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SPEAKING NOTES/ ALLOCUTION PRONONCÉE PAR

ERIC RICE, Q.C.
President/Président
THE CANADIAN BAR ASSOCIATION
L'ASSOCIATION DU BARREAU CANADIEN

TO THE / DEVANT LE

SPECIAL SENATE COMMITTEE ON BILL C-36
COMITÉ SÉNATORIAL SPÉCIAL SUR LE PROJET DE LOI C-36

Ottawa, Ontario
December 6th, 2001
Check Against Delivery/Seul le texte prononcé fait foi

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Madame Chair, Honourable Senators,

My name is Eric Rice and I am President of the Canadian Bar Association. I am joined today by Simon Potter, who is our First Vice-President. We welcome the opportunity to address this Committee again on Bill C-36.

De nombreux événements sont survenus depuis ma dernière comparution devant votre comité le 24 octobre et depuis celle de Maître Potter devant le Comité de la Chambre des communes de la Justice le 31 octobre. Plusieurs modifications ont été apportées au projet de loi et nous sommes reconnaissants au gouvernement d'avoir pris ces mesures en vue de l'améliorer. Il est cependant impératif d'apporter des améliorations additionnelles dans diverses parties du projet de loi.

[Much has happened since I appeared before you last on October 24th and since Mr. Potter appeared before the House of Commons Justice Committee on October 31st. Several amendments have been made to the Bill, and we applaud the Government for taking those steps forward. It is very important, however, that a few more steps be taken. There are still parts of the Bill that need to be changed.]

When Bill C-36 was introduced, the CBA assembled a team of experts to review this legislation. They included senior lawyers in a wide variety of legal disciplines, including criminal justice, constitutional and human rights law, immigration law, charities law, international law, business law, to name a few.

This team consulted widely with other lawyers. The result is the bound submission that is before you. It was approved by our National Board of Directors, which includes representatives from all of our provincial and territorial branches across the country. You also have the letter we wrote to the Minister of Justice after she proposed amendments to the bill — it outlines our outstanding concerns.

Significantly, our briefs reflect a wide range of views within our organization. There were differences in points of view but no difference of opinion on the commitment to deal with the provisions of the Bill and to help the Government find the right balance between national security and the Rule of Law. Our briefs represent a consensus and considered view of lawyers from the whole spectrum of opinion on these issues. Our Board of Directors' approval was unanimous.

Other witnesses have spoken about the potential successes of this Bill. The legal community, too, hopes that this Bill will succeed, providing a more secure future for Canadians. It will mean accepting risks but, where we can minimize the risks to cherished values, we must. No one wants a regime where wrongful arrest and detention are unchecked, or where the right to remain silent or the right to privacy or freedom from discrimination is damaged beyond repair. The 20th Century left a legacy of many states where freedoms were removed temporarily at first and then lost permanently. It isn't enough to say that it couldn't happen here. We have to make sure that it won't happen.

In our brief, we have identified certain parts of the Bill that need to be changed. I will highlight two: the need for a true sunset clause and those provisions which undermine the operation of the justice system.

First, the sunset clause . . .

The sunset clause must apply to more than just investigative hearings and preventive arrests. Although these two provisions have received much public attention, many other portions of this Bill are also extraordinary in nature. For instance,

• the government's power to create a list of alleged terrorist entities, which is subject to very few procedural protections. The Bill criminalizes involvement with or support of entities on the list and allows their property to be seized and forfeited;


• the Minister of Defence's power to authorize interception of foreign communications, without requiring any judicial authorization;


• the legislative ham-stringing of judges by, among other things, mandatory cumulative sentencing for terrorist offences, which are still defined quite broadly;
  
• the Attorney General's power to block the operation of access to information and privacy legislation.

These are only some examples of the provisions that should be sunsetted.

Ce n'est pas que nous croyons que le terrorisme sera terminé d'ici trois ans. Le terrorisme existe depuis longtemps. En revanche, les pouvoirs extraordinaires proposés par le projet de loi sont totalement inédits et doivent le demeurer.

[It is not that we believe terrorism will be over in three years. Terrorism has been around for a long time. But what hasn't been around for a long time are the extraordinary powers being proposed in the Bill.]

These measures have been taken in response to an apprehended emergency. In the name of urgency, Canadians are being asked to accept swift passage of this Bill. We think many Canadians are willing to accept that, as long as they can be assured these powers will end.

The Government may well decide in three years that a continuance of these extraordinary powers is needed. The important thing is that the onus will then be upon the Government again to establish the case to the satisfaction of Parliament. The powers must not simply linger on. They will have to convince Canadians through the legislative process.

In three years, we may decide that some of these provisions aren't working. We may find out that some have not been used in the way they were intended. We may decide they have outlived their usefulness. We may determine that they are too much of a burden on our citizens as compared to the benefit they have created. We may find that they have disproportionately impacted certain groups. A sunset clause addressing all the extraordinary powers will ensure that they will continue only if, and how, Canadians want them to continue.

Now, as to the provisions of the Bill which undermine the operation of the justice system:
We have said that the Bill undermines the right to legal representation and a client's right to confidentiality. We are now supported very strongly on this point by the Federation of Law Societies who appeared before you earlier today. We are grateful for their support on this issue. It is a grave issue, a constitutional issue involving a basic right of people in Canada.

Je crois que nous serons tous d'accord pour reconnaître que quiconque fait l'objet d'une poursuite en justice --- que ce soit en vertu de cette loi ou d'une autre --- est attitré à bénéficier d'une représentation juridique. Le gouvernement ne devrait donc pas entraver l'exercice de ce droit fondamental et garanti par les articles 7 et 10 de la Charte des droits et libertés.
[I think we can all agree that everyone who is subject to legal proceedings -- whether under this legislation or any other -- is entitled to representation by a lawyer. The government should not put road blocks in the way of this fundamental principle, which is protected by sections 7 and 10 of our Charter of Rights and Freedoms.]

Under proposed section 83.18 of the Criminal Code, it would be a criminal offence to participate in or contribute to a terrorist activity. This includes providing skills or expertise for the benefit of terrorist groups or receiving any benefits from terrorist groups. It is obvious that this could apply to lawyers who provide representation to people in proceedings under the Act. It is equally obvious that it should not. A clear exception should be added.

Similarly, proposed section 83.08 prohibits a person from dealing in property controlled by a terrorist group. This section would seem to apply to lawyers' legitimate and necessary financial transactions with clients -- including the payment of fees or the posting of bail. The federal government has exempted such transactions from Proceeds of Crime (Money Laundering) Act. It should also be exempted here.

On the question of confidentiality, it is important to stress three things. First, the traditional protection of solicitor-client confidences is not for the benefit of lawyers. It is for the benefit of the client. Second, this right to solicitor client confidentiality does not provide a cloak for lawyers to commit crimes. There is no loophole here. Lawyers are as liable as everyone else to criminal charges if they engage in money laundering, and they won't be lawyers for very long if they do. Third, there is a growing amount of case law which suggests that solicitor client confidentiality is protected under the Constitution. You have already heard about the injunction recently granted in British Columbia, which exempts lawyers from having to disclose confidential information under the Proceeds of Crime (Money Laundering) Act, pending trial of the issue.

Le principe de la confidentialité des communications entre l'avocat et son client est un des fondements de notre système de justice. S'ils sont certains que les renseignements donnés à leur avocat demeureront confidentiels, alors les clients pourront recevoir les conseils juridiques vraiment adaptés à leur situation.

[Solicitor-client confidentiality is a foundation of our legal system. Clients can only receive adequate legal advice if they know the information that they communicate will remain confidential.]

Various provisions of the Bill offend this important principle. Proposed section 83.1 of the Criminal Code requires disclosure of information concerning terrorist property and transactions involving terrorist property. Proposed section 273.65 of the National Defence Act authorizes the interception of foreign communications, including solicitor-client communications. Although proposed section 83.28(8) protects disclosure of privileged information in an investigative hearing, privileged information is not the same thing as confidential information. These provision should be clarified to specifically exempt solicitor-client confidential information.

I repeat that we are not saying lawyers should be above the law. Lawyers who participate in terrorist activity must be subject to the same penalties as anyone else. What we are saying is that every person has a right to legal representation and has a right to confidentiality. Lawyers should not face the threat of criminal charges for choosing to protect their clients' confidences.

Madam Chair and Honourable Senators, it has taken centuries to build the guarantees and freedoms we sometimes take too much for granted. They are very easy to defend in normal times. They need defending during the difficult times. We think the Senate was right to call for a true sunset clause for Bill C-36. Please consider the amendments we have suggested in our written briefs.

I would be pleased to answer any of your questions, and so would Mr. Potter. He was our Executive liaison to the team of experts and was very much involved in the process of preparing our submission.

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