Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 1 - Evidence - Meeting of February 14, 2004 (morning meeting)
OTTAWA, Monday, February 14, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:30 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).
Senator Joyce Fairbairn (Chairman) in the Chair.
[English]
The Chairman: This is the first session with witnesses of the Special Senate Committee on the Anti-terrorism Act. For our viewers I will briefly explain the purpose of our work. In October 2001, as a direct response to the terrorist attacks in New York City, Washington, D.C. and Virginia, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act.
Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation, and we agreed. The deadline for the passage of that bill was mid-December of 2001. However, concerns were expressed that it was difficult to thoroughly assess the potential of this legislation in such a short period of time and, for that reason, it was agreed that Parliament would be asked three years later to examine the provisions of the Act and its impact on Canadians with the benefit of hindsight and in a less emotionally charged situation with the public. The establishment of this special committee begins the Senate's effort to fulfill that obligation.
When we have completed this study, we will make a report to the Senate that will outline any issue that we believe should be addressed and allow the results of our work to be available to the government and to the Canadian public. The House of Commons is undergoing a similar process.
Today, we are joined by the Honourable Anne McLellan, Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness. It is important that Minister McLellan be our first witness as she introduced Bill C-36 when she was Minister of Justice in 2001. She will be with us for the next hour and a half. Her officials will remain thereafter to continue our discussion into the afternoon.
I ask that questions and answers be as concise as possible.
Minister McLellan, the floor is yours.
The Honourable Anne McLellan, P.C., M.P., Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness: Good morning, honourable senators. As the minister who introduced this legislation, I am pleased to speak to the role that it is playing and the difference that it is making. I appreciate the important contributions senators made at the time of its introduction, and I welcome your input and insights today and in the weeks ahead.
I sincerely want to thank the Senate for the extraordinary work you did in the weeks and months following September 11, 2001. We all remember that as a time of intense work on the part of the Senate and the House of Commons here in Canada as well as by organizations around the globe, such as the United Nations and other key international organizations. I sincerely want to thank the Senate again for your outstanding work and the openness and thoughtfulness with which you approached what was obviously an extremely difficult task. I welcome this opportunity to review our work, to benefit from the experience we have gained and to determine whether adjustments are necessary, either because of changing circumstances or emerging challenges.
This is important and complex legislation. It deserves a comprehensive review. I believe that the best way to achieve that is by focusing on the legislation itself rather than engaging in broader discussions about matters beyond its purview and intent.
There are appropriate times and venues to have those wider debates, but I hope that we would focus, at least initially, on the provisions of the Anti-terrorism Act so that it receives the thorough airing it deserves, and which Canadians obviously expect.
[Translation]
In carrying out that review, we need to remember the events that lead to this legislation and to be reminded of the threat which appeared at the time and has been looming upon us relentlessly since then.
[English]
To be sure, Canada was no stranger to the issue of terrorism before September 11, 2001. We had experienced terrorism first hand. The Air India bombing in 1983 was the single most destructive act of terrorism the world had ever seen. It was very much a Canadian tragedy. Following the apprehension of Ahmad Rassam at the U.S. border in December 1999, and through his trial and conviction in April 2001, we learned still more about terrorist planning here in Canada.
For many years before September 11, 2001, we had been at the forefront of work at the United Nations and elsewhere, signing 12 international instruments dealing with various aspects of terrorist activity.
The adoption of the Anti-terrorism Act enabled us to fulfill many obligations we had made under earlier international instruments, including the UN Convention for the Suppression of Terrorist Bombings and the UN Convention for the Suppression of the Financing of Terrorism. The government signed these two conventions in 1998 and 2000 respectively, but in 2001 we had yet to implement them into Canadian law.
Key provisions in the Anti-terrorism Act did not simply arise because of the tragic events of September 11, 2001. The Department of Justice had been developing measures required by those conventions and drawing on respected international standards for many months prior to the events of that day. Let me reinforce this: As Minister of Justice at the time and before, we had worked, in some cases, for up to five years on aspects of the implementation of various of the UN conventions. We were working with our international counterparts around the world to determine, wherever possible, international standards that we could all adopt as a collective community committed in its fight against terrorism. There is no question, however, that September 11, 2001, added new impetus and urgency to our efforts.
In its condemnation of the attacks, the UN Security Council adopted resolution 1373, which, among many things, called upon states to freeze terrorist assets and report within 90 days on the steps being taken to implement the resolution. In fact, the resolution goes well beyond that, and I am sure that you have looked at this resolution. It is an all-embracing resolution which called upon the civilized world to take up action against terrorist activity after September 11.
Following the events of September 11, all of us grasped in a profound way what many perhaps had only understood in the abstract — that terror knows no bounds. It has become an unwelcome addition to our landscape, a challenge we did not invite but could not ignore. A response was required on the part of the global community. Part of Canada's response was the Anti-terrorism Act.
This law recognized that there is no more fundamental or important role for government than ensuring the security of its citizens. Safety and security are the foundations for every other right of citizenship and the essential conditions for every other freedom. The Act confronts the issue that once a terrorist event takes place, it is too late. I think many of you in this room heard me say, and I believe it more profoundly today, that if the terrorists are on the planes, it is too late and we have failed. The Act creates offences that criminalize activities that take place before a terrorist event can occur, such as knowingly facilitating a terrorist activity. That is why the Act is sometimes described as an act of prevention. I believe my colleague the Minister of Justice, Mr. Irwin Cotler, will spend time talking to you about the importance of the preventative aspects of this anti-terrorism legislation.
There is nothing theoretical or abstract about security. It is reflected in communities that provide the safety and stability upon which Canadians build their lives. It is about creating the conditions in which people can invest with confidence, and work without fear. It is about the quality of our lives as Canadians and about our responsibilities as citizens of the world. It is about meeting the international standards that our counterparts expect of us to facilitate the trust, trade and access across borders and between countries that we all too often take for granted. Meeting this global responsibility is a key component of what the act is about.
Technology has given terrorists the tools for unparalleled coordination and global reach. The power of technology to connect and combine forces across continents has created a threat environment unlike anything we have experienced before. Because terrorists see the world as their field of operation, so must we. Security requires us to unite with those beyond our borders. This legislation does just that. It is part of a wider international effort. Enhancing our security measures not only enhances Canada's security but also strengthens the worldwide response against terror. If we do not employ appropriate measures, we will fail the international community and make Canada a more attractive place for those who seek a base for terrorism.
Let me turn briefly to the law itself. As honourable senators will know, this law was not without debate — intense debate — as it should have been. When it was introduced, it sparked lively discussion. It was the subject of a full Parliamentary review. While the legislation was examined on an expedited basis, it was the subject of intensive and focussed examination by parliamentarians. Over 100 witnesses appeared before the Commons committee over three weeks, while the Senate held a pre-study, hearing 76 witnesses, and allowing the bill to proceed expeditiously. Most importantly, amendments were proposed during that process and were adopted.
Any law that attempts to balance the rights of citizens and the demands of national security should be undertaken with care and under full public scrutiny. I am proud of the way this legislation evolved. I am proud of the values that shaped it, the amendments that improved it and the public and parliamentary debate that informed it. I believe the result was a law that strikes the right balance between the need to protect the security of Canadians and the importance of protecting the rights of Canadians. Its focus is on terrorists, their acts, their aims and their support networks, and it reflects our highest ideals as a nation. It speaks to what we believe about human freedom and individual liberty.
In passing legislation to fight terrorism, it was important to demonstrate that a free society could act in a way that was consistent with its values. The act, I believe, does all of this. It respects such important Canadian values as fairness, due process and judicial review. It is consistent with the Canadian Charter of Rights and Freedoms. It is, in short, a made-in-Canada solution.
Among the key attributes are important safeguards and accountability mechanisms within the context of the act and review mechanisms for the various agencies it covers. These include oversight and review mechanisms already in place, notably the Commission for Public Complaints against the RCMP; the Security Intelligence Review Committee, SIRC; the Communications Security Establishment Commissioner; and the Office of the Privacy Commissioner of Canada.
Going further, the fact that the law also contains requirements for annual reports, along with the statutory review we are now undertaking, points to the desire to prevent abuse, and to be open, transparent and accountable to Canadians. For example, with respect to the arrest-without-warrant provision, also known as preventive arrest, I am required, as minister, to prepare and submit to Parliament an annual report pertaining to its use. Safeguards are also required in each case where this power might be used, such as judicial supervision and the consent of the Attorney General. Amendments to the Criminal Code also require the minister responsible for policing in every province to make available to the public an annual report pertaining to the use of the arrest-without-warrant power, the period of detention and the number of cases where a person was arrested without warrant and subsequently released.
Let me turn now to how the law has worked in practice. Although three years is a very short time to evaluate comprehensive legislation that addresses complex issues, I believe there are lessons already learned, and successes already achieved.
First, we should note how terrorism is fuelled by dollars and cents. Without money, terrorists cannot buy weapons, train personnel or establish cells in foreign lands.
One of the important effects of the act has been to expand the mandate of the Financial Transactions Report Analysis Centre of Canada, FINTRAC, to include detecting, preventing and deterring the financing of terrorist activities. Under the act's provisions, FINTRAC is now able to share certain information with its international counterparts for the purposes of investigating and prosecuting a terrorism financing offence. These provisions also enable FINTRAC to provide law enforcement authorities and the Canadian Security Intelligence Service, CSIS, with information about terrorist financing.
Moreover, the act enabled Canada to meet its obligations to the Financial Action Task Force, an intergovernmental body aimed at promoting international policies to combat money laundering and terrorist financing. The act also helps to protect the integrity of Canada's charities by ensuring that organizations that support terrorist activities do not benefit from registered charitable status.
The act has created a public way of identifying a group or individual associated with terrorism. Through the process of listing these entities or individuals, Canada and Canadians will know exactly who they are dealing with. We have listed over 30 entities to date. The process incorporates a rigorous test prior to listing. It also includes provisions for removal from the list, judicial review and a requirement that the list be reviewed every two years.
A review of the list was completed in November 2004, whereupon the decision was made to maintain all 35 entities on the current list. Listing also imposes certain reporting requirements on banks, brokerage houses and others in order to deprive terrorist organizations of access to assets they hold with these institutions.
Perhaps just as important as what is happening under the law is what is not happening. The investigative hearing provision has been used only once, in the context of our greatest terrorist tragedy in this country, Air India. As you know, the Supreme Court in that instance upheld the constitutionality of the investigative hearing.
Meanwhile, there has been only one arrest on terrorism charges, and there have been no arrests without warrant. Discretion and the best practices of risk management are being brought to bear in decisions around the application of the act.
Some might say that this record proves that the law was not needed. I argue that it demonstrates the law is being carefully and responsibly applied. These developments allow us to put into perspective the fears of some that the act would threaten particular groups or the rights of Canadians. Respect for the rule of law is an overarching principle in our democratic society; and Canada's criminal justice system has demonstrated that it will only employ extraordinary powers in extraordinary circumstances.
What is more, if our laws are to serve as instruments of deterrence and prevention, it would be totally inappropriate to judge their worth by the frequency of their use. Prevention and deterrence are key, as we learned in 2001. As I said in debate at that time and will say again: If the hijackers are on the planes, it is too late; we have failed. We must be clear with those who would do harm and prevent them from making Canada their base.
What lessons have we learned and what principles should we apply going forward? I believe we struck the right balance with this law, but I recognize that some are not so comfortable with the perceived impact. I accept the need to review security measures, and ensure that we are meeting our objectives and upholding Canadian values.
I have met with a variety of groups, including representatives of Canada's Arab and Muslim communities. I have heard their concerns and I respect them. I agreed at the time that the legislation would have a statutory three-year review, hence why we are here today.
Last April, when I introduced the Government of Canada's first-ever integrated National Security Policy, we committed to create a cross-cultural round table on security. Last week, the Minister of Justice and I announced the membership of the round table, and we both look forward to meeting with this group next month.
This round table, as well as the ongoing discussions that we continued to carry on with other concerned groups and individuals representing diverse communities, will ensure engagement and dialogue on national security issues and their impact in our multicultural society.
In consideration of the future of the act, it is essential to understand that September 11, 2001 was not an isolated incident. Indeed, since then, the world has continued to witness horrific acts, including those in Bali, Madrid and Beslin — all tragic reminders that terrorists can strike anywhere at any time.
You will hear from others that the threat environment in Canada has not improved since September 11, 2001, and is arguably worse and certainly more complex. Canada itself has been deemed a target of al Qaeda, named by Osama bin Laden in November 2002. The danger has not passed; the threat has not diminished; and our vigilance must not falter.
The legislation under review today is a significant part of Canada's strategy to defend the safety and security of Canadians, and it is making an important contribution to the international effort to combat terrorism wherever it may exist.
Over the past three years, the Act has been judiciously applied, and it is still needed. With the benefit of three years of hindsight and experience, I am more convinced than ever that the Act was the appropriate response with the right measures. I can say without hesitation that it remains an appropriate response to the challenges we face, both here, at home, and around the world.
I want to thank honourable senators for your attention here today and for your ongoing commitment to enhancing the safety and security of Canadians. I look forward to your comments and questions, and remain open to any suggestions you may have for improving this law and contributing to Canada's efforts in the global response against the scourge of terrorism.
The Chairman: Thank you very much for your presentation. Before we get to eager questioners, I wonder if you could introduce your officials to us.
Ms. McLellan: I will let them introduce themselves, but Mr. Kennedy is ADM in the Department of Public Safety and Emergency Preparedness, and Mr. Pentney is legal counsel to the department. Do you want to introduce yourselves further?
Mr. Paul Kennedy, Senior Assistant Deputy Minister, Public Safety and Emergency Preparedness Canada: I am the senior deputy minister and I am responsible for emergency preparedness and national security — hence I am here today— but the ambit ranges from mudslides to terrorism.
Mr. Bill Pentney, Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety, Department of Justice Canada: I am assistant deputy attorney general, responsible for citizenship, immigration and public safety in the Department of Justice. Unlike Mr. Kennedy, I also get citizenship, immigration and war crimes.
The Chairman: Thank you very much for being here.
I am building a list, and I will give a few names so you can be ready to jump in. We will start with Senator Andreychuk, followed by Senator Fraser, followed by Senator Lynch-Staunton — whom I think all of you know is the deputy chair of this committee and I am delighted to work with him again — and Senator Smith.
Please begin, Senator Andreychuk.
Senator Andreychuk: Thank you; I do not know if that is an admonition to be crisp and short, but I will try.
Thank you, minister, for coming here despite your health concerns.
Ms. McLellan: My pleasure.
Senator Andreychuk: You have outlined basically why you put the act in. It was a response to September 11, 2001; and I recall all of the questioning and your responses at that time about the need to act quickly. A very horrific event occurred, one that I do not think was in our thinking. While we knew there were some terrorist activities we were addressing, the sheer magnitude of that one event clicked the government quite rightly into responding.
The concern then was that we were cobbling together, as best we could with the knowledge we had, a piece of legislation to protect Canadians.
I fully appreciate that you will look to our recommendations, but I would be interested in your assessments. I hear from you in your opening statement that this is the piece of legislation we need, and that it served the need well. Am I correct in inferring that you intend to keep it as is? Is there not something in three years that we learned in this balance between all our rights, which can be adjusted to ensure other freedoms are protected while we go about the business of safety and security? We as the public, and I see myself as the public — I do not have access to the security briefings that you do — I do not feel safer today than I did three years ago in the world we live in.
What have we learned in three years that we should be changing in this act to give us better security, and what can we give back to citizens that was unnecessary to take away in that time?
Ms. McLellan: I actually do not think we took away anything from citizens. In fact, we acted as Canadians and we know from extensive reviews of Canadians' opinions over the past three years that the vast majority of Canadians are comfortable with the actions we have taken. Some would like us to go further and others, a very small number in our latest samplings, believe that we went too far. It was something like seven per cent that thought we went too far in our reaction; over 40 per cent believe we did not go far enough; and over 50 per cent believe that we got it right. Canadians accurately reflect the world in which we live when they are questioned in detail on this. They believe that the world is not a safer place. They believe that they are quite secure as Canadians in their individual families and in their communities. They see that one of the paramount obligations of government is to protect their safety and security, both as individuals and collectively. However, they reflect that which we all know is a reality, which is the world is not a safer place than it was on September 11. It is a more complex place, as we see terrorist event after terrorist event unfold around the world.
What I will say is that first of all, I want to underscore for people that the United Nations did not come to the fight against terrorism on September 11. That is why there were 12 UN conventions. We were one of the leaders in signing the conventions, but had not introduced into our domestic law the necessary domestic provisions to, in fact, bring many of those provisions into force. Again, I want to underscore for everyone that my department at the time, the Justice Department was, and the government itself, had been working for years in response to the global threat of terrorism. In fact, whether September 11 had happened or not, the government was going to bring forward integrated anti-terrorism legislation in the fall of either 2001 or shortly thereafter. Those discussions were ready to take place at committee within the Government of Canada.
Senator, I do not think that we cobbled something together. In fact, many of the provisions of this legislation had been at work for a very long time, and reflect not only here, but countries around the globe. The list of international meetings that took place to develop provisions that are reflected here in one way or another were too numerous to mention. The world understood the threat of terrorism. I do not think we perhaps, in our part of the world, understood the true horror of terrorism until September 11.
We have enacted a piece of legislation, when you look globally in terms of what other countries have done, that is a fairly finely tuned piece of legislation in terms of trying to strike the right balance. This review is taking place because yes, we probably have learned. I hope we have learned things. I will assure you, and others will, that we certainly understand much more about the global reach of terrorism, the sophistication of the networks and how insidious they truly are as a global threat. We have learned an awful lot in the three years since September 11. We have also learned the unintended consequences of dealing with the threat of terrorism on communities, both here, at home, and around the world, the unintended consequences that do not flow from the legislation, but from the global threat that we see extant in the world. We must work with these communities to reassure them regardless of ethnic or linguistic background, or religion, that in fact, the target as I said is terrorism. I have always said, and we see and list a hundred events since September 11 globally where the point is clear that terrorists come in all colours, speak all languages and practice every religion. We have learned that, as a community, we need to do a much better job reaching out to communities to ensure that we are dealing with unintended consequences. That is why my colleague, Mr. Cotler, and I have established the Cross-Cultural Roundtable on Security, in part as part of our strategy and effort to work with our pluralist and diverse society.
Senator Andreychuk: Three points: One, you said that you wished we had looked at this Act. One of the unintended consequences of this Act, in my opinion, is how it works with all the other pieces of legislation. To fairly and accurately evaluate this piece of legislation, we have to look at all other pieces of terrorist legislation, immigration legislation and all the others. I will not bother listing them. It seems to me that to do the job properly, you have to put it into context.
Second, there are unintended consequences to the Muslim community or the Arab community more than to the rest of us. Are you looking at two things? One is, we tied our definition very closely to the British, and the House of Lords has now been commenting on their legislation. Second, when you talk about unintended consequences, we know that the investigative hearing was only used once, but the communities are telling us that the mere threat of the use of the legislation is the horrific part of the legislation; not its actual use. In investigative works, if you use the threat to someone about an investigative hearing, it will have some effect on their actions. The reports you have been filing have been actual acts that have been taken subject to, but the use or the suggestion of use of the legislation is nowhere trapped in it. That is where the uncertainty and difficulty comes for many communities in Canada, and also non- Canadians that reside here.
Ms. McLellan: Are you suggesting, senator, that any of my agencies have threatened the use of this legislation directly to any group, because if so, I would like that information?
Senator Andreychuk: It is not threat in the sense that we will use it or else, but it is out there, known that it can be used, and it is a horrific procedure.
Ms. McLellan: Just as the Criminal Code is out there: Those who would rob a bank, beat up their wife or abuse their children know that threat exists, that the Criminal Code could be used.
Senator Andreychuk: You would put it on the same level.
Ms. McLellan: This is about the protection of the safety and security of Canadians.
Senator Andreychuk: Are you are still maintaining that safety and security is the foundation of all our freedoms; not the fact that our freedoms have an impact on safety and security and they go hand in hand as a balance, as opposed to one being a prerequisite to the other?
Ms. McLellan: Absolutely. There must be a balance in any democracy, and especially one such as ours that is pluralistic and has such a strong commitment to the Charter of Rights and Freedoms. However, I think you will hear more eloquently from my colleague Mr. Cotler than from me, based on his global international experience of many years, that in fact, you cannot talk of the freedom of religion, the freedom of association, and equality, if people live in fear, if they do not have the basic right to have a stable, safe and secure society. We see around the world, senator, failed and failing states where the most basic right of stability and security is denied, and civil society simply does not exist. It disintegrates. As I say, my colleague, Mr. Cotler, will speak eloquently to you about that based on his own lived experience.
It is absolutely important that we strike the right balance. No one is suggesting otherwise. That is why we worked hard to include the safeguards and, in fact, why we accepted so many of the amendments that were proposed, both by the Senate pre-study and the House of Commons committee at the time. For example, in the definition of terrorism, do you remember all the testimony about all the possible terrible ways it could be used? None of those things have come true because this legislation has to be placed in the overall panoply of laws, including our constitutional background. This legislation is placed profoundly in the values of Canadians in our panoply of laws that speak to the protection of Canadians and our fundamental values.
We made changes, for example, around the definition of terrorism. We listened, for example, to the concerns of those of First Nations, unions and others to ensure that we were not capturing lawful activity that would be of dissent, demonstration, manifestation or of whatever kind. That is not what this legislation was ever directed at and, as I say, I come back to the fact the legislation is directed at terrorists and terrorism. If there are ways you think we can further refine that to discharge our domestic and global obligations, I am very open, and I want to underscore that, to possible recommendations for refinement; for retuning the balance, if you like.
I will just mention that the U.K. House of Lords decision, which everyone refers to, seems to be terribly misunderstood. It did not deal with their anti-terrorism legislation; it dealt with immigration legislation. It dealt with indefinite detention and, of course, the concept of indefinite detention is not one that we have in our law, be it anywhere in our Anti-terrorism Act or our Immigration Act. In fact, what we try to do is remove people who should not be here as quickly as possible, as the Federal Court of Appeal has recently pointed out.
Senator Andreychuk: I know it was immigration, but I think some of their fundamental philosophies are worth noting and reading.
Ms. McLellan: Absolutely; I have read the decision.
Senator Andreychuk: This is why I say we cannot just look at Bill C-36; we have to look at the whole system.
Ms. McLellan: I do want to come back to that point. The first and primary obligation of this committee, and that of the House, is to discharge the legislated obligation in Bill C-36, which is to review Bill C-36. That is why I said that I hope that the review of Bill C-36 would be done and focused on in both committees. Then, if there were other things that the committees, one or both, felt were germane, then certainly that is up to you to take up in any way you see fit. I would not suggest otherwise. However, it is important to Canadians and to the government that the review of Bill C-36 take place, because that is what is legislatively required. If there are recommendations for change or rebalancing we would like to receive those. Then, if there are other things that you would like to comment on, that is entirely up to the jurisdiction of the committee.
Senator Stratton: You are essentially informing this group that you feel there are no changes required on your part; that you got it absolutely right the first time?
Ms. McLellan: I do not think anyone would say that we ever get anything absolutely right. I believe this legislation strikes the right balance. It is the right legislation to deal both with the domestic and global threats of terrorism. Having said that, for example, we acknowledged that we included a sunset clause respecting preventive arrest and investigative hearings unless there is a resolution of both Houses. We have acknowledged there that circumstances might change and we may decide that those two things are not required. Even within the legislation, we have acknowledged the fact that review is important, circumstances may change, and that changes may be warranted. Based on what I understand as Minister of Public Safety, responsible for the implementation of our National Security Policy, I believe the balance is right. That does not mean, however, that it could not be fine-tuned, but I do believe that the balance we have struck is an appropriate one for the challenges we face in the world today.
Senator Fraser: My question is somewhat complicated. Minister, three years ago, and still today, I, like you, was concerned about getting the balance right. I have always been particularly concerned about ensuring that the structure of the system we created with this bill has all possible safeguards that it can have without impeding that balance. Let me draw your attention to one area that perturbed me three years ago and still does, which is the list of entities, the list of terrorist groups. That list is adopted by the Governor in Council on your recommendation. Three years ago someone else was then Solicitor General who did it, but there is a specific minister who makes the recommendation about which groups should be listed as terrorist entities. That is a very serious thing because the mere fact of being listed establishes that, for Canadian purposes, you are a terrorist group. It is very serious.
Ms. McLellan: That is right.
Senator Fraser: The decision is published in the Canada Gazette and you can appeal once to the Federal Court. You can also try writing letters to the minister to say you are not a terrorist group, but it is the same minister who put you on the list in the first place. Two years later, the list has to be reviewed by law under this act. However, it is reviewed by the same minister who drew it up in the first place relying on the counsel of the same department. It struck me then, and strikes me now, that there is room here for the kind of bureaucratic self-perpetuation that can, over time, create substantial difficulties — not through ill will, it just happens. I wonder whether it might not be appropriate to have either someone else do the review, or have the minister sitting in your chair be required to bring in outsiders as part of that review process.
I am not saying any of the groups now on the list are not terrorists. It looks like a pretty good list to me. I am not going to quarrel that they are a terrorist group. Nonetheless, this is permanent law. Can you not fine-tune to some extent there?
Ms. McLellan: That is interesting, and certainly I would be open to any suggestions you have. As you have pointed out, in the life of a minister and an elected parliamentarian, change is a given and therefore you rightly point out I was not the minister who put most of these on this list. I brought, coincidentally, I suppose, fresh eyes to most of this list, plus the fact you have to go back to the Governor-in-Council. It is not enough that I simply review the list and say yes, I think based on everything I am hearing, and all the intelligence we have, that these entities should continue to be listed. Then the Governor-in-Council must also be satisfied that the list continues to be a relevant one. I would say that there are those safeguards, but I would certainly be very interested to know if you think that is not sufficient. The 35 that we have listed have all been listed by the United Nations and, in fact, by all our partners in the global challenge of fighting terrorism. I can speak with confidence to the 35 that are presently listed. I have absolutely no doubt that they should be listed and should continue to be listed until at least the next review.
Senator Fraser: Did you consult anyone outside the department in the course of your review?
Ms. McLellan: We consult the United Nations in terms of who they are listing. We are obviously also aware of listings by other countries. However, our major review is done on the basis of intelligence gathered by Canadian intelligence-gathering agencies. That information is provided to me and my officials, and we review the list largely on the basis of that information. We know who is listed under the UN regulations by other countries because the UN resolution strove for a global network through which we would work closely together, share information and cooperate in areas such as listing. If we listed someone who appeared on no other list, I would ask why that entity is on our list, which is a listing of hundreds, and is not on the lists of other countries.
That is how the process is done, but the vast majority of the information and intelligence on which I would make my decision around review comes from Canadian intelligence-gathering agencies.
My trusty official has just told me that in terms of the listing, my officials work at the deputy minister level with the Departments of Foreign Affairs, Finance, Justice and ourselves, and obviously the Governor in Council is reflective of all my cabinet colleagues.
Senator Lynch-Staunton: On the question of lists, why are the Liberation Tigers of Tamil Eelam, LTTE, not on that list? They are a notorious terrorist group that has been banned in the States, Britain and elsewhere. Why is Canada not following suit?
Ms. McLellan: As you know, senator, they are listed under the UN regulations and, therefore, we can pursue them under the Criminal Code. However, as was noted by Senator Fraser, the fact that they are not listed under our own anti-terrorism legislation puts the onus on us to prove that they are, in fact, a terrorist organization, if we chose to proceed against them.
We constantly review the groups globally that should be on such a list. The list is not static, and I continue to monitor that situation very carefully.
Senator Lynch-Staunton: What more information do you need to list them, particularly when you know that the United States, Britain, India, Australia, Malaysia, and other countries have? What do they know that we do not yet know?
Ms. McLellan: The current and former Ministers of Foreign Affairs have indicated that they felt there was some hope for a peace process in Sri Lanka. It would actually be better for the Minister of Foreign Affairs to answer these questions since he has more information about discussions he might have had. However, it was relayed to me that it was hoped that the discussions there might eventually lead to a peace negotiation and therefore it would not be helpful at this time for us to list the LTTE.
I want to reassure everyone here that I review the situation on a regular basis and will continue to do so. There obviously needs to be a thorough assessment by my colleagues at the public safety and emergency preparedness committee of what should happen in the months ahead with the LTTE.
Senator Lynch-Staunton: That argument could have been used in Palestine, too, where the peace process has been hoped for, for the last 40 years.
Ms. McLellan: I take your point senator.
Mr. Kennedy, do you want to add anything?
Mr. Kennedy: For additional clarification, there are a number of different lists, and you are referring to the list under the Criminal Code.
Senator Lynch-Staunton: I am referring to the list of entitles under Bill C-36.
Mr. Kennedy: Yes. However, in addition, we have the UN Suppression of Terrorism Regulations list. Canada has listed the LTTE under that, which gives us the ability to freeze or seize funds. The Minister of Foreign Affairs took the action to put them on that list, so they currently are listed.
In addition, the listing under the Criminal Code is of great use to us at trial, because we do not have to prove that listed groups are terrorist entities. However, the reality is that if an organization or individuals involve themselves in activities that fall within the definition of terrorist activities, they could still be prosecuted in Canada for those activities. We have the ability to prosecute regardless of whether a group is listed. In addition, monies can be seized under the UN Suppression of Terrorism Regulations, which is a Canadian regulation under which the LTTE is listed.
Senator Lynch-Staunton: I do not want to get into an argument. It has not been addressed in the way it should be. The fact is that money is being raised in Canada and sent to Sri Lanka to be used for terrorist activities. That is a fact, and yet the government refuses to put the name where it belongs; that is, on the list of entities that enables the government to seize assets, freeze bank accounts and arrest people who continue to support rebels and terrorists.
Ms. McLellan: Senator, I take your point.
Senator Lynch-Staunton: You did mention, Minister, that the House of Lords ruled on the immigration act. I hope that you will stand corrected. They actually ruled on the Anti-terrorism, Crime and Security Act, which happens to include security certificates.
Ms. McLellan: Mr. Kennedy can explain exactly what was done.
Senator Lynch-Staunton: I have it here. I do not want to get into that argument.
Mr. Kennedy: We agree that they addressed the particular provision you are talking about in their legislation dealing with the immigration component. It does not have a parallel provision in Bill C-36.
Senator Lynch-Staunton: I agree, but the impression was given that it was an immigration act like ours, which it is not. It is part of their Bill C-36 equivalent.
Mr. Kennedy: I stand corrected for the shortness of the message I provided to the minister.
Our provision, as you know, has its roots in 1978, more formally in 1991, and was introduced again in 2000 and thereafter.
Senator Lynch-Staunton: Thank you for opening the subject, and I will end on this. While you are quite right, Minister, in asserting that Bill C-36 has been used cautiously, thanks, I think, to the warnings given here and elsewhere, the point is that the detention of a number of people has been under the Immigration Act and this business of security certificates. These certificates allow the government, on the flimsiest evidence, to detain a person more or less indefinitely, make him or her appear before a judge using evidence that only the government can supply, and in effect lock people up indefinitely under suspicion with no charges being laid, under the threat of deportation.
We are all familiar with certain recent cases and court judgments, particularly one last December in Toronto. How can the government justify treating people in such a crude fashion that is completely outside of the rule of law? Although these people are not Canadians, the Charter applies to us all.
Ms. McLellan: The courts have determined that it is not outside the rule of law. They have been clear about that.
Senator Lynch-Staunton: I will not get into that argument. The courts did not rule on the entire process.
Ms. McLellan: Let me help people understand the nature of security certificates. They are an extraordinary measure and they are used in very few circumstances.
In fact, since September 11, 2001, there have only been three security certificates issued. I have issued none. In fact, one of these three is Ernst Zundel a well-known situation that has nothing to do with this situation.
I do not suppose there has been any part of our legal infrastructure that has been before the courts more than security certificates over this past number of years. As Mr. Kennedy has said, this long predates September 11, 2001; it has nothing to do with this legislation. In fact, since their inception in 1991, there have been some 27 security certificates issued; as I say, three only since September 11, 2001. They are a process under the immigration act, not under the anti-terrorism legislation. They are a process that permits us to deal with foreign nationals and in some cases, permanent residents, whom we wish to remove expeditiously from the country. If you read recent Federal Court of Appeal decisions and Federal Court decisions, the court is clear that one of our goals is to remove expeditiously, within a reasonable time. One of the goals of issuing a security certificate is to begin the process of expeditious removal from this country because someone is either a threat to the security of our country or may in fact be guilty of serious criminal activity, such as organized criminal activity. In the context of the security certificate, certain information may be treated as confidential by a judge. This all goes before the Federal Court. There is a designated judge who hears all the evidence. It is he or she who then provides a summary of that evidence, either in its entirety — that is their call — or a summary of the evidence to the person who is subject to the security certificate.
The process is one where the judge is, in fact, the individual who decides how much information is provided to the subject of the security certificate and his or her lawyer. In some cases, almost all the information is provided so that the person can answer the allegations made in the security certificate. However, almost all systems have a process by which the government is able to keep certain information confidential in relation to national security regarding the removal of certain individuals from their country.
Senator Lynch-Staunton: The point is that the information provided is provided only by the government, and is very selective and not always reliable. Second, there is no trial. Third you can be deported back to a country where you may be subject to torture. Where is the fairness, and where the rule of law is being applied is beyond me.
Ms. McLellan: We have never deported an individual back to a country —.
Senator Lynch-Staunton: No, but you have tried and been turned down.
Ms. McLellan: We have not deported anyone to a country where there is a substantial risk of torture.
Senator Lynch-Staunton: You failed. You tried to. You had a fellow in Toronto you wanted to send back to Egypt.
Ms. McLellan: We receive assurances, as do other countries in circumstances where we believe they are effective, but we are careful in terms of determining that if we receive assurances that we follow up on those assurances, and guarantee that the country is living up to those assurances.
Senator Lynch-Staunton: Egypt and Syria are notorious for their torturing abilities and knowledge, and are even relied upon by our allies to do their dirty work. Do not tell me we can take their word.
The Chairman: We can pursue this with other witnesses as they come along.
Senator Smith: I have two questions. I want to get a few facts straight.
I am simpatico with the original reason for the legislation. I am curious, with regard to the sort of hard evidence that we have, about the effectiveness of the legislation. I guess part of the rationale is it fills in the cracks where the existing fabric of legislation may not be adequate. I think you said, apart from the three security certificates, there had only been one arrest on a terrorism warrant.
Ms. McLellan: That is right.
Senator Smith: We do not need to get into names but can you refresh us: What happened there? What is the status of it? Has closure occurred finally? Can you tell us much about it?
Ms. McLellan: I cannot tell you much about it because it is a matter before the courts.
Senator Smith: Are there preliminary motions being argued?
Ms. McLellan: Yes, there are.
Mr. Pentney: I believe the individual is still in custody and there is a bail hearing underway, if I understand properly.
Senator Smith: This case is not one of the three security certificates?
Ms. McLellan: Absolutely not. This is a criminal charge under the terrorism legislation. It is the first charge of its kind in this country.
Senator Smith: Do you know the date of the charge?
Mr. Kennedy: The individual was charged probably within the past four months. There has not yet been a preliminary inquiry held. There is a publication ban. We do not wish to cause prejudice to the individual.
Senator Smith: Nor do I, and I suppose for our own information we need hard evidence of what are the facts of the precise situations that have occurred so far. We do not have it today.
Ms. McLellan: I am afraid it is under a publication ban, and therefore it would be inappropriate for me to say other than he was charged under sections 83.18 and 83.19 of the Criminal Code.
Senator Smith: That leads to my other question: If there has only been one arrest warrant as a result of this legislation, that probably means that the existing legislation from other acts, whether the immigration act or Criminal Code in general, must be pretty effective in dealing with the requirements. Is that true, or what can you tell us about that? What are the ones you rely on the most?
Ms. McLellan: We had no legislation that defined terrorism. If you read the UN regulation, it is pretty comprehensive in terms of what it requested UN members to do following September 11, 2001, to enact within their domestic laws, a host of provisions that dealt with, for example: Take the necessary steps to prevent the commission of terrorist acts; deny safe haven to those who finance; and ensure that any person who participates in the preparation and planning of terrorist acts or supporting terrorist acts is brought to justice with the requisite criminal seriousness. We had been in the planning stages for some time of bringing forward legislation. What this did, was put a sharper focus on the necessity in all countries to bite the bullet, define terrorism for the first time in our laws, make it plain, make a statement to Canadians and the rest of the world as to what we viewed as criminal terrorist activity, and then have that on the record in terms of being available to charge those who would carry out that conduct.
Senator Smith: I do not quarrel with that. I agree with that. Even though the word terrorism may not have been in other acts — just a conspiracy to commit bodily harm — have any of those things been useful?
Ms. McLellan: Not in the fight against terrorism, no. If you want to analogize, look how we had to go back in and revise our organized crime legislation. The conspiracy charges in the code had been used to try to deal with the scourge of organized crime. In fact, we have seen over and over again how difficult the use of conspiracy charges in that context actually are. We went back in and put a much sharper focus on the nature of organized criminal activity, and the offences flowing therefrom. What we have done here is put it in a sharper focus; we have made a statement as a country as to what our values are, and the kinds of conduct we will or will not accept as it relates to terrorism.
Senator Joyal: I have two sets of questions. When we adopted Bill C-36, it was under the pressure of the United States, which was pressing us to adopt it in a very short period of time. There is no question that Bill C-36 contained extraordinary legal measures that were limits to the Charter and human rights as we have understood them traditionally in Canada.
It is the opinion of the chief justice of the Supreme Court that those might have been justified at the time they were adopted, but they have to be reviewed. What I hear from you is that the conditions that existed then are here to stay; and we can infer that from then on, they will be part of the body of law in Canada permanently.
Am I right in saying so?
Ms. McLellan: No; certainly, the circumstances around the fight against terrorism, and the extent of global terrorism in its modern form, are greater today than they were on September 11, 2001.
However, having said that, I made it plain when I testified here in the fall of 2001 that this was not emergency legislation. We did not see in the foreseeable future that the main provisions of this legislation would disappear. I presume our Criminal Code will, for as long as I am alive, have a definition of terrorist activity, and it will be a criminal offence. For as long as I can foresee, we will list terrorist groups that raise money to carry out their horrific acts. It was never introduced as emergency legislation. As I say, the UN had been dealing with all aspects of terrorism in their 12 conventions for years before September 11, 2001, as had countries around the world.
If you look at the two sunsetting provisions, we, in fact, would envision that they may not be needed. We acknowledged the fact that those two provisions were controversial, and that they sunset in five years unless there is a resolution of both Houses. In that context, it is apparent on the face of the legislation that we wanted to review and determine where we were at the time, and Parliament would decide whether those two provisions were required to be sustained.
Senator Joyal: In your own assessment of the act, there is nothing there besides the two sets of provisions that would call upon us to review them because they hurt our legal tradition. Is that right?
Ms. McLellan: I do not believe so. I think we worked very hard with both committees to ensure that the rule of law was respected, that the Canadian Charter of Rights and Freedoms was respected and that the right balance was struck. However, as I mentioned earlier, and as Senator Fraser said in relation to listing, I am open to considering the prospect that maybe there needs to be some other mechanism that would shed light on the review process that goes along with listing.
If you are asking me if listing will continue, the answer is, absolutely. Is it necessary? Yes, it is part of our global UN obligations. However, are there ways to refine it? I am open to any kind of suggestion you might have.
Senator Joyal: How do you make the assessment compatible with what Chief Justice Beverley McLachlin stated last summer? She made her statement in a public lecture she gave at the special international meeting on terrorism ethics and the law, and I quote her:
[Translation]
Canada tries to maintain a delicate balance between collective safety and the preservation of basic freedoms. It is up to the Canadian judges to make sure that those extraordinary legal means are legitimate and uphold the rule of law.
[English]
To me, the key element is «assurer la légitimité de ces moyens juridiques extraordinaires.»
If you qualified what there is in Bill C-36 as ``extraordinary legal means,'' and you questioned their legitimacy, it is because they are not there for long; now it is part of our body of law forever. Their legitimacy is always in question because they are extraordinary means.
I feel that in your statement this morning, you do not give us any kind of insight on this regarding Bill C-36. There were very appropriate sections dealing with implementation of the 12 international instruments — we have no problem with that. We are not dealing with that aspect of the bill. We are dealing with the extraordinary legal measures contained in that bill as the chief justice sees it, and as most of the judges have seen it so far. No one expected those extraordinary measures would stay there forever.
Ms. McLellan: No, and I will not presume to comment on the exact provisions the chief justice was referring to. I will say this: I have every confidence that the chief justice believes that we need anti-terrorism legislation. However, I do believe that she was very likely focused on provisions such as preventive arrest and the investigative hearing; those were the two that were viewed as extraordinary. However, it is not for me to say; the chief justice herself will have opportunity, I am sure, to comment more directly from the bench in relation to her views around aspects of the anti- terrorism legislation.
I think it is fair to say that everyone spoke of the two provisions as being extraordinary — preventive arrest and investigative hearing; that is why they are sunsetted. I think all the chief justice is saying, and I agree with her, is that in a democracy, one must review those kinds of provisions.
Senator Joyal: My second question is about the Patriot Act. You have not referred in your statement to any of the impacts of the American legislation on our body of law. In fact, there are important elements in the Patriot Act that have an impact over the Charter protections of Canadians.
Could you comment about those, and what initiatives you have been taking to limit the impact — I will use a legal term that you will be familiar with, the extraterritoriality — of the Patriot Act over the rights of Canadians?
Ms. McLellan: First of all, our legislation is substantially different than the Patriot Act. I think it is very important for us to focus on what we view as a made-in-Canada approach to the challenge of terrorism. We did not adopt some of the provisions that are found in the Patriot Act.
I cannot comment on specific provisions of that act. Those are before the U.S. courts, a number of federal courts. As we see, there are decisions being rendered in their own country in relation to the interpretation and constitutionality of parts of the Patriot Act.
As it relates to privacy, if you are specifically relating to the concern identified by the B.C. Privacy Commissioner in relation to the potential extra-territorial reach of the Patriot Act, we have made it very clear that subsidiaries, for example, Canadian subsidiaries of U.S. companies carrying on business in this country, must obey the law of this land. The Patriot Act has no extra-territorial reach in that sense. It is our privacy legislation, both federal and provincial, that will apply to Canadian subsidiaries and they are expected to obey that law.
We want to clarify, we want to make sure, as it relates to that specific aspect of any extra-territorial reach of the Patriot Act that we understand all possible dimensions of that. That is why the President of the Treasury Board has a task force across departments working to determine whether there are things that we have missed, that we are not aware of in terms of the possible incursion into Canadians' privacy emanating from the Patriot Act and the fact that we have U.S. companies, Canadian subsidiaries, carrying on business in this country.
We are very much alive to that issue, but I think, Mr. Pentney, we have been definitive that Canadian subsidiaries are subject to the Canadian law and provincial law in relation to privacy. Those dictates apply and they shall not share information if it is in violation of either the federal or relevant provincial privacy laws.
Mr. Pentney: I do not need to add anything.
Senator Jaffer: Minister, I imagine what you are talking about, just to follow Senator Joyal's issues, is where our financial information is being transferred to the U.S.
Ms. McLellan: The privacy legislation extends beyond financial information.
Senator Jaffer: Hopefully by the end of our committee's mandate we will hear from you as to a fuller answer to what Senator Joyal has said.
Ms. McLellan: We can provide you with more information about that, absolutely, and the Privacy Commissioner herself may want to come.
Senator Jaffer: My own question focuses exclusively on the act in a bubble. To me, with the greatest of respect, if we do not examine the Public Safety Act, the Aeronautics Act, the Immigration and Refugee Protection Act, the Canada Border Services Agency, CSIS, FINTRAC, et cetera, it would be like asking us to look at the issue of same-sex marriage without taking the Charter into account. We cannot look at this in a bubble.
I have a concern about the effect of the legislation. You mentioned the Criminal Code is a warning. The difference between the criminal court and this legislation is that a certain group in our country feels that they are being identified. Everyone around here is aware that this is a very live issue. I would like you to give us, in writing, because there is not the time now, exactly what your department is doing in training on racial profiling. I can tell you just in your city, police have gone to California for racial profiling training. I will give you all that information in private. I am anxious to hear from you exactly and in what detail you are carrying out the training on racial profiling.
When the Anti-terrorism Act was passed, many of us were pleased that there were additional penalties if there were attacks on religious institutions. When the attack happened on the Talmud Torah in Montreal, at the Jewish school, it was sort of demonstrated that churches, mosques and synagogues are protected, but institutions used for purposes that may be related to religion are not protected. Has your department done any work to ensure there are additional penalties for institutions that are in that kind of situation?
Ms. McLellan: I am in fact very sensitive to the fact that after September 11, 2001 the Arab and Muslim communities very much felt vulnerable; just as, for example, the Sikh community felt vulnerable in this country after Air India. We learned from Air India in terms of how important it was to develop contacts and develop a sense of better communication and trust with the Indo-Canadian community. I would not say we did that perfectly at whatever level, but I think we have learned a lot since September 11, 2001, in terms of how important it is to ensure that we are working with communities, especially those who feel that they may be the focus of Canadians' attention or anger or fear, for example. We as government need to ensure that we are helping all Canadians understand that, as I have said and I have said publicly and I will say over and over again, terrorists come in all colours and religions, and they speak all languages. This is not about any particular group or religion. It is about terrorism. It is about terrorists. As I say, they cover the waterfront.
Coming out of September 11, 2001, however, there was a particular sensitivity and sense of marginalization and vulnerability on the part of the Arab and Muslim communities. One thing I regret, quite truthfully, senators, is that I made a commitment in December, after the passage of this legislation, to create within the Department of Justice a committee that would work with communities and, in particular, the Arab-Muslim communities in this country. For better or worse, it remains to be seen. The Prime Minister chose to move me from the Department of Justice. On January 2002, I became Minister of Health and that commitment was not delivered on. I feel very bad about that, in the sense that the commitment should have been followed up on. I know my colleague Mr. Cotler, since becoming Minister of Justice, has had numerous meetings across the country with many multicultural groups and in particular, the Arab and Muslim community. It was a mistake not to create that process.
Now we have the cross-cultural round table where Minister Cotler and I hope to be able to meet on a regular basis. It has been established under the National Security Policy, but to meet with representatives from multicultural Canada to hear from them their fears, their aspirations, how things, like this legislation, how the Canadian Border Services Agency, how these things are perceived within their communities and how they believe they are impacted by these things. We want a two-way dialogue to explain why we are doing what we are doing to protect all Canadians including them, but for us to understand perhaps some of the unintended consequences for communities.
I agree with you, Senator Jaffer, there was a particular effect on Arab and Muslim Canadians. That is why it is so important that we continue to work conscientiously with that community, but beyond that community to ensure that we understand concerns and that they understand our goals. Hopefully we can work together so that everyone believes that they are part and parcel of creating a sense of collective security and safety for Canadians. We do not racially profile.
In fact, if anyone has any evidence of racial profiling, I would be very interested, because that would be a firing offence. We do not racially profile. What we do is on the basis of the best, and I think most sophisticated, risk management practises that are used globally. If there is evidence of racial profiling, I would be very interested in hearing examples of that. I will leave it there for now.
Senator Jaffer: Minister, with the greatest of respect, you say you do not racially profile, and knowing you, I know you really believe that. However, when your name is Mohammed and you are stopped every time, and every Mohammed is stopped, then you start wondering as to why just the Mohammeds are stopped.
Ms. McLellan: I understand.
Senator Jaffer: To say there is no racial profiling is not quite acceptable to the people who are being racially profiled. I think the best way to proceed with this is that you will be providing us with what kind of training you are doing with your officials.
Ms. McLellan: This is one point I forgot. Training is absolutely important. I have talked to the CBSA, for example, about this. It is so important that the people on the front lines are well trained. We use globally accepted risk management techniques. We are not in any way unusual in that. However, our front-line agents have to be trained appropriately. They have to understand the impact and that something that may be seemingly neutral to me or to Mr. Pentney may not be perceived as neutral if you happen to be an Arab Canadian whose name is Mohammed, for example. Part of the challenge is to ensure that the right kind of training is being done. I do want to reassure people that, again, we do not racially profile, but we use risk management techniques. Every country does. Every agency in every country does. Sometimes they will have unintended consequences, and absolutely, the people on the front lines as well as government have to be sensitive to that.
Senator Joyal, I forgot to mention that the Supreme Court of Canada upheld the constitutionality of investigative hearings. The only investigative hearing ever held was in the context of Air India, and the Supreme Court of Canada upheld the constitutionality of the tool in that context. Having said that, it is still in my view extraordinary, which is why it was sunsetted, and which is why we need to be constantly vigilant around those kinds of tools that are available.
The Chairman: I can assure you that the concerns raised by Senator Jaffer will be part of our ongoing discussions as we move our committee forward.
Senator Day: I have one point of clarification and one short question, Madam Minister. Various questions have been asked in reference to the balance between individual rights and collective security, and you think that we have it just about right. Much of our discussion today has been with respect to individual rights. From the other side, from the collective security point of view, are you hearing from those in your department and the various agencies that report to you that there are some changes that should be made to this legislation, or that they should have some procedures that are not there? Can we expect to hear from your department as to whether there should be any changes or any specific points we should consider?
Ms. McLellan: We are not proposing amendments to the legislation at this time. This is a review, and we look forward to what both committees have to say. You could ask, for example, Giuliano Zaccardelli, Commissioner of the RCMP, if he comes; Jim Judd, the head of CSIS, if he comes; or the head of the Communications Security Establishment, CSE, if he comes, whether they believe, based on their front-line operations every day, there is necessity for powers they do not have.
Operationally, putting aside the legislation, as the Auditor General has pointed out, the biggest challenge for us and other western democracies in terms of discharging our responsibility as government to the collective security and safety of Canadians, and in some cases to residents of our allies, is the collection of intelligence in a timely fashion to prevent activities, whether it is to prevent fund-raising, to break up a network or to prevent an act such as September 11, Madrid or so on. You have to collect the intelligence in a timely fashion. It has to be analysed in real time and sent back to the front lines, wherever those front lines are, whether it is the CBSA at an airport or land border, whether it is with the RCMP or whatever the case may be. Intelligence is the lifeblood of safety and security in terms of being able to operationalize our commitment.
September 11 told us one thing. A lot of intelligence was lying around in a lot of different agencies, and the Americans' challenge here is much worse and greater than ours. A lot of intelligence was gathered, and some of it was not even translated. It was put in desks, not shared, and not driven to the street level. If, in fact, one of the 17 were stopped, the New York City cop could not retrieve information that might have led to the unravelling of what happened on September 11. We, and countries around the world like us, must ensure that we are collecting that intelligence, real time, analysing it, and getting it back to the front lines so we can identify high-risk individuals and high-risk goods. That is our goal.
This legislation is about prevention. Senators, if I have to charge someone with running a plane into a tower, I have failed. I want to prevent that, in the name of the safety and security of Canadians.
Senator Day: You discussed earlier that one very important way of doing that is to be able to seize funds of organizations that have terrorism activities as the root of their existence, and that was part of the primary purpose for this legislation. You did not give us statistics on what monies have been seized, either under this legislation or the UN suppression of terrorism. What monies have been seized over the past three years, and what happens with those funds?
Ms. McLellan: I will let Mr. Kennedy answer that, but under the UN, this is a global effort. We had to ensure that we had our domestic peace in place to help the global effort of stopping the raising of funds and the transfer of funds globally. Keep in mind that when we seize funds or freeze funds, not only are we talking about terrorism here but of course, organized crime is also one of our key objectives.
The Chairman: I remind colleagues that the officials will be with us this afternoon.
Ms. McLellan: Perhaps Mr. Kennedy could stay and answer that question after I go.
Senator Day: That is fine.
The Chairman: That would be very helpful, Senator Day, because Mr. Kennedy will cheerfully remain with us and perhaps help us. Minister, thank you so much for coming this morning. This has obviously opened the door for what will be an extremely interesting, difficult and lively set of hearings for this committee. In the past, with Bill C-36, we noted your generosity in returning periodically when we needed you, and we would hope we could count on that generosity again.
Ms. McLellan: Yes, and as I say, my colleague Mr. Cotler is the lead minister on this file, because the lead department for the anti-terrorism legislation is Justice Canada. He looks forward to coming and joining you. As Minister of Public Safety and Emergency Preparedness, I am responsible for many of the operational details and therefore will be happy to return, perhaps toward the end of your deliberations, to respond to things that you have heard and questions and recommendations that you might have.
Let me just say in conclusion that what you are doing is important, not only because it is legislated but because it is important for us, with our values in this democracy, to review the legislation. While my own preference would be that the first focus is the legislated focus, I certainly understand that the larger context must be taken into account and that in fact, there are issues. Senator Lynch-Staunton and I were talking about security certificates. There are issues that are not related to this that clearly help provide a context and, in fact, help provide safety and security for Canadians. They may be effective or may not, and that is clearly a part and parcel of what you will want to take a look at.
The Chairman: Thank you very much. You can be assured that these issues will be very much a part of our future discussions. In terms of witnesses, you have named some, and they certainly will be on our list. Our very next witness from the government will be the Minister of Justice, Mr. Cotler, next Monday. Thank you, minister. We will now break for lunch and return at 12:45 to continue our conversation with our two very patient officials.
The committee adjourned.