Public Safety Committee on Nov. 19th, 2012

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Thank you very much. I only have five minutes altogether, and I do have a couple more questions.

We heard from the minister that there is a very small chance that these provisions are ever going to be used. They certainly weren't in the past, and they sunsetted. You probably remember the example that I gave before about someone falsely saying that someone was about to leave the country and committing an act and there is probably an extremely small chance that this is ever going to happen, but if there is a very small chance, should there not be some safeguards or some other sort of transparency in the bill, in addition to what is here, to ensure that doesn't happen?

[Donald Piragoff]

Just for correction, it's not quite true to say that the provisions have never been used in the first five years. Their use was attempted once in the investigative hearing in the Air India case. That's why it went to the Supreme Court of Canada. Once the Supreme Court of Canada made a decision, some 18 months later, by then the crown prosecutor indicated he didn't need to get the evidence from this witness anymore. I think he obtained it from some other source.

On the question about safeguards, that's a question for this committee to decide. This bill has more safeguards than exist under the normal criminal process, as the minister indicated.

Do you need more? That's really a question for the committee to answer.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Okay, thank you.

I have one more question.

It says in the bill that testimony from the investigative proceedings can't or must not be used against a witness, but the minister did indicate that in certain cases it could be. He used perjury as an example. Does that concern you?

Maybe Mr. Gilmour might want to answer. Does it concern you as a lawyer, or someone more familiar with the law? Is it problematic in any way?

[Donald Piragoff]

That's a reflection of the existing law, both common law and also the law under the Canada Evidence Act. Where you have protection against self-incrimination, it applies except for prosecution for perjury or providing contradictory evidence—so you can't purposely lie and then protect yourself from purposely lying—but the contents of what you said cannot be used against you in other proceedings.

What the Supreme Court of Canada did indicate was that the previous legislation, which has also been proposed to be re-enacted, goes beyond the common law protection and also protects individuals from derivative evidence in that if evidence is found as a result of what the person said, that evidence is also not admissible. It goes beyond the common law.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We will now move back to Mr. Payne, please. I think there was one more question you had for Mr. Gilmour. I think it was Mr. Norlock who had asked for comprehensive answers, and we didn't quite have enough time there, so go ahead, Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

I hope I might be able to get more than one question in, Chair, on my second time.

My question really was around the constitutionality. My constituents certainly, and Canadians I'm sure, are concerned about the bill and whether it infringes on the constitutional rights that individuals have. I will let you play with that one for half a moment.

[Glenn Gilmour]

As Mr. Piragoff explained, the investigative hearing was used that one time, in the sense that consent was given by the relevant attorney general to use an investigative hearing in the Air India case, with the result that its constitutionality was challenged and it went to the Supreme Court of Canada.

There were a number of arguments made by those who were opposing the investigative hearing. They argued that the investigative hearing offends the right to silence. They argued that it offends the concept of judicial independence as well. The Supreme Court of Canada, in a majority decision, ruled that in large part because of the strong protections against use and derivative use immunity, which was explained earlier, that the right to silence and the right against self-incrimination did not arise in the case of the investigative hearing. They also concluded that the judge at an investigative hearing acts judicially, just as he would at any other court proceeding, and is not merely a puppet, if you will, of the state. They rejected that argument as well.

As has been mentioned also, the Supreme Court did extend the protection of use and derivative use immunity beyond the criminal proceedings to extradition and deportation hearings. There were concerns that evidence could possibly be used to send that person abroad to states that have a less robust protection of human rights, shall we say, than Canada. We anticipate, of course, that this legislation would be interpreted in line with the Supreme Court of Canada decision so that the use and derivative use provisions would extend not only to criminal proceedings but to deportation and extradition proceedings.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

For my last question, I want to ask about the bill. It provides that before law enforcement resorts to investigative hearings, they have to make reasonable attempts to get information.

Could you expand on that? What are the means that would be contemplated, and how would they get that information?

[Glenn Gilmour]

Again, it would depend on the facts and circumstances of any particular case. For example, they could talk to people in the community to try to obtain the information through that means. The means include all those that are available to the police, just as in any other regular police operation.

[LaVar Payne, Conservative, Medicine Hat, AB]

So it's like any normal investigation process.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Is there anyone else?

Go ahead, Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I have a quick one on Mr. Rousseau's concerns about the government or people knowing when people enter and leave the country. We already know that. We've known that for years. It happens every time you swipe a passport coming or going. There are all the airplane records. When people fly on airplanes, those records are there. There are no new records being kept. We already know when people come and go, so what's the big deal?

That was rhetorical. You don't have to answer that.

[The Chair, Conservative, Kevin Sorenson]

All right.

You have another minute, if there's someone else, and if not, we'll go back to Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Do you mean with their minute?

[The Chair, Conservative, Kevin Sorenson]

Well, it will be your five minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much.

When I ran out of time, I was asking about the perception in some communities, particularly the Muslim-Canadian community, that the existence of the various anti-terrorism measures that have been adopted and the focus on Islamic extremism in the Middle East are resulting in greater subjection of these new measures onto Muslims in Canada than on other minority groups. There is the perception that adding these two things will add to that perception, and perhaps even decrease the confidence of Muslim-Canadians in the law enforcement system.

Could you make any comment on that?

[Donald Piragoff]

The same issues were raised in 2001 when the original legislation was enacted, including these provisions. Maybe that's one of the reasons that Parliament put in the five-year review clause: to see to what extent they're used, how they're used, and whether there is a concern they're being used to target certain groups.

The terrorist threat in Canada does not come from one particular religious group. We have terrorist threats coming from other parts of the world, including Southeast Asia and south Asia. They also have terrorist groups. It's not just Muslims.

To some extent, it's a historical situation. At one time in this country, terrorists were the Irish in the Fenian raids. It depends on the historical point in time as to what the predominant threat is and what part of the world it's coming from.

When the RCMP and CSIS testify—because I believe they will be testifying—you can ask them about security threat assessments. They'll tell you that it doesn't come from one particular region of the world or one particular religious group. It's quite varied.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Do you believe that the reporting provisions that are in this bill are robust enough that it would allow us, for instance, as parliamentarians, to judge whether some kind of profiling is happening or groups are being targeted?

In other words, will the reports that are required have enough detail, enough information, so that we could judge how fairly the law is being applied or used? It might be to dispute charges that it's unfair. I'm not saying we would necessarily find it's unfair, but would there be enough information for parliamentarians to judge that in the reports that are envisioned in the law?

[Donald Piragoff]

The annual report is just one piece of evidence that a parliamentary review would undertake. I know that the parliamentary reviews that were undertaken a number of years ago were quite extensive. They went on for months and a number of different witnesses were heard. The reports by the Attorney General and the Minister of Public Safety would be one piece of evidence before a parliamentary review, but there would also be witnesses, witnesses from the community, expert witnesses, etc., who would testify as to how the provisions have operated in the previous five years.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

The provisions appear to say, though, that the annual reports are very narrow. I'm just questioning what you envision would be in those annual reports. It says how many times it has been used and this time it adds the provision, I think, around why things were being used, but who determines what will be in that report?

[Donald Piragoff]

It's a report of the Attorney General and a report of the Minister of Public Safety. They'll determine what to put in the report, but Parliament has given some indication as to what it wants. It wants to know whether the provisions have been used and whether they believe the provisions should remain. If in one particular year they have not been used, then it's a very easy report. However, there still is the second part, which is whether they believe that it should be retained even though it wasn't used in that particular year. There is a qualitative assessment required by Parliament to two ministers on a yearly basis as to the usefulness of the provisions, even if they haven't been used.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I want to follow up with something you raised a few minutes ago. I believe it was derivative use immunity, which is a term I just learned today. I think I understand what it means. The question would arise, then, of whether investigative hearings are really a good idea. In other words, will they impede prosecution of people who might be guilty of involvement in terrorism if anything that's revealed in this cannot be used against them? Will it not make prosecutions of those people more difficult?

[Donald Piragoff]

In the Air India case, the witness the crown prosecutor wished to examine was not one of the accused. It was a relative who held some information. I think when you speak to the authorities, basically it will be useful to obtain the evidence of witnesses, not necessarily the potential accused person. It's other people who may have information that can be used for the purpose of investigating others.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

So will the derivative—

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Garrison. We'll get back to you in a minute.

Go ahead, Ms. Findlay, please.