Could he explain how so many bills passed in the last little while have gone before the courts and been struck down? Is it only a recent practice that the Conservatives are letting justice department lawyers look at the legislation? Will the government please table before us any justice department opinion that is prepared to disagree with a large number of lawyers who have looked at this bill, me included, and looked at the Charter of Rights and Freedoms, and are finding the bill, on its face, non-compliant?

The fact that it is before us and the tautology that because it came through the Department of Justice it must be okay is absolutely proven false by the fact that so many bills are being struck down, bills that were passed in this place in a hurry, like Bill C-24.

Costas Menegakis: Mr. Speaker, although the premise of the member’s question is way off, her mathematics are off as well. She said “so many bills”.

I wonder if the member could look back to when we formed government in 2006, look at the large number of pieces of legislation that have gone through the House, and then look at the very few, not many, that have had an issue. We are happy to respect what the courts say.

The member is making it sound as if this is an overwhelmingly huge problem. I have every confidence in the Minister of Justice and in the legal professionals who have advised us on this bill prior to bringing it to the House. I am confident that it is charter compliant. I am sure we will see that in fairly short order.

I urge her and everybody else in the House to pass this legislation swiftly. It is good for Canada and it is good for Canadians. Over 83% of Canadians are supportive of the important measures in this legislation.

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Does hon. friend from Victoria not agree with me that it is entirely likely that once again the House is passing legislation that will find its way to the Supreme Court of Canada, where FATCA will be ruled to violate Canadian charter rights?

Murray Rankin: Mr. Speaker, I would like to salute and thank my neighbour and friend from Saanich—Gulf Islands for her intervention and her wisdom in pointing out the FATCA provisions in the bill. We already know those provisions will go to the Supreme Court of Canada. We already know the Conservatives have received legal advice and are moving in that direction. It was Peter Hogg who the government relied on for its ill-fated attempt in yet another omnibus budget bill to deal with Mr. Justice Nadon and that debacle. He was its expert, he prepared a written legal opinion to the effect that it was unconstitutional, so it will go to the Supreme Court of Canada.

We made many amendments that are before us tonight which we will ask the government to vote on. They would clarify that it need not occur. They would clarify that FATCA would not override other sections, such as the human rights legislation or, indeed, the Charter of Rights and Freedoms. At committee stage, those were voted down. They will be before us again at report stage.

There is no doubt that this is headed to the courts for yet another useless waste of taxpayer money as the Supreme Court will tell us once again that the government initiative is ill-considered.

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On a related but different point, I want to thank him for raising in question period yesterday the need to support our firefighters. Motion No. 388 went through, although we seem to have no action to bring it into place, and that relates to terrorist acts, as we noted in the Boston Marathon. Everyone was amazed to see the first responders run toward danger when everyone else was running in the other direction.

However, I stand with him in finding, despite my concerns about terrorism, that this current law, Bill S-7, goes too far, and that the existing tools and law in the Criminal Code are more than adequate. I stand with the British Columbia Civil Liberties Association, the Canadian Association of University Teachers, the Canadian Civil Liberties Association, the Canadian Council on American-Islamic Relations, the international civil liberties organizations, as well as with the concerns expressed at committee by the Canadian Bar Association, in believing that the bill potentially violates our Charter of Rights and Freedoms and will therefore be struck down later.

I wonder if he could comment on the futility of passing laws in this place when there are significant doubts that they are charter compliant.

Randall Garrison: Mr. Speaker, the member for Saanich—Gulf Islands and I stand in somewhat the same place on this issue. The NDP has had this question for a long time. When legislation is introduced, the Minister of Justice has a responsibility to certify that it would not violate the charter, but the minister has set a very low bar: we have heard reports that if there is even a 5% chance that the law will be upheld in the courts, the government is willing to go ahead and introduce that bill.

I also want to thank my colleague for raising the issue of first responders. The Conservatives say that we have the resources we need, that we have done the things we need to do. Firefighters would be one of our most important resources in any terrorist attack and they were one of the most important resources in Boston, so it shocks me that in this country we have failed to implement a compensation fund for the families of fallen firefighters. The only argument made by the government yesterday against this fund was that it would be simply too expensive. I was disappointed to hear that argument. It was quite a shocking statement, because the tragic loss of firefighters has a cost, and right now those costs are borne by their families.

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This debate obviously concerns my amendments. I want to ask the member whether he supports the idea that it is very important for this House of Commons and for all members to make this bill as strong as possible, to make it comply with the charter. Politicians and groups of expert lawyers currently feel that the bill is a little too weak because we have not added the amendments to obtain more compliance reports or to determine whether a police officer can use this section of the Code.

That is my question.

Hoang Mai: Mr. Speaker, I would like to thank the member for Saanich—Gulf Islands for her question.

In theory, yes, we agree that attention must be paid to the charter and that privacy must be protected. That is very important. Wiretapping must be used in emergencies and really on an exceptional basis.

My colleague raised certain points when we studied this bill in committee. First, we received assurances from the witnesses who were there. They represented all kinds of positions. They were not simply government people. We really got assurances in that respect. I know that my Liberal colleague also proposed an amendment regarding reports, but subsequently changed his mind. The witnesses told us that the provinces already had a certain duty to prepare reports in that respect.

The post An Act to Amend the Criminal Code (Bill C-55) appeared first on Elizabeth May.

As the House will know, this legislation was brought forward in place of or at least after Bill C-30 was withdrawn. It was the so-called protecting children from Internet predators act. I do understand the reasons for urgency.

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This legislation, Bill C-55, is in direct response to a decision of the Supreme Court of Canada in R v. Tse, in which the court found that the current emergency wiretap provisions failed the charter test. The court suspended its ruling for 12 months to allow the House to remedy those sections of the Criminal Code such that they would conform with the charter. The clock started ticking when the Supreme Court rendered its decision, which was April 13 last year. We have a small amount of time to correct those mistakes.

I want to start my discussion of the amendments I am putting forward by stressing that I also support Bill C-55. It is, overall, well crafted and meets the challenge of ensuring that this extraordinary power of the state to obtain emergency wiretaps without a warrant—and this is what we are talking about—which is quite an egregious invasion of the privacy of the individual citizen, is balanced and only justified in exigent circumstances when certain standards have been met. It is only charter compliant, according to the Supreme Court decision in R v. Tse, if there are adequate oversight mechanisms put in place.

My amendments go directly to the point that we do not want Bill C-55 to be struck down by a future court because we failed to put in place the adequate oversight provisions and because we failed to get the balance just right, based on the advice of the Supreme Court.

I am just going to take a moment to go back to the ways in which the Supreme Court of Canada’s decisions around these matters have evolved in very recent years. It was not long ago that our major authority, the precedent from the Supreme Court of Canada that governed in this area, was a 1990 case, R v. Duarte, in which Mr. Justice La Forest found that:

as a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under section 8 of the Charter.

It takes quite a bit of evolution within court decisions to ask how we justify sections 183 and 184 of the Criminal Code in allowing the state, without access to a warrant or even judicial review of any kind, to go forward and wiretap private communications.

That process is now settled in a new precedent of the Supreme Court of Canada in R v. Tse, in which the court ruled in the majority that yes, in these exigent circumstances, where, for instance, there is a kidnapping or another criminal event where a life is at stake and there legitimately is not time to get to a judge for a warrant, it is now going to be acceptable under the charter.

What is not acceptable under the charter is when these powers are not adequately supervised. I think that needs to be a foundational point that is stressed here. These are intrusions into the private lives of Canadians that in any other circumstance would be viewed as charter violations. This House must craft, very carefully, that rare exception when we are going to let the state intrude on our personal communications.

I am troubled, sometimes, when I hear the comment: “Why would we worry if people want to wiretap criminals? The only people who would be worried about that would be people who have something to hide”.

We need in this country to constantly remind ourselves why we prize the Charter of Rights and Freedoms, and before the Charter of Rights and Freedoms why western democracies, the British Empire, our common law, and centuries of practice and respect for the rule of law recognized that the state has no business knocking down a person’s door. It is literally pushing through doors and breaking into houses and invading our privacy, which in an electronic era includes wiretapping.

We have to remind ourselves why civil liberties matter. We have to remind ourselves of this fairly constantly, because in not just this instance but in other laws passed through this place, we are seeing an erosion of our respect for the idea of civil liberties through resort to such rhetoric as “Well, only criminals need to worry” and “We shouldn’t be so worried about criminals as we should be about victims.” A victim of an injustice of the state invading our civil liberties is no less a victim than the person mugged on the street. We need to pay attention to civil liberties. That is why I am putting forward my amendments.

The court ruled very clearly in R. v. Tse that the failure of the current Criminal Code provisions was a failure to have adequate accountability measures. The court did not set out what the accountability measures should look like with any degree of specificity, so Bill C-55 attempts to, and does, put forward accountability measures; however, will they pass the charter test in a future Supreme Court case? My submission to the House—and I urge other members to vote with me—is that we make the bill much safer and more secure against being struck down later by improving the accountability measures.

The amendments I put forward would ensure, for instance, that the intercepted communications would require an Attorney General report, which would include records of all those wiretaps for which no charges were ever laid and would require the police officer in question to memorialize the reasonable grounds he or she had at the time for seeking warrantless wiretap evidence. We would record and report as much information as possible to ensure that the oversight statutory process in Bill C-55 would meet any future charter challenge.

My amendments are based on recommendations primarily from three groups that testified before the Standing Committee on Justice and Human Rights: the Canadian Bar Association, the British Columbia Civil Liberties Association and the Criminal Lawyers’ Association. Those three bodies recommended, in the language I have used, the amendments I am putting forward today.

They strive to ensure that there be a requirement to publicly report the numbers of persons whose communications were intercepted but who were not subsequently charged. They include a requirement for the police officer’s justification for the interception to be recorded and memorialized and would also ensure that if subsequent judicial authorizations were obtained on the same grounds as for the interception under section 184.4 of the Criminal Code, evidence obtained by a further section 184.4 interception may be ruled inadmissible.

The other piece I want to mention briefly is something that was not part of the res judicata of R. v. Tse but that was certainly significant obiter dicta, and that was the court’s concern that the definition of “peace officer” was overly broad. I cite the decision of the court on this matter, and there was not a dissent. At paragraph 57 of R. v. Tse, the court noted it would agree that:

We, too, have reservations about the wide range of people who, by virtue of the broad definition of “peace officer”, can invoke extraordinary measures permitted under s. 184.4. That provision may be constitutionally vulnerable for that reason.

I am not saying that the Minister of Justice has not taken account of this obiter dicta. The revised Bill C-55 no longer uses the term “peace officer”. The revised Bill C-55, in clause 2, changes the term “peace officer”, which was overly broad and could include anything from mayors and reeves and so on, to “police officer”, but then in the definition adds an element of overly broad definition by saying:

“police officer” means any officer, constable or other person employed for the preservation and maintenance of the public peace

I remain concerned despite the quite interesting testimony, and I thank the justice critic for the official opposition, who pursued this point with the Minister of Justice. I am less sanguine about leaving in the term “or other person”, so one of my amendments would remove the term “or other person” to further clarify the act and ensure that it is not constitutionally vulnerable.

I will conclude by saying that my amendments are put forward in the interests of ensuring that Bill C-55 will survive any future charter challenge and I recommend them to my colleagues.

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“It is already unthinkable that the Harper Conservatives would consider putting the interests of the United States before those of the Canadian citizens whose lives have been turned upside-down as a result of the FATCA”, said MP Elizabeth May, “but it is worse still that they would do so in violation of the Canadian Constitution.”

Mr. Hogg’s letter is dated December 12, 2012 and was submitted as part of the call for public comments as part of the ongoing negotiations. “To the extent that any implementing legislation adopts provisions similar to those found in the Model IGA, in my opinion, the legislation would violate s. 15 of the Charter,” he writes. “The source of this problem is the fact that the Model IGA requires financial institutions to treat people differently based on such innate characteristics as place of birth or citizenship.”

The Model IGA that is being proposed would compel Canadian financial institutions to disclose the private financial information of their clients to the IRS. This would be, in Mr. Hogg’s opinion, in clear violation of Section 15(1) of the Charter, which prohibits discrimination on the grounds of “national or ethnic origin”.

“Professor Hogg is Canada’s foremost constitutional expert, so this letter should provide some cause for hope to the one million Canadians, including hundreds of my constituents in Saanich-Gulf Islands, who have been threatened by this financial witch-hunt,” said Elizabeth May. “Yet in a political environment where the Harper Conservatives are willing to push through legislation that is likely unconstitutional, as raised last week in the House of Commons, I will continue to be vigilant on behalf of my constituents and all other Canadians caught up in this sorry mess.”

Note: The Green Party of Canada’s backgrounder on FATCA

The post Implementation of FATCA Likely Unconstitutional, Says Leading Constitutional Expert appeared first on Elizabeth May.

Elizabeth May: Mr. Speaker, I completely support what we have just heard from the hon. member for Winnipeg Centre. What we have been forced to see is bill after bill, and those of us who have practised at all in the law who are watching recent court proceedings have a grand sense of misgiving that the legislation that has come before us has not been adequately scrutinized.

I am not going to put myself in a position that the hon. government House leader wants us to of making any personal aspersions toward any individual. However, I actually attempted to raise this as a point of order. I certainly appreciate that the hon. member for Winnipeg Centre made it a question of personal privilege. I also feel that my personal privileges have been violated by having legislation brought to this place that clearly has not taken into account the charter implications.

I raised this on March 7, 2012 on the subject of the omnibus crime bill, so-called Bill C-10, because we just had seen the Ontario Superior Court rule on the matter of R. v. Smikle, and it was quite clear that the legislation before us might be, in fact, non-compliant with the Charter of Rights and Freedoms. It is an offence to all of our roles, individually, severally and as a body, to have legislation brought before us forced through by majority vote, which is a disservice to the people of Canada and a disservice to our traditions of law and respect for the rule of law by having legislation here that has not been thoroughly reviewed to ensure its constitutionality.

I thank you, Mr. Speaker, for this opportunity to support the question of privilege that has been raised and to subscribe myself to it. My personal privileges have been violated.

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“This legal challenge argues that the Conservatives’ June, 2012, severe cuts to refugee health care, made without notice or consultation, are inconsistent with the Canadian Charter of Rights and Freedomsand Canada’s international obligations under the UN Refugee Convention,” said May.  “We agree that, because of the documented hardships the cuts have already caused, they are also a breach of Canadian tradition and values.”

The Interim Federal Health Program (IFHP), established in 1957 and run by Citizenship and Immigration Canada, covered basic health care for refugee claimants and refused claimants until they became eligible for provincial health care or were removed from the country.  With an Order-in-Council, Immigration Minister Jason Kenney has replaced it with a complex and confusing program denying basic and sometimes-life-saving medical care to thousands of vulnerable people.

“There are now refugee claimants who can’t be treated unless their condition poses a public health or security concern,” said Donald Galloway, Citizenship and Immigration Critic for the Green Party.  “Yet some of these claimants cannot be removed from Canada, due to a government-issued moratorium on removals to particularly dangerous countries like Afghanistan or Iraq.”

The Green Party believes this policy is not only cruel, but will cost Canada’s Medicare system more money when our already-stressed emergency rooms have to take care of people whose illnesses have been left undiagnosed and untreated for too long.

“The government is withholding diabetes medication and care for pregnant women yet claims that it is only trying to ensure that foreign nationals are not provided with medical care that Canadians have to pay for,” added Galloway.  “It is quite appropriate that Minister Kenney’s Order-in-Council be challenged before the Courts.”

The CDRC and CARL distributed a list – compiled by Canadian doctors – of refugee claimants or refused claimants who were denied medical care or medication.  Most patients are not identified to protect their privacy.

Backgrounder:  http://elizabethmaymp.cawp-content/uploads/ifhp-backgrounder-legal-summary.pdf

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As a New Year’s Resolution, I knew it was a long-shot—but so are many New Year’s Resolutions. So, like most of us this New Year, I will re-commit to some unfulfilled 2012 resolutions — including seeing Stephen Harper leave office (one way or another) within 2013.

Crystal-ball gazing is notoriously prone to failure, but let me make some likely predictions. Within the continuing attack in the House of Commons against the fabric of Canadian criminal law, we will see more bills that assault Charter rights through a ‘tough on crime’ agenda. The Conservatives are bound to return to the internet snooping bill, C-30, famously described by Vic Toews as representing a choice of standing with the Conservatives or standing on the side of child pornographers.

Up early in February will be C-43, titled the act for the ‘faster removal of foreign criminals act’ but which, actually, can limit access to Canada to people who are not criminals at all. The bill gives the Minister of Immigration the right to deny a claimant permanent residency in Canada for ‘public policy reasons,’ a term which is undefined.

We will see the last significant environmental law (at least among those that have an impact on land-use and conservation) being dismantled. The Species at Risk Act (SARA) was rumoured to have been planned to be in the fall omnibus bill, C-45. The Hill gossip is that the provinces were not willing to see the act being downloaded to the provinces as rapidly as was being proposed. Environment Minister Peter Kent has said to expect the overhaul of SARA as stand-alone legislation.

It won’t be too early to start seeing the impacts of the egregious changes from 2012. The new and pathetic excuse for an environmental assessment act is so badly drafted that even industry is bound to start complaining. And the destruction of the Fisheries Act in relation to protection of fish habitat could well be the subject of litigation, especially due to the impacts on First Nations rights.

Another potential area of litigation could be First Nations push back against the Canada-China Investment Treaty. I keep hoping that a case can be brought for injunctive relief to block ratification while there is still time. As I write this, the treaty is not yet ratified. The Prime Minister can legally ratify at any time he convenes a Cabinet meeting. We need to keep the pressure up, particularly on Conservative MPs, to urge them to pressure the Prime Minister to, at a minimum, reject the treaty with language that locks us in for 31 years. We should insist that, at least, the exit provisions match NAFTA, with a 6-month opt-out provision.

By December, the Joint Review Panel on the Enbridge Northern Gateway project, or as I like to call it, ‘The Great Pipeline of China’ will report. Thanks to changes in C-38, the National Energy Board is no longer the decision-maker. The NEB will make a recommendation based on the Joint Review Panel report. Then, Prime Minister Harper’s Cabinet will rule. Despite all the opposition, and the clear climb-down on rhetoric from the PM and his Cabinet members in the last year, it will be a surprise if the project is turned down. We will stop it from being built, somehow, but we cannot afford to assume the fight is already won.

Beyond the legislative agenda, we are likely to experience within Canada and globally, more extreme weather events due to human-induced climate change. I am convinced another year cannot go by without people around the world, urged on by the world’s scientists, making the links and demanding governments take action. We need to become more active, more assertive in making the case that the changes we are seeing now are dangerous, and that we are only seeing the tip of a very large (and melting) iceberg.

No doubt we will experience heartbreaks (I cannot speak of what happened to little children in Newtown, Connecticut). We can never anticipate exactly how the military industrial complex will make its greed and Machiavellian machinations felt in a troubled world. We will have moments that bring us great joy, worry about things that in the scheme of things do not matter much, and love and lose loves, as in every year. The world did not end in 2012 and perhaps human consciousness will evolve.

Perhaps, from our beautiful islands—big and small—off the west coast of British Columbia, just perhaps, our work for change will lead the way. All the best to us all in this new year.

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Security certificates violate virtually every precept of our laws and system of human rights. For the past ten years, Mr. Harkat has been under strict surveillance after being taken into custody on suspicion of being an al-Qaida sleeper agent.  (A charge he denies.)  While his case makes its way through the justice system, he is forced to wear a GPS ankle bracelet, cannot leave town without permission, is not allowed on the internet, and must check in with authorities on a regular basis.

The Supreme Court of Canada has agreed to hear a challenge of the security certificate system brought forward by Mr. Harkat.  Elizabeth spoke out in support of him at today’s press conference.

You can help put an end to security certificates!  Follow the link below, down and print the petition, and mail the petition back to Elizabeth, postage free.  She will present your petition to the House of Commons on your behalf.

http://elizabethmaymp.ca/get-involved/security-certificates/

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