House of Commons Hansard #67 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was code.

Topics

Conscientious Objection Bill
Petitions
Routine Proceedings

10 a.m.

NDP

Bill Siksay Burnaby—Douglas, BC

Mr. Speaker, I am very pleased to table a petition signed by many people in the Ottawa area and some from Toronto supporting the passage of the conscientious objection act, a private member's bill I have tabled in the House.

The petitioners note that our Constitution guarantees freedom of conscience and freedom of religion. They note that some Canadians object on conscientious and religious grounds to participating in any way in the military and associated activities that train people to kill and use violence, produce and purchase lethal weapons, conduct military related research, prepare for war and killing and other activities that perpetuate violence, thus hindering the achievement of all forms of peace. They support legislation to allow such conscientious objectors to redirect a portion of their taxes from military to peaceful, non-military purposes.

Firearms Registry
Petitions
Routine Proceedings

10 a.m.

Conservative

Chris Warkentin Peace River, AB

Mr. Speaker, it is an honour for me to be back here. This morning I have an opportunity to present a petition on behalf of hundreds of my constituents who want the abolishment of the long gun registry immediately. For five years, I have been working to see this abolished and my constituents continue to send me these hundreds and hundreds of names put on petitions.

Today I have an opportunity to present yet another one of over 500 names of those constituents who want to see the abolishment of the long gun registry immediately.

Health Canada
Petitions
Routine Proceedings

10:05 a.m.

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I have two petitions to present today. The first petition is a call against Health Canada's authorization of caffeine in all soft drinks. Health Canada announced on March 19, 2010 that the beverage companies will now be allowed to add up to 75% of the caffeine allowed in the most highly caffeinated colas to all of their soft drinks.

Soft drinks have been marketed and designed toward children for generations. Canadians already have concerns over children drinking coffee and colas as they acknowledge that caffeine is an addictive stimulant. It is difficult enough for parents to control the amount of sugar, artificial sweeteners and other additives that children consume, including caffeine from colas.

Therefore, the petitioners call upon the Government of Canada to reverse Health Canada's new rule allowing caffeine in all soft drinks and not to follow the deregulation policies of the United States and other countries that could sacrifice the health of Canadian children and pregnant women.

Earthquake in Chile
Petitions
Routine Proceedings

10:05 a.m.

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, the second petition, signed by dozens of Canadians, calls on the Canadian government to match funds personally donated by the citizens of Canada for the victims of the Chilean earthquake.

In addition to the Chilean earthquake, this year the government has given treatment to the Pakistan flood relief efforts on a matching fund basis and it has also given that same treatment to Haiti.

The petitioners would like the Prime Minister to give the same treatment to the Chilean earthquake victims as he did for the victims of the Haitian earthquake and the Pakistan flood and match the funds personally donated by Canadians to help the victims of the Chilean earthquake.

Authentication of Foreign Documents
Petitions
Routine Proceedings

10:05 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Mr. Speaker, I rise today to present a petition to this House on behalf of dozens of my constituents with respect to what is known as the Apostille Convention.

Albania, China, Czech Republic, France, Korea, Romania, Great Britain, the U.S.A. and many other countries signed the Hague Convention of 1961 abolishing the requirement of the legalization of foreign public documents but Canada is not among them. Unfortunately, this means that when foreign documents are required to be provided there needs to be court records; civil, school or commercial documents; as well as powers of attorney and affidavits. A simple procedure that would make life easier for many is not available in Canada. Canadians must endure a time-consuming and expensive process to obtain authentications from foreign consulates.

There has been a large influx of newcomers to Canada and it is therefore time to simplify the flow of legal documents to and from Canada with the rest of the world.

The petitioners, therefore, call upon the Government of Canada to conclude negotiations with the provinces and territories for the adoption of the 1961 Hague Convention on the authentication of foreign documents within 12 months or, failing that, to proceed unilaterally to ratify that convention.

Multiple Sclerosis
Petitions
Routine Proceedings

10:05 a.m.

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, it is my honour to present a petition to the House asking the government to act now for equal access to CCSVI treatment for Canadians living with multiple sclerosis. We know that close to 75,000 Canadians live with MS. It is characterized by severe pain, fatigue, memory loss and long-term depression. It is a disease of the central nervous system likely caused by a variety of environmental and genetic factors.

We know that through several controlled clinical trials, testing and treatment of CCVI has been shown to reduce MS disease activity and symptoms in many MS sufferers.

Therefore, the petitioners from St. John's and other parts of the country are asking the Government of Canada to pilot test, treat and provide fast-track funding for surveillance, research and dissemination of findings, including urgent pre-screening imaging services for MS sufferers, and work immediately with the provinces and territories through the Canadian Agency for Drugs and Technologies in Health to obtain advice and evidence-based information about the effectiveness of this treatment without delay.

Lastly, the petitioners call upon the government to take a leading role on the basis of this evidence and encourage the swift adoption of the procedure in territories and provinces.

Questions on the Order Paper
Routine Proceedings

10:10 a.m.

Regina—Lumsden—Lake Centre
Saskatchewan

Conservative

Tom Lukiwski Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I ask that all questions be allowed to stand.

Questions on the Order Paper
Routine Proceedings

10:10 a.m.

The Speaker

Is that agreed?

Questions on the Order Paper
Routine Proceedings

10:10 a.m.

Some hon. members

Agreed.

The House resumed consideration of the motion that Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

Combating Terrorism Act
Government Orders

10:10 a.m.

Liberal

The Speaker Peter Milliken

When this matter was last before the House the hon. member for Hamilton East—Stoney Creek had the floor. There were two minutes remaining in the time for questions and comments consequent upon his speech. I therefore call for questions or comments.

Resuming debate. The hon. member for Moncton—Riverview—Dieppe.

Combating Terrorism Act
Government Orders

10:10 a.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, I am pleased to speak this morning to this important bill. I also am pleased to be back in the Chamber after a summer recess that was very successful in terms of democracy, of hearing from the public and of coming back here, as I think all parliamentarians have, with a joint sense that we must make this place work. We must make it more co-operative, more intelligent and more reasonable and open.

With that in mind, I am drawn to the comments of Andrew Cohen in this morning's Ottawa Citizen who said that backbench MPs and individual MPs have no power, have no independence, do not think, do not debate and pretty much are the stuff found under rocks. However, I beg to differ in a non-partisan moment.

In two days we will be voting on a backbencher's bill that has engaged all of the public one way or another in debate. Many current members in the House and those in past Parliaments have worked very hard and quietly on issues of importance to them and their constituents. Overall, with all due respect to question period and the reforms therein proposed and the highlights on the news every night from this Chamber during that time, it bears repeating that most of the serious work in Parliament is done in committee and in cross party, cross the aisle negotiations with respect to laws that hopefully make this country a better place and, as I bring it back to this debate, a safer place.

Bill C-17 is a perfect example of a bill that has been bandied about in various incarnations dealing with the security of the public, which is one issue that does not divide anybody in the House. We all want the public to be safe and we all want public security. We may differ, however, on the means to achieve public security.

The debate itself has been discussing two important tools. Whether we agree they are needed is the hub of the debate but it bears repeating as to what they are.

In response to threats of terrorism and in the period just after 9/11, there was much debate about what we would do if we were faced with future terrorist threats, attacks or rumours of attacks or threats to our country and to our people. It was not a unilateral decision but it was felt by this Parliament that two inclusions should be made to our over 100-year-old Criminal Code. For the people who wrote and enacted the Criminal Code in the 1890s, probably the nearest thing to a terrorist attack was the War of 1812 or the raid in St. Albans, Vermont in 1865. That was probably in the psyche of most of the people who wrote the code way back when.

Let us look back to 2001 to the communities like Gander, Newfoundland and Labrador, Moncton and Halifax that welcomed plane loads of people diverted by the terrorist attacks in New York, which we recently commemorated earlier this month. What was the mentality of the Canadian public and parliamentarians with respect to public security? Something needed to be done. As Canadians and parliamentarians, we felt under attack. We felt ill-equipped to handle the next perhaps imminent threat of terrorist activity. We as Canadians felt, because of concerns made known at the time, that our border was porous and that somehow we had something to do collectively in a remote guilt sense for the occurrences in New York and other places on that day.

Parliament, therefore, decided to inculcate the Criminal Code with two tools to be used if necessary, one being the investigative hearing. In the Criminal Code of Canada an investigative hearing would allow authorities to compel the testimony of an individual without the right to decline to answer questions on the basis of self-incrimination.

The intent would be to call in those on the periphery of an alleged plot who may have vital information, rather than the core suspects. These are the people on the periphery, who would have an overwhelming incentive to lie to protect themselves, the actual accused. It was an attempt, working in concert with CSIS and our investigative security-based individuals, to find out more information to prevent terrorist attacks and terrorist incidents. That was to be inserted into the Criminal Code of Canada, a very new provision.

The second new provision was the preventive arrest provision, allowing police to arrest and hold an individual, in some cases without warrant, provided they have reasonable grounds to believe that the arrest would prevent future terrorist activity. Those were introduced in 2004. In the context of 2001, the context seemed reasonable. The context was that we were protecting our community. We were protecting our nation.

There were many safeguards built in to those provisions, and I might add that it was a Liberal government that brought in these provisions, so I do not think it lies in anyone's mouth on any side to say that Liberals are not concerned with terrorism. This was Liberal legislation, and like all legislation that was new and that dealt with the collision between the need for public safety and the primacy of individual rights, it is the collective versus the individual. Like all of those debates and all those pieces of legislation, the collision always results in imperfection because no one goes home completely satisfied with the result.

The key part of the legislation was the so-called sunset clause. At the end of five years, the legislation would sunset and would be no more. The provision was put in place clearly because parliamentarians, particularly members of the Liberal caucus and members of the government, and committee reports and minutes are replete with speeches to this effect, realized that this collision between the public security goal and the private rights goal would result, potentially, into an intrusion into the latter, so they said, “Let us sunset it. Let us see if it is needed, if it is used wantonly, without regard for personal rights, if it is used at all, and if it can be interpreted by the courts or refined through practice”.

Many times we lob a ball into the air called legislation and really hope that the courts get a chance to interpret it, to get it right, one might say, but we do try to make legislation work. In this case, the sunset clause was allowed to sunset, despite attempts to bring the debate back to Parliament. At the very end of the time for the period to run out, a debate was held and the sunset clause was not removed, or the legislation was not permitted to continue, so we are without these tools. This is where we are today. This is the debate today, whether we should have these tools in our Criminal Code with respect to terrorism or suspected terrorism.

A bill which eventually worked its way through the Senate of Canada, with good recommendations from senators and Commons committees before that, a bill known as Bill S-3, correctly and accurately assessed the situation since the original enactment of these provisions. These provisions are found in the Criminal Code in sections 83.28, 83.29 and 83.3. These are the conditions for investigative hearings, which define at some length the modalities as well as recognizance with conditions and arrest warrants for the anti-terrorism legislation.

It is not just these three sections. It is a misnomer to think that we just put these three sections in. There are some 25 pages in section 83 dealing with terrorism. They deal with seizure of property and all sections that have not been challenged or rescinded. It is only these sections dealing with individual liberties that have been touched.

Bill S-3 made some improvements to the regime as it was. There was an increased emphasis on the need for the judge to be satisfied that law enforcement has taken all reasonable steps to obtain information by other legal means before resorting to this.

There was one key consideration: the ability for any person ordered to attend an investigative hearing to retain and instruct counsel. A person so apprehended should have the right to counsel of their choice. There were new reporting requirements for the Attorney General and the Minister of Public Safety who then must now both submit annual reports which not only list the uses of these provisions but also provide opinions supported by reasons as to whether the powers needed to be retained.

There should be flexibility to have any provincial court judge hear a case regarding a preventive arrest.

And, finally, the five-year end date, unless both Houses of Parliament resolve to extend the provisions further, would be put in; that is, another sunset clause.

These amendments made their way through Parliament and, at the risk of not having a completely happy audience, then the P word intervened and we were sent home to go through yet another election. That is sad. That is too bad. But that has been debated before. We know that we do not like prorogation, it interrupts our business, but we were on our way.

Remember now these provisions were put in and as I said, we often want to hear what the courts have to say about them.

Well, an important decision of the Supreme Court of Canada took place in 2003 and 2004. The hearing was December 2003 and the decision was in the middle of the year 2004. The court, made up of the current chief justice and almost all the existing judges now, with the exception of New Mr. Brunswick's Mr. Justice Bastarache, who has since retired, concluded that the provisions put in, particularly 83.28, investigative hearings, were constitutional, but there were a number of comments made in that decision which no one could take as a complete endorsement of the legislation.

While they upheld it, it is important, I think, to note that three justices of the Supreme Court, remember, one has left the court, dissented and found, for instance, using their language:

The Crown's resort to s. 83.28 [which was an investigative hearing] of the Criminal Code in this case was at least in part for an inappropriate purpose, namely, to bootstrap the prosecution's case in the Air India trial by subjecting an uncooperative witness, the Named Person, to a mid-trial examination for discovery before a judge other than the Air India trial judge.

They went on to say:

The Named Person was scheduled to testify for the prosecution in the Air India trial, but because the Crown proceeded by [a different method known as the] direct indictment, neither the prosecution nor the defence had a preliminary look at this witness [who was detained from the investigative hearing]. Section 83.28 was not designed to serve as a sort of half-way house between a preliminary hearing and a direct indictment.

What we have here are the players and the justice system ending up using a tool that was there for, quite frankly, maybe a different purpose. The players and the system had used a certain way of proceeding in a criminal case. They saw this tool lying on the shelf and they used it.

The court, in its majority, said, sure, we can do that because public security is the number one aim here. However, it did lead to the feeling that we, as parliamentarians, in sort of a renvoi or a send-back, have been told by the court that we did not draft perfect legislation when we drafted these pieces and it had been used somewhat indirectly for the purpose in question because of a prosecutor's choice to go a certain way, which I cannot second guess because the Air India trial was a very complicated matter, involving numerous informants of high publicity content throughout Canada. So, I cannot second guess the prosecutors, but they used it for a purpose that led three justices of the Supreme Court to say that is not what this was intended for.

The majority of the court, however, went on to say it is allowable, that section 83.28 does not violate section 7 of the charter and it does not violate section 11(b) with respect to counsel.

I find that a bit strange and I allow for the fact that because the person was not a person under arrest but a witness, by the clear letter of the law the individual would not have a right to counsel. I like the changes that have been submitted by the Senate, by members of the committee and the House that say yes, counsel of the choice of the detained person should be permitted.

We went further in the House and in the Senate than the majority of the Supreme Court that would have allowed such a use of section 83.28. In other words, we have improved, through the recommendations and now the bill being presented, what the Supreme Court thought was allowable with respect at least to the right to counsel.

The court said:

--a judicial investigative hearing remains procedural even though it may generate information pertaining to an offence...the presumption of immediate effect of s. 83.28 has not been rebutted.

It took the law of Canada to be serious. It took the tools in the tool box regarding anti-terrorism as serious and upheld the use of it, and we are down to numbers almost with respect to the Supreme Court, even when good, smart thinking, and now three members of the Supreme Court said it was misused, essentially.

Where are we, then, with the need for this legislation? There are opinions on either side, but let us remember the legislation originally introduced was to combat terrorism. Besides 9/11, which was traumatic for everyone in North America and the world, the prime instance of terrorism and trying to combat it resulted in or came out of the crash of Air India flight 182 and the following study of it by John Major, who was a former Supreme Court justice.

I know Liberals want to send it to committee and examine what was done with Bill S-3, the precursor acts. We want to put safeguards into any proposed legislation and keep the balance right between the need for public security and the primacy of individual rights. That is a given.

I told a little story about how we are interpreting laws based on the one instance of a prosecutor using a certain tool, which led the Supreme Court to say in a divided way, “Yes, it's okay, but you should be more careful than the committee improving the act”. The bigger picture that has been missing in the debate so far is what use is this if our security services do not talk to our police services and our police services are not in sync with the court officers who ultimately direct that this tool be used?

The report of John Major is very instructive in that regard because he says terrorism is both a serious security threat and a serious crime. Secret intelligence collected by Canadian and foreign intelligence agencies can warn the government about threats and help prevent terrorist attacks. Intelligence can also serve as evidence for prosecuting offences.

There is a delicate balance between openness and secrecy and that is what this debate is all about. We have to focus more on terrorism threats from the national security level than this tool, which the Supreme Court of Canada has already said is allowed.

Finally, I would close by saying that the member for Windsor—Tecumseh, on behalf of this party, said we do not need this because we have not used it. I have a sump pump in my basement and I may never use it, but if I have a flood I want to have that sump pump there. I want to be ready for something that may happen in the future.

For my dollar's worth, I think this should go to committee and we should look seriously at what the dissent in that Supreme Court judgment said, what the majority said and this time, with the benefit of its advice and the advice of John Major, we should get it right. We should have those tools on the shelf.

The members who say we do not need them should be happy that we do not need them because it means that we have not had a terrorist threat. However, if we have a terrorist threat, I want those tools to be on the shelf for prosecutors to use, if needed, to keep our country safe, which is the goal we are all here to pursue.

Combating Terrorism Act
Government Orders

10:30 a.m.

NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, I listened quite carefully to my hon. friend's remarks and I must say that I found it difficult at times to figure out what exactly his position or the position of the Liberal Party is with respect to this particular act.

I know the Liberal Party brought in the Anti-terrorism Act in what I think was a knee-jerk reaction after 9/11. That act contained many serious violations of traditional civil liberties and rights that Canadians enjoyed in this country. I know that members of his party voted against the provisions of that act in 2007 when the sunset clause expired and here they are today seeming to talk about supporting this act going to second reading.

I heard my hon. colleague talk about the importance of civil liberties, for instance, the right not to incriminate oneself, which is a right that can be traced back in this country hundreds of years and has developed as a pivotal, key civil right in this country. Yet, this act would allow the state to force someone to testify without the right of self-incrimination.

I am wondering if my friend can clearly state for Canadians whether he supports or opposes the ability of legislation to violate Canadians' right not to self-incriminate.

Combating Terrorism Act
Government Orders

10:30 a.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

In the legislative history of the bill, there were improvements made along the way. With respect to his preliminary concerns about where the party is, the party generally accepted the Senate's view in its Bill S-3 improvements.

We have to examine what the minister means with respect to the right to instruct and retain counsel, which I think is key to the member's point on self-incrimination.

I challenge the member to show me where the right against self-incrimination, which is from the section 10 and section 11 rights of individuals in the legal process, is not at all times in collision with, say, section 1 of the Charter, which is the override provision, or with the general sense of the need for national security.

I said in my remarks that there is always a collision between these. They cannot be compatible. There has to be a collision between the rights. No one right is alone, sacrosanct, and overpowering.

For the member to say that to the public belies his training, I think, as a lawyer and also as a public official.

Combating Terrorism Act
Government Orders

10:30 a.m.

Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, I would like to ask the member who spoke whether he knows and understands why the Minister of Justice wants this provision to provide for preventive arrest and recognizance with conditions. Can the member tell us and comment on that?