Evidence of meeting #47 for Public Safety and National Security in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was provisions.
A recording is available from Parliament.
Conservative
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
I have no trouble with our asking questions according to our convictions, but I object to your citing me wrongly when it's so easy to prove the contrary by checking in Hansard. Would you mind not using my name? Just stick to your convictions and do your question.
Thank you.
Conservative
Associate Professor, Faculty of Law, University of Ottawa
The peace-bond provisions at the back end of the recognizance with conditions are the provisions I wonder about. The present bill doesn't enumerate the circumstances that can be imposed upon a person. There's no limit, necessarily, set in the statute.
If you look at the analogues in the U.K. and Australia, their legislation provides for what can be done to someone under a peace bond. One of the positions I took in front of the Senate on Bill S-3 was that it was actually worthy of Parliament to contemplate what can be done in Parliament's name, in essence, in imposing peace bonds, so that there would be a shared understanding of the outer limit. My personal view is that if it amounts to house arrest, it's unconstitutional.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
At the risk of misquoting Ms. Mendes again, I recall her stating that all of the witnesses here today found this legislation useless. I need to take issue with her question, because, Professor Forcese, in your brief you are quite explicit that you take no position with respect to this bill. Is that correct?
Associate Professor, Faculty of Law, University of Ottawa
To summarize my position, I accept that there's an argument for preventative detention. There's a narrow gap. I'm not sure that Bill C-17 is useful in filling that gap, because there's a strong disincentive for law enforcement to use it. If the gap were to be filled by legislation, the legislation would have to be more aggressive in empowering law enforcement, and I'd be unprepared to have those extra-aggressive provisions imposed via this legislation in the absence of very robust checks and balances to enhance the civil liberties content.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I think I'm quoting from your paper, although paraphrasing slightly, in stating that the recognizance and conditions power in Bill C-17is modest compared with its closest international analogies, and I think Mr. Copeland talked about a piece of legislation in Great Britain that he takes issue with because of its infringement on civil liberties. I imagine both of you will agree that in relation to other western democracies, Canada is not really out of line or going out on limb in Bill C-17, compared with the United States of America, Great Britain, and other western democracies. Is that a fair comment?
Associate Professor, Faculty of Law, University of Ottawa
I agree with that statement.
Lawyer, Law Union of Ontario
Can I make two comments?
One is that the Americans have done more terrible things than probably any western democracy, given what they've done in waterboarding and in torture and in keeping people in Guantanamo.
In regard to Professor Forcese's paper, I noted three places--pages 12, 13, and 26--where he noted the question of whether there was any use for any of these provisions. I can show them to you afterwards; I don't want to take them to you.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
You also said, Mr. Copeland, that this bill was changing the landscape of Canadian civil rights jurisprudence, or something to that effect. I'm a little confused by that, because this legislation essentially replicates what the former Liberal government introduced, which expired pursuant to a sunset clause.
Lawyer, Law Union of Ontario
Well, when I presented at the Canadian Institute for the Administration of Justice in a conference on the anti-terrorism legislation in 2002, I took the same position. I don't find that the Liberals were particularly good on these issues.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
So it was that legislation that changed the landscape, and this legislation is just a continuation. Would that be--
Lawyer, Law Union of Ontario
Except that this legislation was sunsetted and died, and somebody's now trying to resurrect it, so it would change the landscape back to where we were immediately after September 11, 2001.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Mr. Gardee, thank you very much for your attendance. I really enjoyed your presentation, but I was curious when you called this proposed legislation “discriminatory”. That's a very strong adjective. It caused me concern when I heard it. I'm interested as to how you come to that conjecture, in light of the fact that the previous legislation was only used once, with respect to Air India, and that was in the 1980s. I'm curious as to why you think the legislation, on its face, is discriminatory.
Executive Director, Canadian Council on American-Islamic Relations
When I made that statement, I said that it “may” be considered discriminatory. I was bringing attention to the fact that security regimes have had a disproportionate impact on members of the Muslim community. I think that's the elephant in the room. Nobody wants to say it out loud, but the impact that's been felt in the last 10 years has been felt predominantly by members of the Canadian Muslim community.
December 13th, 2010 / 4:50 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Certainly, but it's self-evident that the previous legislation was never used against any member of your community. That's obvious. It just hasn't happened. Correct?
Executive Director, Canadian Council on American-Islamic Relations
That's correct, as I understand it.
spokesperson, International Civil Liberties Monitoring Group
Could I add something, Mr. Chairman?
spokesperson, International Civil Liberties Monitoring Group
It is important to remember, when we're talking about discrimination or racial profiling through these two provisions, that they cannot be separated from the definition of terrorist activity set out in section 83.01 of the Criminal Code.
That definition has been sharply criticized by the United Nations Human Rights Committee. The Senate committee, when considering Bill S-3, amended the definition and, in the Khawaja case, the judge stated that he considered the definition to be discriminatory with respect to motives arising from religious, political or ideological reasons.
It is along those lines that these two provisions will be interpreted, in connection with the definition of terrorist activity.
Conservative
The Chair Conservative Kevin Sorenson
Thank you very much, Mr. Barrette.
Your time is up, Mr. Rathgeber.
We'll now go back to Ms. Crombie, please. We'll have five minutes in the second round.
Liberal
Bonnie Crombie Liberal Mississauga—Streetsville, ON
Thank you, Mr. Chairman.
I suppose even the Anti-terrorism Act was perhaps an overreaction to 9/11, and that's probably the reason we had a sunset clause.
I have so many concerns, especially hearing the testimony.
Mr. Barrette, you said that the provisions encourage racial profiling, that the presumption of innocence is at stake, that there is a sense of the era of McCarthyism, and that the reputations, lives, and careers of Canadians can be destroyed. Given your statement, I can see that these provisions aren't necessary and that the Criminal Code, in fact, could be used to help protect against terrorism. I think you've just about all stated that.
To summarize, from what I've heard--I'm new to this committee--the provisions are unnecessary, ineffective, and possibly unconstitutional. They ignore the rule of law and the presumption of innocence, disrespect civil liberties, are possibly undemocratic, jeopardize human rights, stigmatize individuals, and target groups. That said, has this legislation been helpful in any way, and if so, how? I suppose the question is, why would the government pursue it? I'm just trying to understand the rationale for these provisions and this legislation. Is there any evidence for supporting the provisions or any rationale for passing BillC-17?
Thank you.
Lawyer, Law Union of Ontario
Do you want a short answer? No.
I wouldn't agree with all of the preamble you put to it. There are some aspects of it.... If you pass the law, then the rule of law follows, but I don't see any value in these provisions and I don't see any need to resurrect them again. You're not in the climate that you were in 2001 when this legislation was first introduced and passed.
Legal Counsel, Canadian Islamic Congress
If you ask any person who's on duty in security--for example, the head of CSIS--what he needs to make this country safe, invariably the response will be that he needs more power, more authority to do more things, a freer hand.
We've heard grumbling to that effect from the previous head of CSIS recently, but the important thing is, that's what you're going to hear, and it's very hard for politicians to have something happen on their watch and then have that same security official say, “Well, we asked for more power, but you didn't give it to us.”
Who's going to carry the can if something happens? As a result, there's a great pressure to give in to this kind of pressure.