C-10 Watch: The curious case of the government amendments

There's been no shortage of quiet head-scratching amongst Commons watchers over yesterday's failed attempt by Public Safety Minister Vic Toews to introduce a raft of terrorism-related report stage amendments to the omnicrime bill, only to see all five ruled out of order by House Speaker Andrew Scheer, who concluded that they should have been brought forward at committee.

What makes the government's eleventh hour effort to amend its own bill even more puzzling, however, is what the speaker didn't mention, perhaps out of politeness, but more likely because he simply didn't know: namely, the fact that similar amendments had, in fact, been brought forward at committee, by Liberal MP -- and former justice minister -- Irwin Cotler, whereupon the Conservative majority on the other side of the table voted down each and every one.

Let's start with Motion No. 4, the first of the ministerial motions put forward by Toews, and ruled out of order by the speaker:

Motion No. 4 -- November 28, 2011 -- The Minister of Public Safety -- That Bill C-10, in Clause 2, be amended  

(a) by replacing line 26 on page 3 with the following: 
"(a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that"

(b) by replacing line 29 on page 3 with the following:   
"(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other"

Here's what happened at committee when Cotler proposed an amendment that appears to have been designed to address the very same concern  -- which, it's worth noting, could easily have been reworded, via friendly amendment, to match the motion the minister would subsequently, unsuccessfully, propose at report stage:

That Bill C-10, in Clause 2, be amended by replacing line 26 on page 3 with the following:
"(a) a foreign state, listed entity or other person that"

 After debate, the question was put on the amendment of Irwin Cotler and it was negatived, by a show of hands: YEAS: 5; NAYS: 6.

Moving to the next speaker-rejected report stage amendment, here's Toews' proposed Motion No. 6, which would have amended the section of the bill that defines the meaning of "supports terrorism," and reads as follows:

That Bill C-10 be amended by adding after line 9 on page 5 the following new clause:  

"3.1 Section 2 of the Act is amended by adding the following in alphabetical order:

"terrorist activity" in respect of a foreign state has the same meaning as in subsection 83.01(1) of the Criminal Code, provided that a foreign state set out on the list referred to in subsection 6.1(2) does the act or omission on or after January 1, 1985."

Now, read this amendment proposed by Cotler at committee, which was voted down -- on recorded division, no less -- by the six Conservative MPs in attendance:

That Bill C-10, in Clause 4, be amended by replacing line 39 on page 4 to line 5 on page 5 with the following:

"2.1 (1) For the purposes of this Act, a foreign state engages in the support of terrorism if the foreign state knowingly or recklessly provides, directly or indirectly, material support to a listed entity as defined in subsection 83.01(1) of the Criminal Code, or to a terrorist group as defined in that subsection acting on behalf of, at the direction of or in association with a listed entity.

(2) In this section, "material support" means currency or monetary instruments, financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and all physical assets, but does not include medicine or religious materials."

Next, compare the wording of rejected Motion No. 10:

That Bill C-10, in Clause 5, be amended by adding after line 8 on page 7 the following: 

"(11) Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state."

... with yet another Cotler-proposed amendment given the thumbs down by the government side:

That Bill C-10, in Clause 5, be amended by adding after line 35 on page 6 the following:

"(11) If a court of competent jurisdiction has determined that a foreign state that is set out on the list referred to in subsection (2) has supported terrorism, that foreign state is not immune from the jurisdiction of a court in any proceedings against it that relate to terrorist activity by the state, as defined in subsection 83.01(1) of the Criminal Code, on or after January 1, 1985."

Finally, Motions No. 12 and 14:

That Bill C-10, in Clause 6, be amended by replacing line 15 on page 7 with the following:

"that foreign state for its support of terrorism or its terrorist activity."

That Bill C-10, in Clause 7, be amended 

(a) by replacing line 22 on page 7 with the following:  
"used by it to support terrorism or engage in terrorist activity"

(b) by replacing line 31 on page 7 with the following: 
"support of terrorism or its terrorist activity and to property other"

 ... would have been unnecessary had the government simply voted in favour of the following amendments, which were - once again - put forward by Cotler, and rejected by the government side. (In fact, during the first vote, one Conservative MP was apparently either not in his seat, or forgot to raise his hand, as the chair was obliged vote nay to break the resulting tie):

That Bill C-10, in Clause 7, be amended by replacing lines 2 to 5 on page 7 with the following:
"used for a commercial activity, terrorist activity or the support of terrorism;"

That Bill C-10, in Clause 7, be amended by replacing lines 13 to 16 on page 7 with the following:
"rendered in any proceedings that relate to terrorist activity or the support of terrorism."

What, if anything, can we learn from all this? Well, for one thing, perhaps even the public safety minister would grudgingly agree that every now and then, it's probably worth paying attention to clause-by-clause concerns raised by the opposition, especially if the MP raising those concerns is a former justice minister.