—Hants, the government has yet to speak to this issue. I understand that one of the parliamentary secretaries has said the government is taking note of all of members' comments in the House, relating to the issue of privilege, and will respond in due course.

On December 1, 2010, one full week after the deadline of November 24, 2010, the committee received a reply from Justice Canada regarding projected costs of the justice bills. I will read the response by Justice Canada in its entirety. It said:

The issue of whether there are any costs associated with the implementation of any of the Government's Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.

That is interesting because in justice committee, of which I am a member, when we have repeatedly asked the minister for the cost analysis of a government bill before the committee, the minister has never stated that he could not give us that information because it is a matter of confidence. I would challenge members to check the transcripts of justice committee. What I did hear was he did not have the information with him or some befuddled answer that did not answer the question.

On December 7, 2010, after the government had refused to provide the information ordered by finance committee by the established deadline, the member for Kings—Hants provided the committee with written notice of a motion by which, if passed, the committee would draw the attention of the House to what appeared to be a breach of its privileges. That has been done. The committee adopted the motion and the member for Kings—Hants rose in the House to speak to the issue.

On December 10, the committee received an additional response from the Department of Finance Canada in answer to its motion ordering the production of documents relating to the projections regarding corporate taxes before profits.

In response, the department stated:

To the best of its knowledge, the Department of Finance has determined that [the] "series" or projections of corporate profits before taxes or the effective corporate income tax rates have never been previously disclosed. These projections are from a comprehensive economic and fiscal projection that constitutes a Cabinet confidence.

To reiterate, according to the second or additional response of the Department of Finance to the finance committee, the Department of Finance, acting on behalf of the government, claimed that these projections have never been previously disclosed and constitute a cabinet confidence.

As pointed out in this chamber before, but which bears repetition, I would suggest to any Canadian to Google the phrase, “Corporate tax profits before taxes”, and restrict their search to the domain of the Department of Finance Canada. That Canadian would get exactly two results: the HTML and PDF versions of “The Economic and Fiscal Update“ from November 2005. In that update, we find precisely the information that the Department of Justice, in its December 10 additional response to the finance committee, claimed had never previously been disclosed because it constituted a cabinet confidence. In fact, it was disclosed in the November 2005 economic and fiscal update that was issued by the previous government comprised of the Liberal Party of Canada's elected members of Parliament.

Therefore, the assertion on the part of the government, through its Department of Finance, justifying its refusal to obey, respect and act on the order of the finance committee to produce the documents is an outright fabrication.

The government department could have said that in the past the information had been released, but that the policy had been changed with a new interpretation of what constituted a cabinet confidence and, as a result, would not be releasing those documents to the finance committee. However, that was not the reason given by the department, by the government, for refusing to release that information. The reason given to the committee for not providing that information, that it is a cabinet confidence, is pure nonsense.

What is the state of legislation regarding cabinet confidence?

As mentioned, one can look to the Access to Information Act and the law of evidence act, and one will find that the government does not have a leg to stand on, and in fact does not have two legs to stand on.

Any reasonable Canadian reading the pertinent sections of the Access to Information Act and the law of evidence act would see that the two responses given by the Department of Finance and the response given by the Department of Justice are nonsense.

As I said, we know that in 2005 the previous government recognized that projections of corporate tax profits before taxes were not covered by cabinet confidence. Such projections are not considered a cabinet confidence when, as is the case with Finance Canada's revenue model, these projections are used by the department in a manner not exclusively related to cabinet operations.

What has changed between 2005 and 2010-11? On what grounds is the government now claiming that these projections constitute a cabinet confidence when there was no such assertion in the past and governments in the past have in fact provided and disclosed that information?

The costs of the justice bills are also important because the Department of Justice, as well, replied to the finance committee by claiming cabinet confidence as a justification for not releasing that information to the finance committee.

We know that due diligence would have required that cabinet consider the cost implications of each justice bill before making a decision to proceed with each bill. We know that under normal practices, an analysis of the cost implications of each justice bill would have been included with the memorandum to cabinet prepared for each justice bill.

Why do we know this? We know it because the Liberal Party of Canada has formed government in the past. We know that when we came power the government that preceded us, the one formed by the Progressive Conservative Party of Canada, had done that as well. So these are normal practices. These are practices of a prudent, diligent and competent government.

No diligent, prudent and competent government would consider an issue, whether amendments, or a justice bill bringing in new legislation to the Criminal Code or amending existing sections of the Criminal Code, because that constitutes government policy, would do so without informing itself of the cost of those changes.

That is what previous governments have done, because those previous governments, whatever their faults, have followed prudent, diligent and competent practices with regard to taking decisions on issues brought before cabinet.

As I said, we know that under normal practices, an analysis of the cost implications of each justice bill would have been included with the memorandum to cabinet prepared for each justice bill.

Now let us look at the legislation that deals with what is, or is not, cabinet confidence and whether or not something that falls into cabinet confidence can be accessible.

If one looks at section 69 of the Access to Information Act, it tells us that such analysis and background information is not, and I repeat, not, a cabinet confidence, if the cabinet decision to which the analysis relates has been made public.

A cost analysis of the implications of a justice bill should have been included, and I believe was included, in the memorandum to cabinet, as it is on each and every justice bill.

Justice for Victims Terrorism Act

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

moved for leave to introduce Bill S-7, An Act to deter terrorism and to amend the State Immunity Act.

(Motion deemed adopted and bill read the first time)

Standing Committee on Finance

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Speaker, I rise on a question of privilege in relation to the 10th report of the Standing Committee on Finance.

In our system of responsible government, the government must seek Parliament's authority to spend public funds. Parliament, in turn, has an obligation, a responsibility to hold the government to account and to scrutinize the government's books.

Recently, this government impeded the work of the Standing Committee on Finance by hindering its attempts to better understand the federal government's budget projections.

As you know, Mr. Speaker, Standing Order 108 empowers committees to send for persons, papers and records. House of Commons Procedure and Practice, second edition, describes Parliament's right to order the production of documents as a right that is “as old as Parliament itself”.

On November 17, 2010, the Standing Committee on Finance passed a motion ordering the Government of Canada to provide the commitment with five-year projections of total corporate profits before taxes and effective corporate tax rates from the 2010-11 fiscal year until the 2014-15 fiscal year, inclusive.

The November 17 motion also ordered the government to provide the committee with certain financial information pertaining to justice Bills C-4, C-5, C-16, C-17, C-21, C-22, C-23A, C-23B, C-39, C-48, C-50, C-51, C-52, S-2, S-6, S-7, S-9 and S-10.

Among other things, the motion specifically requested:

detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing.

The motion established a deadline of seven calendar days, which ended on November 24, 2010.

On November 24, the Department of Finance replied to the committee with the following. I will read the department's response in its entirety. It stated:

Projections of corporate profits before taxes and effective corporate income tax rates are a Cabinet confidence. As such, we are not in a position to provide these series to the Committee.

The government provided no further information to the committee before the deadline.

On December 1, 2010, one full week after the deadline, the committee received a letter from the Department of Justice regarding projected costs of the justice bills. Again, I will read the department's response in its entirety. It stated:

The issue of whether there are any costs associated with the implementation of any of the Government's Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.

On December 7, 2010, after the government had refused to provide the information ordered by the committee by the established deadline, I provided the committee with written notice for a motion by which, if passed, the committee would draw the attention of the House to what appeared to be a breach of its privileges.

On December 10, 2010, perhaps in response to the written notice I had written on December 7, the committee received an additional response from the Department of Finance.

In its response, the department stated:

To the best of its knowledge, the Department of Finance has determined that “series” or projections of corporate profits before taxes or the effective corporate income tax rates have never been previously disclosed. These projections are from a comprehensive economic and fiscal projection that constitutes a Cabinet confidence. As a result, the Department of Finance has not been in a position to provide these "series" to the Committee.

This response appeared somewhat dubious. For, if any member of the House or if any Canadian wishes to Google the phrase “corporate profits before taxes” and restrict their search to the domain of the Department of Finance's website, he or she would get exactly two results: the HTML and PDF versions of “The Economic and Fiscal Update” from November 2005, in which they would find, on page 83, that the previous Liberal government had actually published projections of corporate profits before taxes from 2005 until 2010.

At this time, I would like to seek unanimous consent to table page 83 of “The Economic and Fiscal Update” from November 2005.

Message from the Senate

[The Acting Speaker, NDP, Denise Savoie]

Before we resume debate, I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed the following public bill to which the concurrence of the House is desired: S-7, An Act to deter terrorism and to amend the State Immunity Act.

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for St. John's South--Mount Pearl, G8 and G20 Summits; the hon. member for Laval--Les Îles, International Aid.