Public Safety Committee on March 31st, 2015

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

There is no right of response?

[The Chair, Conservative, Daryl Kramp]

No, I'm sorry.

There is nothing further?

(Amendment negatived [See Minutes of Proceedings])

Now on to Green Party number 30.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Perhaps I can use this occasion in introducing number 30 to explain to my dear friend Diane that the Green Party has no interest in coddling terrorists or those who are advocating terrorist acts, but this section is so badly worded that it could well ensnare people who are having private conversations with the goal of convincing someone not to become radicalized. This is why—I'm not debating it, Mr. Chair—I've brought forward this amendment, which says, “No person shall be convicted of an offence under subsection (1)(a) if the communication was in private conversation”.

We'll note that similar legislation relating to hate crimes or child pornography excludes private conversations. This doesn't, which is why this section has been referred to as “thought chill”. It also leaves open if a person in good faith is having a conversation “on a religious subject or an opinion based on a belief in a religious text”. I know that I won't have time to read my whole amendment, so I'll make sure I emphasize point (e), that “if, in good faith, he or she was communicating for educational purposes or for the purpose of deradicalization”.

The language we have here is so vague and broad in scope that it could very well create a situation where someone would be afraid to communicate with someone else for the purpose of talking them out of becoming involved in terrorism. That's what bad drafting and rushed legislation will do; it will make us less safe.

[The Chair, Conservative, Daryl Kramp]

Thank you, Ms. May.

(Amendment negatived [See Minutes of Proceedings])

Green Party-31, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This amendment also falls on the next page. We're at page 27 where we find ourselves in the definitions.

Again, it's strange, bizarre, and unknown language for defining terrorist propaganda, using this notion of “commission of terrorism offences in general”. This amendment attempts to tighten the language and make sure we don't create a situation where people cannot even speak to someone who may become interested in joining a criminal organization.

I want to tighten the language to avoid the use of the phrase “terrorism in general” and add (a) through (d) and then (e) to ensure that we are actually able to prescribe the right rules to deal with terrorist propaganda that actually incites violence and tries to persuade people to be involved in it, as opposed to a wide array of other communications, for instance, even relating to incidents of the past. The way it's drafted now, I'm not sure that an old poster of Che Guevara won't be considered terrorist propaganda.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Yes, Ms. Ablonczy.

Mr. Falk, you're up first.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Sorry, Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

I think what this amendment would do is to to put terrorism as a lesser level than hate propaganda, and I think the whole intent of this is to recognize the seriousness of terrorist propaganda at the same level as hate propaganda.

I wouldn't be in favour of supporting this.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

It relates to this subject and Ms. May's point, Chair. The Canadian Bar Association in its brief—and I'd be asking this question of officials in their brief—made the following observation with respect to the terrorist offences in general provision:

Even a private academic conversation where a person voices support for an insurgent group could be caught. Such a broad limitation on free speech could be found unconstitutional. Even if charges are never brought in inappropriate situations, the result could be a significant chill on free speech....

The officials here who deal with or wrote this legislation, what are you thoughts on this matter?

The Canadian Bar Association, in a number of their points, raised a lot of concerns, as well as Professors Roach and Forcese and a number of others.

Are they all wrong?

[Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section, Department of Justice]

The proposed defence is modelled on the law of counselling, and the Supreme Court of Canada, in the cases of Sharpe and Keegstra, held that the terms advocating, promoting, and counselling all mean essentially the same thing, and that is active encouragement. We're looking at active encouragement of the commission of terrorism offences in general.

Counselling now requires that there be some degree of specificity as to the offence or type of offence being counselled. This proposed offence uses the term, which is defined in the Criminal Code, “terrorism offence”. That includes a broad range of conduct, spanning from violence against people and destruction of property to providing financial and material support and engaging in recruitment, but if one actively encourages the commission of terrorism offences in general without being specific as to the offence or the type of offence—for example, where violence as opposed to recruitment or financing is being actively encouraged—there's some uncertainty about the application of the existing offence of counselling, and the applicable penalty that would apply.

The mens rea that is in the proposed offence comes from the current criminal law in counselling where, in the case of R. v. Hamilton, another Supreme Court of Canada case, it determined that knowledge and recklessness are valid mens rea concepts for the offense of counselling. They are included in this proposed offence.

As well, if we're looking at active encouragement of terrorism offences, there are no statutory defences or exemptions for private conversations that apply to the law of counselling, or for example, the most serious hate crime offence of advocating or promoting genocide.

Those are some comments one might make.

[Wayne Easter, Liberal, Malpeque, PE]

I guess, Mr. Chair, neither of us are lawyers.

When the Canadian Bar Association itself, and Professors Roach and Craig, who have written extensively on this, studied this, they had concerns. Moreover, the NDP has an amendment that basically takes a lot of this clause out. They don't think it can be fixed.

I understand your words that if there's active encouragement—that makes sense to me—then the charges should be there. But there are too many people in the legal profession, in my view, who have come forward with concerns about this. Should we therefore be limiting this in some fashion, not to coddle to terrorists, but to be absolutely sure that we have it right? I think you're telling me that the definitions that apply to these proposed sections are the definitions that relate to terrorist offences in the Criminal Code. Am I correct on that?

[Douglas Breithaupt]

Yes.

[Wayne Easter, Liberal, Malpeque, PE]

Then expand a little bit more, if you could, on active encouragement, encouraging individuals to participate or actively be involved in those terrorist offences as defined in the Criminal Code.

[Douglas Breithaupt]

It's important to indicate, again, that the words “advocating”, “promoting”, and “counselling” have been interpreted as active encouragement. Building on the law of counselling, this offence uses the terminology of advocating and promoting. One is looking at active encouragement of the commission of terrorism offences. It's not a case of glorification or praise of terrorism, which would be other than active encouragement. It's directed at prohibiting the active encouragement of the commission of terrorism offences, and not mere expressions of opinion about the acceptability of terrorism.

As you point out, there is the defined term of “terrorism offence” in section 2 of the Criminal Code, and that's the parameters within which this offence works. The concern as expressed was that the current law of counselling requires that there be some degree of specificity as to the offence or type of offence being counselled, but there may be cases where although no specific terrorism offence is being counselled, it is evident nonetheless that terrorism offences are being actively encouraged. And that's what this offence is directed toward.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you for your answers, gentlemen.

[The Chair, Conservative, Daryl Kramp]

We will now go to the vote.

(Amendment negatived [See Minutes of Proceedings])

We will now go to Green Party 32.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I also want to thank my colleague Mr. Easter for reminding us of the condemnation of these proposed sections by the Canadian Bar Association.

This amendment propose proposes to add on page 28 what we find at proposed subsection 83.223(4), relating to a person who posted materials and who doesn't show up for a hearing. The proposed subsection currently allows for the court to proceed in the absence of such a person. My amendment suggests that a special advocate be appointed to protect the interest of the person in their absence.

The argument here is that given how broad the promotion of terrorism sections are, even showing up to defend oneself could end up creating a deeper legal morass, and it would be better to at least have the protection of a special advocate available.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Ms. May.

Yes, Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

I find it rather strange that with regard to this particular amendment to the Criminal Code, the Green Party is suggesting that when someone chooses not to appear before the court to oppose the proposed deletion of terrorist propaganda, a special advocate be used. I don't think it's appropriate for one. I'm going to ask the officials to clarify this, but if opposing points of view are needed, the courts already have the jurisdiction to appoint a friend to the court to advise them where necessary.

I'm going to oppose this for those reasons, but I'm just wondering if the officials could comment on this point of mine about whether the courts have the ability to appoint a friend of the court.

[Douglas Breithaupt]

Where warranted, courts have the jurisdiction to appoint an amicus curiae.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.