Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 3 - Evidence - Afternoon meeting
OTTAWA, Monday, March 7, 2005
The Special Senate Committee on Anti-terrorism Act met this day at 12:30 p.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: I wish to call to order this meeting of the special committee studying the Anti-terrorism Act. We have with us, continuing from our morning meeting, the Director of the Canadian Security Intelligence Service, Jim Judd, and Deputy Director of Operations, Dale Neufeld.
Please proceed with your questions, Senator Kinsella.
Senator Kinsella: Mr. Judd, this committee is charged with the review of Bill C-36, which is now statute. From my perspective, there are three options available to Parliament. The first is to make no changes to the legislation, the second is to amend the legislation and the third is to repeal the legislation.
Which option would you recommend to this committee?
Mr. Jim Judd, Director, Canadian Security Intelligence Service: I would not urge you to vote for option three, repealing the legislation. Judging from the discussions this committee has had to date, there are obviously some issues around the legislation, including that some of the provisions of it have never been used, which raises the question of why you would want to keep them if you have not used them. My view on that is that at some time in the future you may want recourse to them.
I am not intimately familiar with the legislation as a whole. CSIS was only modestly affected by the legislation with the insertion of an additional two words into our mandate.
The other factor the committee might want to bear in mind is whether there are gaps that should be addressed. At this juncture, I have no suggestions to make to you, but that issue may come up in the course of your deliberations.
Senator Kinsella: I read with some interest the testimony you gave before the committee in the other place when it was reviewing Bill C-36. You indicated to members of that committee that upon your arrival at CSIS you asked yourself whether there should be amendments and said that you were awaiting feedback from CSIS on that. Have you received that information from your colleagues? If so, would you share it with this committee?
Mr. Judd: I have not, as yet. To be more specific, I have asked two questions of the organization. One is whether changes to the CSIS act should be contemplated; the second is whether there are issues around other pieces of legislation than ours that should or could be looked at.
I expect that in the next several months I will have a more considered view on both of those issues. If you wish, we would be happy to come back and discuss that.
Senator Kinsella: Thank you for that.
With regard to the matter of entities listed by the UN, I believe that before the House committee you indicated that a listing by the UN had the same effect as a listing under Canadian Criminal Code provisions. Would you explicate that for the benefit of members of this committee?
Mr. Judd: There are at least two UN listings of terrorist organizations — one is pursuant to a convention that preceded September 2001, and the other is part of what was referred to as the Afghanistan regulations, which was subsequently put forward. I believe that terrorist entities that are listed here in Canada all appear on the UN listings, and it was in that sense that I said there was no distinction between the two.
Senator Kinsella: Is it fair to say, then, that the listing operation provided for domestically is redundant to the process that we are party to internationally?
Mr. Judd: I stand to be corrected, but I believe the domestic listing is done as a consequence of the United Nations action, which is that part of the UN conventions that were adopted mandated that national governments have such lists. I think there may be instances in other western jurisdictions where there may be a discrepancy between what a national government lists and what the UN lists, but as far as Canada is concerned, ours are coincident.
Senator Kinsella: The listing pursuant to the UN convention draws my attention to other United Nations conventions and covenants, which are standard-setting in terms of human rights and civil liberties. For example, Canada, since 1976, has been party to the International Covenant on Civil and Political Rights. Indeed, we are also party to the optional protocol that allows for individual communications under that instrument.
The non-derogation clause of the International Covenant on Civil and Political Rights provides, in article 4, the following:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8...
For example, there is no derogation from the obligation not to engage in torture.
It seems to me that this international United Nations standard to which Canada is party would be more readily applicable to a United Nations list. When we examine Bill C-36, the standard of protection, I find it more difficult to see, even if the Charter came into play, because the non-derogation provision even in our constitutional Charter is not as strict as the international covenants.
That is more of a legal question, but if you wish to express a view on it, I would welcome hearing your view.
Mr. Judd: The only view I can express with any certainty is that you put me in waters higher than my head on that one. I am not a lawyer, and it has been a long time since I was in the diplomatic service, so I am a bit unsuited to respond adequately to that question.
Senator Kinsella: You can see that it does challenge us, as I am sure it challenges someone with your responsibilities, that there is not only a domestic expectation but also a universal expectation that we find always a proper balance between protecting the rights and freedoms of the citizens and the responsibility of the state to protect its citizens.
CSIS is an information-gathering agency and it shares that information with government. Do you share information with Immigration Canada?
Mr. Judd: Yes.
Senator Kinsella: My colleague Senator Lynch-Staunton raised the issue of the security certificates and the preventive detention under this legislation, and it does have some built-in protections. The detention that occurs under the Immigration Act does not seem to have the same level of protection from a civil liberties point of view as exists in Bill C-36. When you decide to share the information, whether with the Minister of Immigration or the Minister for Public Safety and Emergency Preparedness, do you go beyond the point of asking what they are going to do with that information?
The information that you give under Bill C-36 could be used in such a way that a person could lose his or her freedom, be detained, yet there are some protections built in. If you share it with the Minister of Immigration, the same level of protection is not there. Does it trouble you as to which minister you would give information to or does that come into play at all?
Mr. Judd: In the case of security certificates, the report that CSIS would put forward would be directed to separate ministers at the same time, the current Deputy Prime Minister, who is the Minister for Public Safety and Emergency Preparedness, and the Minister of Immigration. That is the process that was envisaged in that legislation, which as I understand it goes back to 1978, and it is the process that I understand to have been used in the two dozen odd cases that have been used since.
So far as I know, there has been no analogous effort made in respect of any provision of Bill C-36. So, yes, there is a distinction, and in the case of the security certificates, we have been operating on the basis of a piece of legislation that predates Bill C-36 by 13 years.
Senator Kinsella: Finally, Madam Chair, if we could turn our focus to the situation where we have in detention an individual who is to be sent back to his or her country of nationality, or an individual who may have dual citizenship, Canadian and that of another country, and there are proceedings under the Criminal Code. There was an amendment three years ago dealing with the issue of extradition, so that the Canadian minister would seek assurances from a jurisdiction that imposes the death penalty that that would not be sought before we would extradite a person whose extradition is sought from that jurisdiction. If the assurance was not forthcoming, we would probably not extradite that person.
Does that come into play in the process of effectively extraditing someone to another country where there is reason to believe that they are going to be arrested when they get off the airplane? We have seen the evidence and the stories about human rights violations around torture. If the death penalty is to be sought and imposed, that seems to run contrary to Canadian domestic value, which is already enshrined in legislation. How do you process that kind of a situation vis-à-vis persons being turned over for being sent back to another country?
Mr. Judd: Any individual who is subject to a security certificate process under the Immigration and Refugee Protection Act cannot, by definition, be a Canadian citizen. Unless they are a stateless person, they are, by definition, a citizen of some other jurisdiction. There would be no circumstance in which a security certificate could be applied against someone holding dual citizenship.
The issue of extradition and the death penalty and its impact on security certificate cases has never come up that I am aware of, but I can have some further investigation done on that and return to you on that question.
On the legal question per se as to its applicability in any event, the extradition legislation is a bit outside of my domain, but I would be happy to seek counsel on that one as well and return to you.
Senator Smith: I wish to touch on the area that Senators Jaffer and Day referred to, where there was a focus on names that would appear to be from the Muslim community. I agree with your concept that you are reluctant to characterize it as such because some of these extreme actions in no way reflect the established and acknowledged leadership of those communities.
There were a couple of ultra-extremist groups in Britain that characterized themselves as mosques. The shoe bomber, who had an explosive device in his shoe that he was trying to ignite, came from one of these groups. There was a man who may have been born in Britain who was advocating and recruiting people to go to Iraq and engage in activities of a terrorist nature. The British government was taking steps to deal with this person. I am not aware of any activity of that sort in this country. Am I correct in assuming that?
Mr. Judd: I know of nothing personally.
Mr. Dale Neufeld, Deputy Director of Operations, Canadian Security Intelligence Service: There certainly are mosques in this country — again, I would not say they are representative of the Muslim faith. However, there are a couple that we believe have that role of facilitating fundraising and perhaps talent spotting individuals to go for training, as you have suggested.
Senator Smith: If there were a blatant incident, more or less the same as what happened in the British situation, what would you do?
Mr. Neufeld: We would collect the intelligence and pass it off to whatever enforcement agency we thought might be best placed to act on it, if appropriate. We might go to the RCMP and they might make a test against Bill C-36 legislation to see if charges would be laid.
Senator Smith: There is the controversy around raising money and getting tax receipts. Minister McLellan was asked by Senator Lynch-Staunton, I think, about the Tamil Tiger group in Sri Lanka, where over 60,000 people have lost their lives in the last 15 years. Minister McLellan's response on several occasions was, ``I hear what you are saying.'' She was not arguing. What are your views on whether those groups should or should not be on that list? I know that is a delicate issue.
Mr. Judd: That issue is currently under consideration within the service. There has been some debate around the LTTE and whether or not it should be listed. The Minister of Foreign Affairs has made the point that, from a broader vantage point of the peace process in Sri Lanka, it would be best that it not be listed. So far as I know, we have not yet gone forward with advice to the government on that one.
Senator Smith: Last week, I was in Ireland with a delegation of two senators and five MPs, including people whose last names were O'Brien and Kenny. We spent time in both Belfast and Dublin, and met with the leadership of all the main parties. There has been much publicity recently with regard to the bank robbery over there. No one seemed to be in any doubt as to the fact that the IRA had done it, including the police on both sides. Members of our committee were raising the issue of the Sinn Fein fundraiser in Calgary in March. The main speaker was going to be one of the leaders who has a criminal record, thereby requiring a minister's permit.
There is a controversy over there, which is actually quite healthy. The three sisters of a man who was murdered in Belfast have been speaking out. There seems to be a huge appetite in a way that I have never seen before to get this violence behind them. If there were someone with IRA ties who would require a permit to come to this country, it was the consensus of our group that we should recommend very strongly to the government not to issue such permits, as long as those organizations are continuing with this type of activity. Do you have any thoughts on an issue of that nature?
Mr. Judd: As are most people who follow the news media, I am aware of the situation in Ireland, particularly in light of the death of that individual and the bank hold up. Among the issues that come into play there are the intermingling of a political entity such as Sinn Fein with paramilitary entities, how you draw the dividing line between the two, and whether or not membership or association in either of those should be a factor related to entry into Canada, superimposed over quite an onerous effort by all sides on the peace process.
Those cases have to be dealt with on a case-by-case basis. I was not personally aware of the event that you are referring to that is coming up in Canada.
Senator Smith: The event in Calgary was cancelled a few days ago because of the heat they were getting. Our committee was going to take a united stand on the matter, that anybody who wants to preach those things can stay at home.
Mr. Judd: That would be a healthy attitude to take.
Senator Joyal: Mr. Judd, The New York Times this weekend had a lengthy article by two journalists confirming the secret program administered by the CIA, a program aimed at transferring suspected terrorists to foreign countries for interrogation without seeking approval on a case-by-case basis but rather on the broad authority that was given to the CIA following September 11. That program is called the rendition program. Have you participated in the implementation of that program with the CIA?
Mr. Judd: No.
Senator Joyal: Neither directly nor indirectly?
Mr. Judd: Neither.
Senator Joyal: The CIA never requested of you information on any of the suspected persons that the CIA might want to send to a foreign country for interrogation?
Mr. Judd: Not to my knowledge, no.
Senator Joyal: Even in the case of Mr. Arar?
Mr. Judd: As you know, there is a public inquiry ongoing about the circumstances of Mr. Arar's experience and what the government might consider doing more broadly to address the kinds of issues that were dealt with there. Leaving aside the fact for the moment that the whole subject matter is before a public inquiry, I do know that there was no information passed from CSIS about Mr. Arar to any American authority until after he had been returned to Syria.
Senator Joyal: In your opinion, what would be the closest authority that you might exercise that would put you in a parallel position to the CIA authorities with the transfer of a person to a third country for interrogation?
Mr. Judd: I do not know that I could imagine that kind of circumstance. It may be that individuals are extradited from Canada because of legal proceedings elsewhere, or alternatively, that individuals are returned to their country of origin because of the security certificate program. However, both of those scenarios are overlain with both ministerial and judicial control review and oversight.
Senator Joyal: Extradition, as was raised earlier by my colleague Senator Kinsella, is a public procedure. It is a procedure through which a court could be seized of appeal and, of course, consideration of proper documentations and proof and decisions. An extradition case is a public case.
The United States program I referred to, the rendition program, is rather a secret program. It is not a program that is publicized in the way of recognizing an individual's right to go to a court and to be informed of the charges or the doubts, because at this point in time we are talking only about doubts. We are not talking about charges. That is the major difference with an extradition. An extradition is based on a charge. One of the objectives of the court is to look into the charge if a similar charge exists in our country and then proceed with the decision. The rendition program is totally different. There is no charge. It is merely acting on doubts. In that case, in my opinion, you need a higher level of conviction that you are acting properly because there is no other way to test the rule of law of a country.
The concern I and some senators around this table have with the security certificate program is to ensure that that higher level of scrutiny exists so that we prevent abuse, especially in terms of people who are being deported to third countries, be it Egypt, Syria, Saudi Arabia, Jordan or Pakistan, to mention the ones that were referred to in the article in The New York Times, which have a particular record in terms of human rights respect at the United Nations — I am not trying to qualifying them without resorting to what the United Nations Human Rights committee considers of their stand internationally. We have an additional responsibility to ensure that, when the certificate is granted, there is also the assurance that those countries should give to the Canadian authorities that they be treated ``humanely.''
In your experience, or in the experience of CSIS, what can you suggest to us in terms of additional procedures that we should follow to live up to the standards of human rights respect that Canada has always implemented?
Mr. Judd: In the case of the security certificate process, looking at it over time, since the provision came into effect 17 years ago, 27 certificates have been sought and three were rejected by the court. It is a relatively little-used provision, if you average it over time.
First, the level of detailed work that goes into the preparation of the case for a certificate is extraordinary. In fact, one of my predecessors made the case before another Senate committee around how much time and effort and resources are required to put one together that is considered to be defensible. Even before a security certificate application would leave CSIS, it would be reviewed by Justice Department counsel in CSIS. It would then be reviewed by two ministers and legal counsel and others associated with them, and then it is reviewed by a Federal Court judge. There are checks and balances throughout the system from a legal perspective, starting from the time that such a case is actually being put together in CSIS.
Second, there is provision subsequently for the case to be reviewed and challenged by the person against whom the certificate applies or his or her counsel. Third, there is also provision for judicial review, again by a Federal Court judge, before any decision is taken with respect to whether the individual could be repatriated to his or her country of origin. Hence, there are checks throughout the system.
All that said and done, I do realize that the problem that you and your colleagues have been struggling with, and many others, is what to do in the circumstance where you have detained someone under the guise of a case that is considered to be well founded and yet the government, for other reasons, feels incapable of or unwilling to remove the person to the country of his origin.
I do not have a silver bullet answer as to how you address that conundrum. It is an issue that, as I said earlier, a number of Western countries are facing. It is an issue I will be discussing with some of my foreign counterparts over the coming weeks.
All that said and done, I would say I recognize the issue, but I do not have a world-class answer for you as to how to square the circle on that one.
Senator Joyal: Following those discussions with your colleagues and others, could you come back to us with some options so this committee could consider the various avenues that could be contemplated in dealing with this issue?
Mr. Judd: I would be pleased to do that, senator. Like you and other members of the committee, I would imagine, I have been following in the public press the debate in the United Kingdom in the wake of the law lord's decision, as I have. I gather that the government's substitute measures do not seem to have won a lot of favour, either. That is an issue I will be discussing with a number of British government officials later this month. On the basis of that and some other conversations I hope to have over March and April, I would be happy to come back.
Senator Joyal: In previous committee meetings, some of us have expressed a concern about the length of time that a person might be detained without being brought to a court for the proper evaluation of the proof that you have yourself described.
Would you agree that it would be better to have a shortened period rather than an open-ended period whereby you would have to go to the court and explain to the court why you might not be ready yet to proceed with the case and seek authorization from the court to continue the detention of the person?
Mr. Judd: As I understand it, the original intention of this provision of the act was predicated to some extent on their being expeditious action taken in respect of individual cases. I gather that expeditious action has been precluded in some of them for some combination of two reasons. One relates to issues around the assurances of the individual safety, were he or she to be repatriated to their country of origin. The other relates to actions taken by the individual's counsel — or counsel, plural, in a number of cases — that have been such to lengthen the process beyond what was originally conceived of. Earlier on, the process was much more expedited, but that may have been in cases where there were no questions or concerns about the issue of assurances for the individual once returned to his or her country of origin.
In summary, I would say that the application has not been in some instances consistent with what had been hoped for when the legislation was drafted.
Senator Joyal: In other words, that could be an aspect whereby we should consider adding to the legislation proper mechanisms so that that situation that has not been contemplated earlier on when the act was drafted be properly reflected into the legislation. That might be one sector, to take the question that Senator Kinsella asked earlier on, which aspect of the act might be reviewed in order to better reflect the due process system of Canada, that could be questioned into that.
Mr. Judd: As I understand it, your committee has been asked to review Bill C-36; the legislation governing security certificates is a quite different piece of legislation that predates it. All that said, I think the issue is a live one.
Senator Joyal: I do not think we can disassociate in anyone's reasonableness the fact that it is the immigration law that is used in all those cases.
Mr. Judd: I would always hesitate to question the reasonableness of senators, senator.
Senator Jaffer: I have a number of short questions. Bill C-36 does not give CSIS any more powers, from what I understand, except what you acknowledged this morning. The definition of terrorist activity is where I believe you got some powers. With respect to the reference of religious, ideological, or political motivation, if it is removed from the definition of terrorist activity, would that help or hinder your work?
Mr. Judd: I am relying on history, but I understand that the addition of the words to the CSIS Act were intended to make it consistent with other changes that were brought into the Criminal Code.
It is an interesting question as to whether we are in better or worse shape as a consequence of those changes and whether they have had any material impact. I do not know that it is possible to give you a reasonable answer to the question of a hypothetical.
Senator Jaffer: I understand from what you said earlier that you will come back. I would ask you to reflect on this, and maybe the next time you are here I will ask you.
When your predecessor was here, I asked him about racial profiling. He replied, ``We do some profiling, but it is not racial profiling.'' When the minister was here, she said, ``We do not do racial profiling; we do risk management.''
Can you explain what risk management means?
Mr. Judd: Risk management, as I understand it, is essentially composed of several parts. One is that no matter what business you are in, whether you are running a Mac's Milk or a large corporation or a government department, you undertake an environmental survey of what your activities are and what the risks are that you might face in carrying out those activities. Then you start thinking about how to mitigate those risks, pre-emptively, or what you would do in the event that one or more of them came to fruition. That is what I understand risk management to be in broad-brush terms.
On the issue of racial or religious profiling, we do not do that. I think perhaps what the minister was referring to in terms of risk management was the consideration of a variety of criteria that had been found to be common characteristics or traits of people associated with particular kinds of activities.
Senator Jaffer: When a name is purged from a CSIS list, what do you do to ensure — because you may have shared that name with other groups? Even if an individual's name is on the list only temporarily, it impacts his or her ability to travel or do business internationally. Just as recently as last week, I understand that a name similar to our defence minister's was on the list. He was able to show that his name was not the same as the name on the list, but it may not be so easy for another person.
Mr. Judd: As far as our own activities are concerned with respect to lists, the only names we provide are to Citizenship and Immigration, and they are individuals who are foreign nationals, not Canadian citizens. We tend to be fairly careful about putting out names of any kind. We are often asked about individuals and often say they are people of no interest to us, meaning they may be wonderful people or whatever but they are not the subject of our interest.
Senator Jaffer: Do I understand from your answer that we do not share a list with our neighbours to the south?
Mr. Judd: There may be information made available to other jurisdictions where there is a shared interest — for example, if an individual is travelling or known to be associated with a particular group or movement. However, we tend to be very careful about sharing personal information.
As I said this morning, any information sharing we do with a foreign government is governed by section 17 of our act, which means that at least two ministers must approve our having a relationship with a foreign organization. Second, any of the information that is either received or given in any given year is open to review and is reviewed by the Security Intelligence Review Committee to ensure that it is being done appropriately.
Senator Lynch-Staunton: First, I wish to correct an impression that I left in the question regarding appeal. I should have said that even if a lawyer of a detainee can bring up evidence that the information submitted by CSIS to justify the security certificate is accurate, in effect the security certificate cannot be appealed. Once it is issued, it is in place. Is there a provision where a certificate can be annulled after it is issued? Once issued, can the certificate be lifted or rescinded?
Mr. Judd: My understanding is that in the history of security certificates there have been 27 requests for certificates and three of them were denied in the process. In one of those instances, I believe, after some time, a brand new certificate was pursued against one of the individuals for whom the original certificate had been denied. In all three instances, the validity of the certificates ceased to be there and it required a brand new effort and certificate.
Senator Lynch-Staunton: That was not my question. I am aware of the three cases you are speaking of. In one case, when it was denied, CSIS went in front of another judge, and he agreed that the evidence presented to the first one justified the issuing of a certificate. We will leave that alone for now, but it is troubling.
What I am trying to get at, however, is this: Is there any provision, once the certificate is issued, for it to be lifted? You said that it can be denied in one case, but then you can try again and again until it is issued. Once it is issued, can it be lifted, particularly if the evidence presented by the detainee is such that any court of law would agree that the detainee is being held under evidence or information that proved to be inaccurate?
Mr. Judd: I will have to be careful, because I am not sure of my facts on this particular question. In the case before the courts now, we will see what transpires with respect to the deliberations on the reasonableness of the certificate case.
Senator Lynch-Staunton: According to the information I have, 18 certificates have resulted in deportations — Zundel was the eighteenth — and three were rejected. That leaves seven, but on the list you presented this morning there were only six. The list we have compiled here has a seventh name — Suresh. Is there a reason he is not on your list? He is a Sri Lankan who was detained for nine years.
Mr. Judd: The list used this morning was put together to be more contemporary, that was all.
Senator Lynch-Staunton: Do you mean that after five years they fall off the list, so they stay in jail and are forgotten?
Mr. Judd: No, I was speaking in the context of your committee's consideration of this piece of legislation.
Senator Lynch-Staunton: We have talked about terrorism. Your presentation this morning was on the threat; the analysis and presentation on all that that implies was very good. Is there anyone in CSIS who goes beyond establishing the status of terrorism in the world to look into what makes up a terrorist? For example, why is there terrorism? Is there anybody at CSIS who goes beyond the facts and who is trying to find the reasoning behind certain events? Is anybody studying what is it that makes one want to kill people for a cause, justified or not?
I do not want to get into the philosophical argument, but it seems that we have not gone far back enough to find out what provokes terrorism. We take it for granted that terrorism is with us, deal with it as best we can, rather than go to the root cause.
Mr. Judd: We and many other organizations around the world spend a significant amount of time thinking about that and delving into the reasoning behind terrorist activity of different sorts. My own take on terrorism has been that, leaving aside nihilism and anarchism, terrorism is mostly an activity that is carried out in the furtherance of some political, economic, social or other rationale against an opponent where traditional mechanisms, be they political, judicial, military or whatever, are deemed off the table.
Historically, terrorist organizations have been associated with aspirations for political independence or regime change. You can go around the world and sort of tag one to the other. It may have to do with economic or social considerations, or whatever. At the end of the day, I do not think there is any black box formula that would give you the answer to it.
In regard to individuals, they tend to run the gamut in socio-economic terms: Language, ethnic origin, religion, nationality, geographic origin and so forth. For the most part, they are males between the ages of 18 and 45, very often highly educated, surprisingly, in many instances.
Historically, females have been only infrequently associated with terrorism around the world. You can think of several instances recently, particularly in the Middle East or Chechnya, where they have been associated with it. The short answer is that there are all kinds of motivations and all kinds of factors that go into it. We spend much time on a case-by-case basis trying to figure it out.
Senator Lynch-Staunton: Would you not agree that what you call the opponent may be at fault, too, by supporting repressive regimes, partitioning continents, invasions and so forth, and suppressing what might turn out to be movements that would be more to our liking but which are repressed to such an extent that they finally — and I am not justifying it — make their statement through these terrible acts?
Mr. Judd: That historically has been a factor with a number of terrorist organizations. Some terrorist organizations historically over time have graduated from being terrorist organizations to being the government, particularly those associated with independence or liberation movements in the process of decolonialization.
Senator Lynch-Staunton: We can carry on with this another time.
The Chairman: That is almost a session on it its own, Senator Lynch-Staunton. I thank you for raising it.
Senator Andreychuk: Just to confirm, Mr. Suresh is being held. For how many years has he been held?
Mr. Judd: He has been released since 1998 on condition.
Senator Andreychuk: Since 1998, he has been released, and on what conditions?
Mr. Judd: I do not have that information, but I can seek it for you.
Senator Andreychuk: In response to Senator Lynch-Staunton's questions, the issue of terrorist activity is a little different from terrorism and terrorists. Canada, in Bill C-36, has zeroed in on terrorist activity. How do you define terrorist activity? Is it acts that are in preparation? Do you rely on verbal statements? In other words, does your evidence come from what someone has told a CSIS officer, or do you rely on some material facts to indicate that someone is not just espousing negative views, different views or contrary views, but is actually in the process of doing something to put such views into action? Where is the dividing line between genuine differences, tolerating all points of view in society, and terrorist activity?
Mr. Judd: I would draw the dividing line on violence and anything that would be associated with violence to facilitate that violence, be it organizational activity, acquisition of supplies and provisions for individuals, and development of cover stories, if you will, for individuals. For me, and again bearing in mind that you are not hearing from a member of the legal fraternity, it would be around the issue of violence as opposed to the expression of political or economic views about this, that or the other.
Senator Andreychuk: You have not touched on the fact that so much of your information, I would suspect, comes from other agencies around the world, the CIA or elsewhere. How much do you rely on sources other than those of CSIS for your information? Are you still in the position where you have some ability to work overseas but are still constricted and, therefore, if you are to make an assessment you will have to rely on those other sources? Are they in a protocol form with others or are they just understandings with other agencies?
Mr. Judd: The service never relies on a single source of information to make a determination against any individual. It is a matter of policy that there must be multiple sources of information.
As to the sources of information, I would probably in technical terms divide them into about four categories. One is what we call open-source information, which is information that is readily available to anyone in the public, depending on where you happen to be and what you read or watch. Second, we get information from foreign agencies. Third, we get information from other domestic agencies or issues are raised with us, including law enforcement agencies or the Canada Border Services Agency. The fourth category is the information that is developed by CSIS itself, either in what I would call a non-intrusive fashion, which involves interviewing individuals or compiling information on the basis of interaction with individuals, and what I would call more intrusive information obtaining, through surreptitious means as allowed for by the act.
Senator Andreychuk: Do you have a formal protocol? Are they all understandings between foreign agencies and yourselves?
Mr. Judd: As I said, section 17 of our act stipulates that we must have the approval of our own minister and the Minister of Foreign Affairs to enter into an arrangement of any kind with an organization of another government. Any information or data exchanged in either direction is reviewed annually by the Security Intelligence Review Committee and may also be subject to review by the inspector general to ensure that it is being done within the bounds for which it was intended.
The information exchange could be from the highly abstract to questions having to do with this part of the world, to quite mundane sorts of things such as how to keep records efficiently in the age of technology with all of this information flow, to information about specific individuals or organizations that are deemed to be of concern to the country.
Senator Fraser: Mr. Judd, back to the matter of lists, you will recall Bill C-7 which, among other things, called for the establishment of a system to pass information on passengers from airlines to CSIS. Is that system yet in operation?
Mr. Judd: Not that I am aware of, no.
Senator Fraser: I did not think so. Apart from everything else, I think it requires very elaborate computer systems.
In preparing for it, has CSIS established criteria for names it will want to match against the airline passenger information provided?
Mr. Judd: We are considering that at this time. We are very conscious of the sensitivities around this issue, and we want to be absolutely scrupulous in how we proceed with this provision.
Based on my internal discussion about a week ago, we are still some way from figuring this out in practical terms. If you wish, we could come back and discuss this with you once we have a better sense of what we plan to do.
Senator Fraser: That might be quite important, Madam Chair. Although that does not arise from Bill C-36, we must understand the whole system in order to have informed views on Bill C-36. I would be very grateful for that. Are you thinking of matching the passenger names against the terrorist watch list or other lists, be they broader or narrower? Again, what criteria would we use to make those judgments?
Senator Day: Are CSIS officers peace officer?
Mr. Judd: No. We do not have the power to arrest or detain.
Senator Day: We have had a lot of discussion about immigration security certificates. Explain to me the process of how those are used. You gather information. Do you initiate the action and then go to Immigration?
Mr. Judd: The process is initiated by the service. It is done on the basis that an individual poses a potential threat to the country and that the individual is someone who, in the ordinary circumstances, we would rather not have in the country and would rather have detected on initial entry.
The case is marshalled by CSIS officers, which takes a lot of time and effort. Once we get to a certain point in the proceedings, the material is reviewed by Department of Justice lawyers. Once there is a measure of satisfaction, from an operational vantage point and from a legal vantage point, about the validity of the documentation, the certificate is forwarded to the two ministers responsible for approving the application for the certificate, following which the individual is detained. The Federal Court receives all the documentation. The judge issues a summary of information, which may not necessarily cover all the information that was made available in the security intelligence report in support of the certificate. The information is shared with the detainee and his or her counsel. Depending on the individual's status, it is reviewed every six months by the court with the detainee and his or her counsel. At some point thereafter, there is a determination of the individual's return to his or her country, again a decision taken by a Federal Court judge on an assessment of those factors.
Senator Day: The Immigration Department is not involved at all?
Mr. Judd: The Canadian Border Services Agency is the agency that detains the individual.
Senator Day: It is my understanding that you have had a considerable increase in the appropriation for CSIS. I have not had a chance to look at the allocation requested for next year. Have there been further significant increases for CSIS in the next fiscal year, or are you basically tracking inflationary increases?
Mr. Judd: I believe there is a modest increase forecast in the budget that will be reflected in the Main Estimates for the next fiscal year, which is part and parcel of the funding decisions that were taken in the budget of December 2001 when the government chose to enhance funding to a number of agencies and departments in the public security and anti-terrorism business. I think the increase is in the order of $5 million.
Senator Day: I referred earlier to a statement by the Minister of Public Safety and Emergency Preparedness that there should be some increased activity by CSIS. Is that reflected in your appropriation request in the Main Estimates, or will you find that within your existing budget?
Mr. Judd: We have found money within our existing budget to date to do more in the way of foreign collection. Should the government decide that it wishes us to continue to do that, that would be for the government to consider.
Senator Joyal: My first question is about the Security Intelligence Review Committee. You referred to it at various times in your answers today. I understand that SIRC is more or less your vetting board, that is, you have to go to SIRC to get authorization to proceed with additional initiatives and in relation to investigations.
In the three years since Bill C-36 was implemented, have there been elements of your activities that you believe are important that have met with opposition from SIRC?
Mr. Judd: The Security Intelligence Review Committee — SIRC — is one of two external bodies that review the work of CSIS. The other is an inspector general, who is an officer of the minister. The inspector general performs an analogous function.
If I am not mistaken, SIRC has the capacity to review anything we do and any document and information we have other than something that is a cabinet confidence. They have a fairly free rein over everything we do. I would say they do an energetic job, as does the inspector general. We were asked to comment before the Arar inquiry on the issue of external review. I would be happy to send that paper to the committee, if you are interested.
Senator Joyal: Definitely. We will expect to receive that and share it with the members of this committee.
The Chairman: Absolutely, Senator Joyal.
Senator Joyal: What about the inspector general?
Mr. Judd: The inspector general is an officer appointed by the minister. The Security Intelligence Review Committee and the inspector general have their own staff. The inspector general's mandate is again fairly extensive. In the course of any given year, the inspector general's office would review any number of issues around operations of the service. Perhaps the distinguishing characteristic between the two of them is that SIRC has a mandate to receive public complaints about the service and has machinery to deal with those.
Senator Joyal: Would you say that it is SIRC or the inspector general that is vested with the responsibility to ensure that the Charter protection of Canadians is respected?
Mr. Judd: I would say it is my responsibility and the responsibility of everybody who works in the service to ensure that they are respected in the first instance. SIRC and the inspector general exist to ensure that we are not forgetful.
Senator Joyal: In answer to Senator Andreychuk, you said that you have signed an agreement with foreign countries to receive information. Did you sign any agreement with the countries that were mentioned in The New York Times article — Egypt, Syria, Saudi Arabia, Jordan or Pakistan — to exchange information with those countries?
Mr. Judd: I do not know off the top of my head. I would have to get back to you on that.
Senator Joyal: When Canada signs an agreement with a country that has a bad record for implementing human rights, according to the list published by the United Nations Human Rights Committee, my concern is the information we pass on to that country.
Mr. Judd: As I tried to say earlier on, senator, we do not treat foreign organizations or information indiscriminately. There are several levels of judgment as to what, if any, information we exchange.
Senator Joyal: Could you expand on that?
Mr. Judd: We too are conscious of reputation, both ours and everyone else's. In making a determination as to whether we would enter into any bilateral arrangement with a foreign organization, we would have to be convinced that it was in our national security interests to do so. Beyond that, when it comes down to the actual exchange of information, should there be any that touches individuals or organizations, we are very scrupulous as to what we would release, knowing its destination and paying due regard to what the information might be used for. You would find us quite cautionary in our approach.
Senator Joyal: Are those agreements then reviewed by SIRC? Before you formalize an agreement, would you go to SIRC and explain the level of information that you will exchange with such a body and for X, Y, Z reasons?
Mr. Judd: SIRC is not an approval body. It is a review body. The intent of your question would be met. They would have unfettered access to any such arrangement and any information that was either received or transmitted.
Senator Joyal: In other words, there is a capacity to ensure that a request that might come from a foreign agency is scrutinized at various levels, not only by you who prepares the decision and the reasons to determine the level of information that you would pass on to that body. I do not want to paraphrase you or put words in your mouth, but you would take into account the human rights file of that country in order to ensure that that information would not be used improperly without the proper protection that would be afforded to the citizens in the context of Canadian standards?
Mr. Judd: Yes.
The Chairman: I should like to thank everyone for your questions and answers. This is an extremely difficult issue to get one's head around and you have been very patient, Mr. Judd and Mr. Neufeld. Clearly, it is the will of the committee to have you back again. We will review the record of this meeting and stay in touch with you, so that you will know the areas in which we will be interested in following up.
The committee adjourned.