Justice Committee on Feb. 11th, 2013

[Marie-France Dagenais]

We have inspectors across the country who inspect those companies. We actually do have a prosecution mechanism in the act, so we can prosecute under the Criminal Code.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you.

I have one other question for you. The Belfer Center for Science and International Affairs at Harvard University, in their 2011 report entitled “The U.S.-Russia Joint Threat Assessment on Nuclear Terrorism”, noted, “Of all varieties of terrorism, nuclear terrorism poses the gravest threat to the world.”

Do you agree with this statement that, of all the threats right now, nuclear terrorism is the greatest threat to the world? Is nuclear terrorism really a threat to us here in Canada? What's your opinion on that?

[Marie-France Dagenais]

It's kind of funny because I was quite involved in the 2010 Olympics, and there was a risk and threat assessment done by the RCMP and CSIS. They actually identified that the worst threat was a transport of propane or a fuel tank. That was more dangerous than a nuclear threat, so I think it's there and it needs to be looked at, but I wouldn't say that it's the highest threat right now.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you.

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Armstrong.

Our next questioner is Mr. Jacob, from the New Democratic Party.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

Thank you to our witnesses.

My next question is for any of the four witnesses.

The Canada Border Services Agency is Canada's primary counter-proliferation enforcement arm. The agency screens nearly all shipping containers coming into the country for radiation.

An agency official told the Standing Senate Committee on National Security and Defence that the agency had to risk manage the screening of items leaving the country.

What percentage of containers are screened as they leave Canada? What about cargo leaving the country via air, rail and land transportation?

[Raoul Awad]

You might be better off asking CBSA that question. In terms of nuclear substances or radioactive sources, no cargo crosses the border or leaves the country without a Canadian export licence. Similarly, the same process applies to imported products. Our oversight is done through import and export licences.

Regardless, CBSA would be in a better position to answer that question.

[Terry Jamieson]

In terms of the number of containers that are inspected, of course a 100% inspection can't be achieved, but there is scanning on virtually 100% of these containers as they leave the major port facilities in Canada. The scanning is very effective to the point that containers with slightly contaminated coat hangers, and I think in some cases it was toasters or other household appliances, were detected. So in fact, there is a very rigorous and very sensitive screening system in place.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

Protecting critical infrastructure has trans-border challenges, because that infrastructure is shared not just provincially and territorially, but also internationally, most notably by Canada and the U.S.

As far as that type of protection goes, could you tell us what the current and anticipated challenges are? When it comes to the laws and regulations in place, and the resources dedicated to protecting nuclear facilities, how does Canada compare with its close allies?

Any one of you can respond.

[Raoul Awad]

I can assure you that Canada's nuclear safety regime is virtually envied the world over. Our experts are invited all over the world to discuss Canada's approach to protecting its nuclear facilities. We are probably a world leader in that area. Our experts even participate in

IPPAS, the International Physical Protection Advisory Service, that IEA put in place.

Recently, just last year, we did one mission in the U.K., and last year in Romania. We have many IPPAS missions planned in advance. They always ask for the Canadian expertise to participate because we are recognized as the best regulatory framework regarding the security of nuclear facilities.

[Terry Jamieson]

If I might add, these IPPAS missions are important for two reasons. As Monsieur Awad has just said, they clearly demonstrate that our expertise in the physical protection of nuclear materials is top-notch and sought after by other countries when they look to review their own systems.

It does allow us to more freely exchange practices and to learn from these other countries as well.

The third item I'd like to add is in terms of comparing our proficiency at protecting nuclear installations. I mentioned in my opening remarks that there are annual competitions among these protection forces. I do want to stress that Canada is routinely among the leaders. In fact, in terms of the competitions for non-U.S. Department of Energy teams, teams from Bruce Power and Hydro-Québec have won those competitions. These are highly trained individuals and highly proficient forces.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you very much.

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you.

I have no other questioners on my list, so we'll consider that everyone has asked their questions.

I want to thank the panel for being here for this discussion of Bill S-9. We will be dealing with it on Wednesday on clause-by-clause. I want to thank you for that.

You're excused.

With unanimous consent, I will now move to committee business and the notice of motion from Madame Boivin, because we have about half an hour, if that's okay with everyone.

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Madame, if you want to move your motion, you have given the proper notice and it's in order, so you have the floor.

[Françoise Boivin, NDP, Gatineau, QC]

You've probably all had a chance to look over the motion, which reads as follows:

That the Standing Committee on Justice and Human Rights conduct a thorough study of the practice under section 4.1(1) of the Department of Justice Act since its enactment: 4.1(1) Subject to subsection (2), the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity; and report its findings and recommendations to the House.

I will make no secret of what led me to put forward such a motion. It was a situation that gave me serious cause for concern, whether founded or not. I am not making any value judgment on the proceedings that were initiated, nor do I have any intention to put anyone on trial here. However, when a government employee says that he was asked to do something illegal and that the test set out in subsection 4.1(1) of the Department of Justice Act was not applied, it weakens my confidence in the system.

Ours is a system where the rule of law must reign supreme. I always assumed that, as far as studies of government or Senate bills went, the necessary legal opinions had been sought and the appropriate tests passed. I was under the reasonable impression that that was the case, whether I was for or against the political content of the bill.

After asking the minister some questions and considering the answers I got, I had the sense I was being told that information was private or confidential, that it involved the type of relationship the lawyers around this table are used to. In short, we were told that this was a matter of lawyer-client privilege. The problem there is that the client is the Canadian public. It's not me or you, it's not the minister or department employees. It is, in fact, Canadians.

So that is the backdrop for my motion, which I would like the committee to study when it has time and not for the purposes of a witch hunt, of course. You can see the motion was not written in such a way as to impose a new agenda, as the one we have is already quite full. We have to study the issue swiftly and seriously at some point to, at the very least, assure ourselves that the tests described in subsection 4.1(1) are followed, that the necessary approvals are obtained and that genuine efforts are made to ensure the content of bills is consistent with the Constitution and the Canadian Charter of Rights and Freedoms. It seems to me that should go without saying.

No such study has been done in a long time, and I think it would be worthwhile to do. I often talk about perceived justice. Justice is one thing, but perceived justice is another. When the entire system is called into question, whether rightly so or not—and I don't want to get into the details of the case—the Standing Committee on Justice and Human Rights has a duty to report to Parliament on whether the tests are being applied correctly and whether the process can carry on as usual. But one thing is crucial: the importance of the rule of law in Canada cannot be overstated. That is the crux of my motion.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Cotler, go ahead.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, I want to express my appreciation to my NDP colleague for bringing this motion forward.

Members of the committee will note that I have had an interest in this whole question of section 4.1 of the Department of Justice Act not only in terms of my responsibilities as a former minister of justice and attorney general—it falls on any minister to have that concern—but prior to that even, during my years as a law professor and being particularly involved in constitutional law and charter concerns.

Accordingly, on November 6 of last year, when the current Minister of Justice was before this committee, I put questions to him on the standard being applied to prospective legislation with regard to section 4.1 review. The minister responded: ...the standard is that we comply with all the constitutional documents, be it the charter or the Canadian Bill of Rights. We satisfy ourselves that all legislation is in compliance.

As members may recall, I found the answer at that point to be insufficient and therefore asked more questions about the particular standard of review. Regrettably, the minister did not further enunciate the particular standard that he and the department applied to legislation.

I believe it's important for both parliamentarians and the public to know the scope and the nature of the review that is conducted on bills put forward by the minister and department before they are tabled in Parliament, for a number of reasons.

I'll try to be brief in this regard, Mr. Chairman.

First, there are serious cost implications when the government enacts a statutory scheme that may be challenged before the courts. While there are certainly costs to defending any government legislation, we ought not to be inviting complex and protracted constitutional litigation at great cost to the taxpayers, particularly since as parliamentarians we have not only an important role to play but I would say an important constitutional responsibility in the oversight of the public purse, let alone in the oversight as well of the constitutionality of legislation.

Second, and in a related fashion, we need to be concerned with the existing strain on our already, at times, overtaxed legal and judicial resources. While the government, as I've said before, should be assisting those who have legitimate claims to bring before tribunals—and I would be remiss if I did not parenthetically note my regret about the cancellation of the court challenges program—we don't want to be inviting litigation simply because we adopted legislation that has not been properly constitutionally vetted.

The third consideration relates to the aphorism that not only must justice be done, but it must be seen to be done. It's an oft-abused cliché, but one that still has relevance. The government has, if you will, somewhat of an attendance problem when it comes to the charter.

For example, when it came to the 30th anniversary of the charter, for the most part—and I can say this as somebody who participated in a good number of the commemorative initiatives with respect to the 30th anniversary of the charter—regrettably the government that should have been at the forefront of that commemoration, that should have been celebrating the 30th anniversary of the charter, was very often simply missing in action.

It's not clear, when one looks at these things, whether the government, in looking at the charter, sees it as something that deserves the compelling respect and responsibility that we owe to adhere to it, or whether it sometimes sees it as something of an impediment to pursuing its agenda, or worse, as something unnecessary or unimportant.

I say that, Mr. Chairman, because if one looks at the record, one will see that not only has there been a series of legislative initiatives that have invited constitutional challenges that could have been in my view avoided with a proper due diligence and vetting, but that in fact courts have, in a series of judgments, whether of the Federal Court or the superior courts or even the Supreme Court of Canada, such as in the Insite case, found to be unconstitutional.

The last concern, and I'll touch on this briefly, is how a department allocates its resources in these matters.

In other words, if a charter analysis is at an extreme end an automatic process, a kind of rubber-stamp process, then how many civil servants are involved in that process, and how many are in fact needed, and at what cost to taxpayers?

Conversely, if it is, as I believe it to be, a more complex and protracted process, we might ask ourselves whether we have enough people assigned to the task, a task which, as I say, goes to the whole question of public oversight.

In returning to the matter before us, you can properly put the question to me, and it would be deservedly put to me, whether or not, when I was Minister of Justice, we in fact engaged in that kind of approach. I think, Mr. Chair, if you will look at the record, I said as I wrote before becoming minister, but even at the time of being a minister, that I regarded that as an ongoing superintending responsibility and priority for the Minister of Justice, and that, before we tabled any legislation, we had to be sure that it had what I called the good housekeeping seal of constitutional approval.

The question then becomes, what is the standard to be used? The thing that concerns me at this point is there is now a statement of claim before the court that has made some reference—and I'm not going into any of the matters regarding the merits of the claim or anything of that regard—but the question is that the standard of legislative review being applied by the department is whether “some argument can reasonably be made in favour of its consistency, even if all arguments in favour of consistency have a combined likelihood of success of 5% or less...”.

Mr. Chairman, I regard that as a very low standard and, indeed, a standard that would be inappropriate for Parliament and the public to adhere to.

Let me just close by saying that a question can be put to me, “Did you ever table any legal opinions when you were the minister?” I have questioned the present minister as to why he has not tabled any legal opinions, and that properly could have been put to me as well.

My answer would be twofold in that regard. Number one, we operated at such a high level of superintending review that, in fact, the whole objective was to ensure that we would not be tabling any legislation that might be suspect from a constitutional point of view, for all the reasons I mentioned. And when an issue did arise where I thought there might be a constitutional concern and where the standard of review would thereby be engaged that had to do with the prospective same-sex legislation, we referred the matter to the Supreme Court for an advisory opinion so we would not have to get into protracted litigation of a constitutional character at multiple levels in different provinces in that regard.

It would seem to me that this question is something that we ought to address and review in terms of should we perhaps have more by way of a reference to the courts with regard to that issue. What in particular should be the standard for review? How do we ensure there will be appropriate compliance with the directive authority in section 4 of the Department of Justice Act?

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Our next speaker to this motion is Madam Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

With respect to this motion, I oppose it, both for practical reasons and reasons of principle.

Subsection 4.1(1) requires the minister to examine government bills presented to the House of Commons and “ascertain” whether they are inconsistent with the purposes and provisions of the charter. If so, this must be reported to the House. It was very clear legislation.

The process of reviewing legislation for charter risks, which underlies it, has been in place since the inception of subsection 4.1(1)—that's since the mid-1980s—and has served all governments well.

With respect to Mr. Cotler's comments on whether we celebrated the charter at 30 years, we don't tend to celebrate legislation; we highlight it. The Prime Minister made statements about it. But I don't believe the former Liberal government had a big party at the 20th anniversary either. It's part of a series—

[Irwin Cotler, Liberal, Mount Royal, QC]

We actually did.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

—of constitutional legislative initiatives, including our British North America Act, and our Bill of Rights which came in under Prime Minister Diefenbaker. No study is necessary, in our view, into a process that is clearly working and ensures effective charter review.

I have had the benefit of looking back on transcripts of testimony in the House and Senate committees, as well as the House itself, from Minister Nicholson, and before him, Minister Toews, and before him, Minister Cotler, and even Minister Blais in 1993. Their responses are basically identical as to how the process works. The proposals are reviewed for charter and other legal risks throughout the policy development process, up to and including the introduction of legislation. Relevant risks are brought to the attention of senior officials and ministers, and every effort is made to mitigate them. Once the government bill is introduced, the chief legislative counsel certifies—there is a certification process—on behalf of the deputy minister of justice that the necessary review has been carried out. If a Minister of Justice were to conclude that a given government bill was at the time of introduction inconsistent with the charter, a report under subsection 4.1(1) would be issued. In other words, that is the triggering event.

In practice, the review process ensures that concerns potentially rising to such a level will have already been addressed. The process I have outlined works. It has been respected by government. It is our view that this study is unnecessary. I would urge the members of this committee to defeat this motion.

[The Chair, Conservative, Mike Wallace]

Thank you.

Our next speaker to the motion is Mr. Marston.

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

Thank you, Mr. Chair, and I appreciate the opportunity.

I'm a product of the 2006 election, when the government took office primarily on talking about transparency and accountability. I respected that. That's one of the reasons I ran. I was running against Conservatives, but I wasn't against them on that particular point.

The thing that's concerning when you're new to the justice committee, as I am, is this threshold of 5%. Yes, there's minister after minister who has come before Parliament and its various committees and has said that they were satisfied with how it had been done before.

However, as an example, there is the Insite case, the challenge that followed, and the turnaround that took place. Nobody is sitting here saying that the legislation put in before is completely wrong. What's being asked is for this committee to take a look at it to ensure that it meets the goals. Some doubt has been raised about it, and I think it's worthwhile for the committee, not necessarily immediately, but over a period of time, to take the time to look it over. I would encourage people to reconsider this.

[The Chair, Conservative, Mike Wallace]

Thank you.

Our next speaker to the motion is Mr. Rathgeber.