Public Safety Committee on April 25th, 2018

[The Chair, Liberal, John McKay]

Is there any debate?

(Amendment negatived [See Minutes of Proceedings])

(Clause 135 agreed to on division)

(Clauses 136 to 139 inclusive agreed to on division)

(On clause 140)

We now have PV-40.

Ms. May.

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

Thank you, Mr. Chair.

Again, going back to the fact that C-59 has not repaired the damage done by C-51 as it relates to access for special advocates to all information in the government's possession about particular cases, this amendment is put forward on the advice of Professor Kent Roach, Alex Neve, and the Canadian Civil Liberties Association. This one is to amend those sections such that the special advocates have full disclosure to all the information in the government's possession relating to security certificates.

[The Chair, Liberal, John McKay]

Is there debate?

Mr. Picard.

[Michel Picard, Liberal, Montarville, QC]

My concern is the lack of flexibility given to judges who might, if necessary, want to exempt the minister from fulfilling his obligations in all circumstances. I would like to retain some flexibility for the sitting judge that the amendment does not provide. So I will be voting against this amendment.

[The Chair, Liberal, John McKay]

Is there further debate on PV-40?

(Amendment negatived [See Minutes of Proceedings])

(Clause 140 agreed to on division)

[The Chair, Liberal, John McKay]

We are now on NDP-85.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

NDP-85 is part of a suite of amendments that deals with an issue that has been quite controversial. If I may, I'll take some time to explain, given the fact that, with poor rhetoric and intentions from others in the political sphere, it can easily be presented with a different intent than the one it comes forward with.

While we understand the need to always find ways to improve public safety and to tackle the issue of terrorism, I think the terrorist entities list has caused numerous problems, which have been raised by some of the foremost experts, most notably Professors Forcese and Roach in a paper they wrote called “Yesterday's Law: Terrorist Group Listing in Canada”.

We've seen that there's a cost to taxpayers for this listing and the charter challenges that come along with it. One such case that we've actually seen in the news currently and is going to have significant costs is the one related to Mr. Abdelrazik, the Canadian who is a Sudanese refugee and was arrested when he returned to Sudan and was a victim of torture there. We've seen in the news lately some dubious behaviour on the part of CSIS with regard to the work being done by diplomats. Canada refused to issue a travel document to substitute for his now expired passport because he was still listed using this entity list.

While recognizing that a variety of things need to be tackled, whether it's intelligence and evidence for prosecution or working on how we prosecute and charge terrorist charges, which aren't even always used when we're dealing with cases of terrorism because there's a challenging legal situation around that, the fact of the matter is that anything that's creating situations where we have Canadians being stuck abroad, where we have information sharing and dubious constitutionality, not only harms people's rights and freedoms, but it also causes, naturally, issues with public safety. We want the most accurate information, and we want to lay charges but to do it in a way that is the most efficient.

This process is a secretive process. Appeals are limited. We're not talking about something that's happening in a court. In fact, some of the provisions that are also related to the use of assets are problematic as well. I would point, Chair, to the International Relief Fund for the Afflicted and Needy (Canada), IRFAN Canada, which hasn't had a chance to contest any of this in court because the same provisions have frozen its assets.

I think we can acknowledge that there are many groups that have committed atrocities throughout the world, but I think what makes us stand apart from the very things we purport to combat is the fact that we have due process and the fact that we don't create lists through back doors that have challenges in terms of their constitutionality. It's something that's been raised numerous times, in particular by Professors Forcese and Roach, as I've said.

Professor Roach, in fact, in his brief, recommended eliminating entirely this listing for the reasons that I have elaborated here. Again, I think due process should not be compromised because of lists that are drafted in the regulatory and political sphere. I think it's extremely problematic; cabinet essentially has unilateral control. For those reasons, I believe we should move forward on repealing these different elements.

I would make one last point, Chair. I had the chance in the House of Commons to debate a private member's bill that sought to create a similar list related to organized crime and gangs. One of the points made at that time was the fact that the expediency that is sometimes sought by creating this list, which seeks to.... In that particular instance, the issue was that, with organized crime, the crown is constantly having to prove that organized crime is what it is. If criminal organization X is before the court, the prosecutors are constantly having to resubmit evidence, and it's a laborious process. However, a list with dubious constitutionality does not resolve that issue.

The same concept applies here. Finding us in a situation that leads to more litigation is not one that ensures public safety, and it costs taxpayers an extraordinary amount of money.

The final thing I'll say for the record is that I believe, and New Democrats believe, that if we can find any mechanism that keeps Canadians safe, we will always study it with rigour and give it the proper consideration it deserves. Any replacement for this mechanism that would be more appropriate and have the proper mechanisms in place is a proposal we would in good faith be willing to consider. As it stands now, this is a list that has failed, and I'm taking the opportunity in this debate on this legislation to move these amendments.

I appreciate the committee's indulgence for that rather long intervention. As I said, if you just go out there and say you want to repeal a list of terrorist organizations, it can sound odd to the person listening in. I think it's important that Canadians understand the objective that I'm seeking to achieve here today.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

Before I call on Mr. Picard for debate, members should know that if NDP-85 is defeated, so also are NDP-86, NDP-89, NDP-90, NDP-91, NDP-92, NDP-93, NDP-101, NDP-102, NDP-103, NDP-104, NDP-105, and NDP-106.

[Michel Picard, Liberal, Montarville, QC]

That deserves a longer answer.

[The Chair, Liberal, John McKay]

It's an important issue, and Mr. Dubé makes good points.

[Michel Picard, Liberal, Montarville, QC]

This is a tricky and very important issue.

I would like the fight against terrorism to be crystal clear; I would like the information that we have in the field to be easy to sort out, and everything to be black and white. Unfortunately, in reality, our agencies constantly have to be working with shades of grey. The bill does not contain make-do solutions. On the contrary, it is an instrument in response to a United Nations Security Council resolution. So this is no isolated initiative with no basis. It is also an important instrument that gives us the legal framework we need to seize the assets to which my colleague referred.

I would like our expert witnesses to talk to us about the negative consequences that amending the proposed definition would cause.

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

The definition relates to the listing process because it refers to “listed entity”. Canada is obliged under the UN Security Council Resolution 1373 to “freeze without delay” property belonging to terrorists or those associated with them. Canada has implemented this obligation, in part by creating a terrorist listing regime in the Criminal Code that allows Canada to list entities as terrorist entities, which results in the immediate freezing of their property.

On the listing process and the listing entity, the Criminal Code's listing process also facilitates the application of other statutes, such as using the Charities Registration (Security Information) Act to deregister a charity or to refuse to register an organization as a charity. It also assists in the fight against terrorist financing. Other democratic countries have similar listing provisions.

There are a number of safeguards associated with the listing process, such as, a rigorous process which includes an objective assessment of the activity of the group or individual to evaluate if the entity meets the threshold set by the Canadian legislation, the explicit criteria set out in section 83.05 of the Criminal Code, the automatic review that's required, an application on the part of a listed entity to the Minister of Public Safety to be delisted, a ministerial decision or deemed decision on that account that can be judiciously reviewed in the Federal Court, and that the entity may make another application when there are material changes in circumstances or after the automatic review has taken place of the listing.

There are a number of safeguards attached to the listing process, and a number of reasons for it being in place.

[Michel Picard, Liberal, Montarville, QC]

The goal of Bill C-59 is to have modern legislation that corresponds to the new realities and brings us closer to our allies. That is the reason we created the National Security and Intelligence Committee of Parliamentarians. We actually had to make up for some shortcomings in order to be at the same level as our allies.

So I feel it is ill-advised to remove this kind of list and to take a step backwards in relation to our allies, with whom we want to collaborate in the fight against terrorism. I am therefore going to vote against this amendment.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

This is in response to the comments made by a gentleman from the justice department. My amendments don't remove our ability to freeze assets. It would require them to do so through the courts.

I want to refer to that paper from Professors Forcese and Roach that I mentioned. First, I want to address the point of other democracies. I'm sure both professors would not appreciate selective quoting, but the format of our exercise doesn't easily allow for the type of elaborate thought we might want to pursue in this type of complicated matter. At this writing, 54 groups are on the latter list. As a side note, we know on the public safety website how many are listed on this list. We don't want to do the same thing for the no-fly list. That's a debate that has passed this evening.

It says that this is a “broader list than in some other democracies—notably Australia and United Kingdom. The majority of the listed groups are Islamist terrorist groups, but the list also includes [other groups]”.

It goes through an enumeration, then continues:

As a result of the definitional formula in section 83.01, there are two sorts of terrorist groups in Canada’s criminal law: a group identified and listed as such by the executive per paragraph (b); and, a group that is not listed, but which meets the functional definition in paragraph (a), as assessed ultimately by a court....

This is a process that my amendments would obviously keep in place. They add, in brackets, “typically when a person is prosecuted for their conduct in relation to that group”.

Most of the time, when someone is committing a terrorist act, terrorism charges are not even brought because the heinous acts that they have already committed provide sufficient material in the courtroom for the prosecution to move ahead.

The paper continues that paragraph (b) listing has proven mostly irrelevant. Until recently almost all action in Canadian criminal law has been in relation to paragraph (a) groups, those being the groups that have been proven such in a court of law. It also notes:

Legal commentators have raised concerns about whether executive listing under paragraph (b) will satisfy Charter standards when relied upon in criminal trials to supply an essential element of a criminal offence.

I apologize, I would read faster, but I'm trying to be mindful of the interpreters. It notes further below:

The argument is that paragraph (b) substitutes a closed executive listing process for the proof beyond a reasonable doubt on the basis of public evidence that an alleged group has as one of its purposes or activities facilitating or carrying out any terrorist activity. The fact that the Charter argument has not yet been decided by a court may reflect the relative lack of reliance on executive listing mechanisms in terrorism prosecutions in Canada.

Chair, I would move to—I apologize, I'm losing myself in my own notes. Further on to the notion of the terrorism financing. It says, at the time of the paper:

Only six of Canada’s 26 completed criminal cases to date involved entities listed by the government (that is, a paragraph (b) group). Canada’s single terrorism financing conviction involved a donation by the accused to the (listed) Tamil Tigers. The modest, 6-month sentence in this case may reflect the fact that the non-remorseful accused sent only $3000 to what he believed was a justified cause, but it also appears to qualify, if not question, the executive’s initial proscription decision.

The footnote adds:

One of us has previously suggested that the light sentence in this and similar financing cases in Australia “demonstrates how proscription of terrorist groups simplifies a complex situation where both governments and organizations such as the Tamil Tigers have abused human rights.”

I think the discussion around the situation in India, notably, has shown us how there can be issues on both sides of these debates. That was from Ken Roach's paper “The 9/11 Effect: Comparative Counter-Terrorism”, from 2011.

I appreciate that the committee has given me much indulgence. I felt the need to read some of that into the record again, knowing that as a political science major, two professors would probably not appreciate selective reading of a very long and complicated paper. I hope that committee members will take the time to read it. Hopefully, they've already had the time to read it. I believe the support for my amendments hinges on work that's been done in papers such as this.

Again, I'll conclude by saying I'm always open to studying ways to ensure better public safety. As we've seen, notably in the debate around returning ISIS fighters, everyone agrees that we want anyone who would commit heinous acts to be behind bars, but at the end of the day, we have to acknowledge that we have due process and we have the Charter of Rights and Freedoms. If we want to maximize our success, there are complicated questions around this, and this is one of them.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I just want to confirm with the officials.... I'm trying to understand this particular amendment. Does it include everyone under the new definition, or are there entities listed that aren't terrorist groups by this definition?

[Douglas Breithaupt]

It's a listed entity as defined in section 83.01, so it would include the entities on the Criminal Code terrorist listing. As some of the other proposed motions to amend have shown, the term “listed entity” appears in other sections within the Criminal Code and elsewhere. For example, under section 83.11 of the Criminal Code, certain entities, such as authorized foreign banks and credit unions, have to determine on a continuing basis whether they're in possession or control of property owned or controlled by or on behalf of a listed entity, and this helps to ensure that Canada is complying with its international obligations to freeze terrorist property. That facilitates that particular effort against terrorist financing.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes, and I understand that. I guess you've answered my question in a roundabout way, so that this listing of terrorist groups may not in fact be as encompassing as what is currently in the language.

[Douglas Breithaupt]

“Terrorist group” is a defined term in the Criminal Code as well, and part of it is.... It means an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or any listed entity, and includes an association of such entities.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

[The Chair, Liberal, John McKay]

Is there further debate?

(Amendment negatived [See Minutes of Proceedings])

(On clause 141)

Because NDP-85 is defeated, NDP-86 is defeated.

We are now on LIB-52.

Mr. Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

This amendment goes to a distinction between a decision not to delist an entity and a decision to do so in the positive sense, in other words to delist.

Currently under Bill C-59, in all cases involving a delisting application, the Minister of Public Safety is required to make a recommendation to the Governor in Council on whether or not the applicant should remain a listed entity, with the Governor in Council then making the final decision.

On a decision not to delist, since that entity has already been listed by the Governor in Council on the recommendation of the Minister of Public Safety, once the public safety minister confirms that the test for listing the entity continues to be met, it is proposed that the minister not be required to then seek further Governor in Council approval for the continued listing of that entity.

In other words, the proposed amendment would amend Bill C-59 by allowing the Minister of Public Safety to be able to make a decision not to delist a listed entity, without having to make a recommendation to the GIC.

[The Chair, Liberal, John McKay]

Is there any debate?

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

While I appreciate how this amendment plays with the language, I'm not noticing a significant change in what the legislation already says, unless I'm missing something.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

I'll call upon the officials to confirm that the legislation as it currently is phrased would require the Minister of Public Safety to seek Governor in Council approval for a continued decision not to delist an entity, or the continuation or the perpetuation of an entity on the list. It's similar in logic to the extension of an authorization, in the sense that the Governor in Council has already looked at this once, and the requirements continue to be met; therefore, the minister should not have to go back to the Governor in Council to seek continuation. Is that a fair understanding?