CHAPTER II
Overview
International Arrangements
Committee Observations and
Recommendations
The National Counter-Terrorism
Plan (NCTP)
Committee Observations and Recommendations
Illegal Migration
Committee Observations and
Recommendations
Fundraising
Committee Observations and
Recommendations
Airport Security
Committee Observations
and Recommendations
RESPONSE TO RECOMMENDATIONS OF THE SENATE
SPECIAL COMMITTEES ON TERRORISM AND PUBLIC SAFETY
The Senate Special Committees on Terrorism and Public Safety that reported respectively in 1987 and 1989 made a total of 37 specific recommendations(29). It is not this Committee's intention to review the extent to which actions have been taken in response to each recommendation. Because of the major changes in the security environment over the past decade, such an exercise would not be particularly helpful. What this Committee did was group the recommendations on the basis of themes and analyse the responses, or the current situations, accordingly.
When the Senate Special Committees on Terrorism and Public Safety undertook their reviews, the federal government's security and intelligence sector was in the midst of a major transition. The Canadian Security Intelligence Service had just been set up as Canada's civilian security intelligence organization, the function having been transferred from the Royal Canadian Mounted Police as a consequence of the recommendations made by the McDonald Commission(30). Allied security intelligence organizations expressed some bewilderment at the transfer of responsibilities from the Royal Canadian Mounted Police to the Canadian Security Intelligence Service and were concerned about how the Canadian Security Intelligence Service would work. The Security Offences Act had come into force in 1984, two effects of which were to clarify responsibilities and to highlight a number of jurisdictional issues that had to be addressed.(31) There was a complex of international conventions and treaties, some recently in place and others under negotiation, relating to terrorism. In addition, of course, Canada had been shocked by several recent terrorist incidents that challenged Canadians' perception of their country as a "peaceable kingdom", largely immune from the scourge of terrorism. The previous Special Committees' review of those incidents brought to light a number of problems that caused those Committees to question whether Canada was, in fact, adequately prepared to deal with the rising tide of terrorism.
The security and intelligence community that appeared before the Senate Special Committees on Terrorism and Public Safety over a decade ago was, perhaps understandably, one that was trying to find its way. Many departments and agencies were dealing with new or significantly changed mandates. Some of those departments or agencies appeared unable or unlikely to meet the challenges from either a personnel or an organizational point-of-view. There also appeared to be a lack of central leadership or coordination. Officials who testified before the previous Senate Special Committees sometimes appeared defensive, even evasive.
This Committee remarked on a virtual sea of change in the security and intelligence community since 1989. The change encompasses a substantially higher degree of confidence, professionalism and evident competence among senior officials. The Committee also noticed a clearly stronger, better defined central leadership and coordination from the Privy Council Office as well as far more clarity in and understanding of individual organizational roles and jurisdictional responsibilities. This Committee wishes to commend officials and the government for the very considerable progress made in this regard.
To be effective, the fight against terrorism must be through a united international front,based on international law as established through international agreements. Canada has exercised and continues to exercise a prominent role in the international community's development of a legal framework to counter terrorism and to bring terrorists to justice.
Table 2
| Date | Convention |
| 1963 Tokyo | Convention on Offences and Certain Other Acts Committed on Board Aircraft |
| 1970 The Hague International Agreements Pertaining to Terrorism | Convention for the Suppression of the Unlawful Seizure of Aircraft |
| 1971 Montreal | Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation |
| 1988 Montreal | Protocol for the Suppression of Unlawful Acts of Violence at Airports Servicing International Civil Aviation |
| 1991 Montreal | Convention on the Marking of Plastic Explosives for the Purpose of Detection |
| 1988 International Maritime Organization |
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation |
| 1988 International Maritime Organization |
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on the Continental Shelf |
| 1973 United Nations |
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents |
| 1979 United Nations |
Convention Against the Taking of Hostages |
| 1979 United Nations |
Convention on the Physical Protection of Nuclear Materials |
| 1998 United Nations |
Convention for the Suppression of Terrorist Bombing Offences |
Table 2 lists the 11 international conventions signed by Canada relating to terrorism, of which Canada has ratified 10. The exception is the 1998 United Nations Convention for the Suppression of Terrorist Bombing Offences. In addition, negotiations on a United Nations Convention on the Suppression of Acts of Nuclear Terrorism are currently underway. Incidentally, these negotiations are being conducted under a Canadian chairman. Some of the major multilateral and bilateral initiatives taken since 1989 relating to counter-terrorism and involving Canada include:
• A G-8 conference on counter-terrorism research and development (December, 1997);
• Bilateral consultations on issues of specific interest to Canada were undertakenwith Cuba (1997), Israel (1997), India (1997,1998) and Spain (1998);
• Since 1988, the Canada-United States Bilateral Consultative Group ("BCG")(32) has met annually to review counter-terrorism issues and the extent and nature of cooperation between the two countries;
• The 1995 P8 Ottawa Ministerial Declaration on Counter-Terrorism;
• The 1996 Sharm el-Sheikh Summit;
• The 1996 Summit Eight Ministerial Meeting in Paris; and
• There has been extensive security and intelligence cooperation for decades among Canada, the United States, Great Britain, Australia and New Zealand. This cooperation has continued to expand over the last ten years due in part to the rapid changes in the technology, weapons and tactics potentially available to terrorists.
Committee Observations and Recommendations
For a nation of Canada's size, effecting international agreements and relationships are absolutely essential to counter terrorism. The Committee is pleased with Canada's continuing commitment in this regard and the substantial progress that continues to be made.
The previous Senate Special Committees on Terrorism and Public Safety noted that international negotiations concerning terrorism often became tangled in a debate around the definition of terrorism and philosophical or ideological debates over the root causes of terrorism. These debates too often deflected negotiations from their course and delayed progress. This Committee was pleased to note that those debates have been largely surmounted. The United Nations Declaration on Measures to Eliminate International Terrorism (1994) saw a profound shift from a debate over definitions and root causes towards a concerted effort to deal with terrorism. Most countries now acknowledge terrorism as a crime.
It has long been recognized that international agreements and international law to a significant degree are as effective as the very strongest nation allows them to be. For many years that nation has been the United States, counterbalanced somewhat by the Soviet Union until it collapsed. For example, the United States' bombings of alleged terrorist targets in Afghanistan and Sudan, which it justified based on Article 51 of the United Nations Charter, may also be in conflict with the International Convention for the Suppression of Terrorist Bombings. The Convention has been endorsed by the G-8 and 20 other nations and was signed by Canada on January 12, 1998, but has yet to be ratified. The United States' action is taken by some commentators as evidence that the United States will be the de facto standard for compliance with international law relating to terrorism .(33)
Canada, as the United States' main trading partner and next door neighbour, not only will be affected by the United States' support for international agreements on terrorism, but also because of the importance of our two countries' cooperation and support for each other in the fight against terrorism, Canada is uniquely positioned to influence United States' policy and actions in this regard. The Committee recommends that the Government of Canada continue to use all legitimate means to do so.
The National Counter-Terrorism Plan (NCTP)
Probably the most serious thematic concern raised by the previous Senate Special Committees on Terrorism and Public Safety related to "Who does what?" What organizations and people are responsible and what are they responsible for during an actual terrorist incident? Who is really(34) responsible and what are they really responsible for? In this regard, the previous Senate Special Committees on Terrorism and Public Safety noted a lack of clarity or consensus on roles and responsibilities within the federal government and between the federal government on one hand and the provincial and municipal authorities on the other. In the previous Senate Special Committees' judgement, this situation created an environment conducive to turf battles that seriously detracted from our ability to respond to a particular incident in the most effective way. Perhaps the best illustration of the previous Committees' concerns was the Bahamian High Commission incident where a dispute broke out between the Royal Canadian Mounted Police and the Ottawa Police Force as to who was in charge while the incident was underway.
Progress made since 1989 has been remarkable. Disagreements between federal authorities on one hand and provincial and municipal police forces on the other hand as to who is in charge during a terrorist incident appear to have been resolved. Furthermore, municipal and provincial police forces who appeared before the Committee or were interviewed by Committee staff expressed complete satisfaction with the level of cooperation and assistance from federal authorities, in particular from the Canadian Security Intelligence Service and the Royal Canadian Mounted Police.
In response to the 1987 Report of the first Senate Special Committee on Terrorism and Public Safety, the government developed the first National Counter-Terrorism Plan ("NCTP"). In 1995, the Ministry of the Solicitor General decided that revisions to the Plan were called for in order to accommodate changes in the threat environment, such as the shift of responsibility for armed response to a serious terrorist from the Royal Canadian Mounted Police to the Department of National Defence(35). That process resulted in an "Interim" National Counter-Terrorism Plan that was reviewed by this Committee.
The National Counter-Terrorism Plan is, in effect, the "manual" for responding to a terrorist incident, for both incident management and public communications purposes. As such, it is the critical reference for "Who does what?" during a terrorist incident. The National Counter-Terrorism Plan represents a positive advance. It clearly articulates what was not previously articulated and, by being articulated, reduces the potential for differing assumptions, misunderstandings or conflict.
The "Interim" National Counter-Terrorism Plan has been devised in consultation with provincial authorities and through them with the major municipal police forces. The consultation process has helped develop a Plan that is both workable in practice and one that is more likely to be understood and accepted by all levels of government.
As has been the case since 1985, under the Interim National Counter-Terrorism Plan the
federal Solicitor General is the lead Minister for terrorist incidents occurring within Canada. The Minister of Foreign Affairs is the lead Minister for terrorist events outside of Canada involving Canadians or Canadian interests.
Committee Observations and Recommendations
The National Counter-Terrorism Plan is another illustration of the progress made on the counter-terrorism front within the Government of Canada. The Committee's detailed comments on the Interim National Counter-Terrorism Plan have been conveyed privately to the Solicitor General. The Committee acknowledges that the provinces have been consulted during the revisions to the National Counter-Terrorism Plan and the provinces have endorsed it(36). Notwithstanding, the Committee believes it imperative for each province actually to sign the National Counter-Terrorism Plan. This would confirm it as a truly "national" counter-terrorism plan, rather than a federal plan prepared in consultation with the provinces. The federal Plan should also constitute the action plan for each province's response to a terrorist incident. In those cases where provincial counter-terrorism plans exist, it should be clear that the federal Plan prevails in the event of any conflict or inconsistency between the federal and provincial plans.
The Committee is aware that two provinces have developed or are developing their own counter-terrorism plans.(37) Federal government witnesses assured the Committee that such plans are entirely consistent with the National Counter-Terrorism Plan and had been devised to specify provincial and municipal roles within the National Counter-Terrorism Plan. Committee staff were briefed on Ontario's Counter-Terrorism Plan and found a few inconsistencies with the National Counter-Terrorism Plan that are troubling. One inconsistency is that Ontario's Plan defines "terrorist activity" as "extraordinary violence or threats of such violence", compared to acts or threats of "serious violence"(38) under the Canadian Security Intelligence Service Act, whose definition is the foundation for the National Counter-Terrorism Plan. Ontario's Plan also specifies as follows:
"The original responding police service shall exercise "lead responsibility" unless or until that "lead" is transferred by mutual agreement of the police services who have responded. In the event of a disagreement, the original responding police service shall immediately refer the issue to the Solicitor General for the Province of Ontario for a decision on how the Memorandum of Understanding is to be applied." (39)(Emphasis added)
When both the Royal Canadian Mounted Police and the Ontario Provincial Police or a municipal police force respond to a terrorist incident, this formulation would appear to conflict with the Royal Canadian Mounted Police's "primary responsibility" under section 6 of the Security Offences Act. Ontario and federal officials assured Committee staff, however, that in such instances, the provincial Solicitor General would be obligated to consult with the Solicitor General of Canada under the federal-provincial Memorandum of Understanding.
Of more concern to the Committee is the lengths to which the Ontario Plan goes to distinguish between "primary" and "exclusive" responsibility with respect to the Royal Canadian Mounted Police's authority under the Security Offences Act.(40) Ontario's position is that the Royal Canadian Mounted Police's primary responsibility relates to investigation of an offence and laying charges relating thereto under section 2 of the Security Offences Act and not necessarily to the response to and management of a terrorist (or other security offence) incident.
The Ontario government and the Ontario Provincial Police also expressed concerns that the National Counter-Terrorism Plan needs more work to integrate the consequence management of an incident with the strategic and tactical responses. For example, the strategic response should include an assessment of the likelihood of retaliation by the terrorist group in the planning for the tactical response. In addition, Ontario feels that more clarity is required in procedures such as those to request military support.
Several witnesses emphasized the importance of the National Counter-Terrorism Plan being able to address effectively, not simply the current terrorist threats and tactics, but also the new ones as they emerge. The Committee agrees. For example, the new emerging threat of cyber-terrorism is of a fundamentally different nature from conventional terrorist threats and requires that the National Counter-Terrorism Plan be not only aware of emerging technologies, but indeed be on the leading edge in terms of capability.
In the Committee's view, another gap that exists in the National Counter-Terrorism Plan pertains to the media. The previous Senate Special Committees on Terrorism and Public Safety identified terrorist incidents where, in the previous Committees' view, members of the media had acted irresponsibly and by doing so had endangered life. Media coverage has been characterized as the oxygen on which terrorists depend and is crucial for a terrorist in order to convey the "terror"of an incident. The Committee was pleased to hear that the Royal Canadian Mounted Police and Ministry of the Solicitor General have developed a number of strategies to deal more effectively with the media during an incident, while respecting the media's role and constitutional freedoms. In addition, since the last Senate Special Committee on Terrorism and Public Safety reported, a public communications sub-group has been set up under the Interdepartmental Policy Advisory Group (see Chapter IV).
The previous Senate Special Committees on Terrorism and Public Safety were advised that the government hoped to work with the media to develop mutually-accepted guidelines for media conduct during a terrorist incident. No such agreement has been reached; no guidelines exist. While recognizing the difficult issues relating to the development and enforcement of such guidelines, the Committee urges the media and the government not to abandon the effort. In any event, the absence of guidelines does not absolve the media from a duty to act reasonably and responsibly during a terrorist incident.
The Committee has been advised that the National Counter-Terrorism Plan will not be treated as a static document but will be regularly reviewed and updated as required. The Committee strongly supports this commitment. The Committee also strongly supports the commitment made by government witnesses to periodic testing of the National Counter-Terrorism Plan through joint training and exercises.
The previous Senate Special Committees on Terrorism and Public Safety noted a lack of acceptance or recognition of the Solicitor General's role as the lead Minister to counter terrorism in Canada. This was, in the Committees' view, exacerbated by the junior status of the Ministry of the Solicitor General and the need for more resources to give life to the Ministry's counter-terrorism mandate. The Committee has concluded that the Ministry of the Solicitor General's role appears to be better recognized and accepted across the Government of Canada.
While there is clearly enhanced recognition of the Solicitor General's overall responsibility for counter-terrorism contingency planning, for co-ordinating the response to a terrorist incident and for advising the Prime Minister and Cabinet in this regard, it is generally recognized – and indeed, this is recognized in the National Counter-Terrorism Plan – that in the event of a major terrorist incident the Prime Minister or Deputy Prime Minister may assume a lead role, supported by the Privy Council Office. Ongoing operational coordination is provided by the Interdepartmental Policy Advisory Group working in the Royal Canadian Mounted Police National Operations Centre. The Committee agrees. In our system of ministerial responsibility, this is entirely logical and appropriate.
Government witnesses before the Committee emphasized the importance of informal, personal relationships within the security and intelligence sector for purposes of day-to-day coordination. Such relationships are made more difficult where there are high turn-overs in senior personnel.
Each year there are about 110 million border crossings into Canada from the United States, about half of which involve returning Canadian citizens or permanent residents. Canada's immigration programs also generate up to 225,000 immigrants annually. In 1996, 125,000 applications for permanent residence in Canada were processed abroad, of which 77% were approved. Over 700,000 visitor visa applications are processed annually, of which about 90% are approved; and in 1998 (to September 30) the Canadian Refugee Determination Division received 17,020 applications for refugee status.(41)
The first Senate Special Committee on Terrorism and Public Safety reviewed Canada's immigration policies and procedures at length and concluded that they had been devised, or at least the fundamental principles and procedures set, before international terrorism became a major threat or concern to policy makers. As a consequence, the first Special Committee on Terrorism and Public Safety concluded that our immigration policies and procedures were ill-suited to the threat environment.
A review of developments with respect to immigration since 1989 is a good news/bad news scenario that can be summarized as follows: On the good news side, the Canadian Security Intelligence Service has developed "profiles" that enhance our ability to identify people applying to enter Canada who constitute security threats. Furthermore, the "silo" mentality noted by the previous Senate Special Committees on Terrorism and Public Safety, wherein Immigration was isolated from the larger security and intelligence community, has broken down. Government and independent witnesses spoke about increased cooperation between Citizenship and Immigration Canada on one hand, the Canadian Security Intelligence Service and the Royal Canadian Mounted Police on the other hand and a more effective integration of Citizenship and Immigration Canada into the security and intelligence community.
On the negative side, resource constraints may be adversely affecting our ability to weed out security threats. Witnesses before the Committee referred to a need for more technology to access data. Many consular offices have been closed or down-sized, resulting in a centralization of processing in major consular centres that are often geographically distant from the source of the people they are processing. They thus risk being out-of-touch with developments in those countries that, in turn, may raise security implications.
The first level of defence against illegal migration at Canadian ports of entry is the Primary Inspection Line ("PIL"). The PIL is staffed by Customs Officers who refer any suspicious entrants to Immigration officers. Some PIL officers complained to Committee staff about poor pay, lack of technical resources and pressure to process people quickly.
Another concern raised with the Committee is Canada's reliance on other countries' police or security intelligence agencies for vetting our immigration applicants. Some witnesses before the Committee and submissions to it suggest that Canada's requirements are not given priority.(42)
Although there have been instances of terrorists and other security threats gaining access to Canada as landed immigrants, of particular concern to the previous Senate Special Committees on Terrorism and Public Safety was Canada's refugee determination policies and procedures. It is a cornerstone of the Immigration Act that persons applying to live in Canada submit their applications outside Canada and obtain approval before entry (43). Accordingly, persons applying for landed immigrant status, work or student visas must present at a Canadian consular office abroad and go through a process that includes security checks before they may be admitted to Canada. The majority of refugee claimants, on the other hand, make their claim upon arrival in Canada and remain in Canada while their claim is being processed. Security and criminal records checks cannot, therefore, be conducted in advance of their arrival in Canada.
The situation has not improved significantly since the previous Senate Special Committees on Terrorism and Public Safety reported. Illegal migration into Canada, primarily through our refugee determination system, persists as a concern from two perspectives. First, it is a means by which terrorists may circumvent our vetting process abroad and enter Canada in search of a temporary or permanent haven. Once here, they may conduct fundraising or other activities in Canada or, in a very few cases, to organize acts of violence in Canada or against other countries. Second, large volumes of illegal migrants provide the stream in which a few terrorists could ultimately gain entry to the United States by circumventing Canadian and United States' border controls.
During the first nine months of 1998, nearly 75% of the refugee claimants arriving at Canadian airports were improperly documented. During the same period, 65% of all improperly documented arrivals at airports presented no documents at all.(44) Although they are finger-printed, witnesses expressed concern that the quality of prints is poor because of inadequate training and equipment and, in any event, fingerprints are warehoused unless a problem with a particular claimant arises. The vast majority of people who arrive in Canada and claim refugee status are not detained, but are allowed to circulate freely in Canadian society pending a decision on their status. The Immigration Act authorizes immigration officers to impose terms and conditions on refugee claimants, but they usually extend no further than providing an address in Canada and an obligation to report at a specified time and location. According to the Report of the Immigration Legislative Review:
"There is no effective system in place to verify compliance with these terms and conditions. Thousands of persons awaiting inquiry or removal, or who are undergoing the refugee determination process are physically in Canada, and thousands of others have voluntarily left the country, but the department is not aware of their whereabouts." (45)
At Table 3 are the numbers of refugee claims abandoned or withdrawn over the past 10 years. Since Canada has no exit controls, it is impossible to calculate how many of these claims represent people who remain in Canada illegally, how many have slipped into the United States, how many have returned to their country of origin, or how many have gone elsewhere. As of October 23, 1998 there were 6,119 warrants for removal issued against persons deemed to have abandoned or withdrawn their refugee claims. Of these, 640 warrants have been executed and the persons removed from Canada, 240 warrants have been cancelled and there has been no action on the remaining 5,272 warrants.(46)
Table 3
| Year | Abandoned | Withdrawn | Total |
| 1989 | 44 | 82 | 126 |
| 1990 | 193 | 170 | 363 |
| 1991 | 664 | 695 | 1359 |
| 1992 | 812 | 937 | 1749 |
| 1993 | 2303 | 2329 | 4632 |
| 1994 | 2032 | 1458 | 3490 |
| 1995 | 2142 | 1144 | 3266 |
| 1996 | 3377 | 1764 | 5141 |
| 1997 | 3363 | 2300 | 5663 |
| 1998 (to September) | 3064 | 1549 | 4613 |
Source: Citizenship and Immigration Canada.
In addition, there is a lengthy backlog for reviewing refugee claims that are not withdrawn or abandoned. When Citizenship and Immigration Canada officials appeared before the Committee, there was a backlog of 27,000 refugee claimants in the system. As of September 30, 1998, there were 23,924 claims pending before the Immigration and Refugee Board. The average time for a refugee claim to be processed from the initial claim to the final determination is 12 months.
A significant number of refugee claimants are brought into Canada by organized smuggling rings. Canadian and United State' authorities briefed Committee staff on how the rings operate and a summary description is set out in Table 4. The evidence before the Committee indicated that these rings generate substantial profit from smuggling and in some cases involve organized crime. There is concern that such rings could also be used to smuggle terrorists. The Committee was pleased to learn of the extensive efforts being made to halt such smuggling, including joint efforts of Canadian and United States' authorities, police organizations (e.g. the New York State Police, the Royal Canadian Mounted Police and the Ontario Provincial Police) and the respective immigration and customs authorities that are working together to address this serious problem.
Table 4
A Case Study in Smuggling Aliens Persons wishing to enter Canada who have failed to obtain entry visas, board commercial flights overseas. When they board, they have their personal identification and other documents in hand for inspection by government and airline personnel in the country of embarkation. At some time during the flight they dispose of their documentation or turn over all their documentation to the smuggler who has accompanied them on the plane. [The smuggler is usually a well-dressed "businessman" sitting in business class or first-class who often passes unchallenged through Canadian Customs and Immigration.] On arrival at a Canadian port of entry they claim refugee status and often, as is their right, refuse to divulge any personal information. Unless they fit a security profile they are released pending a refugee hearing. It is rarely possible to perform other than a cursory security or criminal records check at this point. Upon leaving the airport they are picked up by the smuggler and either go underground in Canada or are transported across the border into the United States. A favourite conduit to the United States, known as "Smugglers' Alley" to the authorities, is the Akwesasne Reserve near Cornwall, Ontario. Once in New York State, they are released. |
Committee Observations and Recommendations
The Committee underscores the value of immigration to Canada, both past, present and future and the important role immigrants and their descendants play in Canada's society and economy. The Committee also acknowledges that, contrary to public perception, crimes committed by visitors, refugee claimants, refugees and immigrants are proportionately less than crimes committed by the general Canadian population(47). The Committee's recommendations or observations are intended to enhance proper immigration and refugee policies.
The McDonald Commission, the House of Commons Special Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act and the Special Committee on Terrorism and Public Safety (1987) each noted that the definition of a threat to the security of Canada in section 2 of the Canadian Security Intelligence Service Act is materially different from the "security exclusion" provisions of the Immigration Act.(48) The Committee urges the government to bring those definitions into line as part of the current review of the Immigration Act.
Otherwise, deficiencies in Canada's immigration policies and procedures appear to be primarily a factor of resources, rather than gaps or inadequacies in the legal framework. In the Committee's view, it is imperative that Citizenship and Immigration Canada has the technical, personnel and other resources necessary to protect the security of Canada and Canadians. The Committee is concerned about the very substantial year-over-year increases in abandoned refugee claims, the likely number of those who have gone underground in Canada or the United States and our apparent inability to locate and execute removal orders against those who remain in Canada illegally. There must be a more effective tracing and enforcement system to keep track of refugee claimants and other non-status persons in Canada.
The persistent problems with our refugee determination system need to be addressed. There are several indications that serious problems persist: the number of claimants who "disappear" and are untraceable by Citizenship and Immigration Canada, the perception that our system is leaky and our enforcement system overwhelmed, the perception that it is in claimants' interests not to comply with our immigration rules, terms and conditions(49) and the ability of smugglers to subvert the system to their own commercial ends. The Committee recognizes however, that it is difficult to clamp down on illegal migration without harming the many bona fide refugees who seek a haven in Canada.
The Committee suggests, however, that Canada owes an obligation to its neighbours not to expose them to undue security risks through a porous refugee determination system. It may be that eventually Canada and the United States will move towards an integrated and common approach to immigration into North America, as appears to be happening incrementally among the nations of the European Union. This would, however, have far-reaching consequences, beyond issues of immigration and security and is beyond the scope of this Committee's mandate.
In the meantime, it is critical that Canada address the growing problem of the smuggling of aliens. Witnesses before the Committee confirm that the same gangs that smuggle aliens are also usually involved in the smuggling of firearms, tobacco, beverage alcohol, drugs and credit cards.
In fact, the smuggling infrastructure was originally created to smuggle tobacco. When tobacco smuggling became less lucrative due to the federal and provincial tax roll-backs in February, 1994, the smugglers simply shifted to other commodities. Groups engaged in smuggling are also often involved in other criminal activities such as money laundering. Accordingly, the smuggling of aliens is one part of a much wider public policy issue. It must be addressed in a horizontal way using the resources of all levels of government on both sides of the border. The Committee strongly recommends that Canada continue and expand the efforts now underway to take concerted action against this smuggling, using the combined resources of the Royal Canadian Mounted Police, the local and provincial police forces, Immigration and Customs authorities and, in particular, including the United States counterparts of these authorities.
A variety of groups with terrorist affiliations conduct fundraising activities in Canada. Intimidation and various other forms of coercion within the various emigré communities are often used as fundraising tactics.
It is very difficult to police terrorist fundraising. Intimidation and other illegal tactics are
rarely reported. Terrorist groups often use benevolent or philanthropic organizations as fronts for fundraising purposes. These benevolent or philanthropic groups may even be registered as charities or charitable foundations by Revenue Canada under the Income Tax Act. Such status enhances the credibility of such groups and, ironically, creates the situation where Canadian taxpayers subsidize their activities. People from whom funds are solicited usually have no idea that they will be put to other than legal purposes. Drawing a clear connection between funds raised in Canada and a terrorist action elsewhere is often impossible. Fundraising front groups usually take care to commit no crime in Canada. Under existing law, the only viable charge is conspiracy if a direct connection can be established between the funds raised in Canada by such groups and illegal activity elsewhere.
The United States has tried to get at terrorist fundraising through the Antiterrorism and Effective Death Penalty Act, 1996 (AEDPA). Section 302 of that Act authorizes the Secretary of State to designate as Foreign Terrorist Organizations ("FTO's") groups that meet specified criteria. The Antiterrorism and Effective Death Penalty Act makes it an offence to knowingly provide, or conspire to provide, material support or resources to an FTO. In addition, once designated as an FTO, any terrorist group's funds held by a financial institution subject to United States law must be blocked by that institution. The financial institution is required by the Antiterrorism and Effective Death Penalty Act to report the existence of such funds to the Secretary of State and follow the Secretary of State's directions as to their disposition.
It is too early to judge the effectiveness of the Antiterrorism and Effective Death Penalty Act in this regard. The Federal Bureau of Investigation allows investigations to establish relationships between legal front groups and terrorist groups and to trace funds which are complex, time-consuming and require substantial personnel and other resources.(50)
Committee Observations and Recommendations
Addressing the problem of fundraising by groups with terrorist affiliations presents a public policy conundrum to which the Committee has no novel solution.
The problem of such groups having charitable registration can, however, be more effectively addressed. The Committee recommends that consideration be given to amending the Income Tax Act to allow Revenue Canada to deny charitable registration to any group on the basis of a certificate from the Canadian Security Intelligence Service. The certificate would be issued by the Canadian Security Intelligence Service if the group constitutes a threat to the security of Canada, as defined in the Canadian Security Intelligence Service Act. Care would have to be taken in drafting the provisions to ensure that the Canadian Security Intelligence Service's decision is made according to a defined procedure, adequately reviewable by the Security Intelligence Review Committee and the Courts on application by the group and in accordance with the Charter of Rights and Freedoms. Care should also be taken to avoid a situation where the certificate becomes a bargaining chip in obtaining cooperation from such groups.
Major changes have occurred that impact on airport security since the last Senate Special Committee on Terrorism and Public Safety reported in 1989.
In the first place, the majority of Canada's airports have now been privatized and are now owned and operated by local airport authorities. In the second place, responsibility for protective and security operations at airports has been transferred from the Royal Canadian Mounted Police to local police forces. In Vancouver, the Royal Canadian Mounted Police is the police force of local jurisdiction and has been contracted by the Vancouver Airport Authority to provide policing and security services.
When an airport is privatized(51) federal legislation requires the airport authority to assume responsibility for airport security, including the provision of policing and security functions, but the Minister of Transport regulates areas in which airport security personnel must be trained.
As before, personnel who screen passengers in the pre-boarding phase are contracted by the air carriers and trained in accordance with Ministry of Transport standards. Local police forces also enter into a contract with the airport authority to provide airport protection and security. In addition, a Memorandum of Understanding ("MOU") is entered into by the Royal Canadian Mounted Police and the local police force that specifies respective roles and responsibilities, in particular with respect to incidents falling under the Security Offences Act. In essence, the Memorandum of Understanding prescribes that matters that fall within the jurisdiction of the Security Offences Act are the responsibility of the Royal Canadian Mounted Police. Matters of a criminal nature that are not under the Security Offences Act fall under the jurisdiction of the local police force.
Although both the Royal Canadian Mounted Police and the local police force would likely be involved in managing either type of incident, in the case of a terrorist incident, the Royal Canadian Mounted Police would assume lead responsibility and the National Counter-Terrorism Plan would come into play. The Royal Canadian Mounted Police has authorized the establishment of a National Security Investigations Sections at 10 designated international airports. All but two are now operative.
Committee Observations and Recommendations
The previous Senate Special Committees on Terrorism and Public Safety identified "turf battles" between the Royal Canadian Mounted Police and the local police forces as a major issue affecting airport security and affecting Canada's ability to respond to a terrorist incident at an airport. Having local police forces responsible for airport protection and security is entirely consistent with the previous Committees' recommendations and is endorsed by this Committee. The respective roles and responsibilities of the Royal Canadian Mounted Police and local police forces have been clarified and appear to be accepted by all parties. This constitutes a major and positive step.
The Committee hopes that the Royal Canadian Mounted Police retains some visibility at international airports in Canada. The Royal Canadian Mounted Police uniform is a well-known and respected identifier for the travelling public and perhaps a deterrent to terrorists and criminal elements.
A fundamental question persists: Does the demarcation in responsibility between the Royal Canadian Mounted Police and the local police force make practical sense? Is that demarcation likely to cause confusion during an incident that could interfere with an effective response and interfere with effective incident management?
This issue was crystallized for the Committee in the response by officials to a hypothetical "scenario" involving the Royal Canadian Mounted Police and Peel Regional Police at Pearson International Airport.
"…Peel Regional is the lead agency in the event that terrorists hijack an aircraft and the Royal Canadian Mounted Police is the lead agency in the event that "politically motiviated" (sic) terrorists hijack the same aircraft…"
First of all, "terrorism" is usually taken to be covered under subsection 2(c) of the definition of threats to the security of Canada under the Canadian Security Intelligence Service Act. Subsection 2(d) refers to "activities...directed towards or in support of serious violence...for the purpose of achieving a political objective…" By current definition, therefore, terrorism is politically motivated; there is no other kind. More important, however, is how things would work in practice. How does one know if a hijacking is criminal (and thus is the responsibility of the local police force) or terrorist (and thus the responsibility of the Royal Canadian Mounted Police)? Will responsibility shift and will the shift be performed smoothly?
In the absence of examples of the system breaking down, the Committee is prepared to accept that it will work. The key, as far as the Committee is concerned, is joint-training and exercises conducted regularly between the Royal Canadian Mounted Police and the local police forces to make sure the system works flawlessly during an actual incident.
There has been no terrorist attack involving a Canadian airport or a Canadian aircraft since the last Senate Special Committee on Terrorism and Public Safety reported. Notwithstanding, in March, 1998 a mentally unbalanced person managed to gain access to the cockpit of a plane sitting at a passenger bridge at Pearson International Airport. When challenged by security screening guards, the individual sprinted to the nearest open passenger bridge where a plane was ready for boarding. The incident was handled quickly without injury to anyone else and without damage to property.
The incident does raise concern about the effectiveness of that airport's security, and should not have happened. It calls into question the effectiveness of baggage and personal checks by private security screening guards if the guards are not able to stop an obvious threat when it happens.
The Committee recognizes that increased security often slows passenger flows and increases inconvenience. The Committee reluctantly accepts representations by Transport officials that it would not be cost-effective to institute further security procedures or equipment at airports such as doors that automatically close in response to an alarm.