Public Safety Committee on Nov. 19th, 2012

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes. There was a companion case that was also dealt with in 2004 by the Supreme Court of Canada. They indicated, as you quite correctly pointed out, that there would be a presumption that this will be held in open court.

That being said, as sometimes happens in other aspects of our criminal law in this country, where it has become necessary and reasonable.... You cited the example of, for instance, the protection and the safety of a witness; the courts will take that into consideration.

The presumption of an open hearing has been part of the laws of this country for centuries. This bill is consistent with that presumption, as indeed all our legislation is. That said, we have a responsibility to protect those individuals who do come before the court, and therefore that additional power is given to the court.

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

The Special Senate Committee on Anti-terrorism looked at this bill before it came to us. I know they made a couple of what I would term minor amendments to Bill S-7. One of those was in the context of the recognizance with conditions. It amended that power by allowing for the conditions imposed in such a recognizance to be varied, not only by the judge who originally imposed the conditions but also by a judge of the same level of court.

How do you see that distinction, and why is that important?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think that's a very good point and I appreciate your raising it. That is an amendment or a change that we have accepted.

You will know, Ms. Findlay, from practising law, that sometimes it's not practical to get back before the same judge who issued the judgment, so you have to have some other mechanism by which the conditions can be reviewed. I think that's only fair. I think that's reasonable.

When that amendment came from the Senate, I was pleased to have it. I think it's reasonable. Things can happen. The judge may not be available. It may be impossible to get hold of that individual.

I think this is part of the reasonableness that characterizes this legislation, and I appreciate your raising it.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll move to Mr. Scarpaleggia, please, for seven minutes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you very much.

Welcome, Minister.

You mentioned that even though investigative hearings and recognizance provisions have not been used, it's not proof, really, that they're not needed. It's the old argument that you may never need the airbag in your car, but you like to know it's there.

You speak about the need for those provisions in rather absolute terms—that we need them even if we don't use them, that we need them going forward.

If we absolutely need them, why would we need to sunset them?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, these are additional powers that are given to the court. They are in direct response to the terrorist threat that we face.

Indeed, that was the rationale back 10 years ago, when a previous government enacted these measures. The rationale was that special powers are necessary to deal with what we have to face in the world.

At that time there was a five-year sunset clause on it. I have no problem with that, if you're proposing an amendment to get rid of—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

No—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I was just finding some clarification, Mr. Scarpaleggia, but I think it's reasonable to put in a five-year sunset clause.

Not only that, but as I indicated in my opening comments, as Attorney General of Canada I will give an annual report on this, and for provisions specific to the public safety minister, there will be an annual report on that.

I think that's appropriate and fair, but if, five years from now, you think without question that these measures continue to be necessary, you might want to have a private member's bill to say that we don't need to be looking at these provisions every five years. We would certainly look carefully at that.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's what I'm saying. You're not absolutely sure they're needed in the long term.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I believe they are needed, but just as we continuously review all pieces of legislation we have before Parliament to ensure they are doing what they can to represent victims and law-abiding Canadians, it's a continuing process. I hope the war on terrorism is over in the sense that we don't ever have to face anything like this, but again, I believe the tools have to be there.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

If I'm not mistaken, in 2005 the Liberal government, under Paul Martin at the time, introduced Bill C-81.

Am I correct that there was a bill introduced, the idea of which was to create a committee of Parliament, a kind of national security...?

[The Chair, Conservative, Kevin Sorenson]

I served on that committee. I don't know if it ever really came to a bill, did it?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Well, I think I read somewhere that there was Bill C-81, but I defer to you, Chair, because you have more lengthy experience on this committee.

But what do you think of that idea? It would empower MPs, for example, to know what the level of security threat was. I've been on this committee for over a year, and I don't think we've ever met in camera on anything, much less on issues of national security.

I'm wondering if you think it would be a good counterweight, really, for MPs to be able to look at, in camera, what the real security threats are—in other words, to have some of the same information that you have when you bring out legislation like this so that we could judge as well the extent to which these provisions are absolutely necessary.

Would you be in favour of that kind of thing?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I'm not in a position to comment on what was done or not done in 2005 by the previous government. With respect to the conduct of this committee, you're probably better off referring these matters to Mr. Toews in terms of the conduct of the committee.

That said, there are provisions, as you alluded to, for Parliament to have a look at these measures. I'm not requiring you to do them every six months, but there are provisions of doing it within five years.

Again, the committees control their own agenda in terms of what they want to discuss or what they want to investigate. Certainly I leave that to you and the committee, Mr. Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I'd like to move on to the next question.

Is there any time limit on the forced questioning, or can it be extended indefinitely? How long can the questioning go in an investigative hearing, and who can ask questions during the interrogation—the judge, the crown prosecutor, a police officer, a CSIS agent, the lawyer of the person being questioned?

[Rob Nicholson, Conservative, Niagara Falls, ON]

As you might expect, the crown prosecutors would be asking the questions. As to the length of those questions, it's a little bit like all hearings before the court. They may be over very quickly or they may continue at some length.

Again, there is complete judicial oversight with respect to the hearing. It has to be conducted in a reasonable and fair manner. The individual has the right to have counsel at any time during the proceedings, to have a lawyer there with them, so....

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

In terms of leaving the country for the purposes of engaging in terrorist activity, how would you ascertain whether the person is leaving the country for that reason? Would it be more or less an after-the-fact thing, whereby someone would be apprehended abroad and then you would trace it back to the fact that they left Canada for this purpose? In practical terms, how would this part of the law be implemented?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I suppose it's like any other Criminal Code offence, in that the information would come to law investigators. It may be parents letting the authorities know that their children are getting on a plane to join a terrorist group somewhere outside of the country, so it may come from parents, but when the information comes to law enforcement agents, it would be investigated, as they do in other criminal offences, and a decision would be made at that time.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you.

[The Chair, Conservative, Kevin Sorenson]

We'll go back to Madame Doré Lefebvre.

You have five minutes.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Thank you very much, Mr. Chair.

I also want to thank the minister for joining us today. The comments are most interesting.

The bill had been considered by the Standing Committee on Justice and Human Rights in the past. However, the Standing Committee on Public Safety and National Security is studying it as well, and we can benefit from that and from your comments.

I would like to briefly discuss the prohibition to leave or attempt to leave Canada to commit terrorism offences. As you mentioned in your opening remarks, clauses 6 to 8 of Bill S-7 would add four new offences to the Criminal Code. From now on, it would be prohibited to leave or attempt to leave Canada to participate in the activity of a terrorist group, facilitate terrorist activity, commit an offence for a terrorist group or commit an offence that constitutes terrorist activity.

Given that there are currently no exit interviews for individuals who leave Canada, how will law enforcement officers be able to determine that a person is leaving or attempting to leave Canada in order to commit acts of terrorism?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, it would obviously depend upon the circumstances and the facts of individual cases. I gave one example to Mr. Scarpaleggia. You might have the parents contact law enforcement and say their son or daughter is getting on a plane and to join some sort of terrorist activity or terrorist group in some other country. There are many ways this information could come to law enforcement agents. They are carrying on a continuing effort to protect Canadians, so there are an infinite number of ways they would get the information that a person is leaving to join a terrorist activity or to assist in facilitating it. The offence is drawn broadly, in the sense that it captures the kind of activity.

What you're doing as well is sending out the correct message that in this country we don't tolerate that activity. It is unacceptable for somebody to leave this country to participate in terrorist activity somewhere else in the world. Yes, the tool is there to intercept that individual, but it also sends out the message—and I think it's the correct message—that Canadians find it unacceptable for anybody to leave this country to participate in criminal or terrorist activities.

Again, I think it's one more step that we can and should have implemented in the laws of this country.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

At the beginning of your answer, you said that parents could report their children's intent to join a terrorist group. Could that apply to minors? In your opening remarks, you also mentioned that there were specific laws for minors. You say that parents could report that their child is going abroad. Would that be related to minors or not?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's right. As with all Criminal Code offences, the Youth Criminal Justice Act applies completely, and in no way compromises any of the provisions. You'll remember that in my opening remarks I set out some of the philosophy with respect to the Youth Criminal Justice Act to rehabilitate young people, to assist them and to get them reintegrated back into the community, and this bill in no way compromises any of the powers within the Youth Criminal Justice Act. That's the reason I mentioned it in my opening remarks, Mr. Chair. I wanted that to be very clear so that there's no misunderstanding: the Youth Criminal Justice Act and all its provisions—all its provisions—will continue to apply.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Thank you.

Is the government planning to create an exit information system for everyone leaving Canada? Would that violate civil liberties?