Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 6 - Evidence - Afternoon meeting
OTTAWA, Monday, March 21, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:04 p.m. to undertake a comprehensive review of the provisions and operation 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 our 13th session with witnesses of the Special Senate Committee on the Anti-terrorism Act. I will explain the purpose of this committee for our viewers.
In October 2001, as a direct response to the terrorist 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. We agreed, and the deadline for 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 time. For that reason, it was agreed that, three years later, Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and a less emotionally charged public.
The work of this special committee represents the Senate's efforts to fulfil that obligation. When we have completed the study, we will make a report to the Senate that will outline any issue that we believe should be addressed and allow the results of our work to be made available to the government and to the people of Canada. The House of Commons is undertaking a similar process at the same time.
The committee so far 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.
This afternoon we will be discussing the international dimension of the Anti-terrorism Act and are joined by officials from Foreign Affairs Canada. We have with us Mr. Keith Morrill, Director of the Criminal, Security and Treaty Law Division, who made an early appearance at this morning's meetings; and Ms. Ruth Archibald, Senior Coordinator at the International Crime and Terrorism Division.
As always, colleagues, I appreciate your cooperation in keeping the questions and the answers as concise as possible.
Ms. Ruth Archibald, Senior Coordinator, International Crime and Terrorism Division, Foreign Affairs Canada: Honourable senators, thank you for the invitation to appear today. I believe that this morning you were provided with some information senators had requested at an earlier hearing on some specific ways that the Anti-terrorism Act allows us to implement some of our international obligations. However, I will be happy to refer to those in case that piece of paper has not made its way to everyone yet.
I will begin with a brief statement just to put into a general context some of the things we do in our bureau at the Department of Foreign Affairs.
This fight against terrorism, as it has been characterized, is certainly not a new issue, either domestically or internationally. We were certainly reminded of that last week at the time of the Air India verdict. This is a problem that certainly predates 9/11, as some people sometimes forget.
While the response from the international community following September 11 was prompt and extensive, the community has been developing norms and standards for over 40 years. The Convention on Offences and Certain Other Acts Committed on Board Aircraft dates back to 1963. All 12 major global conventions and protocols dealing with terrorism and related issues existed prior to 2001.
Obviously, the terrorist threat remains four years after 9/11. The resolve of the international community to fight it is also still very much present. Indeed, UN Secretary-General Kofi Annan announced a comprehensive approach to counterterrorism on March 10 at the Madrid International Summit on Democracy, Terrorism and Security. In fact, that was confirmed today in the secretary-general's comprehensive report on UN reform in preparation for this September's summit.
This forward-looking UN strategy focuses on five principles: To dissuade terrorism as a means to an end, to deny terrorists the capacity to act, to deter terrorist support, to develop states' capacity to fight terrorism, and to defend and uphold human rights. We can therefore expect, I believe, that international norms and standards relating to counterterrorism will continue to be developed over the years to come, particularly in the UN context.
I wish to highlight some of the points that are, as I mentioned, in the paper that was made available to the committee this morning. While the links between legislative measures and some precise international obligations are clear and well defined, it is important to note that we also have a more general international obligation that may be said to be addressed by the Anti-terrorism Act more broadly.
One of our international obligations comes from the Security Council's decision that states shall ``...Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information...'' That comes from UN Security Council Resolution 1373, passed in September 2001. That resolution does not prescribe the specific domestic measures that must be adopted. In this regard, it can be said that the ATA as a whole responds to Canada's specific and more general obligations.
In addition to our legal obligations, Canada has undertaken a series of political commitments in international fora such as the G8, the Asia-Pacific Economic Community, the Organization for Security and Cooperation in Europe, and the Organization of American States. In the OAS context, there is also a newly developed regional instrument on counterterrorism.
We are committed to continuing to play an effective role, both domestically and internationally, in the fight against terrorism. It is our belief that these commitments must be honoured as part of Canada's overall contribution to the collective international efforts on terrorism.
While there is an important international dimension to the ATA, it is also obviously a tool for Canada's domestic response to terrorism, necessary to meet Canada's specific needs.
To conclude, I will quote from Secretary-General Kofi Annan's report released today:
Terrorism is a threat to all that the United Nations stands for: respect for human rights, the rule of law, the protection of civilians, tolerance among peoples and nations, and the peaceful resolution of conflict. It is a threat that has grown more urgent in the last five years. Transnational networks of terrorist groups have global reach and make common cause to pose a universal threat.
As such, terrorism requires a global and universal response. We believe that the act currently under review provides some of the tools to ensure that we are able to contribute to that response.
We look forward to engaging you further on the international dimension of the ATA.
The Chairman: Ms. Archibald, you referred to a paper that was tabled today. Could you identify that for us?
Ms. Archibald: I am not sure if it was tabled. I apologize if I used the wrong terminology. In a previous hearing, senators asked for some specific answers to questions on the international dimension of the Anti-terrorism Act. We endeavoured at the time to work with the Department of Justice to make those available. My understanding from the Department of Justice was that that was forwarded this morning.
The Chairman: If it was forwarded this morning, we have not received it, although there was another paper passed around.
Ms. Archibald: I would be happy to respond to questions on the subject. They had come from a previous hearing, but if they are still outstanding, I would be happy to respond using the paper.
Senator Andreychuk: We are talking about papers. We just received a copy of something from the Department of Justice. Is that from this morning's witness?
The Chairman: Yes.
Senator Kinsella: Welcome to the witnesses. Could you share with members of this committee Canada's position at the United Nations on dealing with the issue of the definition of ``terrorism?''
Ms. Archibald: I will start, and then Mr. Morrill, a lawyer who is the negotiator, can give you more detail on this.
This is an issue that has come up particularly in the context of the negotiation of a comprehensive convention, which has been ongoing now for a long time, certainly predating 2001. The original negotiations were chaired by a Canadian legal adviser to the Department of Foreign Affairs. It has been stuck on the question of when is a terrorist not a terrorist, in terms of those who might be deemed to be fighting ``occupying forces'' as defined by those who are making the argument.
It is also a question that comes up in other fora, where it is determined that it is not necessary to have a definition. For example, the regional instrument that was negotiated in the Organization of American States does not have a definition of ``terrorism.'' It was produced within the last four years. It may be unique to the UN, but it has certainly become very topical.
Secretary-General Annan, both today and in his remarks 10 days ago in Madrid, urged the international community to make headway on a definition for the purposes of this convention and suggested that some of the guidelines as recommended by the high-level panel might be a starting point to reach an agreement on that definition.
Senator Kinsella: What position is Canada advancing in this debate at the UN?
Mr. Keith Morrill, Director, Criminal, Security and Treaty Law Division, Foreign Affairs Canada: Canada, obviously, would value a global convention on terrorism, and the core of the discussion is the definition, as it has been in the 12 previous terrorism conventions.
The experience in the previous 12 conventions is that one cannot arrive at a mutually satisfactory definition because of the difficult issue of dealing with what are often described as ``freedom fighters.'' It is the question of the moral equivalency of terrorism versus armed conflict.
Canada's view is that we would like a global convention, but we have not been willing to say ``a global convention at all costs.''
We must have a definition of terrorism that does not, in effect, mean that we are stepping away from certain terrorist acts because of the group that is performing them or the situation that they are dealing with. In that discussion in New York, which up until now has been bogged down, the focus has been very much on what we usually refer to as ``carve-out clauses.'' In other words, one makes very clear that this does not apply to certain items. One carves out certain situations, in other words.
There are two issues. First, the Organization of Islamic states put forward a position that I believe is inspired by the context of the occupied territories.
They are proposing language that would seem to exclude certain activities that Canada, and most of our allies, would regard as terrorist. Equally, there is discussion of the extent to which activities of military forces of states should somehow be included in the definition of terrorism. In other words, military forces of states are governed by an extremely well-developed system of humanitarian law — which is not my area of expertise — but Canada's position has been that one should not somehow equate terrorist activities with those of armed forces, either by treating terrorist groups as, in effect, not terrorists, or, alternatively, treating military forces as terrorists in certain contexts.
Things have been bogged down. There is some hope, with the high-level panel's report, that some of the logjam might be moved.
Senator Kinsella: Would you describe Canada's actions in these discussions as a proactive approach, seeking new paradigms, or is it an approach of caution and reticence: Let us see what happens in five more years, and we might be a paragraph or two more advanced?
Mr. Morrill: I would describe Canada's approach as being extremely well coordinated with its allies.
Senator Kinsella: On that, does the discussion include consideration on an international plain of the prosecution of and the applying of sanctions to, upon conviction, terrorists wherever they may be found?
I will be specific. We had some discussion this morning on how Canada has been using the Immigration Act powers for certificates, et cetera. We end up simply deporting people where the grounds for so doing are allegedly that they are engaged in or associated with terrorism. The common-sense analysis is why would you send a terrorist somewhere else to carry on his or her terrorist activities? Why would you not deal with the terrorist in Canada as part of an international model of dealing with terrorism, no matter where we find it?
I was curious to determine whether or not at the international level there is discussion around member states stepping up to the plate and meeting their responsibilities to combat terrorism internationally. If we in Canada apprehend people, we will prosecute them; we will incarcerate them; we will keep them off the global streets. Is that question of changing the paradigm so that we will have the application of international sanctions such as an international prison being discussed? Do you follow my question?
Mr. Morrill: I think I follow your question very well, senator. If I could make one comment, it is important to distinguish what was being discussed this morning, which is essentially deportation, and which is conceptually not a punishment. It is not enjoyable, perhaps, but it is not a punishment. People are inadmissible to Canada for any number of reasons, including the fact that they would like to come here to live but do not have a proper visa.
In that context, the way the Canadian system responds to deportation is along the lines of most countries, that is, an alien does not have a right to be here and, therefore, removing him or her.
What we talked about in New York, and in virtually all of the UN terrorism conventions, is a criminal structure. There is a clear international approach to dealing with sanctions. That is, the principle of extradite or prosecute. The more modern terrorist treaties are extradition treaties. They are mutual legal assistance treaties, arrangements for information sharing.
To use your example, what we are talking about in New York is not how shall we deport them, although, as Mr. Kennedy said, it can be an important tool in combating terrorism and in fulfilling our obligation not to be a safe haven for terrorists. We are talking about, essentially, a criminal law convention so that we will all agree to have an offence in our criminal law that basically is defined by this treaty, if we can successfully come up with one. That is why it is so important to get the right definition. Otherwise, we will be committing to having an offence that, frankly, does not work in the Canadian system.
As different countries have different approaches to their capacity to deal with offences within and without their territory, you in effect create a choice: Prosecute them in your country or extradite them to the country that seeks their prosecution.
This is basic to Canadian systems. The criminal system in Canada builds in certain protections for the accused at the evidentiary level, even before one gets to specific protections. These protections include, for example, not being able to use hearsay evidence or inflammatory photographs of victims to shock a jury. Those are all part of our evidentiary system.
Civil law tradition countries such as France will not have those structures because there the investigator is a magistrate who knows that hearsay is of less value than viva voce evidence, but will hear them both because he or she is trained to weigh them. Those tend to be the countries that are most comfortable prosecuting offences that take place outside their territory. Those tend to be the countries that do not extradite their nationals. Since they do not, they have had to develop processes over centuries whereby they can deal with a situation when one of their nationals is accused of murdering someone in a foreign state. They will not send them to a foreign state. They have to be able to prosecute them. A country like France will have a system that is open to prosecuting offences committed abroad and evidentiary structures are built around that.
Common-law countries' tradition on offences that do not occur in their territory is to extradite them. There are exceptions, but you will see where we have those exceptions we have some considerable difficulty in getting a successful prosecution. That is because our basic evidentiary rules do not make it easy.
In response to your question, we are very much addressing it, but you should be aware that this has been addressed in the past and tends to be addressed on a two-track system, with two possible approaches. Either you prosecute and your system supports it, or you extradite to a country whose system will support it. Does that answer your question?
Senator Kinsella: Yes. Thank you very much.
Finally, what is the understanding of the Department of Foreign Affairs and International Trade as to the number of Canadian citizens who are imprisoned around the world as a result of prosecutions for terrorism that were successful?
A subset of that question is how many Canadian citizens are in Guantanamo Bay?
Mr. Morrill: I do not have an answer for the first question, although we can certainly try to obtain information. I should point out that Canadians detained abroad have the right to consular access and to have us notified. They also have the right to ask states not to notify us, so we almost certainly will not have the complete figure; there will be some individuals who have asked that Canada not be contacted, but I can certainly seek to get you that information.
Senator Kinsella: Guantanamo Bay?
Mr. Morrill: That question was asked this morning.
Ms. Archibald: The question was how many are there currently?
Senator Kinsella: How many Canadian citizens are imprisoned in Guantanamo Bay?
Ms. Archibald: One.
Senator Kinsella: Has that person sought consular support from Canada?
Mr. Morrill: I am not aware of his having sought consular support. I understand that Canada has tried hard to seek access to the individual. I believe the position of the American government is that, subject to humanitarian law, it is the laws of war that operate in Guantanamo Bay. Consular access is not available to prisoners of war or enemy combatants. I should be careful with this, especially since it is not my area of expertise.
Senator Kinsella: As the director of the criminal, security and treaty law division, do you think the Americans' position is sustainable in international law?
Mr. Morrill: It may be. The question of consular access to prisoners in a military context is a difficult area. Again, I am not an expert in humanitarian law or the laws of war, but I understand that most of the rules in that area relate to situations where one is dealing with a war against a particular state, and therefore dealing with imprisonment of nationals by a state with which one is at war, so the rules seem to exclude access. However, the rules are built around a particular fact pattern, and this is an unusual fact pattern. I do not have an answer for you, senator.
Senator Kinsella: I suppose Henry Dunant, the father of international humanitarian law, is rolling over in his grave?
Senator Fraser: In reference to the Smart Border Declaration, I understand that as part of that declaration's action plan, there have been joint training exercises for Canadians and Americans working along the border. I am sure you are aware of the concerns that have been raised in this committee and elsewhere about racial profiling in the context of the drive to combat terrorism. Can you tell us what safeguards might exist against the introduction of racial profiling in joint training exercises of this nature?
Ms. Archibald: I am sorry, senator, I cannot, because we are not responsible for the actual content of the training. I suspect if there is joint training on that particular aspect, it would be conducted through the border agency with their counterparts at Homeland Security.
The training that we are more directly involved in is responsive training that comes out of the U.S. Congress. It is mandated by the U.S. Congress in response to attacks of a chemical, biological or nuclear nature. We have done two, and we are working on another later this month — on Top-up 3. Those are meant to test our own response mechanisms, so there would not have been joint training. On the actual joint training, and specifically as it might relate to profiling, I am not able to answer.
Senator Fraser: Does the Smart Border Declaration contain any explicit avowals, undertakings or commitments that human rights as defined in each country will be respected?
Ms. Archibald: I do not think the declaration has a specific human rights component to it. However, all of our undertakings internationally certainly do have a human rights component. There certainly are other situations, including in the OAS context, where we have worked with the United States to incorporate human rights language into our declarations and international obligations. However, I am almost certain the Smart Border Declaration does not include a specific human rights section.
Senator Fraser: Would that not be a little unusual?
Ms. Archibald: It is unusual, but it is not a declarative document. It is an action-oriented, point by point, very specific technical document.
Senator Fraser: I understand that. It is just that given the levels of public concern about human rights in the context of the fight against terrorism, I was wondering to what extent we were explicitly ensuring protection.
Let me ask about another element of that declaration. I think it also allows for a heightened exchange of information in connection with customs and immigration. Information is another area where there has been significant public concern, particularly about personal information on Canadian individuals being handed over to American authorities to be used in whatever way they deem fit. What are the safeguards there?
Mr. Morrill: As I understand the Smart Border Declaration, its title makes it clear that it is not a treaty. It is not creating obligations; it is describing a certain course of action, including development of certain policies and approaches. It does not purport to be legally binding, nor does it purport to be changing the rules or laws of Canada.
You would be looking at the normal Canadian rules relating to the capacity to share information and protect privacy — the application of the Privacy Act and the privacy rights in the Charter. If you wanted detail on that, you would probably have to speak to somebody in the Department of Justice who deals specifically with privacy law.
However, I think it goes without saying that Canadian agencies will follow Canadian law; if the law restricts them from sharing information, then they will not share it. If Parliament approves the capacity of certain agencies to share information, then I assume they will share.
Senator Fraser: We have heard in various contexts that whatever Canadian law may say, there are occasions when Americans act within their jurisdiction. They say, for example, ``Your plane cannot land here if you do not give us a whole raft of information, whether or not you have tidied up your laws to match ours.'' How much of that is going on?
Ms. Archibald: I would say that they certainly have the authority to do that. They would regardless of what arrangement we had made.
Senator Fraser: I am not disputing their authority to act within their territory, but it has effects on us.
Ms. Archibald: I am not aware of any occasion when that has actually happened. We have had, both with the U.S. and with the European Union, an understanding that we would be negotiating agreements to share certain types of passenger information. We are nearing the end of the negotiations with the European Union. Those negotiations actually went much better than similar negotiations with the Americans, and the principal reason is that we have domestic safeguards that we intend to use in any sharing of information, including those imposed by our privacy legislation. The Privacy Commissioner has been very much involved in how those negotiations proceed. We may be in a position to formally share that kind of information with the European Union before we are in a position to do so with the U.S.
Senator Fraser: I think you said that we are still negotiating with the European Union as well as the United States?
Ms. Archibald: Yes.
Senator Fraser: When would you expect those negotiations to be concluded?
Ms. Archibald: I am more familiar with those with the EU because they are almost finished, and hopefully that will be before the end of this year.
Senator Fraser: Long enough before the end of this year that this committee gets to see the agreement, I hope.
Senator Lynch-Staunton: I want to return to the question of Canadians being detained abroad on suspicion of terrorism. When Mr. Judd, the Director of CSIS, appeared before the subcommittee studying Bill C-36 in the other place he said that there were a number of Canadians involved in the planning and execution of terrorist operations in other countries. He mentioned one in particular in New York and, according to one report, in touch with our consular officials there.
How many Canadians are you aware of who are being detained in the United States and elsewhere for terrorist activities?
Mr. Morrill: That I personally am aware of?
Senator Lynch-Staunton: Whom Foreign Affairs would know about.
Mr. Morrill: I do not have a number for you, but we can certainly try to get one. I should say that until 2001, when people were charged in Canada for a terrorist offence, they would be charged for bombing or conspiracy to commit a specific offence. The charge would not say ``terrorism.''
Senator Lynch-Staunton: I am not thinking of those in Canada; I am thinking of those outside Canada.
Mr. Morrill: The situation may be the same in foreign countries. In other words, a person may be charged with murder, not terrorism, but I think we can probably get you some numbers.
Senator Lynch-Staunton: According to Mr. Judd, several Canadians who were involved in the planning and execution of terrorist operations in other countries have been detained. Is this something that only he knows?
Ms. Archibald: We could say ``several,'' but you have asked for a specific number. I do not think we could give you a specific number for the reasons that Mr. Morrill has outlined.
Senator Lynch-Staunton: No, you cannot say they are held under one charge and therefore they do not count, and then say there are several. Who are the several, and where are they?
Mr. Morrill: Mr. Judd obviously had in mind several specific individuals. I do not personally know of any specific individuals. I do not doubt we can find you some numbers. The comment I was making was simply that it may be difficult to get an exact figure. You are not only talking, I assume, about people detained, but also people prosecuted and found guilty.
Senator Lynch-Staunton: No, I am talking about people, particularly Canadian citizens naturalized from certain countries, who are being detained in the United States.
Ms. Archibald: In the United States?
Senator Lynch-Staunton: To be specific. Now, to get to the point, we have had the Arar case, a Canadian citizen who, upon attempting to return to Canada through New York, was seized by American authorities, held in jail for a week or so, and then sent to his country of origin, Syria, where he stayed at least a year. He returned without any charges being laid against him in Syria, the United States or Canada, and claims torture. Following that, the Canadian government announced — and here you can correct me if I am wrong on any of these points — that an agreement or protocol had been reached with the United States to ensure that such unilateral action against Canadian citizens, that is, ``rendition,'' as they call it down there, to their country of origin, where they may face torture, would not take place. Unilateral action would not take place. Is that correct?
Mr. Morrill: That is correct. I am familiar with the understanding that was reached. As I recall, it relates to the removal of Canadian citizens from the United States to anywhere other than Canada. To be clear, it does not only apply to dual nationals. Countries can deport people to a country other than their country of nationality, but usually it is to the country of nationality. When a person has two nationalities, then often it becomes a question as to which country.
Canada and the United States have what is, I think, a unique understanding: When the decision to forcibly remove one of the other parties' nationals comes up and removal to a third country, i.e., not Canada or the United States, as the case may be, is being considered, a channel of consultation exists wherein the senior official in the foreign ministry of each country responsible for consular matters will be notified. Yes, that understanding has been put in place.
Senator Lynch-Staunton: What is the understanding, notification that the Canadian will be deported, or seeking approval from Canadian authorities to deport that individual?
Mr. Morrill: Again, deportation to somewhere other than Canada.
Senator Lynch-Staunton: Yes.
Mr. Morrill: It is not seeking approval. It is a notification that this is being considered, at which point discussions can take place between Canada and the United States at senior levels to address the issue.
Senator Lynch-Staunton: What is the end result? What if Canada says, ``No, do not send him back; if you want to send him somewhere, send him to Canada?'' Do the American authorities have to abide by that?
Mr. Morrill: It is not a veto, no, sir. It is a high-level consultation structure that I think will ensure that Canada's views on any such deportation would certainly be taken into account.
Senator Lynch-Staunton: The impression given at the time, that an Arar case could not reoccur, was wrong.
Mr. Morrill: I do not think so, sir. I would be very surprised if an Arar case would have occurred in the context of such an understanding. Quite frankly, people at an extremely high level would have known of the intention of the United States at the time. I could be mistaken, but I believe that was a completely unheard-of approach to the deportation of a Canadian citizen at the time. It was extremely surprising to the officials involved that Mr. Arar was deported to anywhere but Canada. Had senior Canadian officials known of the intention of the Americans to deport him to a country other than Canada, I assume that the Canadian government could have brought pressure to bear on the United States to perhaps take a different approach.
Senator Lynch-Staunton: One very persuasive study on this entire question of rendition estimates that 100 to 150 individuals have been returned to their country of origin, not all of them citizens of that country, but also bearing dual nationality. I doubt whether those countries involved were consulted. Why should Canada stand out and be the only one to be consulted?
Mr. Morrill: Sir, Canada and the United States are close allies and partners and share a vast open border, so Canada has a greater interest than any other country — perhaps the Americans' other neighbour might have the same interest — in having such an arrangement. Equally, Canada has credentials with our American colleagues as an effective ally in the fight against terrorism, so it appears we have the capacity, in this context, to get special treatment because of both our strong views on the matter and our close relationship.
Senator Lynch-Staunton: An Australian citizen of Egyptian origin was sent by United States authorities to Egypt and, according to him, subjected to torture. He is now back in Australia. Are you suggesting that Australia's influence on the United States is less than ours, particularly in the context of the war in Iraq? Do you think they will be consulted next time, or just advised, as it sounds we will be? I do not see any difference between what happened to Arar and the lack of Canadian involvement, and the possibility that the Americans intend to repeat an Arar case, and ``If you have anything to say, Canadians, go ahead and say it, but in the long run we are the ones who will decide whether this chap goes or not.''
Mr. Morrill: You have asked two questions. I do not know whether Australia has asked for such an understanding. I cannot talk about the reason Australia does not have such an understanding. My understanding is they do not.
Senator Lynch-Staunton: We do not know.
Mr. Morrill: At the time of the Canada-U.S. understanding, the Americans made it clear they had no such relationship with any other country. I do not know what has happened since then. I believe that was January of last year.
The way I have seen issues relating to such things as disagreements between enforcement authorities and cross- border abductions happen over the years, yes, Canada's influence in these matters, Canada's efforts to address the rights of its citizens, does bear results, so that at the end of the day, they do listen to us. They have the same interest as we do in the context of protecting their nationals. You seem doubtful that they would pay attention to these things. In my experience, I am not doubtful.
Senator Lynch-Staunton: Let me apply the agreement to the Arar case. Had that agreement been in place at the time, what would the procedure have been, how would it work? There is Arar; the authorities decide to send him to Syria, where he was born. The Canadian government is advised. What is the procedure then? Who speaks to whom? Is it in writing, is it verbal? Is it a meeting; at what level?
Mr. Morrill: Under the arrangements, there are two points of contact, one in each country. They are the heads of the consular operations in each foreign ministry. In the State Department, it is the equivalent of the assistant deputy minister responsible for consular matters. On the Canadian side, it is the director general of the consular branch. It is the top official on the consular side. Both the State Department and the Department of Foreign Affairs have a 24-hour operations room and that would be the normal channel. In addition to the very important notification of a consular official in a particular consulate, there is a specific notification by senior officials when this is being considered — not when the decision is made, but when it is being considered. That is the language of the understanding, as I recall.
At this point, presumably information would be shared as to the reasons that this approach is being considered. Senior officials can also keep in mind the impact that such a rendition or deportation from the United States to a third country would have on our bilateral relationship.
Senator Lynch-Staunton: If the main argument for deportation of someone with dual nationality is that the third country's methods of interrogation are somewhat more rewarding than those in the United States and Canada, would that be acceptable to Canadian authorities?
We all know these people are sent to Egypt or Syria or wherever — the list is unfortunately too long — to subject them to interrogation under methods that are completely unacceptable in a civilized society. That is known; there is no argument there. Knowing that Arar was being sent back to be subjected to that, would the agreement that we are discussing have allowed Canadian authorities to forbid that deportation?
Mr. Morrill: As we discussed, it is a consultation mechanism, not a veto. Canadian authorities would have expressed their view.
Senator Lynch-Staunton: Can we have a copy of that?
Mr. Morrill: Yes, I believe so.
Senator Joyal: Mr. Morrill, you mentioned in your answer about the Canadian who is detained in Guantanamo Bay that the U.S. authorities would not provide consular access to that person. Did I understand your answer?
Mr. Morrill: My understanding of the American position is they do not regard the Vienna Convention on Consular Relations as applying in this situation, a detention in a military conflict. This is one of the issues in that discussion. One issue is access, the other is consular access. I think the Americans have not provided anyone with what they have described as ``consular access'' because they say that the consular convention does not apply. However, countries have sought and obtained access to confirm the well-being of their nationals, but the Americans have not accepted that it is consular access.
Senator Joyal: The position advocated by the American government, that they were not entitled to the protection of the U.S. constitution, was reversed by the Supreme Court of the United States, and as such they are entitled to due process. Once that decision became public, did the Canadian government contact the U.S. authorities in that context?
Mr. Morrill: I am not sure I understand, senator.
Senator Joyal: Let me restate the question. The decision of the Supreme Court of the United States set aside the position of the American government and came to the conclusion that the government now has to bring the detainees at Guantanamo to court with a specific charge to be able to continue to detain them. They cannot deny them the protection of the U.S. law. In that context, did the Canadian government request information from the American authorities as to when that Canadian would be brought to court and under what charge?
Mr. Morrill: I do not work in humanitarian law, which is the law relating to armed conflict. I understand that the Canadian government has been working hard to ensure that charges would be either laid, or alternatively, the person would be dealt with appropriately. The situation is one in which, I understand, there is a distinction between the laws of armed conflict and consular access. In other words, the question is simply, do the Americans grant consular access to people they hold under the laws of armed conflict, whether prisoners of war or — in their phrase — unlawful combatants? The fact that the Americans also had a position that their constitutional protections did not apply to Guantanamo would not seem to change their analysis, which is that this is an issue of humanitarian law, the laws of armed conflict.
The Canadian government has been seeking to ensure that the Canadian held in Guantanamo is properly treated, his well-being is dealt with and that, ideally, the rules relating to charging or releasing him are applied.
I am afraid that I do not work on that case in detail.
Senator Joyal: Can you find out from the department when the last contact was between the Canadian government and the American authorities and when charges will be brought against the Canadian who is detained in Guantanamo?
Mr. Morrill: Certainly, sir.
Senator Joyal: Will you also inquire as to what initiatives the Canadian government will undertake if charges are brought against that detainee so that he can be assisted with proper legal counsel?
Mr. Morrill: Certainly, sir.
Senator Joyal: Under the Smart Border Declaration, the Canadian government has come to an agreement with American authorities to provide information about Canadians who cross the border. Since that declaration has come into effect, what information does the Canadian government now provide to the American authorities that they did not provide before?
Ms. Archibald: It varies with air passengers and people who cross the border by land on a regular basis. Each is governed by various memoranda of understanding, some of them longstanding. I am sorry that I cannot give you the details of where that currently stands, but the Canada Border Services Agency could.
There is also some longstanding sharing of information of certain types between agencies responsible for immigration aspects of transfers across the border as opposed to commercial aspects. My understanding is that that is not significantly different from what it has always been, but the officials from the Canada Border Services Agency would be in a better position to provide that information.
All of those kinds of exchanges have been and continue to be governed by memoranda of understanding between agencies, and help provide the kinds of safeguards we were talking about earlier in terms of privacy protections and other concerns that the Canadian government would have. We do not involve ourselves in the detail of such arrangements. We are aware of them because they are part of the declaration, but the work occurs between the specialized agencies themselves.
Senator Joyal: Do you suggest that we hear from representatives of the Canada Border Services Agency to get that information?
Ms. Archibald: The Canada Border Services Agency could give you information on this particular aspect, yes.
Senator Joyal: I want to ask about the issue of the protection of persons detained in Canada who are to be transferred to countries where they might be at risk of torture. In the case of extradition, there is an exchange of information between Canada, through the Attorney General, and the attorney general of the country seeking extradition whereby that country agrees not to follow through with the death penalty, if it is pronounced.
Is there a memorandum of understanding whereby the country concerned would undertake not to impose torture on someone who is deported to that country on the basis of the certificate that we discussed this morning?
Mr. Morrill: You are speaking of a deportation and not an extradition?
Senator Joyal: I am speaking of deportation. To be very clear, when Canada extradites someone, we receive a commitment from the attorney general of the country to which we are extraditing not to impose the death penalty against that person. There is a very clear legal procedure.
In the case of someone being deported to a country where there is a risk of torture, what kind of commitment do we seek, if any?
Mr. Morrill: I asked for clarification because in the context of extradition, there are special rules that apply that make the extradition subject to conditions, or the extradition does not occur. In a deportation, where no treaty structure applies, it is a case-by-case exercise in which, among other things, the Canadian court system will have to be satisfied that the person is not being deported to a risk of torture, although the Supreme Court said in the Suresh case that there might be extraordinary circumstances in which that might occur.
The kinds of assurances one would seek would, I imagine, be on the level of a diplomatic note. I am aware of diplomatic notes seeking assurances in deportation cases relating to the death penalty, that is, seeking assurance that if we deport the individual, the individual will not receive the death penalty if prosecuted.
I believe there have been situations where people have sought assurances relating to the treatment of the individual, and I believe there is one case where assurance has been sought relating to health care, but the structure that would drive it would be the domestic system that was deciding whether it was appropriate to deport the person. In those circumstances, the decision maker would look at the assurances that had been received, ideally by diplomatic note, and decide on the weight that could be given to them, because our courts have said that some assurances should be given more weight than others.
Senator Joyal: In other words, before someone is deported to a country where they risk being tortured, the department or the diplomatic service of Canada would not be involved in any initiative to get a commitment from that country that torture would not be imposed?
Mr. Morrill: No, sir. I am sorry if I have been unclear. If there was a view in the process of dealing with the person's deportation that assurances would be useful in this context, then the diplomatic services would be involved in seeking such assurances that could relate to torture or other aspects of that person's treatment. The courts have said that this must be looked at on a case-by-case basis, and the assurances will be given varying weight.
Senator Joyal: In other words — I will try to understand the nuances — if a Federal Court, in accepting the certificate and the deportation order, requests that that person not be deported unless the Canadian government seeks the commitment that the person would not be submitted to torture, it is only then that the Canadian diplomatic service would contact the country concerned to try to get that commitment?
Mr. Morrill: Perhaps Ms. Archibald has something to say. I would say that when people are looking at deportation, they would be weighing the various risks. If you are deporting someone to Sweden, you are not too worried about torture. If you are deporting someone to another country, perhaps you are worried. If the goal of the officials attempting to get a successful deportation is to satisfy the system, then that person can be appropriately deported. I imagine if somebody saw an issue of torture, it might well be identified early on in the system, but it would vary, depending on how real the risk of torture or other mistreatment, quite frankly, might be in the circumstances.
I am not sure you could say except in the context of a particular case.
Ms. Archibald: It does depend on the particular case. For example, there are circumstances in which people might be the subject of a security certificate in Canada, subject to deportation, but not be under any charge in the country to which they are being deported. That would be part of the assurances that might be sought. It might be to determine whether there are charges outstanding, whether the person would likely be subject to arrest upon return. That would need to be weighed in the judgment on the matter. Depending on the individual circumstances of the case, what particular information and what assurances are sought may vary. They are not all the same.
Senator Joyal: I understand that. I am trying to understand the protection that a person who is deported can expect from our system, which promotes human dignity and respect of the body as two of the fundamental values that we honour in this country and try to promote internationally. That is, essentially, what I am trying to get at. In other words, are we just washing our hands of the issue or are we doing something further to try to give that protection to the person in the context of the spirit of our legislation in Canada.
Ms. Archibald: Senator, even if assurances are sought at the time of the execution of the deportation order, since it was probably issued well in advance of any court case, it is, almost without exception, subject to a judicial review. That is part of the safeguards. Sometimes, the question of whether an individual might be subject to torture is one that continues for some duration, due to the originating country having changed significantly. We are able to bring current international human rights reports and information from our own missions overseas to bear on that kind of an assessment long before any formal seeking of assurances occurs. That kind of assessment may have some bearing on whether or not we seek assurances, whether it is worth seeking assurances. At the end of the day, that would be subject to review by the court. The court has, in at least one case, indicated that — as you have — certainly in most circumstances, we would not deport. The court has alleged that there may be circumstances where, even when there is some risk that an individual may at some point in the future be subject to torture, it would still be within Canada's jurisdiction to deport.
I do not think that that has actually happened. The role of the judiciary is brought to bear in this exercise. It is not only done by officials, whether or not they are in Foreign Affairs, the Department of Immigration or any other department, and it is subject to review.
The Chairman: Senators, the clock is creeping up on us again, so I would ask you to be as concise as you can in this very interesting discussion.
Senator Smith: My supplementary question does not relate to torture, but to the death penalty. I do not know if there was reference to the Chinese case, where the gentleman made it to Vancouver, and many millions of dollars were involved. The Chinese government was seeking to extradite him for a crime that did carry the death penalty. Are you current on what happened there? Did we not get an undertaking from them that they would not execute him? Last I heard it was still being fought in the courts.
Mr. Morrill: I think I am familiar with that case.
Senator Smith: What is the status of it?
Mr. Morrill: I believe you are referring to the Li case. It is a deportation case, not an extradition case. Any deportation of that nature, I believe I heard at the beginning of the process, will take about five years to come to a final decision.
Senator Smith: What stage is it at now? The last I heard, Li was still losing, was he not?
Mr. Morrill: Our system has a great number of possibilities for review and judicial examination of decision making. I believe it has gone up to the Federal Court of Appeal level. In these situations, as I understand it — but you could get more detailed information from Immigration — you have a review of the administrative decision-making, that is, a judicial review, and a habeas corpus exercise. Therefore, you have a series of processes whereby the person exercises his rights.
Senator Smith: Was the nature of the appeal the fact that we could not rely on the commitment of the Chinese government not to execute in the event a conviction was ultimately registered, or had he already been convicted in absentia? Do you know?
Mr. Morrill: I do not think he was convicted in absentia. I do not know, so I should not say that.
Senator Smith: Was the gist of the appeal that we could not rely on their commitment?
Mr. Morrill: Not that I am aware of. Actually, I think it was more procedurally oriented.
Ms. Archibald: I do not think the question of whether or not assurances had been sought or what faith was put in those assurances is the subject of a court case, but I can certainly try to confirm that. I am almost certain that issue is not involved in this case.
Mr. Morrill: Mr. Li is fighting on all fronts, so there may be other issues.
Senator Smith: Based on what I have read, I would be interested in the latest information.
Senator Andreychuk: To go back to the public policy issues, what is Canada's position on terrorism that we convey to the rest of the world? Do we have a policy for how we are combating it and working with the world community?
Ms. Archibald: I am not sure how general or specific you want me to be. Yes, we do have a policy; our first instinct is to work within the multilateral process. We look to the norms and standards as laid out in the 12 already agreed-to conventions in the UN. We have spent considerable effort, both from a diplomatic and a capacity-building perspective, on trying to ensure that other countries also adhere to the 12 conventions and, more importantly, implement them. We believe that that forms the basis of appropriate international cooperation on terrorism, and has over the last 20 years.
As well, we have an interest in trying to ensure that in combating terrorism, states — and we, in particular — also are cognizant of our international human rights obligations. We have finally come to an agreement in the UN context of language that appears to be acceptable to everybody, which makes it very clear that the conflict in combating terrorism must be undertaken in full compliance with our international human rights obligations, including those under humanitarian and refugee law.
We also believe that we have an obligation to assist other states who may find it more challenging to implement some of the new norms and standards. There are the legal norms and standards that are outlined in the 12 international conventions, but there is also an evolving set of norms and standards in the functional organizations at the UN. This would include, for example, new norms and standards within ICAO in terms of international travel documents that have been agreed to by the international community over the last three years, but which obviously would impose a fair burden on some developing states if they were to implement all of those. That is just one example in terms of documents.
Senator Andreychuk: What I am really concerned about is that we have a significant amount of new legislation in place, both nationally and internationally, and I know the struggle to bring them in. Is Canada's emphasis on strengthening intelligence networks or is it on seeking more understandings, agreements and treaties?
Ms. Archibald: I do not think it is an either/or situation, nor do I think it has been envisioned in the international context as such.
As we get further away from some of the agreements that were made in the immediate aftermath of 9/11 — and it is reflected in the secretary-general's comments today and last week, and reflects the Canadian approach on it — you do need increased ability to share information. Part of the UN resolution on this is to try to prevent terrorist attacks and to tell other people when you are aware that something will happen; whether that involves formal intelligence sharing or other methods of informing them depends on the circumstances.
Also, the way we prosecute the ``war on terrorism'' has an impact on recruitment, financing and support for terrorist activities. We would not say that we should only concentrate on intelligence and not worry about some of the so-called root causes. The further away we are from 9/11, the more important it is to look at the underlying factors that contribute to recruitment. That is becoming important both in the UN context and in our bilateral relations with other countries.
Senator Andreychuk: Your struggle is about the same as ours. You stated what you believe to be the Canadian approach, and we must determine how we see Bill C-36 within that approach. We do not have a foreign policy document; we have been waiting for the minister.
Ms. Archibald: I do not have one either.
Senator Andreychuk: Exactly. It is difficult to position this piece of legislation when we do not have the overall direction in which the government will go. I hope that we will have both the minister and the foreign policy document before us so that we can make a reasoned and informed decision about the act and what it needs.
I presume you are running now on the obligations we have undertaken.
Ms. Archibald: We are, but there are some signals. It will not be entirely new ground on everything. One area is how we operate in international forums, the views that we bring to international conferences, whether in Madrid two weeks ago or the conference that I attended a month ago in Saudi Arabia. That represents government policy and foreign policy.
Also, as late as today, I think there will be a response from the government to the secretary-general's comments on terrorism. We are not operating without a foreign policy despite the fact that we do not have a foreign policy statement.
Mr. Morrill: One issue you spoke of was establishing intelligence and information sharing. It is also worthwhile to note that the most recent terrorist-related convention, and also Resolution 1373, specifically calls on states to enter into relationships in order to share information. Again, in a different context, it is not either/or. If you look at 1373 3(c), it calls on all states to cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks. The multilateral context is promoting the bilateral context; it is the same with certain language in the terrorist financing convention.
Bilateral sharing relationships, information sharing relationships, are seen as both necessary and also more flexible in the context of whom you share information with; countries are willing to share information with a known party, but they may not be able to make a commitment to share information with everybody in the world.
Senator Andreychuk: If that is the case, we do deport terrorists or people whom we believe are involved in terrorist activity to countries where we would probably have question marks about sharing information. In the international context, we have identified people as being a threat to Canada, yet we are prepared to deport them and have absolutely no control over where they go and what they do next. Is that not inconsistent as a policy?
Mr. Morrill: I would have to say that the deportation is a particular tool in relation to terrorism, but it is also not simply a tool; it is part of our general policy on what happens to people who are in Canada without proper legal status, who are inadmissible. It can be used to help disrupt terrorist networks and activity, but it is not the only tool.
If there is evidence to support a criminal prosecution in Canada, that may be the choice of the prosecutors. The point is you have to use all of the tools at hand. If a person is being deported for terrorist activities, you probably do not have a case that would support a criminal prosecution.
In other words, the choice is not prosecute them in Canada or deport them. The choice, in deportation, is deport them or leave them alone in Canada.
Much of the discussion ends up being about the differing thresholds of evidence one needs to either take administrative action, which is deportation, or criminal action in relation to prosecution. You are right that it is not a great situation, but it is one that our system requires and for which there are very good policy reasons. Our criminal system has to provide people with a high level of protection. Our deportation system is not required to provide the same level of evidentiary requirements.
Senator Andreychuk: Ms. Archibald, to what extent has dual citizenship factored into our processes and procedures internationally? It used to be rather simplistic. It was on the basis of consular relations. People would self-identify as a Canadian or a British subject, and we would not enter into the process of giving support or assistance, as the regulations contemplate, unless people self-identified as a Canadian and had some proof to that effect. Have terrorism and the issues around dual citizenship caused you to change some of your consular regulations, or are we still operating in the pre-9/11 period?
Ms. Archibald: I am certainly happy to get more specific information on this, but my understanding is that whether or not a person is a dual national no longer impinges, if it did in the past, on the kind of consular service that might be available. It sometimes might make a difference to whether or not we are aware of the individual. It sometimes makes it more difficult, or creates a more lengthy process, for us to become aware of an individual if they have entered a third country, for example, on the basis of their other citizenship. We may not be aware, and officials of that country may not be aware, of the dual nature of the citizenship. However, there certainly is nothing that says if you hold dual citizenship, then you should go to these guys first.
Senator Andreychuk: I am looking at it more from the other point of view. If a Canadian citizen who has dual citizenship finds himself in a third country, the country can choose to say, ``He is a Syrian citizen so we will deal with him that way instead of as a Canadian citizen.'' Are we aware of that as a difficulty or problem, and if so, what have we done about it?
Mr. Morrill: As Ms. Archibald has said, Canada will always seek to provide assistance to a Canadian citizen, and that is based on international law and the Vienna Convention on Consular Relations, but the point you are making is a valid one. A foreign country may well take the view that they do not regard the Vienna Convention on Consular Relations as applying to their own nationals.
Senator Andreychuk: That was not my point. I was referring to a third country.
Mr. Morrill: If a person in Jamaica is a Canadian and a French national, the rule is that the person can avail himself of consular protection from either of those countries.
Senator Andreychuk: That is still not my question. This person finds himself in a certain country. You said Jamaica. I will say United States. He has Syrian citizenship and Canadian citizenship. Do we have any assurances that the Canadian citizenship will be taken into account, or will that third country, the United States, be free to choose whether they deal with the person as a Syrian or a Canadian? Have we entered into any agreements or understandings, or have we had any difficulties with that situation?
Mr. Morrill: In that particular situation, no, I am not aware of any difficulties, because the obligation would be on both countries to provide consular access. I am not aware of situations where the third country, in your example, the United States, has said, ``No, because he is both a Canadian and a Syrian, we are only giving him access to the Syrians.''
Senator Andreychuk: I am saying, ``We will choose to deport him to Syria and we will not tell Canada.''
Mr. Morrill: That is a different question. That is not a question of consular access.
Senator Andreychuk: ``Activity,'' I said.
Mr. Morrill: The United States, and other countries, as far as I know, has a duty to tell individuals they have the right to access to their consular officials. That is a treaty obligation. The individual is free not to use that, and individuals do choose not to, but if they seek access, the treaty obligation is to give Canadian citizens access to Canadian officials, regardless of any other citizenship they may have.
I am not aware of it being a specific problem. I believe in the Arar situation, Canadian officials learned of the decision to deport only very shortly after they were notified of access, but I believe he also had contact with a lawyer who also, quite frankly, learned in rather a short period about his deportation.
Senator Mercer: To follow up on Senator Andreychuk's question, I am very frustrated. You are constrained by the fact that you are a public servant, and I am not so constrained. The Arar case is a definite example of where the Americans chose to ignore dual citizenship when it was convenient for them. Everything is always when it is convenient for them. You stated earlier — which leads into my question — that the United States and Canada have similar interests. I disagree. We only have similar interests when it is convenient for our American friends. These are frustrating times for us. Canadians are being arrested in other countries and shipped to a third country, with little or no consultation. We have Canadians being arrested and put in prison in Guantanamo Bay with no access to consular facilities that can be provided to them from Havana. We have international bodies ruling constantly in our favour, for example, on the softwood lumber dispute, and being ignored. I grew up in the north end of Halifax. There were bullies in the schoolyard and bullies on the street. Quite frankly, right now we are living next door to a bully. I get the feeling that the rule of international law only applies to the United States of America when it is convenient for them. Why are we not pushing openly for consular access to that prisoner in Guantanamo Bay? We know that prisoner is there. We know that the law is wrong. Why are we not openly pushing for access to that Canadian citizen?
Mr. Morrill: To be clear, sir, we are pushing for access. It has been made very clear that if we use the word ``consular,'' we will not get it, so we are pushing for access. I believe that there has been some access, but most consular work focuses on practicalities and trying to help the individual. If the way in which you couch your request for access can be expected to prevent you from providing assistance, then quite frankly, it might be a better idea to try to seek the interest of the individuals. I think that is what the Canadian government is doing in all of these contexts, including the softwood lumber context, which you raised.
We do have similar interests in fighting terrorism. That is not to say that in any particular case we might not have interests that differ. We are not somewhere in the South Pacific, surrounded by water. We have a long undefended border. We have an extremely deep and involved economic relationship. We do have to work with our American colleagues, and we do have to live with the world we have. The Canadian government is trying hard to do that, and possibly getting results that are not satisfying to everyone, but I think we are doing a reasonably good job of it.
On the Arar case, the government has called an inquiry and we will have the judge's views on that.
Senator Mercer: You have given a very diplomatic answer and I appreciate your ability to walk on those eggshells.
This morning we heard a number of comments about people who have been in Canada who may have been found to be involved in terrorism, or accused of being involved in terrorism, and who have been deported from Canada. The hypothetical question was then asked. It is then discovered soon after, or many years after, they have been wrongfully accused. When asked what recourse those persons had, the response from one of the panel this morning was that they could reapply for admission to Canada however they came in the first place, whether as a refugee or a landed immigrant.
That seems grossly unfair to me, that if I am in this country as a refugee or a landed immigrant and am deported because I have been wrongfully accused of being involved in terrorism in some way, and I have proven that, that I go to the back of the queue. Did I hear this correctly this morning?
Mr. Morrill: I cannot really comment on the way in which the immigration system works. I was in the room, which is presumably why you are asking me. The order that they were discussing at that time, as I understand it, is one that results in removal, and once that is done, the order is no longer operative. I am not an expert in that field. If you are outside of the country and your status has been removed, then the only process that I know works is the Immigration Act applies, in the normal way, to regaining status. I thought I heard one of the gentlemen here say that there were procedures within the Immigration Act whereby one could apply for special treatment.
Senator Mercer: I hope I misheard as well.
Senator Day: I will try to be succinct with these last words. Are we anticipating any further need for legislation to meet our obligations under the 12 United Nations conventions to which we have subscribed?
Ms. Archibald: We have signed and ratified each of those conventions. Before we ratify a convention in Canada, we assure ourselves generally through the Department of Justice that we are able to fully implement them, which would include the notion of regulatory or legislative change, and often includes consultations with the provinces. We do that between signing and ratifying, which means that sometimes we take much longer to ratify an international instrument than some other countries.
Senator Day: Do you anticipate any further legislation that might be needed?
Ms. Archibald: Not on the basis of the implementation of those 12 conventions.
Senator Day: That is what I was directing my question to. We have had a lot of discussion today about sharing of information and MOUs between agencies. You discussed the agreement with the European Union in relation to the sharing of information. My recollection is that the majority of the provisions that we saw in legislation came under the Privacy Act and the Aeronautics Act, subsection 4.83(1). From the point of view of our international obligations on the sharing of information, what role does the International Crime and Terrorism Division of Foreign Affairs Canada play? We have had, first, our National Security and Defence Committee talking more from a functional departmental point of view about the importance of trying to coordinate and the silos that existed. We had the Auditor General pick up on our Senate report and do a report on this. Then we have had Bill C-6 that brings together the Deputy Prime Minister's department and is in the system now. What role does your section play in bringing all the departments together?
Ms. Archibald: In terms of information sharing, it very much depends on what level of information we are looking at. In the case of the European Union, they are looking at a treaty obligation, which would automatically involve our department. Some longstanding agreements between immigration departments, for example, do not require a treaty obligation. We would not necessarily be formally involved in the exercise; in fact, we are not in some of those, especially dealing with going back and forth across the Canada-U.S. border. Most of the newer ones with countries other than the U.S., where we have longstanding agreements, and depending on which country it is, tend to take the nature of a treaty obligation even if they are not called treaties. We would be involved in that.
On the general issue, it has been one of the biggest challenges to governments since the implementation of Resolution 1373, which is very much about prevention. It encourages countries to share information. As we discovered, it is sometimes difficult for us to share information within our own agencies. There has been a lot of activity in many countries, including our own, to try to set up systems whereby the immigration department knows what the RCMP knows, what the Passport Office is. I think we are getting there now in Canada.
Senator Day: Who is taking the lead in that sharing?
Ms. Archibald: One thing that has happened is that we tend to meet more often now than ever before. We all know that we have that objective of sharing information and trying to break down those barriers. We push it from the viewpoint, ``We have an international obligation to do this; how are we doing?'' Other people have a more practical approach, saying, ``We need this kind of information now.'' We are involved formally at some stage in all of that. We are involved in the establishment of an arrangement with Interpol, for example, on a lost and stolen passports data bank. We are now able to contribute to that because of an international MOU. It is also something we encourage other countries to do by giving them the capacity to contribute to that.
Senator Day: I want clarification for my colleagues and myself. When you say ``we,'' are you talking about Foreign Affairs and the International Crime and Terrorism Division, or are you talking about Canada?
Ms. Archibald: When I talk about ``we'' in terms of Interpol, it is Canada, but the Department of Foreign Affairs was involved because it was a treaty obligation.
Senator Day: Who took the lead?
Ms. Archibald: That would be the Passport Office and Foreign Affairs, but not my division.
Senator Day: Some of the development of that exchange of information is, as you point out, interagency within Canada, and some of the sharing is between agencies internationally.
Did your department take the lead in developing the amendments to the Aeronautics Act and the Public Safety Act? How did that legislation, which met our requirements nationally and our obligations internationally, come to be developed? Which department took the lead?
Ms. Archibald: It is my understanding that in that case, it was Transport Canada. We were involved because of the international aspect.
Mr. Morrill: Long before the Anti-terrorism Act, Canada's laws on privacy and information sharing were changing, but not legislatively so much as judicially. The Privacy Act says that you use information for the purposes for which it was collected, but there are some exceptions to that listed in the act. One of the exceptions is sharing pursuant to an agreement or an arrangement, an agreement being a treaty and an arrangement being an understanding or an MOU.
In the years preceding the Anti-terrorism Act, there were a number of judicial decisions that restricted the capacity of government agencies to share information among themselves and also internationally. Therefore, in the context of information sharing, if one is looking at the international obligations, one has to start from the domestic capacity to share. I think it is safe to say that Canada's capacity to share information was restricted by judicial analysis between the time the Privacy Act was passed and the turn of the century. As that took place, a number of agencies within the Government of Canada looked at their capacity to share information and also what they needed to do to satisfy our various treaty obligations as well as the various relationships that are dealt with in more specific MOUs. That also impacted on the legislation that came before you, that is, departments and their counsel thinking about the present capacity to share information.
Senator Day: We in this committee have agreed to look at the broader picture of Canada's anti-terrorism agenda, and that is why I referred to the Public Safety Act. I suppose it would apply also to the Immigration and Refugee Protection Act and that sharing of information between countries.
I want to get an appreciation of the role of Foreign Affairs in developing the legislation. I wondered whether you merely put your request in and someone else developed it. Ms. Archibald said that Transport Canada had the lead with respect to the Aeronautics Act, so presumably Immigration would have had the lead with respect to immigration and refugee protection. The act is very specific with respect to how long the information can be retained, et cetera, and you had no input into that?
Ms. Archibald: On that particular one, no, because it was information that was collected in Canada for use in Canada. It is when it goes outside this country that we are sometimes involved.
Senator Day: There is provision for changing it.
Ms. Archibald: That happens when those arrangements are further negotiated. For example, in the EU negotiations there are particular arrangements that take advantage of the fact that we now have a domestic capacity to collect this information. We get involved with actual arrangements for sharing, not at the beginning in terms of what they need for their domestic interests.
Senator Day: As a result of these negotiations in which you are involved, do you anticipate that amendments will be required to existing legislation to allow for this international sharing?
Ms. Archibald: No, because we negotiate with the full knowledge of what we are allowed to do under domestic legislation.
Senator Day: However, you did not help create the legislation that would allow you to negotiate what you wanted to negotiate?
Ms. Archibald: It is a chicken-and-egg situation. I am not sure that at the time you were considering that bill we were fully aware of what we might need for an agreement with the EU. Sometimes we are. It is not as though we are outside the room on this and not aware of it. The question is who is taking the lead. In that particular case, Transport Canada was as it was their requirement to have the information. We have an interest because we may be sharing that information through a treaty obligation at some time in the future. If we know beforehand what we think we need for a treaty, then we may be more active in the development of the domestic legislation, but generally it is developed for domestic reasons, and at the end of the day we have to work with that. Unless it is a treaty obligation involving a new human rights instrument or something like that, there are very few instances in which we are playing catch-up.
Senator Day: You cannot work with legislation that is exclusively designed for interagency exchanges within Canada and then expect to use that internationally without some authority to do so. You have to have some input into the legislation when it is being developed or you will need some amendments later on.
Ms. Archibald: Yes. We have input, but we do not lead.
The Chairman: I wish to thank the witnesses for a very interesting afternoon. This is a difficult issue and senators are extremely interested in it.
If you could follow up with the further information that was asked for on a few of the questions, we would be very grateful.
The committee adjourned.