Public Safety Committee on Dec. 10th, 2012

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone. This is meeting number 65 of the Standing Committee on Public Safety and National Security, on Monday, December 10, 2012.

Today our committee is giving clause-by-clause consideration to Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

To assist us in our deliberations this afternoon, joining us from the Department of Justice, we have Mr. Donald Piragoff, senior assistant deputy minister of the policy sector, and Mr. Glenn Gilmour, counsel for the criminal law policy section.

We thank you for being here today. You were here earlier and helped us as we deliberated on this bill, so it's good to have you back.

I will also mention to the committee that if we are able to finish this a little bit early, I would like to move to committee business to discuss the Swedish parliamentary group that's coming through in February, so we can put some arrangements together.

As stated, we're here to go through clause-by-clause consideration of Bill S-7. If you have your amendments.... We thank all the parties that have brought forward amendments, and you have them before you, hopefully, so you can keep track. I intend to move into that right away.

Because we always wait on clause 1, the title, until the end—we will do that at the end—we will move to clause 2. There were no amendments brought forward on clause 2.

(Clauses 2 to 6 inclusive agreed to)

We have a new clause that's been added in an amendment, clause 6.1, in amendment NDP-1.

Mr. Garrison, it's in your name.

Mr. Scott?

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

It will be moved by Mr. Scott.

[The Chair, Conservative, Kevin Sorenson]

All right. Mr. Scott moves that amendment.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

Everybody will notice that we have a fair number of suggested amendments. I'm cognizant of our time; I'm not here to waste our time. I assume that colleagues on the government side have had a look at them. If any of the amendments are congenial, they'll know already. If they're not, then I really don't want to be spending too much time.

What I did want to say is that for this particular one, it may look at first glance like it's possibly beyond the scope, but we have to keep in mind that this bill has effectively three interacting principles or purposes. One is the kind of criminal law repressive purpose, which is to actually deal with crime. The second is the right-to-protection side that the government itself has been emphasizing, making sure that the crime fighting doesn't overly intrude into rights protection. The third is the transparency, accounting, and reporting piece.

I think all three of them stand sufficiently on their own such that they can be called co-purposes. It's for this reason that we're moving this amendment. We're hoping that it's viewed to be within the scope of the bill for the following reason. In the Senate, the director of CSIS drew particular attention to the fact that no protocols exist for the kind of cooperation that would be needed by relevant agencies in order to give effect to the leaving-the-country offences. He made it clear that it was going to have to happen.

Testimony before us also indicated this. So this is a suggestion to make sure that at least before the clauses go into effect, a protocol for collaboration is entered into by the relevant agencies, and SIRC—which is the only relevant review agency we can find for this kind of purpose—endorses it, in which case the making-the-offence provisions would enter into force. That's the purpose.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Scott.

I am told by the Table that this one has been deemed inadmissible, as it is beyond the scope of the bill.

I will allow you to move those, but we also have to be very cautious that we don't go into debate on the reasons. To move the clause, or to move the amendment.... What you did there was fairly succinct and it was properly done, but just be aware that if it is admissible, or even if it is challenged, then we will move into debate on the motion.

My ruling on this is that it is inadmissible because it goes beyond the scope of the bill. That, then, is done with. It's finished.

No amendments have been brought forward on clause 7.

(Clauses 7 and 8 agreed to)

(On clause 9)

We have amendment NDP-2.

Go ahead, Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

I'm looking at my notes here.

This one and the next one coming up are simply amendments on the offences that deal with harbouring, where the current language refers to the likelihood that somebody will carry out a terrorist act. Our view, bolstered by some of the testimony and submissions from, for example, the Canadian Bar Association, is that there is far too lax a standard of mens rea in this context, and that it would be much more in keeping with our traditions and would avoid some of the dangers of an overly lax standard to replace that with “intends to”. That's why this is here.

[The Chair, Conservative, Kevin Sorenson]

Ms. Findlay.

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

Thank you, Mr. Chair.

The proposed amendment, we feel, would be problematic. Essentially, how does one prove knowledge of what another person intends? It would be very difficult, if not impossible, to prove. However, proving that someone knows that another is likely to do something can be based not only on what the other person says but on other objective evidence as well, including the comments of others about what the person is likely to do. Proof can be derived, therefore, from a broad range of sources.

Moreover, the harbouring and concealing offence addresses a situation in which the harbouring or concealing is done not for the purpose of enabling a person to escape, but for the purpose of enabling the person to facilitate or carry out any terrorist activity.

We feel this proposed amendment would have the effect of further narrowing the ambit of the offence, which already has a very narrow and precise focus. The further narrowing is not warranted, given the purpose element of the offence. Therefore, we will not be supporting it.

[The Chair, Conservative, Kevin Sorenson]

Is there any other debate?

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

I understand the points being made. I think I can go along with them to a certain point, but I think it is important to remember that proving intent throughout the criminal law in general can also make use of physical activity and all kinds of other signs. You don't have to prove intent by literally getting inside somebody's head, whether you're the first person or the third person.

We actually believe that some of the same evidence that Ms. Findlay is talking about, which you would want to have in, would still be available, but you would still have to show an intentional state of mind and not simply likelihood. That's all.

[The Chair, Conservative, Kevin Sorenson]

Are we ready for the question?

[Some hon. members]

Call the question.

[The Chair, Conservative, Kevin Sorenson]

(Amendment negatived [See Minutes of Proceedings])

(Clause 9 agreed to)

(On clause 10)

Mr. Scott, on amendment NDP-3.

[Craig Scott, NDP, Toronto—Danforth, ON]

NDP amendment 3 goes back to a conversation we had in committee when it was noted that excluding evidence obtained through an investigative hearing from use in criminal proceedings against the person giving that evidence should be, according to one argument, expanded to include extradition or deportation hearings, because this was something the Supreme Court, in its only case on investigative hearings, effectively read into the previous version.

I think that's all that's really going on here. I don't see how, for example, this can be outside the scope of the bill, simply because I think the government side has said this is implicit. We're saying it should be explicit for reasons of certainty and caution, and effective criminal law should be as clear as possible.

I'm happy enough that the government has indicated they think this would be there anyway. I'd just much prefer that it be explicit.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

The Table, the legislative help we have here, has ruled that this is inadmissible because it goes beyond the scope of the bill.

Did you want to respond to that as well, Ms. Findlay?

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

No.

[The Chair, Conservative, Kevin Sorenson]

All right. That is inadmissible.

We're on amendment NDP-4.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Chair, if you'd permit me just to refer to these in generalities, we could actually get rid of all four of the ones coming up on the same theme of legal aid. There is—

[The Chair, Conservative, Kevin Sorenson]

They have something else in common, too, Mr. Scott. I'm just warning you right now.

[Craig Scott, NDP, Toronto—Danforth, ON]

Yes.

This is a proposal to add a right to legal aid such that if it's not available provincially, the Attorney General would have to provide it in the case of investigative hearings. The reason is that we're talking about witnesses for whom there may be absolutely no suspicion of guilt or anything of that sort. They're being hauled into a process within the criminal context that involves a lot of pain, suffering, and jeopardy.

We think it's incumbent upon the state to actually be paying for the legal services. If that's what they want to do, haul citizens in, it should not be something that citizens should have to pay for. The provision also contains the right to counsel, so the idea of the right to counsel is important, and yet it's not important enough, in the wording of this, to make sure that somebody who can't afford it actually has counsel.

The reason for this is that we think the right to counsel is important—it's there—but on an equality basis this is even more important. Plus, we really feel that anybody who's not actually under suspicion and is brought in for an investigative hearing really should not have to pay the costs of their legal representation.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Scott.

The legislative clerk has also brought this one forward and has flagged it as being inadmissible. It provides for measures that would infringe on the financial initiative of the crown by imposing a charge on the public treasury, which is always inadmissible.

Next is NDP-5.

Did you speak to all of the ones here?

[Craig Scott, NDP, Toronto—Danforth, ON]

Almost.

I wanted to indicate, regarding NDP-5, that I would perhaps urge the clerk and the chair to reconsider in light of the Speaker's ruling on Bill C-377 last week. It was very clear that the Speaker ruled that the Canada Revenue Agency had the capacity, in the existing system, to take on added burden and added cost when it came to that bill.

The rationale is exactly the same here. We already have provision in the Criminal Code for exactly the kind of legal assistance we're talking about. Section 684 already has the Attorney General covering costs.

So it is a line item. It already exists in the estimates. All we're doing is adding a burden to something that already exists. That's the pure rationale of the Speaker.

I honestly don't believe this one would require royal recommendation if we took seriously the Speaker's ruling last week.

[The Chair, Conservative, Kevin Sorenson]

Philippe.

[Philippe Méla, Procedural Clerk]

I'd like to add something, if I may.

There are two issues. One is the royal recommendation, per se. We looked at it as a team, and we felt it would require royal recommendation.

The other problem is that it's an “S” bill, coming from the Senate. The Senate cannot spend any public money. All public money spent has to be spent from the House of Commons, which would be a “C” bill of any kind. That's the second problem.

[Craig Scott, NDP, Toronto—Danforth, ON]

Wow.