Evidence of meeting #49 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.
Bloc
Maria Mourani Bloc Ahuntsic, QC
I am talking about the RCMP, which was responsible for the Integrated Security Unit at the G20.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Yes. With respect to the provisions of this bill, as you can see, there is judicial oversight and involvement right from the very beginning, and not just with respect to the judiciary, which I believe should give you a great deal of confidence in that. In addition, you have the consent of the Attorney General. That has to be obtained as well. Also there is a review process of these provisions.
What I'm suggesting to you is not just a matter of police agencies, whether they be the RCMP or provincial or municipal policing agencies. That's not where the decisions are made in this. There is a judicial oversight at that point in time as well as the consent of the Attorney General. I would—
Conservative
Rob Nicholson Conservative Niagara Falls, ON
--suggest to you that with those at the political level, the judiciary, and the policing--
Conservative
Conservative
Rob Nicholson Conservative Niagara Falls, ON
--that this provides the accountability and the oversight you're looking for.
Bloc
Maria Mourani Bloc Ahuntsic, QC
There is something that I am very curious about in this judicial process. I am talking about the information that will be presented to the judge so that he can decide whether a person should be taken into preventive custody. There will not be any charges laid. A charge being laid results in a trial, a conviction and, finally, imprisonment. We are talking about preventive detention.
Given the fact that CSIS uses information obtained through torture and that this kind of information is ineffective and dishonest—we saw this in the case of Omar Khadr who accused Maher Arar because he himself was tortured—how can we have trust in a system, Minister, that is based on torture and where information is elicited through torture in foreign countries? We now know that the information that came from the United States and from Guantanamo was extracted through torture, and let's not even talk about Iraq and the Abou Ghraib prison.
Conservative
Conservative
Rob Nicholson Conservative Niagara Falls, ON
The presumption contained within this legislation is that the individual will be released. That is the presumption. These are tested in the Canadian judicial system, which I'm quite sure we all have confidence in, and we have the oversight and the safeguards. Mr. Chair, in your review you will go through all those safeguards that I began to outline for Ms. Mourani, and I'm confident that this will work well.
The stakes are pretty high. Let's face it, we're talking about terrorist activity. We know that Canada is targeted for terrorist activity, as are other countries, and we have to have provisions. We have to meet that need.
In terms of the proper balance, I believe we have struck that balance here. These measures have been on the books for the first seven years of this decade--
Conservative
Conservative
Conservative
NDP
Don Davies NDP Vancouver Kingsway, BC
Thank you, Mr. Chairman.
Thank you, Mr. Minister, for appearing today.
One of the major parts of this bill is the part that surrounds compelling testimony. I'll read from proposed subsection 83.28(10) of the bill:
No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate them or subject them to any proceeding or penalty, but
Then proposed paragraph 83.28(10)(b) says:
no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136
which I think is perjury.
We heard testimony on Monday from Professor Craig Forcese. This is what he said to this committee, Mr. Minister:
...the Supreme Court read in certain requirements to the use of investigative hearings, the most important being an expansion of what's known as “derivative use immunity”, guaranteed in the present bill by proposed subsection 83.28(10).
While that clause extends immunity to subsequent criminal proceedings, the Supreme Court said it must go further than that. It cannot be used in any kind of proceeding, including extradition and immigration proceedings. This is a constitutional requirement, and it should be codified right on the face of the bill.
Mr. Minister, you've talked about judicial oversight. You mentioned it a number of times. We've already had some judicial oversight from the Supreme Court of Canada telling us that in this section we need to codify protection against derivative evidence being used in immigration or extradition proceedings, yet that's not in the bill.
Would you be in favour of amending the bill, Mr. Minister, to comply with the Supreme Court of Canada directions?
Conservative
Rob Nicholson Conservative Niagara Falls, ON
We always comply with the Supreme Court of Canada directions, and certainly when the Supreme Court of Canada has pronounced on those, then those in effect become the law under our system, as you know. I'm very interested in any recommendations and any views you have on that particular issue.
NDP
Don Davies NDP Vancouver Kingsway, BC
I take it you are probably agreeable to that amendment. If I read the Supreme Court correctly, they said it should be codified. It should not be just a pronouncement from the court in common law, but actually codified in the bill. Were we to do that, would you be in favour of it?
December 15th, 2010 / 4:10 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
I don't remember. It's been a while since I read that particular.... I don't remember that they said it had to be codified. I think they pronounced on it very clearly. That said, I look forward to any recommendations or suggestions you have in this respect.
NDP
Don Davies NDP Vancouver Kingsway, BC
Thank you, Mr. Minister.
On Monday we also heard from eminent national security expert Paul Copeland. He has served with distinction as a special advocate in security certificate cases. He had a lengthy resumé, which he provided to this committee. Here's what Mr. Copeland said:
...I have not seen, in any of the material I've read, any valid justification advanced for this drastic change in the Canadian legal process.
Mr. Minister, everyone supports giving police the tools they need to keep Canadians safe, but our problem with the bill is that so far we've seen no concrete evidence put forward that the lack of these extraordinary powers has hindered police to the extent that Canadians are put at risk.
Mr. Minister, do you have any concrete, specific examples of cases in which police investigations have been foiled because of the lack of these powers?
Conservative
Rob Nicholson Conservative Niagara Falls, ON
When the RCMP testifies, they'd be in a better position to answer, but I think it's important to have these tools on the books, and you can question the RCMP or other individuals who will come to testify before this. To say that there have been no changes or no justification.... We know that this is a much different world that we live in today from the one we experienced ten years ago, and we have to keep up to date with these tools.
I don't appear before this committee very often, but many times when I appear before the justice committee, what we are doing is just modernizing the Criminal Code to stay up to date with organized crime and to bring the Criminal Code and the laws of this country into the 21st century. Things move very quickly in this area. We are all facing a terrorist threat; we have to have means on the books so that law enforcement agencies can investigate them.
As you can see, these provisions are preventative in nature, and we want them to be able to prevent terrorism activity.
