Evidence of meeting #106 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was charter.
A recording is available from Parliament.
Liberal
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
The way it was intended for this application, for this amendment, was specific to criminal charges that have been laid, or could be laid, but might not be because doing so could compromise national security or ongoing operations or an operative or whatever. Sometimes charges aren't pursued because of that. It's the introduction of the evidence that we're trying to get in. Some of that intel, which could be admissible, is not entered for fear of disclosure and things of that nature. I would certainly defer to our legal team, as well as to officials, if the language is unclear, but just to clarify the intent.
Liberal
The Chair Liberal John McKay
Mr. Dubé, are you satisfied with that answer or do you want officials to respond?
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Perhaps, because I'm not clear what the interplay is with any upcoming amendments that deal with special advocates further down the road on the study of the bill.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
Mr. Chair, before we hear from the officials, I wonder if I could just intervene.
With all due respect to my colleague, in fact, I don't believe the amendment to be in order, because it has nothing to do with part 2 of the bill. I think there are further technical issues that arise relating to friends of the court, which perhaps Mr. Davies could speak to as well.
Director General, National Security Policy, Department of Public Safety and Emergency Preparedness
I'll defer to my Justice colleague.
Douglas Breithaupt Director and General Counsel, Criminal Law Policy Section, Department of Justice
Thank you. Yes, this particular motion to amend would seek to insert special advocates in the section 38 proceedings alone. It is the current practice of the Federal Court to appoint an amicus curiae, a friend of the court, as appropriate, to assist the court in section 38 proceedings, and they're tasked in these proceedings to perform a role, as dictated by the judge, to ensure fair proceedings.
In current practice, the amici curiae are often chosen from the list of special advocates maintained by the Minister of Justice. Current practice allows for a degree of flexibility to meet the needs of each particular case. In respect of this particular amendment, technically speaking, the wording comes from the Immigration and Refugee Protection Act, and it's used to seek to amend section 38 of the Canada Evidence Act. Section 38 proceedings rule on the national security privilege, and the extent, if any, to which sensitive or potentially injurious information as defined under section 38 is to be disclosed in the underlying proceedings. In the Immigration and Refugee Protection Act context, the special advocate's role is played in the main proceeding, so submissions as to the weight given to the information or evidence would be decided by the person presiding in the underlying or main proceeding and not by a designated judge of the Federal Court in a section 38 proceeding.
To summarize, amici curiae are appointed by the Federal Court to play a role to assist them in ensuring fairness in section 38 proceedings. They provide a degree of flexibility to meet the needs of each particular case.
I hope that provides some assistance to members.
Liberal
The Chair Liberal John McKay
Just before I ask for further debate or put the question, I want to speak to Mr. Fragiskatos' issue as to whether this is in order. It's the ruling of the chair that it is in order, that, possibly, arguments are going to be much stronger as a referral after second reading, but after first reading there's very little that's out of order, shall we say. So in this case, it is in order.
(Motion negatived [See Minutes of Proceedings])
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
This is in line with CPC-18, for the same reasons, and it applies to section 38 of the Canada Evidence Act.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
I am concerned that the amendment seeks to grant powers of a judge of the Federal Court to someone who might not be a judge. I wonder if one of the officials could speak to that, or any other related technical issues that they have potentially identified.
Director and General Counsel, Criminal Law Policy Section, Department of Justice
Currently only designated judges of the Federal Court, and not the adjudicator presiding over the underlying proceeding, may conduct proceedings under section 38 of the Canada Evidence Act.
This issue speaks to the larger issue of bifurcation or non-bifurcation of such proceedings, which is quite complex. There may be an underlying proceeding with the power to compel the production of information where section 38 comes into play, which is not conducted by a judge, as was mentioned. This amendment would purport to invest those persons, such as administrative tribunal members, with the powers of a Federal Court judge under section 38, if they choose to conduct section 38 proceedings.
This would be a radical departure from the current regime, which restricts section 38 decision-making not only to judges, but to designated judges of the Federal Court.
Liberal
Liberal
The Chair Liberal John McKay
Those opposed?
(Amendment negatived [See Minutes of Proceedings])
We have no further amendments between clauses 61 to 72. May I group them for the purposes of the vote?
Those in favour of clauses 61—
Conservative
Pierre Paul-Hus Conservative Charlesbourg—Haute-Saint-Charles, QC
Could we have one vote per clause?
Liberal
The Chair Liberal John McKay
Do you want it clause by clause just for the fun of it? Okay.
Shall clause 61 carry?
(Clause 61 agreed to)
Shall clause 62 carry?
(Clause 62 agreed to)
Shall clause—
Sorry?
Conservative
Liberal
The Chair Liberal John McKay
You want a recorded vote? That's what I asked you, if you wanted a recorded vote.
Conservative
Liberal
The Chair Liberal John McKay
I apologize.
A recorded vote for clauses 63 through 72, correct? Okay.
We've grouped clauses 63 through 72, but we're voting on a recorded vote.
(Clauses 63 to 72 inclusive agreed to: yeas, 6 nays 3)
We are on clause 73, but NDP-9.2 was defeated. Is that correct?
Shall clause 73, clause 74, and clause 75 carry?
(Clauses 73 to 75 inclusive agreed to)
(On clause 76)
Now on to clause 76, which brings us to NDP-22.
Mr. Dubé.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you very much, Mr. Chair.
This exercise may seem symbolic, but it is extremely important, especially in light of the Canadian Bar Association's suggestion to explicitly include in the preamble to part 3, the restrictions related to any action that may be in violation of the Canadian Charter of Rights and Freedoms. This is a reminder of the importance of the establishment's actions, including the fact that it must act appropriately while honouring its responsibilities to Canadian society.