Mr. Speaker, I want to address the filing of annual reports to parliament, particularly with respect to the preventive arrest and the investigative hearing sections.
When the bill was first presented it proposed only that the annual reports be prepared. However there was no obligation to table the annual reports in parliament. I was pleased to see that the minister responded to that concern. She is prepared not to only produce an annual report but also has agreed to file the report in parliament.
I am hoping that will in turn trigger an investigation by parliament and I, in turn, would hope that the justice committee would see fit to take it upon itself to review those reports and to ask some of the questions that necessarily need to be asked of those reports.
There are some obvious questions that members would like to ask. I hope the report is something more than so many arrests, so many investigative hearings, so many here and so many there and that there is a little more meat to the report than one would necessarily otherwise expect.
Some of the questions could be: What are suspicious grounds? What is the basis for making these kinds of preventive arrests? What was the length of detention? Were they individuals trying to enter or leave the country? What is the mix between citizens and non-citizens? What were the grounds for the detentions in the first place?
There are other obvious questions that will come to members' minds as they look at the reports and I hope we get responses that are consistent with the need for parliament to know.
I appreciate that one of the responses by ministers and others might well be that they cannot tell us anything because of national security. It is sort of like the James Bond scenario, “If I told you, I'd have to shoot you.”
In the questioning that comes up I hope we will have the opportunity to ask meaningful questions. I recommend to all ministers and members the book by the member for Scarborough--Rouge River on The Power of Parliamentary Houses to Send for Persons, Papers & Records: , and some other great long title.
There is actually no question that parliament cannot ask and there is no privilege that any person can claim in responding to those questions.
I do not think it is acceptable to simply dodge under the security umbrella and say that the question cannot be answered on the grounds of security. No member is interested in compromising investigations, security or sources but I respectfully suggest that parliament is entitled to know how these sections will play out.
I come from probably one of the most multi-ethnic, multi-religious, multi-racial constituencies in the country, and my constituents have spoken very clearly to me. These are groups from the Tamil, Muslim and Arab communities. Their fear is that they will become targets for police attention. They are concerned that the bill would have unintended consequences of isolating them from the larger fabric of Canadian society.
If the unintended consequence is isolation then the perverse consequence would be people who find themselves on the margins of society and feel at home only in their own communities. The net result would be a sort of self-perpetuation of isolation.
As one witness put it to the committee, punishing many to potentially catch a few is not necessarily a good direction for this great experiment we call Canada.
Canada's strength has been its ability to welcome a variety of people from a variety of countries with a variety of understandings of what is right and appropriate in a country. In the welcoming process, we in turn ask ourselves how we can accommodate the concerns of others but simultaneously we ask ourselves how they can accommodate to our country and its democratic traditions. Meaningful parliamentary oversight would go a long way toward addressing those concerns.
The minister, to her credit, responded with a one year review of the sections in question, a three year review of the overall bill, a five year sunsetting on the contentious sections, an implied understanding that the justice committee will remain seized with the bill through the one year review and the striking of a justice subcommittee on security issues and other measures under the able chairmanship of the member for Scarborough--Rouge River. Therefore there is a bit of a cascading effect that parliament does remain seized with the most contentious sections of the bill.
While members of the committee can take some comfort from the minister's response to the concerns, there is also a self-interest in the department and in the minister's office which should be self-evident. I believe the bill will be challenged in court. I say that with virtually absolute certainty. I do not argue the point that members of the department have looked at the charter concerns but it is almost inevitable that there will be a challenge, particularly on these contentious sections.
I believe that parliamentary oversight in the bill will make it easier when the crown inevitably is challenged. In my view it will be much easier to meet the Oakes test, which is the challenge the crown will have to meet in seeing whether this is in fact charter proof.
The first part of the test is the limitation of rights rationally connected to the objective. There is no doubt that this is a bill directed to the threat of terrorism. Therefore there is a rational connection between the rights to be limited and the objective of dealing with this existential threat.
The second test is the use of the least intrusive means. The government does not wish to intrude into the lives of Canadians. If there is a less intrusive means I would be interested in it, as would all members in the House, indeed as would the government. I do not think any democratically elected government imposes itself on its people with any great enthusiasm.
The third test is a proportionate balance between the effects and the limitation of rights. We do not have absolute rights in this country. There are times when we have to repeat that. I use as an example the criminal code. The criminal code is a circumscribing of people's rights to behave in fashions they wish to otherwise. The criminal code in fact circumscribes those rights.
Therefore, when a government proposes to limit the rights of its citizens, it has to show there is proportionate balance, that the government took into consideration the impact of the effects. Preventive arrests and investigative hearings, et cetera, in my respectful submission, are areas where the government has felt the most concern and has responded with as many protections as it can in the circumstances.
I believe that the cascading effect of the one year reports, the three year review and the five year sunset, and the parliamentary oversight concomitant with those sections, is a clear signal by parliament that we recognize this is a limitation of rights. We recognize that it is intrusive. We are not happy but we feel this has to occur. We have limited the application of the sections as much as possible.
As a former solicitor general said “This is an exceptional bill to deal with exceptional circumstances”. I think he is right. This is an exceptional bill to deal with exceptional circumstances. No one here is pleased to be dealing with the bill. We would rather be debating the budget or something else but September 11 occurred and changed all our lives.
Therefore, I respectfully submit, as I ended yesterday, that we are all voting for this with heavy hearts and, frankly, with no great enthusiasm.