Public Safety Committee on March 31st, 2015

[Wayne Easter, Liberal, Malpeque, PE]

Good to see you're on your toes, Mr. Chair.

The observation from one witness was that this could be seen as a constitutional breach. I have said that I think these powers would in fact—and I do think the words “violate the Charter of Rights and Freedoms” are wrong.... However, is this law as it's written allowing an undermining of the Charter of Rights and Freedoms by CSIS operatives in some instances?

[Michael Duffy, Senior General Counsel, National Security Law, Department of Justice]

Mr. Chair, perhaps I can respond to that for the Department of Justice.

The member's characterization made by an earlier witness that there would be a constitutional breach is precisely why the section does not do what it is alleged to do. If in fact it did create or give rise to a constitutional breach, that is precisely what the Minister of Justice, in his duties in looking at the charter compliance of legislation, would have caught. As the minister indicated when he appeared before this committee, this bill, like every other bill, goes through an intense level of scrutiny to make sure that in fact it is charter-compliant. In this case, that was done.

The suggestion that the bill is designed to actually have a judge violate the charter or be co-opted into violating the charter is not what the bill does. What the bill does is precisely the opposite. It puts the judge in the position of deciding whether or not the charter would be violated by the proposed measure. If it would be violated, that is the end of the matter. No one, including the judge, can authorize the measure.

That's just to correct the record.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

[Wayne Easter, Liberal, Malpeque, PE]

I have a couple of other questions on that then, Mr. Chair.

[The Chair, Conservative, Daryl Kramp]

Yes.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Duffy. I appreciate your point, and I sincerely hope you're correct.

In witness testimony, Ron Atkey—in fact, two separate witnesses said this—stated that this is where the discrepancy comes from on the real meaning of this section.

I'm belabouring this point, Mr. Chair, because from my point of view this is a crucial section in the bill, and I think we need to understand what it means correctly.

[The Chair, Conservative, Daryl Kramp]

That's as long as it does pertain to the elements of the bill.

[Wayne Easter, Liberal, Malpeque, PE]

Yes, it does. I'll tell you what two witnesses said.

Ron Atkey, before the committee on March 12th, said:

Part 4 authorizes the Federal Court to issue a warrant to CSIS to take measures that may contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms. This provision, in my view, is clearly unconstitutional and will be struck down by the courts.

That was his point.

Professor Craig Forcese, on the same day, said:

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.

You're suggesting that interpretation is wrong.

[Michael Duffy]

Mr. Chair, that's precisely what I'm not suggesting but indicating.

The bill, properly read, doesn't do what the witnesses have indicated it does. The judge is being put in precisely the position of looking at the facts of a particular case and determining whether or not the rights that are at issue are reasonably restricted. That is precisely one of the functions that is allowed a judge under the charter. Section one provides for that determination, and that's what the bill in fact provides for.

It is not correct, in our submission, that in fact the bill is in any way co-opting the court or anyone else into sanctioning a charter violation. It goes to a judge precisely for that reason, to make sure that the charter will not be violated. The charter violation occurs when a particular right is restricted in a way that is not reasonable, and that is the inquiry that a judge makes under the statute.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you very much, Mr. Chair.

Thank you, Mr. Duffy.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair.

I think at this point I'd like to address my constituents at home and mention to them that in my years as a court officer, I listened to some very smart lawyers and challenged some other very smart lawyers as to whether or not something was right or wrong, whether the police or someone had the right or didn't have the right to do what they did. So in going along with our witnesses and what they say, I believe our witnesses believe the evidence they gave before this committee, which is that they believe this would contravene the charter.

We just heard from expert witnesses here tonight that they specifically think the opposite to make sure that it's protected. When they say, “Well, the judge can't give a warrant to break the law”, that's why police go to a judge to authorize them to go into someone's home, their domicile, and search for things, etc. They have to go before a justice and express the reasons for it.

So for the average person out there who doesn't have experience with the law, when they hear our witnesses saying that it's the end of the world as they see it, that the charter's being contravened, and oh my goodness, why is the government doing that.... The reason we have these good folks here tonight is to tell us why they drafted it that way. I think Mr. Duffy's explanation is evidence in and of itself that the minister and his officials put them through the hoops when it comes to making sure that Canadians' charter rights are being protected. And if there's any necessity to come close to going too far, as far as a challenge to the charter, the minister errs on the side of caution, because that's his legislative responsibility.

I think Canadians need to know that they're going to hear very many differences of opinion as to the legality of certain things in this piece of legislation. I think we've heard some very good common sense here tonight. Again, I repeat that's not to say that other witnesses.... I'm not impugning their reading of the law, etc.; they just see it from a different perspective. I think folks need to realize that their lawyers aren't better than our lawyers. That's why we have a court system. When Mr. Wayne Easter says that this will never meet a.... That's his opinion. It's just his opinion, and we'll have to see what the future is.

But not to meet the evolving threat of terrorism for fear that something negative may happen would be a breach of the government's responsibility, which is the health and safety of its citizens.

Thank you, Mr. Chair. That's why I will not be supporting this amendment.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

Mr. Garrison, please.

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

Thank you very much, Mr. Chair.

I will also not be supporting the Liberal amendment, but that's because, of course, I believe the disruptive powers, as I said before, aren't fixable. The warrants are part of those, and I also believe that those are not fixable. So we intend to try to throw out this entire section on disruptive powers and warrants when we get to the report stage.

Just on Mr. Norlock's point, I have full respect for the officials who are at the table, and I believe they are giving their best advice, but they are, in fact, the government's lawyers on this bill—

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Their lawyers are better than our lawyers?

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

—so I do take his point that these are not separate, independent witnesses. These are the government's lawyers who have prepared the legislation, and I expect them to present professional advice, which I believe they have done this evening.

I'm not sure how that gets us closer to where we need to get to on this, but I think what Mr. Easter's amendment does is it makes the warrants into half a loaf, so for that reason, we still won't support it. He's taken out the worst aspects, but the rest of the bread is still there.

Thanks.

[The Chair, Conservative, Daryl Kramp]

Fine, thank you very much.

We will now call for the vote.

Yes, Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Chair, I have one other point. I want to come back to Mr. Duffy again, if I can, or the other witnesses.

What gets confusing here, Mr. Duffy, if you go to new subsection 12.1(3), is that it states that the service may not take measures that contravene a right, etc., or will be contrary to other Canadian law unless—and these are the words that are troublesome—“the Service is authorized to take them by a warrant issued under section 21.1.”

I'm not a lawyer, but when that's in there with the words “unless the service is authorized...by warrant”, the first thing that pops into your mind is that they would be authorized to contravene that right or freedom. That's the problem I have with this wording.

I don't question what you said previously, but can you expand on that a little further? Because that's my reading of it.

[Michael Duffy]

Mr. Chair, I understand the concern that's been voiced.

What it turns on is section 1 of the charter, which provides that the rights referred to in the charter are guaranteed only to the extent that they are not restricted by reasonable limits prescribed by law in a free and democratic society. That's what it turns on.

The judge may determine that a particular right referred to in the charter, be it mobility or something else, is violated, and that's in a sense the preliminary stage. The point that goes to the judge is, is that violation a reasonable one because the restriction is prescribed by law in a free and democratic society? That's the judicial inquiry that has to take place on the warrant process. When the provision ends with the indication that unless authorized by a warrant, it's precisely that. A right may appear to be infringed or be infringed and that's fine. The judge has to determine whether that infringement is a reasonable one or whether it's a reasonable restriction. If the judge, in terms of illegality, determines that a particular measure will give rise to a legal conduct, then the judge has to determine whether the judge, by way of a warrant, will authorize that otherwise illegal conduct. That's the rider about what a warrant is designed to indicate. The judge does what a judge does to determine whether that charter right that is affected and violated is reasonably restricted by the measure, or whether the particular conduct that would give rise to otherwise illegal conduct is in fact one that should be authorized pursuant to warrant. It reinforces that it is a judicial decision, not a CSIS decision, to take the measures that do these particular activities.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

I still stand by the amendment because I think the amendment makes it clearer and will not contravene a right or freedom guaranteed by the charter. I still stand by my amendment and will move it.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

I wanted to thank Mr. Duffy for clarifying that. I was going to ask you about the charter, specifically as to what you just referenced and the tests that the federal court judge uses to determine whether a request for a warrant is within a reasonable limit on the right or the freedom. Therefore it becomes in accordance with the charter.

I wanted to thank you for clarifying that. We did hear from a couple of witnesses who said that this is going to contravene the charter and, therefore, that we absolutely can't have this amendment. We already know that warrants are an everyday process and that judges make those decisions every day.

Thank you for clarifying that.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

We will now go to Green Party amendment number 40.

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

Thank you, Mr. Chair.

I'll ask someone at the table who is a lawyer and who's studied statutory interpretation. I'm vastly relieved that Mr. Duffy further qualified his first answer, because I thought someone had found a textbook on law authored by Lewis Carroll, because proposed subsection 12.1(3) clearly says that a warrant can be issued that allows for a violation of the charter of rights and freedoms. Now we have the clarification that a judge asked to allow an activity that would violate the charter has to weigh that against the reasonable limits that are imposed within the charter. In other words, this is exactly, as Professor Forcese said, “a constitutional breach warrant”.

I have put forward language not dissimilar to Mr. Easter's to ensure that no warrant issued under proposed subsection 21.1 can contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms. It is absolutely the case that warrants are issued every day by judges across Canada, but we have never had a provision that allowed a warrant to violate the Charter of Rights and Freedoms or to ask a judge alone in an ex parte hearing without other representation to make a decision solely in that courtroom with no public transparency. The situation allows for a breach of the charter given the reasonable limits provision.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Ms. May.

Is there further comment?

Mr. Falk.