Public Safety Committee on March 1st, 2011

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chair.

I could not agree more with my NDP colleague. I understand his position, which he made very clear: he is against this bill. Our position is very clear as well: we are against this bill for all the same reasons that were mentioned earlier, particularly the fact that it is unnecessary and may lead to human rights violations.

However, up to this point—and it is now 9:35 in the morning—I have yet to understand where exactly the Liberals stand on this. They abstained from the vote on the first few clauses of the bill. So we are still in the dark as to where they stand. Are they for or against it? And why? All we are doing today is debating when we will revisit this bill, in other words, in two or in three years' time, and determine whether it was effective or not.

As of this moment, I have no idea where the Liberals stand. We heard from certain witnesses, at the Liberals' recommendation, might I add, and those witnesses told the committee that they were against the bill and they gave their reasons. Yet we do not know where the Liberals stand on this issue.

So I would like to know what their position is, if they have one. I must admit I am a bit lost on that one.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Madame Mourani.

We'll now move to Mr. MacKenzie and then Mr. Kania.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

In actual fact, this subcommittee and the committee looked at this back in 2006 or 2007 and went back to the House, so this has a long history. I know we got the history according to Mr. Davies, but this bill has been looked at a number of times and, Mr. Chair, you will recall I asked to hear from the experts at the end of the table. I think it would be appropriate to hear from them because I really do think there are some issues here that get lost in the political realm. So the reality needs to be heard, and I think it would be good to hear from them.

[The Chair, Conservative, Kevin Sorenson]

All right, we will. I apologize, Mr. MacKenzie. You did ask for that in the opening round.

Mr. Breithaupt, would you speak a little bit to the amendment or to the part of the clause of the bill that deals with the sunset clause?

[Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section, Department of Justice]

Thank you, Chair.

This is an amendment to clause 4. Clause 4 in the bill proposes a five-year sunset. This was a recommendation that was made by the House of Commons subcommittee that studied these provisions during the parliamentary review of the Anti-terrorism Act and that period is reflected in the bill.

As you can see from the clause, there are a number of steps that are envisioned before the sunset clause possibly can come into effect. Obviously there may be a vote by the House of Commons and the Senate to extend the provisions, but there are three steps in particular that need to take place before the sunset clause can possibly come into effect.

The first is a comprehensive review. As one would see in subclause 4(1), proposed subsection 83.32(1.1) states that “a comprehensive review of sections 83.28, 83.29 and 83.3 and their operation shall be undertaken”—so it's a mandatory clause—“by any committee of the Senate, of the House of Commons, or of both Houses of Parliament that may be designated...”.

Secondly, there's to be a report. The committee or committees that undertake that review “shall”—it is again mandatory—“within a year after a review is undertaken...or within any further time that may be authorized by the Senate, the House of Commons, or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including its recommendation with respect to the extending the operation” of those provisions.

Thirdly, the “Governor in Council may, by order, establish the text of a resolution”, which could then be debated by both Houses of Parliament. It specifies that the period of extension “may not exceed five years from the first day on which the resolution has been passed by both Houses of Parliament”. In addition, there's an annual review by ministers, which also includes a clear statement and explanation indicating whether or not the provisions remain warranted.

So in considering a possible change to the sunset clause--to two years--one might also want to consider the fact that there are a number of compulsory steps that need to be taken before that sunset clause possibly takes effect.

That is all included in clause 4. We just wanted to bring that to everyone's attention.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Mr. MacKenzie, go ahead.

[Dave MacKenzie, Conservative, Oxford, ON]

That's precisely the point we need to look at. We had difficulty in a minority situation getting the first review done within five years. If Mr. Davies wants to kill the bill--and it's my belief that's purely what he wants to do--by adopting his two-year sunset clause, he effectively kills the bill without having the ability to kill the bill in any other way. I just think it's wrong; he's being deceptive with Canadians. He's worried about civil liberties. We're all worried about civil liberties. But we're also worried about the safety and security of victims, pure innocent people.

I just think, as I said before, that it's ludicrous to accept a two-year timeframe on a sunset clause, because this committee will never get together in two years to do the things that have to be done to meet the requirements of the bill.

[The Chair, Conservative, Kevin Sorenson]

Mr. Breithaupt, I just have one point. I guess you can't say historically because this bill has only been here for a decade or whatever, but how long are these comprehensive reviews? How long does it take to undertake those? Is it something that's done over a period of months, or weeks, or...?

[Douglas Breithaupt]

Thank you, Chair.

It's up to Parliament and the committees that Parliament strikes to decide.

[The Chair, Conservative, Kevin Sorenson]

All right.

Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Chair, I'm not going to filibuster, but I do want to make a few points.

This piece of legislation originated from the Liberal Party. The Liberal Party believes--and I'm sure the Conservatives agree and everybody agrees--that our number one responsibility is to protect Canadians. That's why we brought it forward in the first place.

The issue is whether it's still necessary. There was a sunset provision. It expired. We have not had it since 2007. When we were questioning the witnesses, the tenor of my questions related to whether or not it was still necessary. Mr. Davies is incorrect in saying that there was no evidence that it should be supported. Some witnesses were vehemently opposed to it. Other witnesses said that even though it hasn't really been used, it could be helpful and maybe it's something that needs to be there just to be careful.

It is a very delicate balancing act to determine what is in the best interests of Canadians. Mr. Norlock is correct that the Supreme Court of Canada has not said it's unconstitutional. We have a balance in Canada. Although we have a Charter of Rights and Freedoms, people seem to forget that those rights are constrained by section 1 of the charter, which allows for reasonable constraints on rights in Canada under certain circumstances.

Although it's certainly true that this does impinge on civil liberties, the issue is to what extent and whether or not it is reasonable to protect our society. Mr. Davies said that the Liberal Party has flip-flopped, but we're the ones that brought in the bill. To say that we are in favour or not in favour...we brought it in. All we're saying is that after the benefit of experience over a number of years, is this something that should be put in at this point in time, and if so, for what period before the sunset provision kicks in?

By abstaining today, we're simply saying that our balancing act is not yet done. We are still considering the proper course of action. We will make that position known at third reading. There's nothing to be read into that, other than the fact that we're treating this very seriously and not having a knee-jerk reaction. Our position will be known at third reading.

[The Chair, Conservative, Kevin Sorenson]

All right. There are no other names on the list, so we will now move to Mr. Davies' amendment.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chair, could I have a recorded vote, please?

[The Chair, Conservative, Kevin Sorenson]

All in favour of amendment NDP-1? A recorded vote has been requested. I'll ask the clerk to call out the names.

(Amendment agreed to: yeas 6; nays 5)

Amendment NDP-1 carries. That also takes away the LIB-1 amendment.

Now we will go to amendment NDP-2, which is a housekeeping matter. The bill makes mention in subclause 4(2) of subsection 83.32 of the act, and says that, “The operation of section 83.28, 83.29 or 83.3 may be further extended in accordance with the procedure set out in this section”, but it should read there:

reference to "the second anniversary of the coming

Is that correct? Perhaps we could take a vote on that right now.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chairman, I just want to make clear for my fellow committee members that this is simply the consequential amendment that flows from the amendment we just passed.

[The Chair, Conservative, Kevin Sorenson]

Exactly. All in favour of amendment NDP-2?

[Don Davies, NDP, Vancouver Kingsway, BC]

A recorded vote, Mr. Chairman, please.

(Amendment agreed to: yeas 6; nays 5)

[The Chair, Conservative, Kevin Sorenson]

So amendment NDP-2 is carried. We'll now move to amendment Liberal-2.

This basically is calling for a committee of the Senate and a committee from the House of Commons, so two separate committees to be designated or established by the Senate or the House, as is the case. I think this changes it I think from one committee to two.

Madame Mendes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you, Mr. Chair.

I will let Mr. Holland explain what the amendment is about. I would just like to mention, however, that the French version of the bill is in need of a correction, in subsection 4(1), line 5 on page 9, where it says:(1.1) Un examen approfondi des articles 83.28, 83.29 et 83.3 et de leur application peut être fait [...]

The word “peut” should be replaced with the word “doit” in order to make the French version consistent with the English version.

Do you agree?

[The Chair, Conservative, Kevin Sorenson]

All right. So that is being corrected and changed here in the text by the analyst.

Mr. Holland.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you.

Thank you, Madame Mendes, for that correction.

Just to speak to this briefly, as I think all committee members know, in the last round the Senate was fairly instrumental in bringing forward a number of changes and amendments that were very consequential and very helpful, and in the same light as the previous amendment that we had suggested, very similar to the NDP amendment. I think it's important that when this review is conducted that it be conducted by both Houses.

[The Chair, Conservative, Kevin Sorenson]

All right.

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

To be honest, I think it's all moot now, because I do believe they've killed the bill, essentially, because it can't be done within the two years. But I just wonder if we could have the officials make a comment with respect to Mr. Holland's amendment?

[The Chair, Conservative, Kevin Sorenson]

All right.

Mr. Breithaupt.

[Douglas Breithaupt]

Thank you, Chair.

I guess our understanding of this is that it would prevent having a joint committee of the House of Commons and the Senate to conduct this review. That is an option contemplated currently in the bill. You can have either a Senate committee and/or a House of Commons committee or a joint committee of both the House of Commons and the Senate. Our understanding of this amendment is not to permit the option of having a joint one, but we may be mistaken in that.

Thank you.