Debates of the Senate (Hansard)

3rd Session, 37th Parliament,
Volume 141, Issue 31

Wednesday, April 21, 2004
The Honourable Lucie Pépin Speaker pro tempore

Criminal Code

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Harb, seconded by the Honourable Senator Adams, for the third reading of Bill C-14, to amend the Criminal Code and other Acts.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak to Bill C-14, to amend the Criminal Code and other acts, which will make a number of technical and some more substantive changes to the Criminal Code and several other acts.

The nature of this bill’s provisions range from uncontroversial amendments to absolutely necessary ones, such as the new sentencing rules that will be introduced respecting the use of deadly traps, as Senator Nolin has explained, to protect places that are utilized to commit other offences, such as growing marijuana.

However, certain amendments proposed in this bill have a broader implication than might initially be apparent. I will focus on some of these implications so that all honourable senators will be aware of them. I make it clear that it is not my intention to speak against any of these amendments, but only to point out how they might fit into the broader picture.

While this bill was being reviewed by the Standing Senate Committee on Legal and Constitutional affairs, we had the opportunity to hear from the Honourable Irwin Cotler, Minister of Justice and Attorney General of Canada. During those hearings, the minister was questioned about the changes that Bill C-14 will make to the Canada Evidence Act.

Specifically, Bill C-14 will repeal section 37.21 of the Canada Evidence Act, which honourable senators will recall was first introduced in this place in October of 2001 as part of what was then known as Bill C-36, the Anti-terrorism Act. It was part of a section of that law that dealt with the power of ministers of the Crown or an official to object to the disclosure of information in courts that had the power to compel information on the grounds of a specified public interest. The provision in question, section 37.21, made it mandatory for a judge to conduct hearings to determine if such an objection was warranted, or the appeal of such a decision, in private. The amendment proposed in Bill C-14 will remove this requirement, putting discretion as to whether or not secret hearings are warranted back in the hands of the judges.

Honourable senators, while this may not seem to be the most ground-shaking amendment, we can see how it is part of a broader picture. This amendment was originally introduced as part of the anti-terrorist strategy, and it shows how, in our desire to ensure security and secrecy when dealing with issues of national security, we have at times gone to lengths beyond what is necessary.

During our committee hearings, the Minister of Justice had the following to say about this amendment:

This is basically a corrective measure with regard to something that we inadvertently overreached in the enactment of Bill C-36, by way of almost anticipating the review that is taking place, both with regard to section 4 of the Security of Information Act, formerly the Official Secrets Act, and the overall review in the fall. This is kind of a corrective along the way.

Honourable senators, this not only shows the importance of the three-year review of the Anti-terrorism Act, but it also shows us that this review has, in effect, already begun.

As the practical implications of this law become clearer, we realize that there are some areas in which we have struck an inappropriate balance. In this case, we had infringed on the discretion of judges. While security is, of course, a serious concern, the greater concern is that we may have also infringed on the rights and liberties of Canadians in general, and specifically that we may have been targeting minority groups.

Honourable senators, I have told you before that I have witnessed the chilling effect that powers granted in the Anti- terrorism Act have had in communities across Canada. The amendment contained in clause 18 of Bill C-14 only further demonstrates that the time has come to review this law.

Even more, it demonstrates that we should not be too quick to take new action before the review takes place. If this review is to be an instrumental tool in reviewing Canada’s anti-terrorism strategy to date, surely we can wait until it is completed and we have a more complete picture of the risks, both to security and to civil liberties, before we proceed in adding more provisions that run the risk of tipping the delicate balance between the two.