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.
5:10 p.m.
Liberal
The Chair Liberal John McKay
Okay. Without unanimous consent, we'll have to put it off until Thursday afternoon.
We are suspended for two minutes.
5:15 p.m.
Liberal
5:15 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you, Chair.
Just for the benefit of the record, on page 100 of the bill, under “98 Subsections 12.1(2) and (3) of the Act are replaced by the following...,” if we go down we see, under Canadian Charter of Rights and Freedoms, “(3.1) The Canadian Charter of Rights and Freedoms is...”, and I'll spare everyone reading it through. I've indicated where it is.
That's in addition to the preamble of part 4, which deals with CSIS. As with what I'm proposing here, we're seeing a situation where there's a preamble mentioning the charter and also further in the legislation, in relation to the mandate, and that's where the inspiration comes from. That's on page 100, line 29 through....
5:15 p.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
I'm sorry, I haven't had the chance to speak directly to Mr. Dubé about this, but I was going to suggest a possible subamendment that might help, which is that instead the amendment would read, “...directed at a Canadian or at any person in Canada and must not infringe the Canadian Charter of Rights and Freedoms.”
So, I'd be removing the words “a right or freedom guaranteed by”, but it would still read, “...directed at a Canadian or at any person in Canada and must not infringe the Canadian Charter of Rights and Freedoms.”
5:15 p.m.
Liberal
The Chair Liberal John McKay
Before we debate that, I just want to make sure that our legislative clerk has that.
Okay, the debate is on the subamendment.
Mr. Dubé, you're up first.
5:15 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Can my colleague perhaps explain the rationale behind removing “a right or freedom guaranteed by” the charter? I'm wondering what....
5:15 p.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
It's for clarity. You're still keeping that the charter must be respected, but it's just a clarity of removing those words that are a bit extraneous and may cause charter problems if you're going toward charter analysis. It's a legal analysis kind of thing. It just seems that it would be clearer and it still maintains exactly what you're trying to get at, which is that you cannot infringe the Canadian Charter of Rights and Freedoms, which is what we're trying to get at here.
5:20 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Chair, if colleagues would go back to page 100 and part 4 relating to the CSIS Act, with regard to warrants and threat disruption powers, that's the exact wording that's used in the opposite sense, in infringing on rights with the obtention of warrant, but it says “The Service may take measures under subsection (1) that would limit a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms only if...” and so on and so forth.
I think the wording I've proposed, even though the sense is different, going from a positive to a negative, infringing on the right or protecting it, regardless if that's the wording that's there, I don't see the need to change my amendment.
5:20 p.m.
Conservative
Blaine Calkins Conservative Red Deer—Lacombe, AB
Not that I have any skin in this game per se, but just for the sake of my knowing what's coming up before it comes up, for the sake of consistency, I've always been a fan of consistency in the legislation.
If I've missed any clauses, because I have been absent a few times during clause-by-clause, where the language is consistent with what's being proposed right now by Mr. Dubé, or if there are any subsequent clauses that are coming forward that would be consistent with your proposal to amend it, Ms. Dabrusin, would we have consistency in the legislation going forward? Is that the plan? I'm just asking.
5:20 p.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Going back to NDP-22, which was the part where we referred to the charter, in that one we referred to “respects the Canadian Charter of Rights and Freedoms.” That was the wording we used in that one. It's more similar to keep it the way I propose and not actually start parsing it out.
5:20 p.m.
Conservative
Blaine Calkins Conservative Red Deer—Lacombe, AB
So can we expect an amendment, then, when we get to page 100 of the legislation? Is that what I'm hearing?
5:20 p.m.
Conservative
5:20 p.m.
Conservative
Blaine Calkins Conservative Red Deer—Lacombe, AB
I just want to be consistent and clear in the legislation across the board. If we're going to do it one way, we should do it always that way, if it's the right way to do it.
5:20 p.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Perhaps we can get some assistance, but it seems to me that this is actually a much more specific subclause, which is dealing with something different.
5:20 p.m.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Mr. Chair, I would like to solicit some advice from the officials here. I think the logic is that the charter itself is triggered, engaged, or infringed all the time, but often it's upheld as being a reasonable step under section 1. I think that's what the discussion is getting at. How do we capture the language that will be clear enough to give confidence to the Canadian public that their charter rights are protected? I think that should be the essence of our question.
5:20 p.m.
Director General, Strategic Policy, Planning and Partnerships, Communications Security Establishment
Yes, absolutely. The section with CSIS is subsumed within the court warrants that they do get there. We have a different mandate than they have. We all have to adhere to the charter, and we have things in this legislation, in the CSE act, that reflect our mandate.
The charter statement does walk through what the charter.... In active and defensive cyber-operations, it makes very clear that prohibitions against...can't direct at Canadians or anyone in Canada; that it's essential to international affairs, defence, and security—so the compelling nature in terms of a section 1 justification that this be done—prohibitions around obstruction of justice and democracy; prohibitions around death and bodily harm; reasonable and proportionate review, and the like.
I would say that the spirit of what's being looked at here is reflected within that preamble, reflected for what's to come around the reasonable expectation trigger, because I think that shows a desire to make explicit what implicitly we're already required to do under the charter. But all the other elements baked into the CSE act are in response to the charter. They're just straight prohibitions and tests and tests against which will be reviewed....
In terms of doing this in the CSE act, I don't know the impact of that, frankly. Where, let's say, the charter is engaged under “ministerial authorizations”, it's making very clear what the state of action is there, which is acquiring information for which there is reasonable expectation. On the element of “not infringe” and where that will fall in, separate from being subsumed under some other kind of regime as you have with the CSIS warrants, I'm just not sure what the impact would be. I fear there could be an unintended consequence in terms of that amendment.
April 23rd, 2018 / 5:25 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
I'm just wondering what those types of unintended consequences could be.
CSIS, in the legislation under Bill C-51 in the last Parliament, obtained the power to, through a warrant, infringe on the charter. If not, it was understood that they couldn't. I'm just making sure. Is there a situation where you wouldn't want to have this kind of safeguard in place?
Again, I feel we're in a situation where if these things are being done and the spirit is there, then why oppose it? The section that's being amended is related to the activities. I think there is a distinction that Canadians' rights and freedoms and directing at a Canadian or a person in Canada.... Your rights and freedoms can be violated even if CSE is conducting activities related to something or someone else who's not a Canadian or a person in Canada.