Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 6 - Evidence - Morning meeting
OTTAWA, Monday, March 21, 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: Honourable senators, I call this meeting to order. This is the 12th meeting of the Special Senate Committee on the Anti-terrorism Act with witnesses.
For our viewers, I will explain the purpose of the committee. In October 2001, as a direct response to the terrorism attacks in New York City, Washington, D.C. and Pennsylvania, 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 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short period of time. For that reason, it was agreed that three years later, Parliament would be asked to examine the provisions of the act and the impact on Canadians with the benefit of hindsight, and in a less emotionally charged situation for the Canadian public.
The work of this special committee represents the Senate's efforts to fulfil that obligation. When we have completed this study, we will make a report to the Senate and outline any issue that we believe should be addressed and allow the results of our work to be available to the Government of Canada and to the Canadian public. The House of Commons is undertaking a similar process at this time.
So far, the committee has met with government ministers, the Director of the Canadian Security and Intelligence Service, international and domestic experts on the threat environment and individual legal experts.
Although not a part of the Anti-terrorism Act, the issue of security certificates has been raised again and again over the course of our deliberations. Therefore, we are fortunate to be joined this morning by a panel of government officials who will help us to understand that process. They are: Mr. Kennedy, Senior Assistant Deputy Minister at Public Safety and Emergency Preparedness Canada; Mr. Therrien, Senior General Counsel at the Department of Justice; Ms. Deschênes, Vice-President of the Enforcement Branch at the Canada Border Services Agency; and Mr. Goodes, Acting Director General of the Case Management Branch at Citizenship and Immigration Canada.
As always, honourable senators, I will appreciate your cooperation in keeping questions and answers as concise as possible.
Mr. Paul Kennedy, Senior Assistant Deputy Minister, Public Safety and Emergency Preparedness Canada: Honourable senators, on behalf of my colleagues, we welcome the opportunity to address the Senate at this time. One of the challenges in dealing with these kinds of issues is having a proper factual basis so that you can make wise decisions at the end of your deliberations.
There has been much in the papers in terms of criticisms of the process; language such as ``draconian process'' and ``secret trial'' is used. In addition to some of the background material that has already been filed with you, there is a summary document outlining rulings by the various courts dealing specifically with this kind of issue. As well, Mr. Therrien has made a deck available to you and that may be something that we can use later as a reference point.
In addition to that, I will put some comments on the table and then show you some materials that you can consider in making your own determination as to whether or not due process has been adhered to in this legislation.
I made indications at other appearances before this committee that the essence of these procedures actually existed as far back as 1978, and that the Immigration Act was amended in 1991. Largely, the system that you then saw reflected in IRPA when legislation was passed in 2002 is substantially the same model that has been put in place.
We made no distinction, in terms of once the procedures have been invoked by the two ministers, between a permanent resident and a foreigner who is in this country. The matters are automatically referred to the Federal Court to assess the reasonableness of the decision.
As honourable senators will know, there is a slight difference in the treatment of the two. A permanent resident requires a warrant to be issued and the judge to determine within 48 hours whether or not the permanent resident ought to be detained pending the conclusion of the reasonableness finding. Persons who are not permanent residents are automatically detained and the hearing and the issuance of the certificate becomes the determining factor in whether or not they ought to be released. If the certificate is quashed, the person is released. After the certificate is found reasonable, the terms of the detention are reviewed every six months. You have been provided with background material in which it is indicated that the constitutionality of these provisions has been upheld up to the Supreme Court of Canada. To put it into perspective, not only is the legislation itself constitutional, but the state in the exercise of its powers has been extremely judicious in terms of how often they are used.
I will use some statistics as an example. The number of people who come to Canada annually is approximately 110 million, half of whom would be returning residents. In addition, there are approximately 220,000 people who become permanent residents annually. On average, about 8,000 or 9,000 persons are removed from Canada for various reasons — failed refugees.
In addition to that, you have heard comments from the director of the intelligence service to the effect that there are approximately 350 people who are subject to surveillance by the service. That is a combination of citizens, permanent residents and foreign nationals who would be of concern as being a threat to the security of Canada. Those are annual figures.
Since 1991, 27 certificates have been issued with reference to 26 individuals. That is an average of less than two a year. If you roll it back over that same period of time, 1991 to the present, it would mean approximately 1.5 billion people come to the country, 3 million people have permanent resident status, and 120,000 have been removed for various reasons. We have 26 individuals in that number required to be subjected to the certificate process.
There have been comments that this is an unusual process. I would like to remind honourable senators that in section 38 of the current Canada Evidence Act there is a mechanism that, regardless of the kind of criminal or civil proceeding, if there was a risk that national security information would be disclosed, would be invoked. The proceeding would be referred to the Federal Court judge to make a determination as to whether or not national security would be damaged. Classified information, regardless of the nature of the proceeding, is subject to a procedure whereby the judge looks at it, makes a judicial determination and is authorized to prepare a judicial summary. That applies to sources and techniques that must be clearly protected — ongoing investigations and third party relationships. The kind of process that you see articulated in the security certificates is embedded in section 38 of the Canada Evidence Act and would play out regardless.
There would be a challenge if we did not have such a mechanism. You would have a situation where the state would have to decide, would it risk identifying individuals, sources and techniques and put them in danger? That would put individual lives at risk in terms of source, and damage the state's ability to conduct such investigations in the future. That is highly problematic when you are dealing with organizations that have a life beyond the actual participants.
It would be an intelligence coup for organizations that pose security concerns for the state. The state would be stuck with the problem of either not advancing any of these kinds of cases, in which case terrorists and others would remain here by default, or turning that evidence over to them, which would equip them very well for this intelligence coup.
There is a series of safeguards in the system. Two ministers are required to sign the certificates. There must be reasonable grounds to believe. The matter is immediately referred to a Federal Court judge. The judges are obliged to consider all the information and the evidence. The judge is the one who makes the determination as to what can and cannot be released, and the judge prepares the summary to be disclosed to the individuals so that they may be reasonably informed of the case they must meet. An open hearing is held at which CSIS officers are called to testify and are examined in chief and cross-examined, and the individuals have the opportunity to call additional evidence. As I pointed out, there are mandatory reviews for permanent residents.
If the certificate is found to be reasonable, there is still another process that must take place, and that is a danger opinion, which is done before removing a convention refugee, and of course a foreign national can apply for a pre- removal risk assessment. Even if a person is inadmissible, even if a person is involved in organized crime or other sorts of criminal activity, the Minister of Immigration decides whether it is appropriate to remove persons with regard to any kind of a risk they might face.
It is hard to deal with things in the abstract, especially when talking about due process. You have been provided with the judicial summary in relation to Mr. Ahani. This case is comparatively light in terms of the length of the document. It is about 17 pages. In the recent case of Mr. Zundel, hundreds of pages were turned over to him.
With regard to whether Mr. Ahani was informed of the allegations against him, paragraph 1 indicates that the service has reason to believe that Mr. Mansour Ahani is a member of the Iranian Ministry of Intelligence and Security — the MOIS. The MOIS sponsors, and undertakes directly, a wide range of terrorist activities that includes the assassination of political dissidents worldwide.
In paragraph 3 on page 3, there is an indication of what will be shown in the report as it goes along. The allegation is that the primary function of the MOIS is the assassination of Iranian dissidents worldwide. Mr. Ahani has received specialized training from this organization that qualifies him as an assassin. After he was granted refugee status in Canada, Ahani departed Canada for Europe, where he was arrested in the company of known MOIS assassins.
On page 4D we see that there are reasonable grounds to believe that Ahani, while in Europe, was participating in a plot to assassinate a known Iranian dissident. Mr. Ahani is now back in Canada.
In paragraph 4 there is some background information on the MOIS, which came into existence in August of 1983.
In paragraph 5 we see that the protection of the Islamic Republic of Iran is of paramount importance to the MOIS. It targets intellectuals, opposition politicians, members of either moderate or extremist dissident organizations, and some of the members of these organizations and groups reside in Canada or visit this country.
In paragraph 6 we see that the top priority of the MOIS at this time is the Mujahedin-e Khalq — the MEK. The second priority is right-wing groups that oppose the government, and the third priority is left-wing groups and individuals who oppose the government.
Regardless of where you are in the political spectrum, you are caught here.
On page 5, paragraph 7, we see that on March 16, 1993, two gunmen on a motor scooter pulled up beside a car on a congested street in Rome and shot the driver in the face at point-blank range. The motorist was a former Iranian diplomat, Mr. Nagdi, who headed the Rome office of the MEK. As well, Germany is concerned about the murder of four leaders of the Kurdish Democratic Party of Iran in Germany last September.
In paragraph 7.1 you see reference to assassinations in Pakistan.
In paragraph 8 you see that the Iranian reach has also worried and angered the Turkish government, and it talks about a journalist who was killed at that time as well as the leader of the Istanbul Jewish community.
On page 6 they talk about the killers reportedly training at a secret training camp outside Tehran.
In paragraph 9 you will see other incidents of abductions and assassinations.
Paragraph 10 talks about a series of attacks in Europe; murders in Geneva and Paris, stabbings in Bonn and, of course, the translator of Salman Rushdie's book, The Satanic Verses, was murdered in his home in Milan in August 1991.
Paragraph 11 makes references to other investigations that were conducted, and it concludes that there is no sign that these killings will end.
We see reference to interviews with Mr. Ahani in which he provided detailed information about the murder of two other opponents of the Iranian government, in Vienna and Switzerland.
The background of Mr. Ahani indicates that he lived and worked in Singapore, was born in Tehran, Iran, in 1964 and arrived in Vancouver, British Columbia, without a valid passport or immigration visa.
On page 14 we see an indication that some of the information in this report was provided by Ahani and corroborated by other information in the possession of the service, but contradictions in his statements, information obtained by this service in the course of its investigations and the results of the polygraph examination all show that Ahani has been untruthful and has attempted to deceive the service and Canadian immigration authorities.
We then see a series of examples of inconsistencies in terms of his testimony, alleged reasons for and periods of his incarceration and his actual travel routes. He actually came directly from Singapore, contrary to what he indicated.
On page 9 we see that Ahani reluctantly admitted these facts only in the fourth interview and only after being confronted with them by the service's investigators.
In paragraph 15 we see that his initial claim to political refugee status in Canada was based on having been twice taken to offices of the Islamic Revolutionary Committee and beaten by members of the Iranian Revolutionary Guard Corps for having been intoxicated. Later, he changed his claim. In his second version, he claimed to have been imprisoned for refusing to fire his weapons in a raid on an establishment of the MEK in Pakistan. He said he secured his release from prison by feigning to have realized the error of his ways and agreeing to join the foreign assassins branch of the intelligence branch of the foreign ministry.
In paragraph 16 we see that he described himself as knowing much about Iranian government personnel and covert operations, and so would face certain death if forced to leave Canada and return there. He initially said he was intending to also become a member of the MEK, and now he is saying that, because he is an assassin, he is at risk for that purpose.
In paragraph 17 we see that he described a friend and previous associate who worked with him in the MOIS, and that individual was the commander who coordinated attacks on dissidents. He performs assassinations in Iran and other countries.
In paragraph 18 we see the indication that Ahani, after he came to Canada, continued to associate with the individual who he says is the commander of this assassination team.
On one occasion three weeks after the Refugee Determination Board hearing, he received a call from his commander, who told him that he missed him and would like to meet him.
Then in paragraph 18 we see that Ahani subsequently contacted an unidentified person overseas and purchased an Andorran passport in the name of Roberto Gomez for U.S. $900.
In paragraph 19 we see that he was again contacted in mid-May and instructed to take a flight to Zurich, which he did, via Amsterdam, using a false passport.
They met in a wooded area near a particular restaurant, this chap indicated that he needed his help, and they went off to Italy. The following day they arrived in Italy, he receives an athletic bag with a substantial amount of American currency and they travelled separately to a town in Italy.
Of course, Mr. Ahani is provided with a camera at that time with which to take certain photographs, but he is not to indicate that that was what was occurring.
If we go on through this, he indicates they were picked up by the Italian government; he goes on to Istanbul, Turkey. In paragraph 23, Ahani was to take his camera to the Iranian consulate in Istanbul.
In paragraph 23, top of page 13, he passed the camera to the clerk, a photocopy was made of the Gomez passport and the passport was returned to Mr. Ahani.
Paragraph 24, he asked his wife for $2,000 to purchase an airline ticket and new passport. The false Greek passport he purchased did not require a visa to enter Canada. Ahani claims to have destroyed the Gomez passport during his flight to Toronto, as well as the false Greek passport once he arrived in Toronto.
In paragraph 25 he indicates he had no further contact with this chap since he came to Canada; however, in a subsequent interview he admitted he did contact him in Iran on one occasion in July 1992.
In reference to the training, in paragraph 26 when he was questioned about his involvement with what was described as the drug-enforcement unit of the Prime Minister's office, he indicated that he participated or was planning to participate in an attack in Pakistan. He received, as in paragraph 27, special training and tactics training on portable models of surface-to-air and surface-to-surface missiles and grenade launchers.
Page 14, at the top, Mr. Ahani also received training on making assaults on homes and vehicles using a combination of explosives and rapid-fire weapons. He practised exiting moving vehicles, firing four heart shots and a head shot, and re-entering the moving vehicle.
A couple of lines down, of course, he is exposed to improvised explosive devices, advanced martial arts, armed-team assaults and counter-surveillance, as well as classes in memory recall and concentration. Later, he admitted that this training was really part of his recruitment into the secret service. He also provided some details about a number of murders.
This gentleman obviously had some difficulty with the truth because his stories would vary, to say the least. In paragraph 28, the last three lines, he once again stated that he refused to take part in the attack in Pakistan, where he said he was doing a drug arrest — or not even an arrest, because Iranian authorities in Pakistan making an assault on a house does not constitute an arrest. He discovered they were attacking the homes of MEK members living in Pakistan. He was asked, during his polygraph examination, whether he actively participated in the Pakistani raid and had participated in any act that resulted in the death or injury of anyone. The service polygrapher determined that Ahani's negative answers to both questions were untrue.
Paragraph 29, in the bottom two lines, he further stated his belief that should targets be identified in Canada, the Government of Iran would not hesitate to eliminate them.
Paragraph 30, during his polygraph examination, Ahani was asked if he had informed Khoshkooshk about his contact with Canadian authorities. Ahani's answer, of ``no,'' was determined by the service's polygrapher to be untruthful.
On page 16, paragraph 33, everything known by the service about Monsour Ahani demands his being considered a threat to the security of Canada: By reason of his associations with the MOIS, Ahani's admissions of his past involvement with different branches of the Iranian intelligence service, his knowledge of those operations, his detailed knowledge of the murders of individuals, his recent contact with this individual who is the head of an assassination team, and that he may be called upon by that organization to participate in assassinations in Canada or elsewhere.
Paragraph 34, a reference to his continuing loyalty to this individual, including assisting him in Italy on very short notice and telling the service during an interview that he would likely cooperate if he was contacted again.
Page 1; that he continues to display strong nationalistic, religious sentiments, in this case, towards Iran.
That is a fairly short summary compared to some. I would submit to you that it is very powerful in telling you, if you were an individual served with the certificate, what we think you are and why you are a concern to the Government of Canada and, in particular, to the two ministers who signed it.
There is an indication as well as to what happens. That document then is filed with the court. Open hearings, in public, are held. I have with me some documents, and we are quite happy, if you would like to have these, to make them available to you.
One file is about five inches thick, but in fairness, only about two and a half inches are transcripts from the hearings that are held in open court, with examinations and cross-examinations of witnesses.
The other material is a series of Federal Court rulings that may be of interest to you, dealing with immigration matters.
Separate from that I have this volume. It contains all of the court proceedings related to Mr. Ahani over the time period — the Federal Court, Federal Court of Appeal, Supreme Court of Canada, Superior Court of Ontario, Ontario Court of Appeal, Supreme Court of Canada for the second time, as well as a separate one for the United Nations Human Rights Committee.
In terms of full, frank, fair disclosure and ability to access the judicial process, there is a substantial due process, I would submit, engaged in this.
It is hard, when one looks back and sees newspaper clippings, to get a feeling for that.
In fairness, I had also asked my colleagues, because we are only dealing with 27 certificates and 26 individuals since 1991, whether or not this was representative. Certainly, as a lawyer in training, I consider my credibility important. Therefore, I wished to be sure what is the norm. Clearly, individuals can either decide to take part in a public hearing or not. It is up to them in terms of the strength of their story.
Looking at the various individuals over time, one has two days of hearings; another, five days of hearings; two days; two days; four; eight; one; three; 50. Fifty days of hearing for Mr. Suresh, who also went to the Supreme Court of Canada. Mr. Ahani had 12 days of hearings; Mr. Singh, 17. Another one, 18; six; five; Mr. Zundel had 43; 12; 14; and 16.
There is the ability, in terms of the court process, to challenge these, which is quite significant. In addition, I would like to put on the record — and you will see in the material filed with you — in terms of the court process, judges themselves have spoken quite eloquently about their responsibilities in these particular cases to actually challenge the witnesses themselves, test their credibility, ensure that the information is multi-sourced and credible; it can be subject to alternative interpretations. Couple that with the fact that the representative of the Crown is also an officer of the court, and as such has an obligation to make full, frank and fair disclosure to the judge when the judge makes these determinations.
We are happy to make this material available to you if you wish to have it.
We are open to any questions honourable senators may have of us.
Senator Lynch-Staunton: Thanks, Mr. Kennedy, for an excellent and persuasive presentation. It is well documented. I congratulate you on all of the preparation that went into it. Certainly you opened a lot of chapters, shall I say, that perhaps we had not concentrated on, at least I had not.
Since you mentioned Ahani, where is he now? What finally happened to him?
Mr. Kennedy: He was returned to his country. What I find interesting, and you will find, I suppose, somewhat illustrative, is one of the documents that I have here. It is the hearing before the UN tribunal on human rights. There was an allegation that Canada had violated one of the covenants, and he recounts his history. Of course, the individual who brought this particular brief before the UN indicated at that time that the man had not been heard of and there were rumours that he was dead. Of course, Canada responded that not only was this not the case, but Mr. Ahani had appeared before a Canadian representative in Iran. He spoke to the representative and did not complain about any mistreatment. As a matter of fact, the Canadian government was subsequently approached by an official of the Iranian government, on Mr. Ahani's behalf, asking for some items that he had left behind to be returned to him. I believe Stewart Bell — I could be wrong here — actually went over there to do a follow-up, given the unusual case, and located Mr. Ahani and he was well. He was not tortured; he was not killed. The submission before the UN indicates that when he returned he was temporarily incarcerated and then released. His complaint was about trying to find employment. Even after he had been returned, the Government of Canada still ensured that they spoke to the Iranian government and impressed upon them that they did not wish anything to happen to him in terms of mistreatment.
Senator Lynch-Staunton: Is there not a contradiction there? Here is a man who is a terrorist, according to this document, and I take that for granted, and instead of keeping him under lock and key here, we send him back to the country that employed him originally, where the chances are that he might resume his old occupation.
Mr. Kennedy: Well, what could you charge him with here?
Senator Lynch-Staunton: Exactly.
Mr. Kennedy: One of the principles that are embodied certainly in the anti-terrorism response is the ability to disrupt and prevent. Being here in Canada gives an individual easy access to some of the targets, because the objective here was to kill dissidents. Therefore, if he is here, and clearly if he had been able to secure a Canadian passport, it would be a great tool of mobility in terms of moving around the world. With that as a tactic, and having been at least identified as a person who had been removed, I am sure he will be on the watch lists of other countries. Therefore, his ability to move around would be fairly circumscribed. He would certainly have difficulty getting on aircraft to come to North America, having been identified as a terrorist. Therefore, there is an advantage, at least in terms of disruption and prevention, in moving him away from individuals that he may want to target. It is not a perfect solution, but when you have a judicial system and a criminal process that requires proof beyond a reasonable doubt, we all know that is an extremely difficult hurdle to get over. In this particular case, we needed prevention. You do not wait for him to assassinate someone and then charge him. That would leave him with us. He would do his time, but even after he served his sentence, we would deport him for being a convicted felon, like Mr. Charles Ng. He committed an offence here; we prosecuted him; he served his time and we removed him from the country. It might not be a perfect world, but we are doing the best we can.
Senator Lynch-Staunton: In fact, we remove him and remove a direct threat from him to this country, and maybe to North America, but we just shift that threat to other countries.
Mr. Kennedy: That would not necessarily be the case here. I take heart from the fact that he was coming to the Canadian government and complaining about unemployment. I suppose his utility to the Iranian intelligence service had been diminished because he had been exposed as an Iranian assassin. He was a professional assassin. That was his reputation; he does it for money.
Senator Lynch-Staunton: I suspect he is still in great demand somewhere. That is the part I do not understand. Is there nothing under the Criminal Code that could be used in this case? Should the Criminal Code be amended today to allow for that? Can something be included to cover this kind of case, of people who are proven — and I think the proof is here — to be a menace and a threat? He has associated with people who have killed, if he has not killed himself, therefore he should be locked away or put under some kind of supervision to remove a worldwide threat.
Mr. Kennedy: Two things could come into play, and each depends upon the facts. Clearly, there are provisions in the code dealing with terrorist offences. Activities are described as terrorist offences, in this particular case, being an assassin for another government. We would have to look to see if the activities would fall within that particular definition. However, if we had someone who was a terrorist and activities that fell within the ambit of ``terrorist offence,'' and we had the organization listed or we could prove it was a terrorist organization, then any actions that the person took, short of a terrorist act, could be caught under the provisions of the Anti-terrorism Act because it contains provisions that do not require an activity to actually occur. This assumes the organization is one that we would describe as a terrorist organization.
We do have in the act — and I would have to separate that from the analysis here — provisions that deal with preventive arrest. If you have reasonable grounds to believe that terrorist activity is occurring and to suspect that this person might be involved, you can bring the individual in according to the peace bond provision. Each of those would be subject to analysis of whether or not these activities would constitute terrorist offences as defined in the Criminal Code. I have not looked through that particular prism.
Senator Lynch-Staunton: Is it fair to say that we are not using the provisions of the act because it is brand-new territory and the government feels safer in using the Immigration Act? The process there has already been used a number of times and therefore there has been experience with that and none with Bill C-36?
Mr. Kennedy: Bill C-36 was not in place for Mr. Ahani.
Senator Lynch-Staunton: No, but in the last three years you have had seven, I think, subject to a certificate.
Mr. Kennedy: Five. You need to look at the range of tools that is available and use the one that you think is the most appropriate, based upon the evidence that you have. Clearly, the consideration in the cases that you are talking about was that the security certificate was the appropriate vehicle.
Mr. Daniel Therrien, Senior General Counsel, Department of Justice Canada: I would add that what makes some of these cases particularly difficult is where an allegation of a risk of torture arises, which was the case for Mr. Ahani. The process determined that in Mr. Ahani's particular case, the allegation was not founded. This went to the Supreme Court, which agreed with earlier determinations that the allegation was not founded, and the UN Human Rights Committee did not intervene on that point. Certainly, when an allegation of torture is made, it raises the stakes and increases the difficulty of the situation. However, in a case like Ahani's, where at the end of the day there was no substantiated risk of torture, there is clearly a choice of means between the criminal law and immigration law. That is true. However, Canada is in no way in an exceptional situation here. All democratic countries have both immigration laws and the criminal law. They have been using both for quite a while. There is a reason for that. The criminal law is there essentially to punish people who have committed a criminal act. Immigration law is there to deny entry to territory to people who are inadmissible on any number of grounds, including the risk that they present to the society or the territory where they are. Therefore, the two systems work in parallel in Canada. They work in parallel in all other democratic countries, I would suggest. The courts in Canada and international tribunals have determined that this is an acceptable state of affairs.
Certainly where a risk of torture is alleged, the choice becomes much more difficult, but when there is no substantiated risk of torture, as in Ahani, I would suggest that there is absolutely nothing wrong in using immigration law to remove someone who is inadmissible to this country, as many other countries do.
Senator Lynch-Staunton: You brought up the topic of treating nationals and foreigners differently for the same alleged offence, and we have been following carefully what has happened in the United Kingdom, where the Law Lords decided that different treatment was against the European Charter of Rights. Therefore new legislation was brought in whereby British nationals and foreigners are treated on an equal basis when it comes to terrorist activity, either alleged or proven. That would make me more comfortable because I have yet to understand why not only the law treats non-nationals differently, whether they be permanent residents or refugees, but also citizens are treated differently. There are three categories of residents treated differently under the Charter. However, in the United Kingdom they resolved that.
Mr. Kennedy, I will ask you directly: What is your view on that?
Mr. Kennedy: I believe we have provided you with a summary that outlines all the analysis of the court positions on this.
Senator Lynch-Staunton: What is your view on the U.K.'s decision to treat the two on the same basis?
Mr. Kennedy: The U.K. decision was looked at and distinguished by our Federal Court of Appeal. The U.K. ran into difficulties not only in terms of differential treatment, but they had a provision for indeterminate detention. We do not have a provision for indeterminate detention, so their situation did not apply to us. That is why individuals such as Mr. Suresh and Mr. Zarqawi have been released on bail. We have provisions to allow the court to determine whether the person should be out. Therefore we did not have the specific problem they had.
In addition, section 6 of our Charter deals specifically with the fact that the right to enter a country is a right of a citizen, of no one else, and the right of the permanent resident to enter is subject to the Immigration Act. They have no Charter right, and the Supreme Court of Canada has said that. In fact, one of the obligations of a state is to decide who gets to come into the particular country. Therefore it is a constitutionally sound distinction and has been upheld by the courts. I believe it was even one of the issues that the UN commission itself looked at. We are on exceptionally strong grounds constitutionally in terms of that treatment. Otherwise, you cannot stop anyone from coming to the country. You have immigration laws for a purpose.
Senator Lynch-Staunton: That was not really my question, but I have a final question. I asked it of the previous witness, who was not the right person to ask, but I believe you are.
Is there any way for a security certificate to be lifted if the evidence from the person who is affected by it is such that the judge, or someone, must recognize that a mistake was made? In other words, once applied, is it permanent or is it subject to removal?
Mr. Kennedy: The judge is the individual who looks at it and determines the reasonableness. The judge can quash the certificate and the judge's decision is final.
Senator Lynch-Staunton: However, it is issued by the two ministers and goes before a judge for confirmation or rejection. After it is confirmed by the judge, is that the end of the process as far as the security certificate remaining in place is concerned?
Mr. Kennedy: I indicated that the next step would be a determination as to whether or not the individual faces a risk of torture, and then of course the document can be used at the immigration hearing.
I could tell you that as a matter of course, if information came to our attention that showed the basis upon which the certificate was issued was entirely wrong, yes, we would take corrective action.
Senator Lynch-Staunton: Is it correct that only you can remove it then, or can the judge remove it?
Mr. Kennedy: Well, the judge decided the reasonableness.
Senator Lynch-Staunton: Yes, but I am speaking about after that.
Mr. Kennedy: The way that it is crafted now, there is no appeal, but you have here volumes of cases, so I would be surprised if an individual could not turn around, for instance, and say we are violating his section 7 rights to life, liberty, and then bring a Charter application.
Senator Lynch-Staunton: No, I will try and summarize. If that individual a year after he has been expelled has evidence that proves that the information used was in error, is there no appeal? Is it too late for him or her?
Mr. Therrien: If I understand the question correctly, I will rephrase it. If the information upon which the certificate was issued by the minister is later found to be incorrect or insufficient, is that the end of the matter, and what are the mechanisms for ensuring it is the end of the matter? My answer would be — as Mr. Kennedy has said — the court has the primary role here.
Senator Lynch-Staunton: After the court has decided.
Mr. Therrien: Do you mean if the court has decided that the certificate should be quashed?
Senator Lynch-Staunton: No, confirmed.
Mr. Therrien: Then you have a decision that is not appealable, so you have a removal order that normally should be executed. This is difficult to conceive of in practice, but there are means in the Immigration Act to displace inadmissibility findings. If there was such information, which is very difficult to conceive of, the person could be readmitted, I suppose.
Mr. Kennedy: Since it is an important issue, I asked Mr. Craig Goodes what their practice was for other individuals who have been deported. I can tell you that we are equally sensitive to miscarriages of justice and find ways to address them, but maybe he can indicate what the practice is now for people who have been deported.
Mr. Craig Goodes, Acting Director General, Case Management Branch, Citizenship and Immigration Canada: I will wind up by reinforcing the last few words of Mr. Therrien's comments.
Once the person is deported on the basis of the findings in the certificate, in the scenario you describe, senator, if somewhere down the line it was discovered that the information on which the deportation order was based was incorrect, then that would not preclude the individual from reapplying for admission to Canada. As any other person who could be ordered deported for a less serious technical reason could apply for readmission to Canada. There are barriers in the legislation that would need to be overcome, but certainly there is a process whereby any individual who is ordered deported from Canada could seek to reapply and, under certain conditions, could be allowed to re-enter Canada.
Senator Fraser: When we are talking about deporting someone, assurances are sought that that person will not be tortured. What is that process? How do we go about getting such assurances? What is the nature of the assurance? How much faith can we have that the assurances are real?
Mr. Kennedy: As you pointed out, there has to be a determination, first, of if the individual will face a risk, and if we believe the individual will, then there is a process to follow up with the foreign state. Mr. Keith Morrill is here from the Department of Foreign Affairs. We thought questions like that might come up so we have experts like him to speak to you in that regard.
Mr. Keith Morrill, Director, Criminal Security and Treaty Law Division, Foreign Affairs Canada: On the question of assurances, the Supreme Court has told us in Suresh that they have to be looked at on a case-by-case basis, but certainly there are things we can do to try to ensure that the assurances are at the highest level and have the greatest weight.
For instance, one would seek assurances at a diplomatic level rather than simply a letter from an official to another. One would seek assurances in the context of an exchange of diplomatic notes, which would be in effect the foreign state making a specific statement as the state, and not an individual who can be overruled or make a mistake.
Assurances in the context of deportation as opposed to extradition are more difficult because you are not working within a treaty context. In other words, it is not an assurance pursuant to a specific treaty that puts conditions on extradition. However, one would seek diplomatic assurances, and, at the level of the state, one would focus on what one regarded as the risks. We would stress through the diplomatic process the importance we would attach to such commitments and our willingness to make sure that they were followed up.
Senator Fraser: Then do we follow up as a matter of course? I noticed in the case of Mr. Ahani, Mr. Kennedy said that a representative of the Canadian government had gone to check up on his welfare in Iran.
Mr. Kennedy: We did not go to check up on his welfare. The document is Canada's response to the human rights committee, because, as I indicated, counsel had made submissions that he may have been killed or subjected to torture. The response clearly indicates the risk that the author would face torture upon return was minimal. Our Supreme Court looked at that and agreed with the determination of the minister. On page 7 of the document I am looking at, Canada's determination that the author did not face a substantial risk of torture upon removal had been confirmed by subsequent facts. A Canadian representative had spoken with the author's mother, who said that — this is in October 2003, well after his departure — her son was well, and there had been other contact prior to that with the Canadian authorities, including a visit by the author to the Canadian embassy in Tehran on October 10, 2002, during which he did not complain of ill treatment by Iran.
I indicated that he obviously was an Iranian citizen and he is in Iran, and Canada cannot run around Iran checking up on Iranian citizens. We do not normally do that, but certainly in that case, Canada followed up with the Iranian government as an additional step and indicated it expected them to comply with their international human rights obligations, including with respect to the individual in question.
I thought it was the journalist Stewart Bell, who, in one of his stories had gone over there, followed up and interviewed the chap. However, the context was his coming to the Canadian embassy in Tehran after the time he allegedly disappeared.
The Chairman: Which document are you referring to, Mr. Kennedy? Is it one that we have here?
Mr. Kennedy: It is a document I brought with me, and I offer it to you if you wish to have it. It is all the legal proceedings that surrounded Mr. Ahani, including his effort to bring this issue to the international tribunal of human rights, and all the submissions are there.
Senator Kinsella: We need precision here. You are referring to a communication filed under the International Covenant on Civil and Political Rights?
Mr. Kennedy: Yes.
Senator Kinsella: Was it looked at by the United Nations Human Rights Committee, which is responsible for receiving communications under that covenant?
Mr. Kennedy: Yes.
Senator Kinsella: Do you have all the documentation on that communication?
Mr. Kennedy: Yes.
Senator Kinsella: That is what I would like to have tabled.
Mr. Kennedy: I am quite happy to table it.
The Chairman: Thank you very much.
Senator Fraser: You made the point that once people are back in the country of which they are a citizen, we cannot check up on them. On the other hand, to what extent can we believe assurances given by some countries that we know do practice torture, and what do we do about that?
Mr. Kennedy: Clearly, each case has to be assessed on its merits in terms of what weight you wish to give to the assurances.
In terms of the human rights ruling and the correspondence, they actually looked at that with Iran and indicated there were no problems with Iran. Although individual abuses occur, it is not usually in regard to an individual such as Mr. Ahani, and it was not systemic. Decisions are made on an individual basis as to, first, if you get assurances, are you content that you would accept them.
The other thing to bear in mind is that self-interest dictates the behaviour of states. In this particular case, we are dealing with terrorism. Terrorism is a global phenomenon. Each country requires the assistance of other countries to address that phenomenon, so it would be in the self-interest of the state, because it is dealing with a bigger picture, not to do anything to, in this case, embarrass Canada or to breach any of the undertakings that it provides. Clearly, it would have a negative impact on its relationship with the Canadian government as well as any of the agencies in Canada. Even the worst of states has a self-interest that would require their best behaviour.
Senator Andreychuk: Thank you for going through the Ahani case, but I am a little confused. That case is from 1993 and predates the entire shift in emphasis on terrorism. Also, we have made changes to the Immigration Act since then. I still call the significant changes that were made to the immigration process Bill C-11 — I do not know what it is called now — so I would like some clarification.
Are we still in the situation that the evidence gained by our intelligence people and other sources is used by Immigration, and that is the subject of the removal orders and the security certificates? Is it correct that two ministers recommend removal to cabinet?
Mr. Kennedy: No, they do not recommend to cabinet.
Senator Andreychuk: They simply act.
Mr. Kennedy: Yes, the two of them are authorized, if they are in agreement, to sign the certificate and that certificate goes to the court.
Senator Andreychuk: One of those ministers is the Minister of Immigration.
Mr. Kennedy: That is correct.
Senator Andreychuk: Who is the other minister?
Mr. Kennedy: It is the Minister of Public Safety and Emergency Preparedness Canada, also known as Solicitor General, because until that proposed legislation is passed, she signs as Solicitor General.
Senator Andreychuk: With regard to deportation and denaturalization issues, I believe the court has recently commented that it is not seen to be a fair process if the ministers who investigate are the ministers who make the final determinations. Therefore, it is the immigration department that will investigate and receive information from intelligence sources, and it will be that minister, and equally the Minister of Public Safety in charge of intelligence services and all the other issues, who will sign. Is that correct?
Mr. Kennedy: Yes. I just point out for the record that the Minister of Immigration does not do any investigation. As a matter of fact, in December 2003, the enforcement function for Immigration was removed from that department and put into the portfolio of the public safety ministry. The role on that side is strictly as a set of eyes that is not involved in the investigation, whether or not the facts support it. If that is the case, it goes automatically to the Federal Court judge, who is the one who can quash it if he or she is not satisfied.
I would also point out that in the cases that we had from 1991 on, the regime was substantially the same as we have here in terms of the process that you are talking about, which is the two ministers signing, the judge preparing the summary and the summary being made available to the individual. All of this was there. That has not diminished subsequent to the legislation that was passed in 2002. The guts of the issues are here.
The cases that preceded that were ones that dealt with terrorism and a whole range of groups and individuals. It was the intelligence service that provided that information in all of those cases except one — Chiarelli — which was an organized crime case.
Mr. Therrien, do you want to add anything in terms of the process?
Mr. Therrien: I would only speak briefly to the changes that were made in the Immigration and Refugee Protection Act, which is the title of Bill C-11, IRPA, in 2002.
In Ahani, the certificate process was essentially the same as the one we have now except for one significant factor, and that is the assessment of the risk of torture. When the certificate proceedings were first adopted, the convention against torture was not even in existence. That came in in the 1980s and the certificates were first adopted in 1978.
In IRPA, the 2002 legislation, the most significant change to the certificate process is that the assessment of the risk of torture was subsumed or consolidated in the review by the Federal Court of the reasonableness of the certificate. That was with a view to, to the extent possible, make the process more time-efficient, to reduce the time it takes while the person is detained to look at the sum total of the issues. Ahani was detained for a long period: nine years. IRPA sought to reduce that time by consolidating procedures.
Senator Andreychuk: In Bill C-11, in updating the act and effecting security certificates, I believe the minister had the power to define terrorism or terrorist activity. Is there now under the Immigration Act a definition of terrorism and terrorist activity, and is it the same as the definition in the anti-terrorism bill?
Mr. Kennedy: I just wish to indicate that prior to December 2001, terrorism was never defined anywhere.
Senator Andreychuk: I appreciate that. I do not want to keep going back to the history, to 1993. I want to know about now.
Mr. Kennedy: I believe there is a linkage.
Senator Andreychuk: Did the Immigration Act give the power to the minister to define terrorism or terrorist activity for the purpose of the act? Bill C-36 has a definition of terrorist activity and I want to know what definition you now use in the immigration department.
Mr. Kennedy: The information I have, because I do not have the legislation before me, is that IRPA does not define terrorist activity. In all of the case law through the time period we have been dealing with, the court felt comfortable in finding terrorist activity and defining it as such. The definition that we had was in Bill C-36, but that is for Criminal Code purposes. Is that consistent?
Mr. Therrien: There is no authority for the minister to define terrorism. The word is used in IRPA as a ground of inadmissibility, undefined. As Mr. Kennedy says, there have been challenges under the Charter to the effect that terrorism was not defined and allegedly too vague, and the courts have dismissed these challenges.
Senator Andreychuk: There are no regulations and the minister has not moved to define terrorist activity within the immigration process. The only definition being used is the one in Bill C-36; is that correct?
Mr. Kennedy: The judge looking at the Immigration Act to determine the reasonableness of the certificate would look at the word itself, ``terrorism,'' and then would use his or her good judgment. One judge said, ``You know it when you see it.'' The judges have had no discomfort in the cases that have come before them in terms of what constituted terrorism.
You are right; that gives that judge scope. The only definition, as I say, is for the Criminal Code.
Flipping through the documents, many of the organizations that are listed there are also listed under the UN suppression of terrorism regulations.
Senator Andreychuk: You are now talking about terrorist organizations. I was talking about the definition of terrorism or terrorist activity, as opposed to terrorist organizations.
As a final question, does everything go to the judge?
Mr. Kennedy: Yes.
Senator Andreychuk: However, the information that goes to the judge is gleaned from our intelligence services and through our services in Immigration. If the judge makes a determination to the best of his or her ability, defining what terrorism is in that case, the person can end up with a security certificate against him or her.
I am not referring to the fact that they can be or should be deported. I am not referring to the issue of whether they could be tortured or not.
Assume I am a non-Canadian who went through that entire process and I now want to clear my name because I have new evidence of security agents reneging on stories or whatever; I now have good information to place before Canada and say, ``I am not a terrorist; I should not have had a certificate against me.'' Is there any way to expunge that certificate?
In our Criminal Code we have ministerial discretion, after all appeals are finished, to reopen a case if there is some inherent injustice. We have pardons. We have learned that mistakes can happen.
Is there nothing built in for redress for someone who might, despite all our good efforts, have been wrongly labelled under a security certificate?
Mr. Kennedy: I have indicated to you the process.
Senator Andreychuk: After the hearing, you have him deported and he is gone. Then years after the fact, evidence comes to light that we have based the case on false premises. Is there anything he can do to get the certificate expunged, to be reinstated so that the facts cannot be used against him? I am referring to a clearance.
Mr. Kennedy: There clearly would have to be a process. It is not in the legislation now. It would have to be, as Mr. Goodes indicated, if you had applied to come to Canada. The purpose of the certificate is to be filed at the immigration hearing and is proof of the truth of the content, which is that you are a member of this organization and you either did engage or will be engaged in terrorism. That is how it is used in the hearing.
If you reapply to come, that would engage a process. Part of that would be for you to say that you have evidence, here it is and let us look at it again. There could be a way to do it, if that was your objective. It is roundabout; there is nothing specifically in the legislation that says if you have been removed and want to come back, then there is a way to expunge it — no.
Senator Andreychuk: It is an indirect way. However, it is not a way of saying that the facts we used previously might be wrong. At the moment, there is no way of clearing yourself while staying in your own country. In other words, we have not thought about that in our act.
Mr. Kennedy: Methods would be indirect. Another one might be, assuming that it was strictly based on a case from the intelligence service, an individual could complain to SIRC and provide evidence, and SIRC could go back and say the information provided to the minister was wrong. They would make a report to the minister, and if the minister decided it was wrong, we would take steps to make that determination.
I put it to you in the context of the total number of cases that these are used extremely judiciously. The prior head of the intelligence services said it costs about $1 million for each of the cases that come forward. They are not done lightly or without the facts being substantiated. In terms of your concern that that hypothetical situation existed, I have indicated two ways that it could be brought to the public's or minister's attention.
Senator Smith: What about the prerogative writs like certiorari, prohibition and mandamus? Is there any function for them in some of these situations that Senator Andreychuk referred to, where they might kick in?
Mr. Kennedy: The legislation is drafted in such a way that the decision of the Federal Court judge is conclusive of that — it is conclusive against the Crown and against the individual in terms of the reasonableness of the certificate. There has been a series of clearly collateral attacks based upon the Charter for all sorts of other things. That is why I am not prepared to close the door on the idea that at some stage, you could see section 7 of the Charter used, coupled with section 24 or some other form of relief. There is never a ``never'' with counsel.
Some of the prerogative writs have been used to try to get injunctions to prevent stays of orders. In Mr. Ahani's case, after he was ordered deported, he brought a series of actions to try to stay his removal pending the conclusion of the UN Human Rights Committee examination. That went to the Ontario Court of Appeal and the Supreme Court of Canada, which denied leave. I am never prepared to say ``never'' to what counsel can do.
Senator Day: Thank you for being here to help us with this particular issue of certificates.
In the Mansour Ahani example that you gave, which was helpful, I note at the next to last page — this is the order of the judge after he has gone through his hearing to prepare the summary — it looks like the judge has struck this out. I wonder why the portion that is struck out is ``to be served forthwith.'' This statement summary and information pursuant to section 40 of the act as it then was should be served on Mr. Ahani who is, by this time, the subject of a security order and presumably in detention. Why would he not have counsel and why would this not be served on his counsel?
Mr. Kennedy: He may not have had counsel at that time; I am not sure.
Mr. Therrien: Counsel can and does have access to this information. I do not know why, in this particular case, the words were struck out, but both the individual and his or her lawyer have access to the summary.
Senator Day: He is in detention. Presumably, in the normal course, he would be in detention by this time.
Mr. Kennedy: Oh, yes. Mr. Batt is here, one of the counsel of the Department of Justice, if you want the answer to your question.
Mr. Kennedy: Mr. Ahani had two counsel acting for him.
Senator Day: You did not want to make two copies, so you decided not to give anyone a copy, is that it?
Mr. Robert Batt, Senior Counsel, Legal Services, Canadian Security Intelligence Service, (CSIS), Department of Justice Canada: I was counsel for the Crown on the Ahani case. I was not there in 1993, but from my experience in other similar cases, when the judges make orders in relation to serving summaries, they would normally ask us if the individual has counsel or not. If we are aware that the individual has counsel, we will advise the judge and the judge will make an order to serve it on counsel. Some judges ask that it be served on counsel and the detainee. Some say if he does not have counsel, serve it on the detainee and when you find out who his lawyer is, serve it on the lawyer. There is a variety of situations.
Senator Day: This was struck out in a form that was given to the judge. Presumably, it was a question of somebody not knowing if he had counsel or not.
Mr. Batt: Presumably. It is also possible that he did have counsel and there was an agreement made to provide it to counsel as well as Mr. Ahani. As I say, I was not there in 1993; I did not take over until 1995.
Senator Day: The question this raised for me is how someone who is under detention gets counsel; and is the individual who has been detained in the last 48 hours given access to counsel if he or she does not happen to have legal counsel or a team of them lined up for this pending security certificate?
Mr. Batt: In the cases that I have done, they have not had any trouble getting counsel. In the cases I have done in Toronto and Montreal, it would often be arranged through contact with legal aid officials. There really has not been much delay in an individual getting counsel if he did not already have one. Some of them obtain counsel as soon as they are detained and some wait. Normally, I would send a letter to the detainee, if he does not have counsel, advising him he should obtain counsel immediately and have the counsel contact me.
Senator Day: Given the stress that some provincial legal aid systems are under, have you any experience of where legal aid was not able to provide legal counsel to any of these 27 or so that have been detained under this legislation?
Mr. Batt: I can only speak for the six that I dealt with. Sometimes, counsel have mentioned problems with legal aid, but they have generally ended up getting legal aid, as I understand it.
Senator Day: That may be an area that we will want to pursue further. At this stage, having regard to the time, I would like to talk about the judges. We are asking, in this legislation, that Federal Court judges perform a somewhat peculiar process for them, something different from what they are normally expected to do. I am still looking at this example you gave us, of Ahani, and the judge's statement under oath at the end. In that hearing process, which is without counsel for the detained and without the detained being present, does the judge have counsel to help him in dealing with what is being presented by the Crown agencies?
Mr. Kennedy: No. In fairness to the judges, they do other things as well that are in camera and ex parte — applications for search warrants, interception of communications and things of that nature — where a similar obligation pertains. Some are very comprehensive, sometimes running into thousands of pages of documents filed to sustain some wiretap applications, for example.
I indicated during my initial remarks, Crown counsel has an obligation to make full, frank and fair disclosure as an officer of the court.
Senator Day: I understand that.
Mr. Kennedy: It is a heavy obligation, and the materials are put forward. That is the same obligation that would pertain to a representative of Her Majesty for this kind of document.
I made available to the learned senators a document called ``Security Certificates and Removals,'' a background brief. I am not sure if you have had an opportunity to read that document, but I would encourage you to do so. It actually goes through and analyzes all of the relevant comments by the court, including comments by the judges who have been asked to perform the very function that you have spoken to. I believe there are even comments in the Suresh case that talk about a reference to a Supreme Court decision in Ruby, where the court looked at these issues and said that is the function that the court provides. This is on page 7 of that document. It was actually in Charkaoui. It references Ruby v. Canada, Justice Arbour at that time, talking about the duty of disclosure on the Crown, hearings in the absence of a party and the designated judge to hear the minister's witnesses. They examine the witnesses themselves if the need arises. They examine documents carefully. They go on, a couple of lines below, to talk about the source of the information, the way in which it was obtained, the reliability of the sources, the methods used and whether it is possible to corroborate the information by other means. A couple of lines further down, they ask the minister's representatives about the quality of the investigation and inquire into whether the events can be interpreted differently. There are other cases on the bottom of the page — Mr. Zundel.
Madam Justice Arbour has not been a pushover in terms of her activities on the international scene. In Zundel, the nature of the evidence is kept partly secret — I told you only to delete the sources and prepare a summary. Then the judge says, ``I must be particularly careful in assessing the evidence presented in determining what weight should be given to it, must examine with particular thoroughness all of the evidence which is presented to him.''
On page 8, at the top, it indicates that a court carefully reviews it and talks about the additional burden placed on the judge not being taken lightly. It is reviewed with intense scrutiny, carefully weighed with an eye to the quality and number of the sources of information. It continues there.
In Zundel, not only does the judge have a heavy responsibility in ex parte hearings, so does the Crown. The Crown's duty must be performed with impartiality and honesty. It requires that evidence adverse to its interests must be disclosed. You do not just sit there on one side. There is full, frank and fair disclosure.
Senator Day: Yet the Crown's evidence is obviously to be marshalled in a manner to support the security certificate. The judge knows that. That is the Crown's job. Has there been any contemplation or any suggestion of a special advocate to help the judges in this balancing act that they have to perform?
Mr. Kennedy: This is the amicus curiae, which we have heard reference to. That has come up. The Federal Court judges have indicated that they do not require that assistance in these cases. They would have the power to arrange it if they chose to. They indicated they do not, that the legislation is designed so they play the objective testing role and they are cognizant that the counsel is not there. They indicate that they are comfortable with that. ``Comfortable'' may be too strong a word. They recognize that, they work within it and they discharge their duties.
Mr. Therrien: I would just briefly add that indeed the Canadian courts have found that the absence of a special advocate does not make the process unfair or unconstitutional. The primary reason for this is the important role of the judge in testing the evidence that the government presents. That is the Canadian system.
Certainly it could be envisaged that we would have a special advocate similar to the system that is in place in other countries. I would say, with respect to that, that system is not perfect either. If we look to the U.K. experience, a number of the special advocates have actually withdrawn from that role because they were concerned with the process in which they were involved. In that process, in that system, yes, there is a lawyer who can test the government's evidence and has all of the government's evidence, but the lawyer cannot speak to his client about that classified information. That is a real limitation on the system in which you have a special advocate.
Be that as it may, our Canadian courts have found that essentially, because of the role of the court, it is not necessary to have special advocates.
Senator Austin: I believe the argument for this particular role was not so much that the court needs it, but that the perception of an objective assessment would be added to by the presence of a special advocate to review the evidence and add assurance to the public that the process was indeed objective. That is more a representation than it is a question, just to complete your answer.
Mr. Kennedy: We are only putting forward the regime the way we see it. The minister, when she appeared before this committee, indicated that refinements are in the power of the committee to recommend. We are indicating that the model that we have has certainly passed constitutional muster, so we are talking about what we currently have and what the courts have ruled.
Senator Day: To complete this line of questioning on the summary that the judge has prepared pursuant to the legislation, is that judge the same judge before whom the hearing takes place later on?
Mr. Kennedy: Yes.
Senator Day: In the next few days?
Mr. Kennedy: Whenever counsel are willing and able to proceed.
Senator Day: Does the summary that the judge has prepared form the basis for the review?
Mr. Kennedy: Yes.
Senator Day: To determine whether this individual should or should not be subject to a security certificate.
Mr. Kennedy: Clearly, it is a continuing obligation on the judge as the proceedings unfold. If he or she feels that more is required, that judge is in a position to go back and enhance the summary as appropriate. It is a continuing obligation.
The Chairman: This is an area of major interest for this committee. If necessary, perhaps we can have our friends on the panel back at another time. I do want all senators who have indicated they wish to ask questions to have that chance.
Senator Kinsella: I will abandon one area that has been partially canvassed. Several times, the witnesses have made reference to the United Nations Human Rights Commission. The record should show that in fact, there has been no matter before the United Nations Human Rights Commission.
What we are dealing with here, Mr. Kennedy, if I am correct, is a communication that was registered with the United Nations Human Rights Committee under the Covenant on Civil and Political Rights.
Mr. Kennedy: Yes, you are right.
Senator Kinsella: It is important for me to understand: Was this an interstate communication or was it not?
Mr. Therrien: It was a communication filed by the individual, Mr. Ahani.
Senator Kinsella: It was filed by an individual under the first optional protocol; is that correct?
Mr. Therrien: I believe so.
Senator Kinsella: Did Canada argue that it was admissible or that it was not admissible before the committee?
Mr. Kennedy: By the way, on your first question, I have looked, and it was under the optional protocol to the International Convention on Civil and Political Rights. We would have to check on your other questions.
We have all the materials relevant to that in terms of both parties and the rebuttal as provided by the Government of Canada.
Senator Kinsella: Thank you. I suppose we could secure the records from the UN, but if you have them there it will help our committee.
This committee is reviewing the Anti-terrorism Act, but our terms of reference are wider than simply those provisions contained in the act that we adopted three years ago. I think that was wise, to give the order of reference that kind of a scope.
This is about the effectiveness of combating terrorism. Many of the international instruments that this legislation helps to implement are indeed that, they are international. It is a global struggle to combat terrorism. I want to return to the point that was raised, in part, by my colleague, Senator Lynch-Staunton, as to the effectiveness of combating terrorism when a suspected terrorist is apprehended and then, through whatever process, whether the Immigration Act or another instrument, is taken to the border and sent off. Do you find that a very effective way of combating terrorism? If we are secure enough, or the ministers are secure enough in their minds, to have the freedoms of an individual interdicted by these certificates, should we be setting these people loose beyond the borders? What is our international responsibility in the global struggle against terrorism? What is your view on that?
Mr. Kennedy: We have to look at that in terms of all the powers that are available to us. There is no magic solution to what we are trying to do. That is why we have tried to use the full range of powers and opportunities. That is why we have the provisions, let us say, dealing with terrorist financing, where we can try to freeze money and have forfeitures of money. We can have civil procedures that are independent of criminal measures. We have a broad range. We deregister charities. If that is the case, it becomes a prophylactic event. This is one of those series of tools to disrupt and prevent activities of organizations here. Yes, it is significant for an organization, let us say, if its leader is here and you remove the leader from that group. You in fact weaken that group, whether it is the person's charisma in recruiting other people to the cause, persuading them to take additional action or to stay here and get access to equipment or fundraising that they want to send back. By removing them from here, you disrupt their ability to do that. It is not done just in the case of terrorists. It is done for organized crime, crimes against humanity and war crimes. Yet at the end of the day, you may not be able to avail yourself of this particular tool, which has been a very strategic one for the Government of Canada. You may therefore have people in Canada for whom you have to wait until you get to a threshold where there is enough evidence. Hopefully, you are quick enough to move in and charge them with a conspiracy offence or something like that before they kill someone. You are really running risks when you have to wait for the criminal process.
Senator Kinsella: Do you think the legislation that we are reviewing should be amended such that Canada can prosecute within its borders a person who is apprehended currently under the Immigration Act, but then we send them off, notwithstanding whether their network has been disrupted? I understand the reality. If we are true partners with other countries around the world in dealing with a global disease, then should we not amend this legislation and assume our responsibility? If it means incarceration in Canada, it is part of the expense that would be incurred by Canadians. Would that not be a reasonable contribution, just as we take them off our streets, to take them off the global landscape?
Mr. Kennedy: I will approach it in sequence. I assume that the model you are talking about is one where we would prosecute, convict and then deport the person.
Senator Kinsella: Why would you deport them? This is the absurd part, the part that is not common sense.
Mr. Kennedy: The individuals we are dealing with can be people who have no status at all in the country. The foreign aliens may not even have permanent resident status. Why would we put them in a favoured position? We remove 8,000 or 9,000 people a year from the country, but if you are a terrorist we prosecute you here and let you acquire citizenship. That is not normally what happens. We have people who commit crimes, they are charged and then they are removed from the country.
The other issue is there is a certain degree of burden sharing, if I can call it that. There are clearly people who have committed crimes of terrorism who have been prosecuted in other countries and returned to Canada. We have individuals such as Mr. Zundel, who has been removed from Canada and is now in custody in Germany, and Germany will be investigating him in the context of certain hate crimes in that country. It goes back and forth like this. Bear in mind, to follow the model that you postulated would almost reward those individuals by keeping them here when in fact they have no status here.
Senator Kinsella: It seems to me that the model that you are following, the immigration model, is inimical to our immigration policy, where we are trying to ensure, for the public interest of Canada, we are able to bring in the immigrants that this country certainly needs. We are using this instrument as part of the arsenal to deal with people who are suspected of being terrorists.
The struggle against terrorism is a global struggle. The legislation we are reviewing is even attempting to implement domestically Canada's obligations under international instruments. Today or tomorrow, the United Nations will even try to grapple with redefining terrorism. That is my question: Can you see this legislation being amended to focus on anti-terrorism interdiction, prosecution and incarceration to get the terrorists, who will have the full benefit of due process, obviously; however, once accused and found to be a terrorist, planning terrorist activity and participating in terrorist activity, to take them off planet earth so that they will not be continuing with terrorism. Is this not a reasonable thing?
Mr. Kennedy: The challenge, senator, with that model is that it indicates that you have to have a level of proof that would meet the criminal standard, which is, viva voce, beyond a reasonable doubt. Under the administrative law process that is used, we are allowed to employ hearsay evidence, subject to the weight that is afforded it by the court. The ministers have to be satisfied on the balance of probabilities, have reason to believe. If we cannot use this procedure, the model that is currently there, we have to wait until more is actually done in this country that would bring us to the cusp of a terrorist event. By default, if you want a disruptive, preventative technique, this is the technique you can use. The Supreme Court has indicated that we can use it, that it is appropriate and constitutionally sound.
Senator Kinsella: Members of the Canadian Armed Forces who were serving in Afghanistan interdicted suspected terrorists and turned them over to the United States army, and some of those suspects are in Guantanamo Bay. Were assurances sought or secured from American authorities that they would not seek the death penalty for those people?
Mr. Kennedy: I am sorry; I have no knowledge of that.
Senator Joyal: Are there any cases in which the Federal Court of Canada has refused to confirm security certificates? If so, in which circumstances?
Mr. Kennedy: I believe there were three such cases. In two of the cases, the pseudonym ``Smith'' was used to protect identity, and the other case was that of Mr. Jaballah.
Senator Joyal: What were the reasons given by the court for the refusal?
Mr. Kennedy: I cannot recall, but we will provide you with the reasons if that would assist you.
Senator Lynch-Staunton: Was one not refused by one judge and then brought back before another judge?
Mr. Kennedy: Yes, that was Mr. Jaballah.
Senator Lynch-Staunton: Perhaps Senator Joyal would like to know how that took place on the same evidence.
Mr. Kennedy: New evidence was presented. That is the challenge when cases are brought forward. There would be an argument for estoppel, that a case cannot be reheard on the same facts, so the state has to find additional evidence for the new judge to consider. We will provide you with the judgments in those cases.
Senator Lynch-Staunton: Not evidence; reasonable grounds.
Mr. Kennedy: Yes, information.
Senator Lynch-Staunton: Information; hearsay and the like.
[Translation]
Senator Joyal: Mister Therrien, the last time you appeared, the length of time a person could be detained without appearing before a judge, under immigration laws, was raised. Have you had the opportunity to reexamine these different detention periods and to produce a rapport that would give us an idea as to the periods of time covered by current procedures as defined by the law?
Mr. Therrien: The detention period that I mentioned at that time was between two and five years. We can certainly provide a detailed report for specific cases. For the time being, the detention period for persons named in a certificate is between two and five years.
Senator Joyal: Could you, in this report, indicate the number of persons concerned, that is to say for whom the detention period has been prolonged the most? How many persons were involved and, if possible, what was the result of the proceedings?
Mr. Therrien: Of course.
[English]
Senator Joyal: The case of Zahra Kazemi in Iran indicates to me quite clearly that Iran does not have control over its security forces, the proof being that the case was dismissed even though a person died. A Canadian citizen died in an Iranian prison.
When a person is the object of a security certificate and Canadian officials conclude there is no risk of torture, is there a procedure for the detainee to review that conclusion?
Mr. Goodes: I will briefly describe the process of the risk assessment. Its purpose is to give us an opportunity to examine risk to the person who, by virtue of being excluded from the Geneva Convention on Refugees, does not enjoy that particular protection, but should enjoy the protection of other conventions such as the Convention against Torture. Pursuant to the process, the minister's delegate is required to balance the risk to the individual with the risk to the security of Canada if the individual remains here. The individual is given an opportunity to know the information that the delegate will review. The information that the Federal Court discloses to the individual will also be reviewed by the minister's delegate. The individual will have an opportunity to make submissions to the minister's delegate on that information. The decision maker, in this case the delegate of the minister, has an opportunity to take advice from specially trained officials within the department who will source documents provided by foreign governments, such as human rights reports, and documents from multilateral organizations, including the United Nations High Commission for Refugees and NGOs such as Human Rights Watch. Any documents that the minister's delegate uses in the course of arriving at his or her decision are made available to the individual, who has an opportunity to make submissions on them. Any analysis that the delegate performs, and the conclusions of the delegate in terms of whether the person is at risk, is also shared with the individual. Therefore, in addition to the opportunity to make initial submissions, the applicant has one final opportunity to make submissions based on the information that the delegate has used in arriving at an assessment, and on that assessment itself.
Senator Joyal: The detainee is given an opportunity to review ``the proof'' the delegate has, but does he have the capacity to have that reviewed by a judge, that is, by a neutral eye, in the context of the different conclusions that the detainee might want to contend on the basis of the information that is provided to him or her?
Mr. Goodes: The decision of the minister's delegate in the pre-removal assessment is reviewed by the same Federal Court judge who is reviewing the certificate. If the detainee is not satisfied that the determination was properly arrived at, he can return it to the minister for another delegate to decide on a re-determination.
The Federal Court will look at what the minister's delegate decides and must be satisfied that it was a decision properly arrived at.
Senator Joyal: In other words, when you apply to a judge for a certificate, you apply on the basis of the allegation that the person represents a security risk and on the basis of the conclusion of the delegate that the country to which he will be returned does not present a risk of torture?
Mr. Goodes: When disclosing the information to the person concerned, an opportunity is given to that person to apply for the pre-removal risk assessment, so it becomes part of the certificate process. The certificate process is, for all practical purposes, suspended while the risk assessment is undertaken and the conclusion will come back to the court before it proceeds with the certificate process itself.
[Translation]
Mr. Therrien: The two procedures do not occur at precisely the same time even though the Federal Cour reviews both the question of inadmissibility, that is, reasons for which the certificate was issued and the risk of torture within the same proceedings.
This review has occurred many times in the past, with different results. The case of Ahani v. Canada (Minister of Citizenship and Immigration) being an example, where the courts confirmed that the person involved was not at risk of torture. However, more recently, the Court has referred back certain decisions to the departmental delegate for reasons of procedure.
Senator Joyal: Thus, the Court can review evidence on which an administrative authority based its decision that in the country to which the individual would be removed he would be at risk of torture. In such a case, is the evidence that has to be submitted the same as the evidence that allows one to conclude that the person concerned constitutes a danger to the security of Canada?
In the first case, the evidence must be founded on reasons to believe. The second type of evidence is totally different and seems to be more of an objective rather than subjective nature.
As to the first type of evidence, obviously, the evidence must be expunged from the record to protect departmental intelligence operations. However, as to the second type of evidence, that is, evidence concerning the risk of torture, it is assessed on totally different factual elements.
Mr. Therrien: You are right. The whole of the evidence concerning the risk of torture is rather objective in nature. It is disclosed in its entirety to the individual concerned. According to the Convention against torture and in order for an application for protection to succeed, there must be serious reasons to believe that the person concerned it at risk of torture. These are not merely reasonable grounds, but serious reasons to believe that the person will be tortured.
I would add the following qualification. In this proceeding, there are two administrative and judicial reasons to consider. These two factors must be weighed in the final decision concerning the issuance of a removal order.
On the one hand, the risk that the person will be subjected to torture must be reviewed according to the rules of evidence, as I described earlier. The other decision that has to be taken has to do with whether this person will be a danger for national security. The same departmental delegate must conclude that the person constitutes a danger for national security. In that case, it could very well be that the whole of the evidence is not disclosed.
On the other hand, one must weigh the security risk versus the risk for the individual involved. As to this second element, the whole of the evidence is disclosed.
Senator Joyal: Does the minister have guidelines following the Suresh case as to what constitutes a risk of being subjected to torture?
Mr. Therrien: Yes, there are general guidelines and these are also given to the Immigration department responsible for the pre-removal risk assessment. These guidelines contain specific parameters that agents must apply; however, they do not impose a certain conduct or result.
Senator: Could we have a copy of those guidelines?
Mr. Therrien: Yes, of course.
[English]
Mr. Kennedy: Yes, Mr. Goodes will provide those to you. He is with Immigration Canada.
Senator Joyal: Thank you, Mr. Kennedy.
[Translation]
In the case where it is decided that there is no risk that the person be subjected to torture, in the case where the country could transfer the person to another country, is that question examined during the global assessment of the risk that the person be subjected to torture?
[English]
I can be more precise; I can give you an example, if you wish, Mr. Goodes. Suppose there is a person coming from the United States, and we come to the conclusion that the United States does not practice torture — without any particular cases in mind. The United States and the CIA have a program called the rendition program, whereby they would send to a third country a person who could be subjected to torture. In your assessment of the risk, is the delegate asked to evaluate if there is the possibility that that country in fact could transfer the person to another country where torture is practiced?
Mr. Goodes: The minister's delegate is certainly not constrained in examining any relevant facts or relevant claims with respect to the applicant's submission. Therefore, if the applicant were to raise the issue of that kind of rendition — that deportation to country A would be a de facto deportation to country B, where they would be at risk — that would be taken into consideration.
Senator Joyal: Do you personally take it into consideration when you evaluate the risk that the person will be subjected to torture?
Mr. Goodes: Yes. It would be part of the overall evaluation of the risk to the safety of the individual.
Senator Joyal: Is it in your guidelines?
Mr. Goodes: I would have to confirm that specific scenario, and I will do that, sir.
Senator Smith: I think time is running out. I might just muse a little on what Senator Kinsella was exploring and get you to react. It seems to me that when we use the phrase ``setting them loose,'' the problem is that if we are functioning as a country within the rule of law, unless there is evidence that they have broken a law in Canada where we have jurisdiction, I do not know how we can set up our own Guantanamo. Has that angle, that even though they have not done anything, but have sat around conjuring up conspiracies — with genuine evidence of that — ever been explored? Do you have any reaction to that? Have the Americans ever asked us to extradite somebody who was not a Canadian of whom they were suspicious and we thought they will wind up in Guantanamo? I do not think that has ever happened, but has that ever been contemplated in dealing with the issue raised by Senator Kinsella?
Mr. Kennedy: You are talking about whether or not we would have evidence that an individual was involved in a conspiracy to commit a terrorist act?
Senator Smith: Yes. Maybe it has not happened. Maybe they go to bed every night dreaming about it, but I do not know how you would ever prove it.
Mr. Kennedy: As you know, an evil thought by itself is not enough.
Senator Smith: It might be if you can prove it.
Mr. Kennedy: It has to be evil thought plus other people and action to advance the conspiracy, but that does not address the nub of the problem, because so what if you charge with a conspiracy? You go to jail. Eventually, you have to leave jail. People do not get locked up for life. Even in the terrorist offence provisions under the Criminal Code, depending on the participation, there is a 10-year maximum. If you commit a terrorist act during the course of another indictable act, there is a life maximum. However, people get parole, so at some stage this does not really help us. If we have people who do not have status in this country who commit an offence, we will not give them status. The normal practice is that they are deported when they come up for parole eligibility. Therefore, they will leave the country at some stage, and we do not wish to give them status such as citizenship in this country, so, as you say, they do not go into the ether, they do not disappear, and we do the best we can with the tools available. Once that person has been identified, this is a global problem. Wherever they are they will be up to mischief. Hopefully, they get too old after a time to do too much mischief, and maybe they will be rehabilitated; I do not know.
The solution is, as I pointed out, to use the tools that we have to at least disrupt and prevent. This is why it is an important tool for us.
Senator Smith: It is a constraint, but it is a constraint that I want. We live in a society that is governed by the rule of law.
The Chairman: I wish to thank the panel. This has been obviously an intense discussion today because it is an issue of intense interest and some concern. We thank you for being here. Should we have further questions, we hope that we might gather again. In the meantime, all the best in what you do.
Mr. Kennedy: If you wish, I will leave these documents with your clerk.
The Chairman: Thank you.
Honourable senators, we will adjourn and be back at 1 o'clock on the dot. There is lunch in the little committee room outside the door, which our witnesses who are waiting to appear at 1 o'clock are quite welcome to enjoy.
The committee adjourned.