Public Safety Committee on May 26th, 2015

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

Thank you very much.

You say the act is only about disclosure, and disclosure means to the person whose passport is being.... I'm asking these questions as a citizen or one of my constituents may ask me.

I'm going to know that my passport is revoked, and if there's any question around public safety, specifically national security, that there's certain information that may not be disclosed to me. That would be reviewed by a judge who would determine, by meeting a threshold, that it's reasonable and proportional under the circumstances that the passport is being revoked or cancelled at that time.

[John Davies]

That individual would receive a summary of the information against them for sure.

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

That's correct, but it would be one omitting any information that might endanger the life or the source of information of such a nature as it would begin to cause Canada a problem with her allies and/or disclose a source that would imperil someone's safety.

[John Davies]

Yes.

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

Thank you very much.

You also mentioned some of the.... The question was about the definition of national security. We understand that certain acts have definitions in them, and you alluded to several different acts that mention what national security means. But in its simplest form, could you, for the benefit of my constituents, for someone at home, describe, through the chair, what you would tell them national security really means under these circumstances we're discussing today?

It's nice to use legal terms, but when my constituents ask, I need to be able to explain it to them. It's not that they're less intelligent than we are, but they don't deal with the specificities of the law every day.

[Ritu Banerjee]

I think it's fair to say that national security is never defined with full elaboration in any of these statutes. It's mentioned, and in many cases it's up to the judge to determine whether something could be injurious to national security. That's a phrase that's commonly seen in law.

Some examples that might constitute national security would be something that's related to terrorism, espionage, counter-proliferation, subversion.... I'm drawing primarily from the way threats to the security of Canada are explained in the CSIS Act.

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

Thank you very much.

It was important, I think, in the statement you just made, that if there is any kind of question as to whether or not it is national security, it would go before a justice to make a determination whether that is indeed correct.

[Ritu Banerjee]

Ultimately, If it goes to an appeal before the court or a judicial review, it will be the judge who will be balancing all these considerations.

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

For those very concerned about the rights of the person whose passport is being temporarily suspended or cancelled or revoked, there is an appeal process that goes before an independent party, a judge, who makes those determinations. It's not the heavy hand of the state.

[Ritu Banerjee]

That is correct.

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

Thank you very much.

If somebody were to ask me, and you were sitting at the table with me and we were talking about what reasonable and proportional is, I think we would all have a reasonable understanding of “reasonable”. But when we talk about proportional, we're talking about the seriousness of the situation, aren't we, and whether the state is being reasonable under the circumstances?

Could you give me an example that you may be aware of in which proportionality would have to be weighed by a justice?

[Ritu Banerjee]

I can start, and Sophie can finish.

The proportionality is that you're looking at the action that government is taking, which is the taking of the passport, and weighing it against what injury it might give, what harm to the individual, and then ultimately balancing those against any potential outcome. If the individual is going to engage in a terrorism offence abroad and you know that taking the passport will prevent harm abroad, that's part of the test that either a judge or the minister would have to consider.

[Sophie Beecher]

That's exactly right. Proportionality would mostly come into play when a judge is considering the justifiability or whether taking a certain action is justifiable under the charter.

In the context of the bill before us today, a judge would mostly look at whether the decision of the government is reasonable and therefore whether it can objectively be based on certain facts: with the facts before them, was it reasonable in the circumstances to take away the passports?

Reasonableness is the most important test. Proportionality comes into play when you're looking at the objective behind the passport order and the actions being taken by government.

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

Just as a quick last question, we hear in the news about someone, mainly from among younger persons but not necessarily, who may be going over to another country to take part in a jihadist action or something to that effect. Let's say that the passport is going to be temporarily revoked for an individual like that and the individual says, “Really, that's just a rumour; I'm just going over to see my aunt or my uncle, or my cousin is getting married.”

If the government oversteps its bounds of reasonableness, that person appeals to a judge and the judge decides. Am I correct there?

[Ritu Banerjee]

Yes, that is correct.

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

That's a protection to the public to make sure that the wrong people aren't being prohibited.

[Ritu Banerjee]

That is correct.

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

Thank you.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

We will now go to Mr. Easter.

You have seven minutes, sir.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

Thank you to the witnesses. Welcome.

The budget implementation act is a strange place for this amendment to be. Even stranger yet is that we're seeing another amendment in it to basically make legal what the Information Commissioner says was illegal, the destruction of documents by the RCMP. But that's not unusual coming from this government.

I would ask you, partly in relation to Randall's question earlier in which you basically responded that this section is not up for review under any piece of legislation, what act would this amendment normally be under, if a future government were to review this particular clause?

[John Davies]

I'm not sure we can answer that. Maybe it would be a stand-alone act.

[Wayne Easter, Liberal, Malpeque, PE]

The second question, then, is I guess to the Department of Justice.

Has this amendment been checked for charter compliance? I know the Department of Justice's record is pretty pitiful on legislation lately being turned back on grounds of charter compliance, but has it been checked?

[Sophie Beecher]

Just to complete my colleague's answer, because there is no legislation on passports we are creating here a stand-alone act. That was deemed the best solution to put these sections in. We didn't find a better place to fit them under, so they get their own act. This act accompanies the Canadian passport order.

With respect to the constitutionality of these provisions, the Department of Justice is always consulted on the development of legislation. We were closely involved in the development of this piece of legislation, and the Minister of Justice would not be presenting this if it were unconstitutional.

[Wayne Easter, Liberal, Malpeque, PE]

I disagree with you on that point. I very much disagree with you on that point. We've seen quite a few that he has presented that have not been charter-compliant.

In any event, in response to previous questions we learned that we now will have two ministers, the Minister of Citizenship and Immigration and the Minister of Public Safety, involved in different areas of ability to cancel or deny people's passports. That's correct, is it?

[John Davies]

That's correct. In regard to national security decisions, the Minister of Public Safety will be making the decisions on passports.