Public Safety Committee on Nov. 28th, 2012

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

Thank you, Mr. Chair.

Thank you both for being here today.

I noted in your testimony, Ms. Des Rosiers, that you said terrorism is a serious threat. I thank you for using the present tense when you said that. I think the earlier witnesses we heard today would certainly agree with you that this is a threat that is continuing and present and something we need to be vigilant about.

In your testimony, Ms. Cheung, I found you made a lot of very general references, so to be honest, I found it much less helpful. Your bringing in a world view in your comments doesn't necessarily help us with this specific legislation, including talking about this legislation eroding democracy and the ideals we all seek to protect.

For me, that highlights the fact that just today we've seen the results of a 2012 annual survey of some 97 countries by the World Justice Project. In the results of that project, Canada once again scored extremely well above average and one of the top in the world when it comes to the rule of law.

I think our systems here are not at all eroded by legislation like this, and we continue to be seen on the world stage as in fact a leader. A group of international experts released their report a couple of months ago saying that Canada was the best country in the world for women to live in, in part because of our legislative and judicial branches and the protections they afford to women and minorities in this country.

With respect to your testimony, Ms. Des Rosiers, you also talked about the reference case, which was in June 2004 and related to the Air India prosecution. Under section 83.28 of the Criminal Code, in the 2004 case, the Supreme Court of Canada upheld the constitutionality of investigative hearings.

You made mention that if one testifies before those investigative hearings, that testimony is protected, against use against them, in further criminal proceedings but not in other ways. It's my understanding, from a reading of that Supreme Court of Canada case, that in fact that protection is afforded with testimony being used against the individual in both administrative and extradition hearings.

As well, in the Vancouver Sun reference of the same year, the Supreme Court of Canada held that there is a presumption that those investigative hearings would be held in open court. It is true that a judge under these provisions could say that it could be held in private, and that would normally, I would think, under judicial discretion, be because of, say, the safety of the person involved. But that's certainly there and present from that decision.

[Nathalie Des Rosiers]

In our view, if you do read the decision this way, you should put it in the act, because that's the danger, actually, of transforming the....

I mean, I'm saying this—

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

Do you agree with me that it is in that decision?

[Nathalie Des Rosiers]

But the decision does not say; it implies it. It says that we will read it as though it has that protection against, which—

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

[Inaudible--Editor]...that's what that means. The Supreme Court of Canada is our highest level of court. If the Supreme Court of Canada says it will read it that way, then that's how it is read by every court under the Supreme Court of Canada and the Supreme Court of Canada itself.

[Nathalie Des Rosiers]

Yes, that's true, certainly. I'm saying that for the benefit of the Canadian public, I think your job as parliamentarians is to ensure that this teaching is not lost. My suggestion is that you should make sure that it's in the bill. It increases the transparency of it and—

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

I understand what you're saying, but it's an opinion, that it should be codified. That's your opinion, and fair enough. But in fact our law is made up of both common law and codification in Canada, and it remains the present law as stated by the Supreme Court of Canada.

[Nathalie Des Rosiers]

I think one of the issues would be whether the re-enactment of the provision will require judicial clarification. Why not prevent this going all the way up again?

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

I appreciate your opinion.

[Nathalie Des Rosiers]

We can agree to disagree in terms of what is the necessity here, but....

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

Far be it from me to tell the Supreme Court of Canada that they don't mean what they say.

Ms. Cheung, you testified on Bill C-17—a similar bill—on February 10 of 2011. You said, and I'm quoting:As it is currently drafted...the investigative hearing provision...leaves open room for potential misapplication of the law.

This is a new iteration of it, and when Minister Nicholson, our Minister of Justice, testified before this committee on November 19 of this year, he noted several and numerous safeguards, including: (i) that the prior consent of the Attorney General of Canada, or the attorney general or solicitor general of the province, would be needed before a peace officer could apply for an investigative hearing order; (ii) there would have to be reasonable grounds to believe that a terrorism offence has been or will be committed; (iii) the judge would have to be satisfied that reasonable attempts have been made to obtain the information by other means for both future and past terrorism offences; (iv) the bill clarifies that section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness, applies to a person arrested with warrant and detained in order to ensure his or appearance at the investigative hearing; (v) the witness would have the right to retain and instruct counsel at any stage of the proceeding; (vi) a person could refuse to answer a question or produce anything that is protected by Canadian law relating to the non-disclosure of information or privilege; (vii) federal and provincial attorneys general would be required to report annually on any use of investigative hearings; (viii) this annual report would include an additional requirement that the Attorney General of Canada and the Minister of Public Safety provide their opinion, supported by reasons, on whether these provisions should remain in force.

In other words, there is evidence not only before the Canadian public on a continuing basis but also before Parliament on the use of this.

Do you think such safeguards are important, these ones I've listed?

[Carmen Cheung]

I think these safeguards are very important. I must confess that I think you're more familiar with my previous testimony than I am at this point, but I believe when I made that reference to the potential misapplication of the law, it was in reference to the same thing that Ms. Des Rosiers has pointed out, which is that the Supreme Court of Canada has ruled that the investigative hearing provisions were constitutional, yes, but only after reading in what was not in the legislation.

So when I said that my concern was about potential misapplication of the law, it was the misapplication, as you point out, in terms of the common law, because it has not been properly codified in this bill...[Inaudible--Editor]...the predecessor decision.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much. Time is up on that.

We'll now move to Ms. Sgro, please, for seven minutes.

[Judy Sgro, Liberal, York West, ON]

Thank you very much, Mr. Chair.

Thank you both for being here. I appreciate the fact that you're trying to make sure that Bill S-7 is strong and constitutional and all the other aspects. I appreciate the fact that you're pointing these things out, which will clearly be listened to by many, and by those who have drafted the bill, to ensure that it is constitutional and all of the rest of it.

I find it interesting the work that both of you are doing, and I would ask you a bit of an odd question: has either one of you ever been affected by a tragic loss in your family?

[Nathalie Des Rosiers]

Yes.

[Judy Sgro, Liberal, York West, ON]

Ms. Cheung?

[Carmen Cheung]

Yes.

[Judy Sgro, Liberal, York West, ON]

Wow. It's difficult, when you listen to the people who have been affected by Air India...and issues that clearly tell us that terrorism is active in our country. As much as we like to...I think Canada continues to be naive on some fronts, and on the issues of terrorism in particular.

So I welcome this bill as another way of strengthening our country, recognizing that there are people who don't necessarily feel the same way—but I think there must be a balance between being able to ensure that the appropriate officers in Canada have the tools they need to do the job they need, and the confidence that they're not going to abuse that power. Even though we know that does happen at times, they need to have the tools they need to do the job to keep us safe.

Your comments on how to make the legislation stronger and more effective, I appreciate; but I guess it's just difficult to think that you would be more concerned with some of the issues around people who clearly had an interest in causing more terror and havoc in our country than, it seems, you care about some of the others.

I want to give you both an opportunity to respond to that. I'm sure you would want to clarify that.

[Nathalie Des Rosiers]

Being committed to fairness and the Constitution, and ensuring that truth is the end result—I think that is the commitment we should have to both victims and offenders. The fairness, the legitimacy, of the system—the way people will cooperate with it, in the knowledge that they will not be unfairly treated, that there is sufficient accountability and framework around it—that's what reassures me. That's the reason I work with CCLA.

I believe that indeed this opposition between victims and offenders is the wrong way to present it. I think we both have an interest in a fair, truthful, rigorous system. That's our only guarantee.

Our concern about Bill S-7 is both that, in a way, these provisions are not the most effective tools, and that they haven't been on the books for the last five years. They were used once during the first five years. My sense is that there is a stronger legitimacy, a stronger position, to use the traditional criminal law route because it's tried and true. We know what it does. We know how it delivers. People have confidence in it. That's the reason why I think this is a better route than creating exceptional measures.

Can I just add one more thing?

[The Chair, Conservative, Kevin Sorenson]

I wanted to give Ms. Cheung an opportunity too.

[Nathalie Des Rosiers]

Yes, sorry; I just want to say that one of the things that are not in the accountability framework...and I share very much the BCCLA's position on this. I will be happy to provide the committee with our assessment of the RCMP bill, which, on accountability, does not completely respond to some of the questions of Maher Arar. If you ask for more power, you should have more accountability. I think that's a good way in a democracy.

Finally, you should ask not only about how it has been used, as the minister has said, but also about the effects. Has it been threatened to be used? The reality is that we know that people will be forced to talk to police officers on the...essentially that it would be threatened to be having a control order or going to an investigative hearing. So simply saying “Has it been used or not?” is the way in which policing is affected by this.

[The Chair, Conservative, Kevin Sorenson]

Ms. Cheung, please.

[Carmen Cheung]

Having Nathalie go first means that she basically says everything I want to say, but better.

I am concerned about this dichotomy between victims and offenders and everyone in between. I don't think we're trying to make Canada less safe—far from it. We are concerned about Canadian safety. But we're also concerned about making sure that our national security policies and practices are effective. To a significant degree, we are concerned that these two provisions are not as effective as they may seem at first blush. That's why we're here today. We want to express our concerns and share what has happened in other countries that have had much more extensive experience with things like this.

[The Chair, Conservative, Kevin Sorenson]

You have two minutes.

[Judy Sgro, Liberal, York West, ON]

I'm fine.