Public Safety Committee on March 12th, 2015

[The Chair, Conservative, Daryl Kramp]

Good evening, everyone.

Colleagues, welcome.

Welcome to our witnesses here today.

We are following up on our study of Bill C-51. This will be our second meeting today. This will be meeting number 55 of the Standing Committee on Public Safety and National Security.

With us for the first hour we have three witnesses. We have, from the National Airlines Council of Canada, Mr. Marc-André O'Rourke, executive director. We have as an individual, Craig Forcese, associate professor, Faculty of Law, University of Ottawa. We have Kent Roach, professor, Faculty of Law, University of Toronto, and we are welcoming him by way of video conference. We're actually not apologizing for keeping him on delay in that he's gloating when he's sitting at a course in Clearwater, Florida, at this particular time. Welcome, Professor Roach.

We will go now to opening rounds of statements for up to 10 minutes. The chair and the committee would certainly appreciate it if you can keep your comments as brief as possible. It will allow us more time for questioning.

We will start off with Mr. O'Rourke. You have the floor, sir.

[Marc-André O'Rourke, Executive Director, National Airlines Council of Canada]

Thank you very much, Mr. Chair.

Bonsoir. Thank you very much for the opportunity to appear before your committee this evening as you consider Bill C-51 and for the opportunity for us to provide our input on part 2 of the bill, the secure air travel act.

My name is Marc-André O'Rourke. I'm the executive director of the National Airlines Council of Canada. The NACC represents Canada's four major passenger airlines: Air Canada, Air Transat, Jazz, and WestJet. We advocate for safe, sustainable, secure air travel to ensure that all Canadians have the best and most cost-competitive flying experience both within Canada and abroad. Collectively, our members carry over 50 million passengers per year and directly employ more than 46,000 people.

The NACC's member airlines recognize that safe and secure air travel is a critical priority for all Canadians and is vital to our national security at large. The passenger protect program is a key initiative in this regard. It's our understanding that, with Bill C-51, the rules of Canada's passenger protect program will be housed in a stand-alone and dedicated statute, the secure air travel act.

The bill also expands the passenger protect program so that an individual may be included on the specified persons list if there are grounds to believe that the individual is travelling for the purpose of committing a terrorism offence. Currently, only an individual who is believed to pose a threat to aviation security can be put on the list. Under the passenger protect program, airlines screen travellers against the specified persons list. Should a passenger's name match a name on the list, the airline will verify the traveller's identity and inform Transport Canada of the potential match. Upon notification, Transport Canada directs whether the passenger should be denied or permitted boarding by the airline.

The NACC and our member airlines understand the need to update Canada's passenger protect program in light of the evolving nature of security threats, and we continue to support the program under the secure air travel act. However, we would like to take this opportunity to raise with you some concerns associated with the implementation of the act.

Airline agents are front and centre when delivering the news to a passenger that he or she will not be permitted to travel. In fact, it's the airline agent who delivers the Government of Canada's emergency direction to the individuals being denied permission to travel. As you can imagine, this can be difficult and delicate and has the potential to be a risky situation, considering that the individuals involved have been deemed too dangerous to fly. In expanding the passenger protect program's mandate, it's anticipated that the specified persons list will grow longer, thus increasing the frequency with which front-line airline agents may be faced with the prospect of delivering a no-fly decision.

We believe this is an appropriate time to revisit the process for issuing the emergency directions, to ensure the safety both of airline agents and of the surrounding public. We recommend that, where it's possible, the emergency direction be delivered by a policing organization or a government official. Our members would also like to see increased police support in these situations.

We also have concerns with the breadth of the language of proposed section 9 of the act, which provides as follows:

The Minister may direct an air carrier to do anything that, in the Minister's opinion, is reasonable and necessary to prevent a listed person from engaging in any act set out in subsection 8(1) and may make directions respecting, in particular, (a) the denial of boarding; or (b) the screening of that person.

Our concern rests with the use of the word “anything”. While our members are committed partners, what may be reasonable and necessary from the minister's perspective may not always be feasible from an air carrier's perspective. As private companies, our members may be limited in the actions they can take.

Since the tragic events of 9/11, aviation security has become intrinsically linked to public safety. Funding for aviation security in Canada is based on a 100% user-pay model, where the air travellers are required to cover the full cost of not only passenger screening but also the cost of inflight RCMP officers and general Transport Canada administration, regulations, and oversight.

In an era when governments around the world are responding to new and emerging global security threats, we believe it's time to revisit Canada's approach to funding aviation security. We strongly believe that aviation security is a matter of national security and that air travellers should not have to solely shoulder the cost of measures meant to safeguard all Canadians. We'd also like to reinforce our expectation that air carriers should not bear any new costs as a result of the proposed changes to the passenger protect program.

In closing, I would like to reiterate the unconditional commitment of our member airlines to provide their passengers with the highest level of safety and security.

Thank you for your time. Merci beaucoup. I'd be happy to answer any questions you may have.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. O'Rourke, and thank you for your brevity.

We will now go to Mr. Roach, professor at the Faculty of Law, University of Toronto.

You have the floor, sir.

[Professor Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

Bonsoir. I'd like to thank the committee for allowing me to appear.

In over 200 pages of legal analysis, Professor Forcese and I have examined the effects, including unintended ones, of Bill C-51 on both security and rights. Security and rights go hand in hand both in our democracy and in legal analysis of the proportionality of the proposed measures. We are doing our best to improve the bill in light of both rights concerns and security rationale offered by the government. A short summary of our proposed amendments will in due course be translated and be available to the committee.

Starting with part 1, like the Arar commission, we recognize the need for information sharing to help prevent terrorism. Part 1, however, goes far, far beyond that legitimate goal. It introduces the novel concept of activities that undermine the security of Canada. That concept is quite simply the broadest definition of national security we have ever seen. We do not understand why it cannot be replaced with section 2 of the CSIS Act as it defines threats to the security of Canada. If implemented, this concept risks drowning 17 designated recipient institutions in not just information about terrorism but information about illegal protests by diaspora groups that could undermine the security of perhaps repressive states and illegal protests by aboriginal and separatist groups who threaten Canada's territorial integrity.

Canada prides itself on being perhaps the only country in the world that democratically debates secession. We should not be a country that shares total and secret information about peaceful protestors. The government's defence of the limited exemption for lawful protest is contrary to the prior experience that led Parliament to delete that very same word “lawful” from the 2001 Anti-Terrorism Act. If, in the few months after the disaster and tragedy of 9/11, we could see our way to tolerate peaceful protest, I do not understand why we can't do the same today.

I would also say the over-breadth of part 1 not only threatens rights; it threatens security. If everything is a security matter, effectively, nothing is. Clause 6 of part 1, which authorizes the further sharing of information to any person for any purpose, should be deleted because it forgets the hard lessons we should have learned from the story of Maher Arar and other Canadians tortured in Syria in part because of Canadian information. We support the codification of the no-fly list but we are concerned that special advocates must be able to challenge the secret intelligence that lies behind the listing process.

We share the concerns of a group of special advocates that part 5 of Bill C-51 will reduce the disclosure of secret information to those security-cleared counsel and make it more difficult for them to do their important and indeed constitutionally required job of challenging secret evidence. We note that there is no judicial review of part 1 and we note, as the Privacy Commissioner has noted, that 14 out of the 17 recipient agencies have no review, and the other three have outdated stovepipe review. We recommend the enactment of a super-SIRC or at least the Arar commission's recommendation.

Independent review should not be seen as the enemy of security and it should not be seen as the enemy of those in our security agencies who do the important and difficult work that they do. We should all understand that we will do better work if we are reviewed and, if warranted and necessary, criticized by others. The review bodies also help security agencies because they protect them against unwarranted criticism.

Next, in our view, the new advocacy of terrorism offence is not necessary. Existing offences, including section 83.22 on instruction are, in our view, sufficient. If Parliament proceeds with this offence, there should at least be defences for legitimate expression and higher fault requirements. Again, though, our concern with this offence is not narrowly on rights, it is also on security. We worry that this offence will not only chill expression but make it more difficult to work with extremists who may be radicalized into violent extremism.

We note that the U.K. legislation passed just a few weeks ago provides a statutory basis for anti-radicalization programs, which are very important given the current threat environment, but Bill C-51 does not.

Finally, I want to end on another security issue. Part 1 allows for information sharing about illegal protests, which are irritating to some, but in our view not a pressing security concern. At the same time, it ignores the Air India commission's recommendation 10 that there must be mandatory information sharing by CSIS about terrorism offences. Lest you think the Air India commission was idiosyncratic, Senator Segal's committee made the very same recommendation in the Senate in 2011.

We support Parliament's decision in 2013 to add four new terrorism foreign-fighter offences. Indeed, they place Canada in front of the curve on this new security threat. Now, Bill C-51, combined with Bill C-44, would likely make it more, not less, difficult to apply these offences. Why?

CSIS will unilaterally be able to extend privileges to its human sources, contrary to the Air India commission's recommendation, and CSIS will still unilaterally be able to withhold information about terrorism offences from the police, again contrary to the Air India recommendations.

These concerns and others suggest, in our view, that the omnibus legislation, which adds two new acts and amends 15 others, should be subject to a three-year review by a parliamentary committee. Those parliamentarians should have access to secret information, because having worked on both the Arar commission and the Air India commission, I can tell you that without access to secret information you are flying blind. There should be a four-year sunset of this entire legislation to allow for, hopefully, an informed and meaningful discussion of its necessity and proportionality in light of evolving security threats and rights concerns.

Thank you very much for your attention.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Professor Roach.

Now, Professor Forcese, you have the floor, sir.

[Professor Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Thanks very much, and thanks for inviting me here this evening.

I come before you as someone who has regularly appeared before this committee over the last seven or eight years, generally supporting the government's security laws. Most recently, you'll recall, I appeared here in the fall in support of Bill C-44. Each time, however, I have proposed amendments designed to minimize negative repercussions, including repercussions producing unnecessary litigation. The details matter, and it is, of course, the details we are here to discuss.

I'll start with a few words on preventive detention by police, from section 83.3 of the Criminal Code, as modified now by Bill C-51. In the past, I have spent considerable time looking at equivalent laws in other countries. Kent Roach and I draw on these laws and, most notably, those of Australia to recommend a series of specific safeguards on the preventive detention power. Kent mentioned that we have a brief list of our recommended changes, which I have here in front of me. I wish, however, to focus most of my comments on the CSIS Act amendments.

The government says that CSIS needs the new powers so that, for example, CSIS can warn families that a child is radicalizing. No one, in good faith, can object to this, but the bill reaches much further. Indeed, the only outer limit is no bodily harm, no obstruction of justice, and no violation of sexual integrity, along with a more open-ended and subjective admonishment that the service act reasonably and proportionally. There is, in other words, a mismatch between the government's justifications and the actual text of the law.

We underscore both the security and legal consequences of such a proposal. On the security side, we run a considerable risk that new CSIS operations may end up overlapping, affecting, and perhaps even tainting a subsequent RCMP criminal investigation into terrorist activity. A criminal trial may be mired in doubts about whether the CSIS operation contributed to or was otherwise associated with the crime at issue. Will our most successful anti-terror tool—criminal law—in which crown prosecutors have had a stellar record in achieving convictions, be degraded by CSIS operations that muddy waters?

Any veteran of the Air India matter must be preoccupied by this possibility, but even if the government thinks that CSIS-RCMP operational conflicts are worth the risk, we can meet its stated security objective without opening the door so wide to possible mistakes by a covert agency. For instance, amend the bill to remove any reference to the charter being contravened by CSIS. The current proposal is a breathtaking rupture with fundamental precepts of our democratic system. For the first time, judges are being asked to bless in advance a violation of our charter rights in a secret hearing not subject to appeal and with only the government side represented.

There is no analogy to search warrants. Those are designed to ensure compliance with the charter. What the government proposes is a constitutional breach warrant. It is a radical idea, one that may reflect careless drafting more than considered intent. It deserves sober second thought by Parliament.

Moreover, with a simple line or two, this committee could add new and reasonable limits on CSIS powers, including, for instance, an emphatic bar on detention. We cannot risk a parallel system of detention by a covert agency able to act against people who have committed no crime. At present, whatever the government's claims to the contrary, there is no prohibition in the bill on such a system.

In the final analysis, we are dependent on good judgment by the service. I do not doubt CSIS' integrity. I do doubt its infallibility. Good law assists in exercising good judgment, as does robust review. That brings me to SIRC.

We need to reinvest in our national security accountability system. SIRC's constraints and design mean that it is incapable of reviewing all of CSIS' activities or even CSIS' conduct under all its existing warrants. A partial approach to review will be spread even thinner as CSIS' powers expand.

More than this, SIRC and other review bodies are unnecessarily hamstrung by legal limitations that stovepipe their functions to specific agencies and prevent them from following the trail when government agencies collaborate, an increasingly common practice that Bill C-51 will unquestionably increase.

As Professor Roach mentioned, the Arar commission recommended that statutory gateways be created, allowing SIRC to share secret information and conduct joint investigations with Canada's two other existing, independent national security review bodies. The government has not acted on this report. A few paragraphs of legislative language would go a long way to curing this problem. I underscore and double-underline these are concerns that SIRC itself has voiced. That message about limited power should not be lost.

As a supplement, not a replacement, we also support a special security committee of parliamentarians. It can perform a valuable, pinnacle review—a review, not command and control oversight—by examining the entire security and intelligence landscape. Someone needs to see the forest, not just the individual trees. Our allies have made parliamentary review work with expert SIRC-like review. We look in particular to the Australian example. The existence of such a committee would also contribute to a meaningful and informed parliamentary review of the effects of this far-reaching legislation after, as Professor Roach has suggested, a few years of its operation.

Let me end with a final point. In its present guise, Bill C-51 violates a principle that we believe should be embedded in national security law. Any law that grants powers, especially secret, difficult-to-review power, should be designed to limit poor judgment, not be a law whose reasonable application depends on excellent judgment. Whatever the truth as to whether these powers are constitutional or necessary, their introduction is, in our view, irresponsible without a redoubled investment in our outmatched and outdated accountability system. Anyone who has worked on accountability in the security sector knows that there was a core maxim in this area: trust but verify. We do not believe this standard will be met.

It is within your competence to pass a law that protects our security and liberty and does so without the sort of incoherence that risks actually undermining our security. Such amendments to Bill C-51 require good will and a willingness to consider suggestions made in the earnest hope of a good law that protects our country and our rights.

We thank you for your interest and for your important work.

[The Chair, Conservative, Daryl Kramp]

Thanks to all of our witnesses, and thank you all for staying well within the limitation of time. It has certainly afforded extra time to the committee to be able to have some good dialogue.

We will start off with the first round of questioning.

For seven minutes, Mr. Falk, please.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

Thank you to our witnesses, Mr. Forcese and Mr. O'Rourke. Also, Mr. Roach, for interrupting your holiday there, thank you.

Mr. Forcese, I'd like to ask you a question initially.

Professor, I thank you for the good work that you and Mr. Roach have done on analyzing this anti-terrorism act, 2015. I know you've spent a considerable amount of time on it. You highlighted something that is very important to our Conservative government, namely the facts and the details, and you identified early on that it's in the details that it's very important that we get things right. Certainly, that is something our government wants to do as well.

I'd like to quote from one of your background documents where you say the scope of the definition of “activities that undermine the security of Canada” is too broad and the language used is too vague, which could lead to excessive sharing.

I'm not a lawyer, but I'm coming to realize, having spent a little bit of time in this place already, that analyzing legislation that comes before me is very important. One of the most important lessons I've learned is to try to understand it by reading exactly what it says.

As I read the legislation, it occurs to me that the definition should not be read in isolation from the test for disclosure under clause 5 of the security of Canada information sharing act, which further restricts what information can be shared by requiring that information only be shared if it is relevant to the national security jurisdiction or responsibilities of the recipients. I believe that the definition was intended to be brought in order to cover any information that's relevant to the security of Canada, to be useful to non-national security institutions that need to share that information with national security institutions. I also believe that it's important to remember that even if this activity fits under the examples provided under the definition it still needs to meet the threshold and the chapeau. As an example, it needs to undermine the sovereignty, security, or territorial integrity of Canada, or the life or the security of its people; in other words, the activity must affect Canada on a national scale. It's also important to note that the definition does not include activities that fall within the purview of general law enforcement unless they qualify as activities that undermine the security of Canada.

Have you considered this angle at all in any of your analysis? Would you be able to provide some commentary on that?

[Prof. Craig Forcese]

Sure, on the issue of what I've been calling the double-trigger, the chapeau, and then the specific elements that are enumerated.

I agree that's the preferable interpretation. I'm not sure it's crystal clear in the drafting of the statute. I'm pleased, if it were the view of this committee, that in fact you need not just to be listed in that long list of elements, but also meet the standards that you've articulated in the chapeau, as you put it.

The chapeau is incredibly broad in its own right and invokes terms for which there is no clear and established definition, unlike the section 2 concept from the CSIS Act, which is a well-established and principled concept of national security. It seems to me and Professor Roach that it would accommodate all of the government's preoccupations with information sharing without going beyond it.

We prefer the established standard because it has a 30-year legacy and it's clear-cut in our view, although it is still very broad.

On the issue of the interaction between the section 2 definition and section 5, I have some concerns about the use of the word “jurisdiction” for instance in section 5.

If we take the question as to information that might be supplied by a government agency to CSIS, how would one define CSIS' jurisdiction? There are two possibilities. The first possibility is to define CSIS' jurisdiction with an eye to its section 2 mandate of threats to the security of Canada, or you could look at the section 12 functions of CSIS and say that CSIS can only collect information pertaining to the threats to the security of Canada in circumstances where it is necessary to do so.

That decision as to which of those aspects mark CSIS' jurisdiction will then determine whether CSIS is capable of receiving under this law more information than it's legally entitled to collect.

I think that's an important issue. It's not clarified in this law. The issue for us is that jurisdiction is a mutable concept. Since there's not the prospect of any serious independent review—and the Privacy Commissioner of course voiced his concerns about this—to ensure that the internal deliberations of the government as to what constitutes jurisdiction is a sound one, our fear is that these decisions will be made without enough checks and balances, and accountability.

Does that respond to your question?

[Ted Falk, Conservative, Provencher, MB]

It does and I would be interested in hearing Dr. Roach's opinion if he had anything to add to that.

[Prof. Kent Roach]

Mr. Chair, I agree with that. I would just note that the established definition of threats to the security of Canada are used in some of the consequential amendments. It seems to me that should be adequate enough to have fairly robust sharing of information.

I also worry a bit about section 5 with the reference to detection, identification, analysis, prevention, investigation, or disruption. I agree that there is a reading of section 5 that says that everyone who receives the information is limited to their existing jurisdiction in law, but this reference to detection, identification, analysis, prevention, investigation, or disruption could be used by 1 of the 17 who are sitting in institutions, perhaps misinterpreted, to extend its jurisdiction.

Given the fact that 14 out of the 17 are not subject to any independent review, and given that their interpretation of section 5 will be sheltered from public review by solicitor-client privilege, I come back to Professor Forcese's point that we need to devise legislation that withstands erroneous judgment.

If there are legitimate concerns—it could go one way, it could go another way—I would think the committee should try to make this legislation tighter. We think it can be made tighter by going back to section 2 of the CSIS Act, and by going through section 5 and being even more precise that a recipient institution is only limited to its existing jurisdiction in what it does with the information that it receives.

I would note with section 6 that I have heard no justification from the government about section 6 and the potential that section 6 can authorize foreign information sharing. The only restriction in section 6 is that the disclosure be in accordance with law.

Section 8 of the Privacy Act contains very large exemptions or justifications for disclosure. I come back to the Arar case, I come back to that issue, and section 6 as well as section 5 have some troubling issues.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Professor Roach.

We are a little out of time there, but we will now go to Mr. Scott for seven minutes please.

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

Thank you so much.

Welcome to all three of you.

I would like to start by saying that we all, in this committee and the country as a whole, owe Professors Forcese and Roach a debt of service for the kind of work they've done over the last month or so. I think it's recognized on all sides of the table, the quality of the work and the sincerity with which you did it. I myself come from a law background, and national security law was part of it. The quality of the work has been enormously helpful in shaping the debate. Thank you, all.

I want a yes or no kind of answer, maybe with a little elaboration. The short title of the bill is “anti-terrorism act”, but is it clear to you that in fact the bill goes much further than just dealing with terrorism, especially the information sharing and the disruption sections? So much of it has nothing at all to do with terrorism. In fact, what's happening is a deepening and expanding of what one might broadly call the spy state. Is that an accurate way to put it?

[Prof. Craig Forcese]

I would call it a national security act. In my view, in terms of the ground it covers, it certainly does give primacy to the covert over amplifying, say, the criminal side. I know it has some important criminal provisions, in terms of peace bonds and preventive detention, but to the extent that its renovation of CSIS in terms of its traditional functions is quite dramatic, it does seem to give primacy to that side of the national security agenda.

In terms of whether it covers terrorism, we've already spoken a little bit about the concept of undermining the security of Canada, which is a much broader, vast concept that encompasses more than terrorism and in fact uses a concept of terrorism that's actually different from the concept of terrorist activity found in the Criminal Code, which is quite perplexing.

The new CSIS measures are also tied to the entire mandate of CSIS, that is, the threat to the security of Canada. There are four paragraphs in terms of threats—

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

By “new measures” you mean the disruption measures.

[Prof. Craig Forcese]

Yes, I mean the new disruption measures. There are four paragraphs about the threats to the security of Canada, only one of which is terrorism. The others are foreign influence activities, espionage and sabotage, and subversion. The new measures apply across the board.

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

It has been mentioned twice, by both of you, that section 6 of the new information sharing act basically allows for any one of the 17 recipients to then share, pass on that information to any person for any purpose. The act starts out by suggesting, in section 4, that “respect for caveats” and “originator control” of information are principles in the act. The moment I read that, I asked myself if there was an operative part, and I could not find any operative part of the act that gives any legal force to those principles.

To me, it's section 6 that governs, which is that basically information could be shared, including with foreign agencies, including in circumstances that we know produced the Elmaati, Almalki, Nureddin, and Arar situations. It almost feels like a bait and switch going on, in that the principles have stayed, but they actually have no operative force. Is that correct?

[Prof. Craig Forcese]

Kent, do you want to—

[Prof. Kent Roach]

If I could answer that, Mr. Scott, yes, I agree. I read section 4 as paying lip service to the Arar commission's recommendations, which included the very important respect for caveats. I read section 6 as almost an anti-caveat section, which actually empowers disclosure of information, potentially contrary to caveats. As the Arar commission pointed out, this can obviously have corrosive effects if it's shared with a partner who doesn't respect human rights.

It can also have security concerns if our allies say, “Well, we are imposing a caveat on this”, but once it goes to one of these 17 institutions, they are going to be empowered by law under section 6 to disclose it to some other person for some other purpose. That's anti-caveat language. Caveats are all about “You use this information, only you, only for this purpose”. Section 6 is anti-caveat language.

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

Thank you.

Returning to “disruption”, or “measures”, as it's actually termed in the new CSIS act—although it's referred to as “disruption” in that one clause of the information sharing act—the absolute prohibitions, as you've already indicated, include that you cannot engage in measures, or ask a judge to let you, if it's going to intentionally or by criminal negligence cause death or bodily harm.

Is there anything in that language that would prevent detention, especially overseas, or what we might more loosely call kidnapping or possibly rendition, in the sense of taking somebody and passing them on to somebody else? Is there anything in the way that this is worded that would prevent that kind of activity overseas?

[Prof. Craig Forcese]

“Bodily harm” is to be defined consistently with how the term is used in the Criminal Code.

I spent some time looking at how the courts have interpreted “bodily harm” in the Criminal Code. It certainly reaches not just physical injury, but also psychological injury. However, there is no jurisprudence that I could find—perhaps not surprisingly, given that it was a domestic context—in which “bodily harm” was interpreted to reach a detention or the rendition circumstances that you were describing.

As best as I can tell, no, there is no basis to conclude that bodily harm would necessarily encompass a prohibition on detention, hence our recommendation that detention be emphatically listed.

I would also add that there are forms of cruel, inhuman, and degrading, or CID, treatment that would potentially fall short of bodily harm. Cruel, inhuman, and degrading treatment is understood in international law. However, most of those forms of what's called CID treatment arise in a detention context. Our view is that a prohibition of detention would also then mitigate the risk of any prospect of cruel, inhuman, or degrading treatment and would demarcate, again, a more robust outer limit.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Scott.

We will now go to Ms. James for seven minutes.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

Thank you to our witnesses.

I have a number of questions, but I'm going to start with Mr. O'Rourke, if I could.

I'm looking over the remarks that you submitted and your comments. You obviously recognize the importance of stopping someone from boarding a plane if they're an imminent threat to the aircraft, and I think that you recognize the importance as well of preventing someone from boarding an aircraft who may be flying overseas to engage in terrorist-related activities.

You did mention specifically that you were concerned with one part of the bill, which I have in front of me. I think it was with regards to, “The Minister may direct an air carrier to do anything that, in the Minister’s opinion, is reasonable and necessary”.

I think you had said, and you can correct me if I'm wrong, that you were concerned because what may be reasonable to the minister in his opinion may not necessarily be feasible for someone who is sitting there at the desk to prevent someone from boarding a plane. Is that what you were referring to?

[Marc-André O'Rourke]

Yes, and not just to the person at the desk. Again, this is just something that perhaps needs a bit of attention. Again, we're partners in this, we want to do what we can. We support the program. We just bring attention to what appears to be, at least at first blush, a broad scope of the minister's power to direct the air carrier to do “anything”. As much as we want to help, whatever the minister has in mind may not always be feasible. It's not because we don't want to help, it's because perhaps it's not feasible or possible for us to help.

That section does go on to provide examples of directions, and it's my understanding that most of the time, if not all the time, those examples are sufficient to deal with the situation. We just want to make sure that whatever the minister may have in mind is something that we can do.

[Roxanne James, Conservative, Scarborough Centre, ON]

So your main concern is the inclusion of the specific text related to “in the Minister's opinion”?