Public Safety Committee on April 25th, 2018

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

I appreciate that, Sven, but I think that's the wrong interpretation of Harkat. The Supreme Court of Canada found that these very changes were contrary to a charter guarantee. I will read from an interpretation of the decision of the Supreme Court of Canada in relation to these very changes. It said:

The preservation of Canada's national security interests is of critical importance. At the same time, the Charter's guarantee of a fair hearing and due process before an independent and impartial tribunal is a non-negotiable condition of a free and democratic society. The delicate balance struck by the courts to protect those rights prior to the Anti-terrorism Act of 2015 should be restored.

So the advice of the Supreme Court of Canada is in favour of my amendments, which I'm putting forward right now.

[The Chair, Liberal, John McKay]

Is there any further debate?

(Amendment negatived [See Minutes of Proceedings])

(Clause 127 agreed to on division)

(Clause 128 agreed to on division)

(On clause 129)

[The Chair, Liberal, John McKay]

Where are we with NDP-77? It's good to go.

We'll have Mr. Dubé, please.

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

Thank you very much, Chair.

I want to take this opportunity to thank advocates like, obviously, No Fly List Kids, who are parents of children who have found themselves on this list among others who have fought against this very broken system that is colloquially referred to as the no-fly list.

This amendment seeks to change the wording from “reasonable grounds to suspect” to “reasonable grounds to believe”, believing that the word “suspect” is a very low threshold, it has created a “better safe than sorry” mentality when it comes to listing folks, and obviously there are also the risks of profiling that exist with a list such as this.

By having reasonable grounds to believe, we believe we're creating a threshold that requires actual evidence to be in hand before a decision is made to put someone on this list.

Lastly, Chair, this was recommended by the BCCLA, as well as the CCLA.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

I'm not a lawyer. Could the officials weigh in on the difference between reasonable grounds to suspect and reasonable grounds to believe. I've met with the No Fly List Kids as well, and I want to make sure we get this right while also ensuring we have the names that should be on the list.

Could you clarify that for us?

[The Chair, Liberal, John McKay]

I'm assuming that's Mr. Slatkoff. Welcome to the committee, sir.

Can you respond to Ms. Damoff's inquiry?

[Ari Slatkoff, General Counsel, Department of Justice]

Yes. Thank you.

The reasonable grounds to suspect threshold is a lower threshold. It requires a lower degree of certainty than reasonable grounds to believe. However, it still must be supported by factual elements that can be proven in evidence.

The Supreme Court has said that a hunch or intuition gained by experience would not suffice to meet this threshold. It can't be speculative. It has to be grounded in fact. It is a commonly used threshold in various other pieces of legislation such as the CSIS Act and the Criminal Code.

[John Davies]

To add to that, to get on the list is reasonable grounds to suspect, but that's not the same threshold for denying travel. There's a two-part test. The decision must be considered specific, reasonable, and necessary to prevent an individual from threatening transportation security or travelling for purposes of terrorism.

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

I think the results that real people on this list have faced speak for themselves.

[The Chair, Liberal, John McKay]

Is there any further debate on amendment NDP-77?

(Amendment negatived [See Minutes of Proceedings])

Amendment NDP-78 is still in play.

Mr. Dubé.

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

Thank you very much, Chair.

This amendment follows recommendations by the International Civil Liberties Monitoring Group as well as the B.C. Civil Liberties Association, which require, as does amendment NDP-84, that the minister provide individuals with written notice immediately once they have been confirmed to be on the list, rather than having them find out when they are arriving to travel. This is something that would allow any kind of appeal process to take place at a more opportune moment and not wait until the person is unable to travel, especially if they are on the list mistakenly. In this way they can begin to undertake the process immediately.

[The Chair, Liberal, John McKay]

Thank you.

Before we ask for debate, as Mr. Dubé raised in his argument, amendment NDP-84 will go up or down as amendment NDP-78 goes up or down.

Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

For security reasons, the government doesn't notify people when they're put on a list, but from a more practical standpoint, if your name is William Fraser, even if the government did notify a particular person, there still could be 25 other William Frasers in Canada who wouldn't know until they got to the airport.

I understand the intent, but one of the issues now is that it's a name, not a person. Even notifying a person would not solve the issue of people showing up and finding out that their name is on a list.

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

I think the argument I'm hearing implies that the only people who are not deserving of being on the list are false positives. There are plenty of people who are actually being put on the list and who deserve to go through the appeal process and who perhaps aren't meant to be on that list. I think it's important to bear in mind that the assumption that we're not notifying those who are victims of false positives, while certainly an issue, I agree with my colleague, is separate from the issue we're trying to address here.

It's worth mentioning that with regard to no-fly lists, essentially you have Canada and the United States operating in this way. I also think, given the information sharing that we see, with low thresholds for being put on the list, with that type of mechanism, we're not talking about the kind of high-level situation that wouldn't allow someone to engage in an appeal process, which, by the way, is also quite broken, much in the same way the list is.

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

My question is to my colleague from the NDP. What if there's an example of someone who should have been listed and didn't reasonably know that they were already a security threat to Canadians? I don't know if that would exist. We've heard from innocent Canadians impacted by this issue, but we haven't heard any testimony from terrorists or from those who are a threat complaining about being on the no-fly list. Why are we seeking to help out those who are a threat to our country with this? The equivalent for me, with my background, is that if a police agency knows someone is suspicious, the person who is suspicious already knows they're suspicious, if that makes any sense.

This seems to be an extreme amendment for something that we really don't need. I'm having trouble understanding it.

[The Chair, Liberal, John McKay]

Mr. Dubé, do you wish to respond?

I see no further wish to debate.

(Amendment negatived [See Minutes of Proceedings])

Amendment NDP-78 is defeated; therefore, so is amendment NDP-84.

That brings us to clauses 129, 130, 131, 132, and 133. May I group those five?

[An hon. member]

Yes.

[The Chair, Liberal, John McKay]

(Clauses 129 to 133 inclusive agreed to on division)

(On clause 134)

We are on amendment NDP-79.

Mr. Dubé.

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

Thank you very much, Chair.

The current wording of the bill is as follows:

If the Minister does not make a decision in respect of the application within a period of 120 days after the day on which the application is received—or within a further period of 120 days, if the Minister does not have sufficient information to make a decision and he or she notifies the applicant of the extension within the first 120-day period— the Minister is deemed to have decided to remove the applicant’s name from the list.

We are talking about people contesting the fact of finding their names on the list. Clearly, given the objective of the list, 120 days is extremely long for people who certainly have travel plans. So our objective is to reduce the period to 30 days.

If the information obtained is enough for a person's name to be put on the list, I do not see why the minister could not deal with cases of that kind in 30 days. It's a reasonable deadline.

[The Chair, Liberal, John McKay]

Before I ask for debate, PV-37 is affected by the vote on NDP-79, so Ms. May, do you wish to speak to it?

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

If this amendment carries, then it would affect mine, but if it doesn't carry, it doesn't affect mine. Is that correct?

[The Chair, Liberal, John McKay]

That's true. If it's adopted, PV-37 can't be moved.

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

If you'd like me to speak to PV-37 now I will, which is to say that my amendment affects the period of days that are currently referenced in clause 134 in proposed Bill C-59 as 120 days. My amendment would return it to 90 days.

I think Mr. Dubé's is better, but I went with a compromise.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I think 120 days, as is proposed in Bill C-59, does in fact give a reasonable time frame to work with here as far as recourse is concerned.

What does that recourse process look like? It includes producing an unclassified summary to be provided to the individual, an opportunity for the individual to fully consider this information and respond, time for the minister to carefully consider all information produced by security agencies and provided by the individual before making a decision, for which 30 days is not enough, nor is 90 days enough for that. That's why I can't support Mr. Dubé's nor Ms. May's amendment.