Bill C-17 (Historical)

Combating Terrorism Act

An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)

This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing to gather information for the purposes of an investigation of a terrorism offence and to provide for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. It also provides for those sections to cease to have effect or for the possible extension of their operation.

Disposition of Abolition of Early Parole Act

[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.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

No, that's okay. I appreciate it.

As I say, I don't think any of our witnesses here are being disrespectful or anything else. These are their true feelings and their true views. I just made a few notes here on some of the thoughts that were mentioned.

Who are the “real terrorists”? I guess my question would be, to the average Canadian.... Well, we do know that there have been prosecutions of terrorists. One of the greatest terrorist acts suffered by this country was the Air India one. I have to say that the terrorists don't belong to any one group of people from any one religion. They're right across the board, and they exist around the world in every way, shape, or form.

Then we hear, of course, from more than one witness and more than one political party at the table, that CSIS is dysfunctional, that the RCMP have huge troubles, etc. I think we all have a responsibility, if we say those things, to ask whether these agencies are capable of making Canadians safe. I would say the evidence that they are capable, and that they have kept us safe, is the fact that we have not had the kind of terrible terrorist acts that they have had in Great Britain, the United States, and many countries throughout the world. It's because of these agencies that we are safe.

Have they made mistakes? Of course they have. They're made up of men and women who are human. They make mistakes. No one agency or group of people, whether they be learned judges...would ever say that they are not capable of making errors in judgment and mistakes.

I think Canadians need to know why we have the Anti-terrorism Act and these laws. We have them, as was mentioned, because the United Nations directed all of its members to look at their laws and regulations to ensure that they are made in such a way that they can prevent, or attempt to prevent, terrorist acts like 9/11, but not just restrict it to that one act. Canada took on that obligation and constructed the Anti-terrorism Act under a previous government that this party and I think all parties... I forget how the votes were, but at least the two major parties in Canada agreed with it.

But because we were unsure, and because there were some significant changes to our law, we put a sunset clause in. We revisited that. I was part of the subcommittee on anti-terrorism. I can tell you that we looked at it, we had a wholesome debate, and it was the majority view that we should maintain, with a sunset clause, these provisions.

We were talking about the Toronto 18. The comment that the police and other authorities have not used these existing provisions is evidence, I would suggest to you, of the fact that the police are very much aware, and CSIS and those other authorities are very much aware, that you only, only, only use these provisions when the Criminal Code may not apply...but that but there is sufficient evidence to have you believe that you need, in order to prevent an occurrence, the benefits of Bill C-17.

I go further to say that their authority is extremely restricted, because they may only hold a person for 24 hours, and that's if a judge is not available. If a judge is available, we constrain that judge by saying they may not detain more than 72 hours.

So my comment is that we need this legislation because it does indeed add a measure of safety to every man, woman, and child in this country.

[Don Davies, NDP, Vancouver Kingsway, BC]

I have a point of order. We're studying Bill C-17, the Anti-terrorism Act. How is a question on the political events in Egypt relevant to this issue?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Is anybody else aware of that situation?

Now, with respect to this concept of preventative arrest, I'm troubled by a number of your comments, Mr. Mia, and also by yours, Ms. Cheung. You state that this proposed legislation, Bill C-17, is not necessary and is open to abuse. You cite correctly a number of Criminal Code provisions that deal with charges that can be laid for conspiracy and for attempts. But you'll have to agree with me that those existing provisions of the Criminal Code deal specifically with issues and allegations that have occurred in the past.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

Thank you very much.

I want to thank the committee for having invited the Canadian Civil Liberties Association to appear. I will make the first part of my remarks in French and the second in English.

The Canadian Civil Liberties Association has existed since 1964. It has always worked to defend the rights and freedoms of Canadians. We will make four proposals as part of our submission.

The first is that in its current form, Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) contains major flaws and problems that must be remedied.

Secondly, like other rights and freedoms advocacy groups, we question the need to proceed this way and to adopt the bill in its current form.

Finally, I won't repeat what has been said by my colleagues, but I simply want to present the international context surrounding the bill. I will begin with that proposal.

This is an opportunity for us to take a sober look at provisions adopted in 2001, which expired in 2007 because of a provision, and to determine now if they were appropriate and necessary.

This is being done in a context where we hear the United Kingdom is preparing to review the use of control orders which had been used consistently as of 2001.

One of the reasons why many people say that Bill C-17 is not that dangerous is that these measures have not been used excessively by our police forces. Despite that, it creates a precedent in terms of commitment and in the context of international law. It becomes a precedent for other countries in the world who will look to and use the Canadian precedent.

The only guarantee that Canadians had in the face of these powers is that they were not abused and were almost never used. The same will not be true in other countries. Given Canada's leadership role in terms of international human rights, it is important to look at whether this is the right time to introduce a legal tool which fundamentally questions some of the principles around which our system is organized. That is one of our proposals.

I won't repeat what my colleagues have said. I just want to stress a couple of ways in which the bill stresses our system and its fundamental tenets. There are three tenets, I think, of our system that are at odds with the premise and the economy of the bill, and I think that's why we, as civil libertarians, are searching within this bill for guarantees.

The first one is that, obviously, we live in a system where judges are not inquisitorial judges. They are judges who work and are trained in the context of contradictory evidence. Indeed, I think one of the ways in which we have been able to fine-tune our system of counter-terrorism.... Canadian civil liberties all support the idea that the government has a duty to engage in counter-terrorism. What we're debating here is whether this is the best way. It's not to question the effort; it's to ensure that indeed it does what it seeks to do.

We have responded in other contexts by insisting there be special advocates, to ensure that judges are not put in a position to be inquisitorial. They're not trained for this; it is incompatible with the way in which they are proceeding. But this is not present here. Contrary to what happened after the Charkaoui decision, we are not seeing here a recognition that there needs to be.... If you're going to take someone and threaten his or her liberty in front of a judge in a context where the judge will have to rely on the information provided, you need to balance this by having at least a special advocate. That's what we've learned in other contexts, and I think this, indeed, should be looked at in this context as well.

The second tenet of our system that I think is fundamentally challenged by Bill C-17 is the one referred to earlier. It's the fundamental tenet that you ought not to be detained, arrested, or subject to punishment unless there is a format or a framework by which the accusations and the evidence against you can be tested and at the end of the day you are found to be guilty or not, and that's the end of it.

This process allows preventative detentions that threaten the concept of strong protection through habeas corpus. It creates a fracture in our legal thinking, and that's why people react to this with such visceral fear. It was a great advancement in law and legal thinking to insist that a king not be able to put people in jail simply because he was afraid that something might happen to threaten public order. The writ of habeas corpus was a great advancement in saying it is inappropriate to detain people without having a process to fundamentally challenge the evidence on which you are being detained. That's why people react with such fear to this case in which preventative detentions are being normalized in the process.

Finally, the third principle of our system is that there is no obligation for Canadians to cooperate with the police. Here, they are forced to come and give testimony in front of a judge. As Kent Roach has said numerous times, some people will tell the truth, some people will lie, and indeed they will not cooperate more because there's a threat of being incarcerated.

Now, let me go through the different dispositions and look specifically at some of the challenges they present and some of the ways in which they ought to be.

In our view, the bill should not proceed. It's not necessary and it's not the way to go. But if it is to proceed it must have additional guarantees that are not there.

The first guarantee is under proposed section 83.28. There is no guarantee that this indeed will not be relying on evidence obtained under torture. That's a significant issue. What we would suggest is that there be a commitment that there be included a specific reference saying that there is an affidavit from CSIS, an affidavit from the police, which is being recognized by the judge, as to the evidence's not having been obtained under torture.

We're insisting on this not only because there is a general prohibition around the world against torture and Canada should be part of it, should be an instrument, a model on this. It's also a good signal to say to other countries that whatever evidence they would want to lead in will not be acceptable. But what is interesting as well is that it protects our system from being polluted by the fact that some evidence obtained under torture may have found its way somewhere. If everybody along the system has to guarantee that to their knowledge—and they do the investigation—the evidence has not been obtained under torture, we improve the guarantee that the system will not inadvertently be an instrument of perpetrating torture.

One concern that has been raised, and I think my colleague has raised it, is that it does not protect testimony from being used in proceedings outside of Canada. This was mentioned by the Supreme Court. This is not in the bill; it should be in the bill.

As well, it should not be used against members of the family of people who testify. That's another aspect. Many people who could be compelled here will be shunned for sure by their community but will expose themselves to great dangers, and there's no provision here to ensure their protection.

I know my time is running out, and I just want to make sure that.... Let's see: no special counsel proceeding has been.... There has been no guarantee that no evidence has been obtained under torture....

There are no boundaries to the conditions that can be imposed by the judge, and I think there should be a way in which these conditions are reviewed and found not to be unnecessary.

Finally, there's no right of appeal. There should be a right of appeal.

[Eric Vernon, Director, Government Relations and International Affairs, Canadian Jewish Congress]

Thank you very much, Mr. Chair.

Thank you for the opportunity, even as late in the day as it came, to appear before this committee as it studies this important legislation.

I am delighted to be here on behalf of Canadian Jewish Congress, which for over 90 years now has been the advocacy voice of the Jewish community of Canada and a voice for human rights for all Canadians.

Thank you for the invitation to present the Jewish community's views on antiterrorism in Canada and on Bill C-17.

Let me begin by stating clearly that Canadian Jewish Congress supports Bill C-17. I think it's good that I understand what it means to be a minority, because I clearly am one at this panel. At the same time, we would examine with interest any amendments that this committee might eventually recommend after completing its review towards strengthening the legislation as part of the overall anti-terrorist regime in Canada.

It will come as no surprise, I'm sure, that Canadian Jewish Congress has for many years, and well prior to 9/11, been a strong advocate for a comprehensive and effective counter-terrorism regime in Canada on behalf of a community that is essentially twice targeted--that is, both as Canadians and as Jews.

In our brief on the legislation establishing CSIS, the Canadian Security Intelligence Service, CJC noted, and I quote:

If terrorism is allowed to implant itself in Canada because we are reluctant to establish realistic measures to prevent it, its impact will spread beyond any particular community to affect Canada as a nation and in the international forum. As terrorism grows more organized and more international in scope, so must the efforts to contain it be more organized, serious, and efficacious.

Members of the committee, that brief was submitted in April 1984, almost 27 years ago, and yet in the aftermath of September 11 it became clear just how unprepared Canada was in dealing with the threat of international terrorism and its domestic manifestations. Canadian Jewish Congress was therefore gratified by the government's introduction of then Bill C-36, including the two ultimately sunsetting clauses that lie at the heart of Bill C-17 now.

To date, thankfully, Canada has been spared the agony of the suicide bombings and attacks that, at least since the turn of the new century, have become a commonplace weapon in the terrorist arsenal. But our nation has certainly not been immune to terrorism, not least the tragic events surrounding the bombing of Air India flight 182.

Canada's Jewish community has been targeted for terrorist violence by the likes of Ahmed Ressam and Jamal Akal, and beyond that we cannot but see the community's security in the context of the vulnerability of and attacks on sister communities elsewhere in the world, both before and after September 11, 2001.

Given the multicultural and pluralistic nature of its society, Canada is especially vulnerable in an increasingly interconnected world to terrorist infiltration. While the vast majority of ethnic, cultural, and community groups and their members pose no threat, terrorists are well positioned to exploit, intimidate, or attract individual fellow ethnics and/or co-religionists into supporting, financially and otherwise, and providing valuable cover for their activities in one way or another. We have already had a glimpse into the potential for homegrown radicalization, and if that weren't enough, we have the examples of the U.K. and elsewhere in Europe to ponder.

From our perspective, it was a decided strength of the Anti-terrorism Act that it set its primary sights on prevention of terrorist acts rather than the apprehension and punishment of perpetrators. Potential terrorist operations, or those discovered in progress, must be thwarted immediately. The powers of recognizance with conditions and investigative hearings introduced by the act remain important for the attainment of this purpose. Though having been sparingly used, as we know, it is still important to have these powers available to our security and police forces, because the best and first line of defence against terrorism is effective and timely surveillance and intelligence gathering, intrusive though they may be at times.

We believed in 2001 and continue to believe in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.

Now, since the passage of the Anti-terrorism Act, Canadians have been passing judgment on how well it met the most fundamental challenge facing any democracy, namely, how to provide for the safety and security of its citizens while minimally impairing the basic civil liberties that underpin their society.

The two sunsetted measures clearly provide a stern test to any democratic society. In fact, these two provisions seem to epitomize the zero sum game of protection of security versus protection of human rights. And as we know, they ultimately died on the floor of the House of Commons.

From our perspective, one need not approach the debate from the either/or perspective of security versus rights. If terrorism is rightly regarded as an assault on human rights, it stands to reason that the implementation of counter-terrorism measures necessarily protects the highest priority rights of life, liberty, and the security of the person--the foundation of all other rights and freedoms.

Now, the corollary of course is that these actions themselves must always be rooted in and comport with the rule of law. A properly framed and implemented counter-terrorism policy enhances civil liberties and core charter values and protects them as part of the way of our life, whose essence is threatened by terrorism.

A look around the world clearly tells us that terrorist acts remain a clear and present danger, and our security and police personnel must have sufficient authority to take preventive action to interdict possible attacks before they occur. Nonetheless, we are fully cognizant of the potential severity of these measures, and we are heartened that Bill C-17 provides additional safeguards to reassure Canadians' concerns about the possible adverse impact of these measures.

Members of the committee, the most fundamental role of the state is to protect the safety and security of its citizens and the core national way of life. Governments such as ours must thwart the efforts of those who would use our open society against us and then shut it down, while at the same time we must be sure not to impair the very democratic nature of that society. But it would be the ultimate irony if in striving to maintain civil liberties we strip authorities of the necessary powers to stop terrorists and extremists from destroying our open and free society.

In our respectful submission, Bill C-17 deserves expeditious passage, as it successfully meets the challenge in restoring the authority for the use of recognizance with conditions and investigative hearings while providing additional safeguards for fundamental civil liberties and rights.

I thank you for your kind attention and look forward to your questions.

[Carmen Cheung, Counsel, British Columbia Civil Liberties Association]

Thank you very much.

Good morning. My name is Carmen Cheung, and I'm counsel with the British Columbia Civil Liberties Association. On behalf of the BCCLA, I wish to thank the members of the committee for the invitation and opportunity to present on Bill C-17today.

The BCCLA is a non-profit, non-partisan advocacy group based in Vancouver, British Columbia. Since its incorporation in 1863, the mandate of the BCCLA has been to promote, defend, sustain, and extend civil liberties and human rights around Canada.

We speak out on the principles that promote individual rights and freedoms, including due process and fundamental justice concerns in situations in which individual interests are affected or engaged by the state.

In December this committee heard from our colleagues with the International Civil Liberties Monitoring Group, La Ligue des droits et libertés, the Canadian Council on American-Islamic Relations, and others. The BCCLA echoes many of the concerns so persuasively voiced here already, namely that the proposed legislation does little to protect Canadians, while at the same time compromising many precious and hard-won democratic safeguards.

Let me start by addressing the preventative detention provision, which permits a holding of an individual without charge for up to 72 hours based on mere suspicion of dangerousness. When this provision was last in force in the Criminal Code, it was never invoked. Advocates for preventative detention point to this statistic as demonstrating restraint on the part of law enforcement agencies; we view it as evidence that such sweeping powers of preventative detention are simply unnecessary.

Protection of personal liberty is a fundamental value in Canadian society and indeed in any free society. Expanding the powers of the executive to detain people must be examined with the utmost scrutiny. Canadian principles of fundamental justice impose limits, both procedural and substantive, on deprivations of liberty. This means two things. First, the process through which any individual is subjected to detention must meet the requirements of fundamental justice. Second, the substantive reasons for any detention must be justifiable in a free and democratic society.

Detention without charge or conviction is deeply problematic, because it is based on a hypothetical. It depends upon speculating on the future dangerousness of an individual because of assumed propensity. Preventative detention is necessarily based on propensity reasoning, because if there were actual evidence of preparation to commit a terrorist act or of conspiracy to commit a terrorist act, then there would be grounds to lay charges for committing a criminal offence, and suspected individuals could be detained under the usual criminal law procedures. Stripping an individual's liberty when no offence has been found to have been committed or when no offence is even suspected to have been committed runs counter to basic principles of fundamental justice.

The Criminal Code, as it currently exists, contains more-than-adequate mechanisms for prosecuting past terrorism offences and preventing future ones. The sweep of terrorism-related offences in the Criminal Code is broad. As defined in the code, terrorist activity encompasses everything from conspiracy to the attempt or threat to commit an act of terrorism to the actual terrorist act itself.

The code also confers expansive powers on authorities to impose conditions on individuals who pose a danger to public safety. As you've already heard, this is reflected generally in section 810.2, and with respect to terrorism offences in section 810.01. As you've also already heard, as recent law enforcement investigations have shown, the terrorism provisions in the current Criminal Code are effective. They have been successfully used to protect the safety of Canadians and to disrupt prospective terrorist attacks.

Detaining individuals based on predictions of future dangerousness is a troubling proposition. Because the requirements of proof are relaxed, there is an increased chance not only of error or abuse, but of such errors or abuse going undetected and without remedy.

For example, it may be difficult to accurately assess whether the prediction of dangerousness is ultimately borne out. Let's say an individual is held in preventative detention and no terrorist attack takes place. The fact that no terrorist attack ensued may mean that by detaining the individual, law enforcement officials successfully disrupted a terrorist plot. But it may equally mean that the detained individual was not involved in any planned attack at all. Such uncertainties cannot be the basis on which Canadians and others in this country are imprisoned for any length of time.

On the other hand, prosecuting inchoate offences such as conspiracy permits the government to incapacitate potentially dangerous people and to disrupt terrorist plots before they can take place, but the evidentiary requirements for laying charges provides a measure of protection against mistake or abuse.

Separate from the deprivation of liberty associated with preventative detention, there is the stigmatizing effect of being labeled a terrorism suspect or an individual associated with terrorist activities. We believe it is fairly uncontroversial to say that the stigma associated with an accusation of terrorism is severe. Yet the system of preventative detention proposed in this bill would effectively brand an individual a terrorist even though law enforcement officials may not have any grounds to lay charges, let alone evidence to convict, now or ever. The potential harm to that individual's reputation and other negative impacts flowing from being labeled as a terrorist cannot be discounted.

With respect to the second substantive prong of Bill C-17, the reintroduction of investigative hearings, we would observe that such a mechanism effectively renders the courts an investigative tool of CSIS and the RCMP. Indeed, we would adopt the logic of Justices LeBel and Fish of the Supreme Court of Canada, when they found that investigative hearings such as the ones proposed here compromise judicial independence from the other branches of government, which is a cornerstone of our democracy.

Although writing for the dissent, Justice LeBel's and Justice Fish's words should have resonance for anyone who subscribes to the concepts of the rule of law and an independent judiciary. They wrote:

Although a judge may be independent in fact and act with the utmost impartiality, judicial independence will not exist if the court of which he or she is a member is not independent of the other branches of government on an institutional level. .... Section 83.28 requires judges to preside over police investigations; as such investigations are the responsibility of the executive branch, this cannot but leave a reasonable, well-informed person with the impression that judges have become allies of the executive branch.

While the previous iteration of this investigative hearing provision may have been deemed "charter-proof", to borrow a phrase from Professor Kent Roach, that does not mean that these measures are truly compatible with the right against self-incrimination. As contemplated in Bill C-17, investigative hearings bear all the hallmarks of complying with the right against self-incrimination. We would submit, however, that they still do not comply with the spirit of the right to silence.

We believe that Professor Roach, of the University of Toronto Law School, perhaps said it best, with respect to the 2001 version of this provision. He wrote:

Regardless of whether investigative hearings can or cannot survive Charter review, there is a strong case that they are unnecessary, unprincipled and unwise. Those who will talk will do so without the threat of prosecution. Those who will refuse to talk or who lie will likely not be deterred by the threat of continued detention or prosecution for failing to obey a judicial order or for perjury. More fundamentally, it is unworthy to abrogate centuries of respect for the right to silence and the right against self-incrimination during police investigations. Attempts at Charter proofing, in the form of judicial authorization, right to counsel and use and derivative use immunity, should not take away from the fundamental damage that investigative hearings will do to our long traditions of adversarial criminal justice.

And indeed, while the Supreme Court did find the 2001 investigative hearing provision to be constitutional, it made that finding only after reading into the law what had not been expressly provided by Parliament. It placed limits on the use of investigative hearings. Specifically, it held that information gathered could not be used against an individual in any kind of proceeding, including extradition or deportation hearings or proceedings in foreign jurisdictions. As it is currently drafted, however, the investigative hearing provision fails to reflect those requirements and leaves open room for potential misapplication of the law. Given the danger that the information compelled through investigative hearings could potentially be used against Canadians or others abroad, perhaps by countries where human rights protections are not as robust as those found in Canada, we are deeply concerned that the Supreme Court's direction has not been codified here.

Finally, we wish to note that while the provisions at issue here, like their predecessors from 2001, are accompanied by sunset clauses, we fear that putting these measures in law again will be far from temporary. We urge you to refrain from passing this legislation and giving it a state of de facto permanence in Canada. Canada has historically served as an example among nations of how democracy, freedom, and the rule of law can be upheld on an ongoing basis. But we must be vigilant in protecting these values. The measures proposed by this bill have afforded no demonstrable gains in combating terrorism and instead would work to erode the democratic principles and ideals that we seek to protect.

I'll end here for now. Thank you again.

[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.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Piragoff, I'm going to interrupt you because you're wasting my time. I have seven minutes, sir.

I did not ask you what the current law is. We're dealing with this section under this legislation. To answer my question, yes, a person can be detained under this legislation, Bill C-17, for more than three days. Your answer, sir, is that we could do it anyway. That's not what I am asking you.

This legislation says that. So my next question is, if the current law allows this, what's the need for this provision, then?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all of the justice department officials for your attendance here today and for your expertise on this quest as we try to balance the civil liberties of Canadians with our bona fide security interests to protect ourselves against terrorism.

At our last meeting, we talked about the existing provisions of the Criminal Code. I know that my friends on the other side of the table believe that sections 810 and 495 of the Criminal Code adequately protect Canadians from terrorist attacks, both domestic and abroad. I'm skeptical of that position.

I was wondering if any of you could help the committee understand why section 810 of the existing Criminal Code is inadequate and why we need the provisions in Bill C-17. If you don't know, section 810 says if that a person who fears on reasonable grounds that another person will intimidate a justice system participant or commit a criminal organization offence, you can apply to a judge to have a recognizance.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman.

I'm pleased to appear before this committee. My memory may not serve me correctly, but I think it's been quite some time since I've been before this particular committee.

I'm here, of course, on Bill C-17, a bill that will re-enact the investigative hearings and the recognizance with conditions provisions of the Criminal Code. As you will know, these were part of the Criminal Code from late 2001, and they sunsetted, unfortunately, on March 1, 2007. They've been the subject of considerable review as part of the mandatory review of the Anti-terrorism Act, as well as in the form of Bill C-17's predecessor bill in the previous Parliament. Our government believes that this bill responds to the issues raised in those reviews and those debates.

Mr. Chair, let me outline what Bill C-17 proposes.

First, the investigative hearing provision would give a judge, on application from a peace officer, the power to compel someone with information about a terrorism offence that has been or will be committed to appear before him or her to answer questions and/or produce anything in their possession or control. The person would be attending as a witness and not as an accused.

Second, the recognizance with conditions provisions would allow a peace officer—one who has reasonable grounds to believe that a terrorist activity will be carried out and has reasonable grounds to suspect that the imposition of recognizance with conditions on a particular person is necessary to prevent a terrorist activity from being carried out—to apply to a judge to have that person compelled to appear before the judge, where it will be determined if reasonable conditions should be imposed on the person in order to prevent the terrorist activity.

Third, in addition to the annual reporting requirements, Bill C-17 contains a requirement that both these tools should be subject to a mandatory parliamentary review. During the second reading debate, it was suggested that a review of both houses of Parliament would be appropriate. I wish to point out that the bill provides that the review may be undertaken by a committee established by either house of Parliament, or both houses. That, ultimately, is for Parliament to decide.

Mr. Chair, I think it's essential that we outline some of the key safeguards that have in fact been added to the original investigative hearings provisions.

First, the bill provides that in all cases a judge would have to be satisfied that an investigative hearing is warranted, on the basis that reasonable attempts had already been undertaken to obtain the information by other means. Previously, the safeguard only applied to future terrorism offences, not past ones.

Second, the original 2001 legislation imposed annual reporting requirements on the use of the investigative hearing and recognizance with conditions by provincial and federal officials, including the Attorney General of Canada. However, the special Senate committee reviewing the Anti-terrorism Act recommended that the Attorney General of Canada also include, in the annual report, a clear statement and explanation indicating whether or not the provisions remained warranted. The bill would implement this recommendation, while also requiring the Minister of Public Safety to make a similar statement in his annual report.

Third, in 2006, the House of Commons Subcommittee on the Review of the Anti-terrorism Act expressed some concern about whether a person detained for an investigative hearing would be entitled to existing avenues of release under the Criminal Code. In response to this, Bill C-17 would propose, through the application of section 707 of the Criminal code, putting a cap on the period in relation to which an arrested person could be detained for an investigative hearing.

Mr. Chair, I think it's important to note that Bill C-17 would continue to allow for the holding of an investigative hearing concerning a past terrorism offence. The government believes that the past offences, in and of themselves, merit investigation. Without a doubt, they may provide crucial information with regard to the planning of future ones.

I will turn now to some of the key provisions that have been added to the original recognizance with conditions provision.

First, during the Senate committee review of former Bill S-3, the government agreed with Senator Baker's recommendation to bring the recognizance with conditions provision in line with the Supreme Court of Canada's decision in R. v. Hall, where a phrase found in one of the grounds of detention in the bail provisions of the Criminal Code was found to be unconstitutional. We agreed then and we agree now. Bill C-17 includes this change to be consistent with the Hall decision.

There were a few issues raised in previous debates, of course, that I must address. Some have argued that these provisions are not necessary because they have been rarely used. However, the fact that something has been rarely used is very different from saying that circumstances will never arise that could require its use in the future. The tools in C-17 are modest and restrained compared to anti-terrorism measures that exist in other major democracies.

Mr. Chair, in relation to the investigative hearing, some have argued that it does away with the right to remain silent, but as you know, the original legislation contains strong protections against self-incrimination in covering both use and derivative use of immunity. These protections continue in this bill, you'll be pleased to know.

It's important to note that a majority of the Supreme Court of Canada, in a 2004 constitutional challenge to the investigative hearing scheme that arose during the Air India prosecution, emphasized the strong protections against self-incrimination it provided, in fact going beyond the requirements and the jurisprudence to protect against self-incrimination.

The final issue, Mr. Chair, is whether the Criminal Code already contains provisions that could be used for terrorism-related offences such as sections 495 and 810.01. Subsection 495(1) allows a peace officer to arrest without a warrant a person who it is reasonably believed is about to commit an indictable offence. However, a police officer may, at the time of the possible arrest, not reach this threshold. Given the grave nature of the harm posed by terrorist activity, there is a need to be able to act quickly to address the threat.

In my remarks today I have attempted to highlight a few of the safeguards and improvements made to the investigative hearing and recognizance with conditions proposals while at the same time addressing some of the issues that have been raised.

This proposed legislation, in my view, is balanced, fair, and necessary.

Thank you very much.

[Don Davies, NDP, Vancouver Kingsway, BC]

Good morning, everyone.

Mr. Chairman, as I think all members of Parliament know, and certainly all Canadians know, in June of this year Parliament acted swiftly to make necessary and I think well-considered changes to the pardon system in this country. Some relatively urgent circumstances caused Parliament to act.

In particular, two cases came to the public's mind. One was the imminent opening for Karla Homolka to apply for a pardon. The other situation that quite reasonably upset Canadians was the quiet pardoning of Graham James, who had been convicted of a number of sex offences against young men in his charge as a hockey coach.

At that time, back in June, the government tabled a comprehensive pardon bill that contained some positive measures. It also contained some measures that not only required further study, careful consideration, and deliberation, but were on the face of it absolutely the wrong way to go in terms of pardon policy in this country.

Back in June, Mr. Chairman, the New Democrats worked cooperatively and productively with the government to fix the imminent mischief in the pardon legislation. In particular, we dealt specifically with the Karla Homolka and Graham James situations. We did a number of things, as committee members will remember.

The first thing we did, which was very important, was we fixed the problem the pardon granting institution had. They had very little discretion to deny a pardon if the application was made. Prior to our changes in June, there were two waiting periods: a three-year period for summary convictions and a five-year period for convictions by indictment. But if a person waited that length of time after they served their full sentence--not only any period of incarceration, but also any period that may have been served on probation or on parole in the community--provided they had not reoffended in that time period and provided upon a cursory police check they had not triggered the attention of the police in any way, the granting institution really had no discretion but to grant the pardon.

One of the good things that I think was in the government's bill back in June was a provision that would give the parole board the discretion to grant a pardon or to refuse a pardon in any circumstance that would bring the administration of justice into disrepute. For the first time in Canadian history, we gave the tools to the board to deny a pardon in any circumstance in which that test was met.

It was my view then and it's my view now that this tool is sufficient to deny a pardon application by Karla Homolka, were she to make it. I think it also may be broad enough to empower the board to refuse to grant a pardon to Graham James, were he to make that application today. That's what Parliament did through all-party cooperation, including cooperation from the New Democrats. It was also the New Democrats' suggestion to add manslaughter to the list of offences that would require someone to wait 10 years to get a pardon.

We might also remember that back in June the other important measure Parliament took was to increase the time periods offenders had to wait to get a pardon in certain types of offences. We took sex offences against children and increased the time period to wait for a pardon from five years to ten years, and for summary conviction offences, from three years to five years.

At the same time, as I said, what the New Democrats insisted upon was that manslaughter be added to that list of offences for which a person would have to wait ten years. We did that specifically because that's the offence that Karla Homolka was convicted of.

I want to pause here and just talk for a moment about something else that's important. The former Minister of Public Safety, Stockwell Day, three or four years ago, reviewed the pardon system. The government did a review of the pardon system at the time Graham James was in the news. In fact, it was another sex offender, I believe, who was in the news at that time who spurred the government to do a review. The government did a review of the pardon system and made very minor changes to the system at that time, in 2007 if I'm not mistaken. Then we reviewed the pardon system in a very in-depth and profound way in June of this year.

I think that all-party cooperation in June produced a very important and progressive development in our pardon system. It gave the pardon system the opportunity to refuse to grant a pardon and gave them the discretion. It ended what Canadians have always perceived as being a rubber stamp, so that if you waited the three or five years, as it was then, and made your application, pretty much the pardon was automatic. We fixed that problem by putting the discretionary aspect in.

We also, I think, addressed something that Canadians said was a great concern, which was whether three or five years was a long enough period of time to wait for someone to apply for a pardon. In many cases, we thought it wasn't. In a lot of cases, and particularly sex offences, we should make an offender demonstrate a longer period of rehabilitated behaviour, that being ten years. That, I think, was also a positive step.

We've heard some testimony before this committee that if a person is going to reoffend, they do it within five days, five weeks, or five months. If someone has actually not reoffended for a period of five or ten years, then the evidence that we've heard so far--and I think we need to hear more evidence on this--is that it is highly unlikely that the person is going to reoffend.

So here we are today. The government came back this fall and put in some further proposals to change the pardon system, which I think are worthy of merit and further careful deliberation. I think they also, it's fair to say, have continued to pursue some of the flawed aspects of the bill that was presented in June, and that of course is the bill before us, Bill C-23B.

Now, whereas in June, Bill C-23A, as it's now known, made the necessary and important changes, what we have left in Bill C-23B primarily are some issues with regard to which we must, I believe, tread very carefully. When we haven't made any pardon changes in decades in this country, when this government looked at the pardon system in 2007 and thought that it didn't need any changes at all but a couple of minor administrative changes, and when Parliament made important changes in June, there is no need for urgency at this point today.

We have had only three days of hearings so far. For any of the Canadians watching, three days doesn't mean three full days but three meetings of two hours apiece, and in that two-hour period we have had 15 minutes carved out for dealing with committee business. So we have so far, it's fair to say, maybe about four and a half hours of discussion and hearing from a few witnesses on the issue of pardons in this country. From the two hearings at which we heard actual witnesses--and we heard from only a handful of witnesses--I think it's already quite clear that this bill has been exposed as having some serious deficiencies. Some would call them deep flaws. Each time a flaw is exposed, it causes us as parliamentarians and policy-makers to stop and think that we had better move carefully in this area.

So we're just getting started studying this bill, and it's obvious that there are many problems to be dealt with. Now, instead of hearing that evidence, the government wants to shut down testimony and rush through this bill, without having the necessary and careful deliberation. In my submission, that is not a responsible way to deal with a very serious issue.

I want to talk about one of those major flaws. This government has put in this bill—they did it in June and they're coming back with it now—what's called the “three strikes and you're out” rule. There's a provision in this bill that says anyone with more than three indictable offences would be ineligible for a pardon forever. I'm going to say that again. You get more than three indictable offences, and the Conservative government wants to pass pardon legislation that says you will forever be ineligible, barred from receiving a pardon.

The New Democrats arranged to hear from a few of the people who would be most affected by this, former offenders who would be denied pardons forever under this proposed legislation. These are people who have had more than three indictable offences. They came and testified right here at this table before this committee.

We also heard from organizations that work with ex-offenders. Here are some of the things we've heard so far.

We heard that proceeding with this provision hastily might actually endanger public safety. That's because we've heard some evidence—only a little bit so far—that shows that the pardon system and the pardon process is one tool in the rehabilitation process. It's a very important tool. We've heard from people who work with offenders and offenders themselves that having the prospect of getting a pardon, being able to work towards a pardon, helps them to get their lives back on track and not reoffend.

If there is one overreaching goal in the carceral system that we should be working towards and that all parties should be in agreement with, it's that we should always favour policies that help offenders not to reoffend, not only because it's good for the offenders and their families, but also because it's good for our communities. When that person goes back into the community, I want that person not to reoffend, not to endanger any other family, any other person, any other property. I want our people to be able to walk safely in our communities. That means that I, as a parliamentarian, will take it very seriously when I hear people tell me that a particular measure helps them not to reoffend. This piece of legislation, this particular provision of the bill—three strikes and you're out—would endanger that principle. It will take away one piece of hope, one piece of motivation, one piece of policy that, we have a taste of evidence to suggest, is instrumental and helps people in not reoffending. So we've heard the valuable role that pardons play in improving community safety.

In testimony from department officials, we also heard that 25% of the applications for pardons are from people who have more than three indictable offences. When we say “more than three indictable offences”, I'm sure Canadians react the same way I reacted when I heard that, which is that someone with more than three indictable offences should never get a pardon. That's what I thought, until we actually started talking to people who have experience with this process, and to former offenders themselves.

We put three live human beings in front of this committee, only three. Out of the tens of thousands of people who may be affected by this, we heard from three only. We put them here to be subjected to questioning from our side and from the government side. What did we hear? We heard from one person who was convicted of 24 indictable offences, which sounds horrible, until you hear his story. The story we heard is that these were convictions for selling steroids. We heard that this is a person whose wife passed away from cancer when he was a young married man. He had a mortgage, and he went into deep grief. He had financial problems so he started selling steroids. He told us that one transaction of selling steroids would result in multiple convictions: possession, trafficking, conspiracy, and fraud.

So someone who sounds like a person showing an intractable trend, an irremediable criminal, is actually a person who sold steroids over a period of six months and ended up with 24 indictable convictions as a result, because there are multiple convictions from single transactions.

Who is he now? I hope Canadians actually have seen this man. This man has gone for years without reoffending and is now an executive in the media industry, someone who has a mortgage and a new marriage and who occupies a position of responsibility and of probity. This was a person who presented an absolute success of what happens when prison works in the right way. This was not a thug and a hooligan or the type of criminal whom the government likes to portray—the stringy-haired criminogenic monster whom the government likes to hold up as the model for all of their criminal policy. This was a real person who had for a brief stretch of his life a problem, and he has put his life back together in admirable fashion.

The second person we heard from was a young aboriginal man. We all know that aboriginals are terribly disproportionately represented in our criminal justice system and in our prisons. This person told us that he's a recovering alcoholic who committed offences that were property offences. Yes, they were serious; I don't mean to minimize the offences. He committed robberies. He himself said that he knows the pain and the fear he caused when he went into stores and robbed those stores.

But he also is a person who has gone for years without reoffending. He is now a person who has a family and children. He talked about how he wants a pardon so that he can get a better job to support his family.

All three individuals talked about how getting a pardon is an incentive for them and a very important part of their rehabilitation plan to help turn their lives around.

Even, I dare say, some of the Conservatives' own witnesses, people who I think have a lot to tell Canadians about the criminal system—that's the victims groups.... We heard from Sharon Rosenfeldt and Sheldon Kennedy, two people who have suffered at the hands of criminals in a way that none of us can truly understand. Ms. Rosenfeldt lost a child to convicted killer Clifford Olson, and Sheldon Kennedy as a young teenager suffered under the sexual offences of his coach, someone under whose charge he was put, who should have been caring for him and should have been watching out for him, but who violated that trust. We have to take their testimony seriously.

We heard from both of those individuals that neither of them, I don't think, would be terribly in favour of removing the possibility of a pardon from someone forever just because they had more than three indictable offences.

We heard testimony from the minister that the figure of three or more than three indictable offences was an arbitrary one. We asked him if he had any data to support the number three. Is there some data to support that someone with more than three indictable offences is somehow less prone to qualify for pardon than someone with two? Or is the magic number four?

His answer was surprising and I think very disturbing. It was that it just seems right. He has no data—no empirical data, zero. This is someone who has the resources of the Department of Public Safety and probably of the Department of Justice, who has the full resources of government to provide studies and data and facts, who came to this committee and said he had nothing; three just seems right. One's not enough, he said; two's not probably right; but three seems right.

Mr. Chairman, that's Goldilocks policy. That's making policy the way children do: this one is too hard, this one is too soft, and this one is just right.

This policy would preclude tens of thousands of Canadians from ever getting a pardon for the rest of their lives. And it's based on a feeling, a hunch? That's not the way to make carceral policy in this country, and it's not, I think, what Canadians send us to Parliament to do. I think Canadians send each and every one of us to Parliament to carefully consider facts and evidence, to make the best effort we can make to come up with policy that is thoughtful and effective.

Again, the minister admitted no evidence, no data, no studies to show how adopting this law would help in any way to make our communities safer.

I also want to just talk for a second about this. This government has stood in the House time and again and said that the very best social safety tool that a person can have in this country is a job. You won't hear any one of the members of the government contradict that today, because they themselves have said it, because they believe it. And in some ways, Mr. Chairman, it's actually true. A job is a pivotal part of Canadians' abilities to care for themselves and care for their families.

We've heard absolutely unarguable testimony so far that getting a pardon is a critical part of having a person re-establish themselves in the employment world. We all know that when you apply for a job, there's a section on an employment form that asks: “Have you ever been convicted of a criminal offence for which a pardon has not been granted?” The ability to check off that box or not check it off is the difference between someone's getting a job and not getting a job, in many cases. If we want offenders to come back out of prison and to reintegrate themselves into society and start repaying their debt to society, and start acting as we expect our citizens to act and not be a burden on the taxpayer and not be a burden on the state, don't we want them to get a job? Of course, we want them to get a job if they've demonstrated that they deserve that kind of trust again.

The New Democrats are totally in favour of making a pardon process that is strict, that gives the pardon process the ability to deny that pardon, that makes the offender demonstrate that they have truly rehabilitated themselves through an extensive period of time of proving that; not through their words, but through a period of time during which they have shown that they have not reoffended—and make that period of time a good, substantial one; make it a long one, in some cases. But getting a job is critical, and this “three strikes and you're out” proposal would harm that process.

I also want to talk about lengthening the wait times. This bill proposes to double the ineligibility periods before applying for a pardon. It would go from five years to ten years in some cases, and three years to five years for summary convictions.

This is a concept that's worthy of further discussion, worth learning more about. What kinds of offences should go from five to ten years? As I've already said, New Democrats have already indicated our support for moving sex offences against children from five to ten years, and it may even be the case that there are some sex offences against children for which a person should never get a pardon. New Democrats are prepared to look at that.

But what this does with a broad brush...what this government says is that all indictable offences of every type should go from five to ten years. In a Criminal Code that is very thick and has every single type of indictable offence, from impaired driving to shoplifting to forging a testamentary instrument to passing a bad cheque, there are all sorts of offences that Canadians would recognize fall on a spectrum. They fall on a spectrum from the minimally serious to the moderately serious to the heinous.

There are some offences that I think we can all agree may qualify for the “never getting a pardon” process, but absolutely the vast majority of Canadians would agree, because they're reasonable people with common sense, that there are some indictable offences for which you shouldn't have to wait ten years to get a pardon. My colleague in the Liberal Party has brought up a very good example on several occasions of a young woman, perhaps a single mother, who gets into trouble—she's in her early 20s, she ends up writing some bad cheques, or she ends up shoplifting, maybe—because she is low-income and needs to have clothes for her children. She makes a mistake and she has one indictable offence.

This government would say that you have to wait 10 years after you serve your sentence, which in many cases would probably be 12, 13, or 14 years. Additionally, Mr. Chairman, we've also heard from businesses that exist to help people get pardons that the pardon process itself usually takes a year or two years.

So that one young woman who might have made a mistake at 20 years of age might, under this legislation, have to wait 15 years before she can get a pardon. That is not “considered legislation”, in my respectful submission.

In terms of basic drafting, this bill has been rushed so quickly that we can determine that there are drafting flaws in the bill. We have the so-called problem, which we have finally teased out of the minister and out of the support staff—I think they acknowledge that there is a drafting flaw in this bill—concerning the people who are convicted of sex offences against children and the way it works with respect to young offenders: a 16-year-old and a 14-year-old, or a 17-year-old and a 14-year-old. The close-in-age provision is incorrectly drafted in this bill. So we even have a flawed drafting issue here.

I also want to talk a bit about what I will say, with the greatest of respect, is a little bit of Conservative hypocrisy. We brought those three offenders as committee witnesses to show Canadians and this committee the types of people who would be personally affected by this legislation. Again I think it's fair to say that we heard compelling and touching stories of people with criminal pasts who had turned their lives around, who have completely turned their lives around. Conservatives to a person said to these people' faces, we're really proud of what you've done; we really admire the way you've turned your life around. I could be wrong, but I think one or two of them may even have suggested to these witnesses: “We don't mean you. You're not the ones we mean to prohibit from getting a pardon forever. We mean those other people.” But of course, those three are exactly the people who will not get a pardon as a result of this legislation.

Worse, after sitting here in this committee, each of the Conservatives talking to those ex-offenders and treating them with respect and praising them stood up in the House the very next day and made outrageous statements disparaging those very courageous individuals who came to tell their stories.

I won't mention the name, but I'll quote one of the members in the House, the day after these former offenders came and bravely testified—on television—about their criminal past and how it was turned around. It took more courage than I have seen many Canadian demonstrate in a long time. The Conservative member said:

...yesterday the public safety committee heard pleas from the convicted criminals to keep Canada's pardon system as is. Like so many times before, the Liberal public safety critic showed that he put the rights of criminals before the rights of victims.

That, of course, is not true. This is part of the rhetorical nonsense you hear from the government, which accuses anybody who might want to bring some study and some subtlety and some intelligence and some facts to the debate of crime...they accuse us of putting criminals before victims. What nonsense! But they did it, and worse was their two-faced way of telling these people to their faces how much they admired them and the next day going into the House of Commons, where they have parliamentary immunity, and portraying them to the Canadian public as if we had a bunch of common criminals who wanted the pardon system liberalized. It was about the biggest piece of hypocrisy I've seen in a long time.

I want to talk again about evidence. So far the Conservatives have not tabled one piece of evidence, one statistic, one study, or one piece of data before this committee that shows why these changes are needed or how the changes would improve community safety.

I want to talk again about the Conservative approach to making legislative changes based on politics and based on fear and not based on facing evidence.

When they put Bill C-5, the international transfer of offenders bill before this committee, it was unanimously panned by the witnesses. The Conservatives couldn't find one witness, not one, who supported the bill.

They brought Bill C-17, and we heard this expert panel yesterday express grave concerns about the impact on free speech and basic--

[Khalid Elgazzar, Member of the Board of Directors, Canadian Council on American-Islamic Relations]

It's our view that current measures in the Criminal Code are sufficient and adequate to the task, so we also disagree that there is a gap that needs to be filled by legislation such as Bill C-17.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Madame Mourani.

I'll give you a little bit of leeway here on Bill C-17. You do draw in CSIS and a few others, so I'll accept that as a question.

Go ahead, whoever wants to take that one on.

Go ahead, Mr. Barrette.