Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 9 - Evidence - Morning meeting
OTTAWA, Monday, May 2, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:03 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, this is the nineteenth meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act.
For our viewers, I will explain the purpose of the committee. In October 2001, as a direct response to the terrorist attacks on New York City, Washington, D.C., and in 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 its study of the legislation. We agreed. The deadline for the passage of that bill was in mid-December of 2001. However, concerns were expressed that it was very 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 their impact on Canadians, with the benefit of hindsight and in a much less emotionally charged public forum.
The work of this special committee represents the Senate's efforts to fulfil that obligation. When we have completed the study, we will report to the Senate and outline any issue that we believe should be addressed, and we will allow the results of our work to be available to the government and to the people of Canada. The House of Commons is undergoing a similar process at this time.
So far, the committee has met with government ministers and officials, international and domestic experts on the threat environment, and legal experts, as well as with those involved in enforcement and intelligence-gathering. Today, we will be hearing from representatives of the Canadian legal community, beginning this morning with the Canadian Bar Association.
We are joined this morning by Susan T. McGrath, President of the Canadian Bar Association; Greg P. DelBigio, Chair of their Legislation and Law Reform Committee and Vice-Chair of their National Criminal Justice Section, as well as Tamra Thomson, Director of Legislation and Law Reform, Canadian Bar Association.
As always, colleagues, your assistance in keeping questions and answers as crisp as possible will be very much appreciated. We have from now until noon for a really good conversation on this difficult issue.
Welcome here today. Thank you for coming back. You were here in the beginning with us. The floor is yours.
Ms. Susan T. McGrath, President, Canadian Bar Association: The Canadian Bar Association (CBA) appreciates the opportunity to contribute to the three-year review of Canada's anti-terrorism regime.
The CBA is a national organization representing over 34,000 lawyers across Canada. You have our written submission in English, and the summary and the recommendations in French. The full French text will follow.
Mr. Waldman, our expert on immigration and security matters, is unfortunately unable to join us today owing to a medical emergency. Mr. DelBigio and I will be pleased to address all matters within our expertise. However, if there are any questions we cannot answer, the CBA will be glad to attend again at a later date.
The Anti-terrorism Act was introduced and enacted in haste three years ago. At the time, the CBA expressed considerable concerns about the act. We advocated review and repeal of any hastily enacted legislation as soon as legitimate security reasons no longer made it necessary to assure Canadians that these were extraordinary provisions in response to extraordinary times. We stressed the need for independent oversight of all extraordinary powers granted to law enforcement agencies to make them accountable.
Today, invasions of privacy and fundamental rights are creeping into Canadian law. Since September 11, 2001, the federal government has enacted many other measures in the name of national security — measures such as information sharing and database integration under the Smart Border Declaration and Action Plan; police officers being exempted from liability for criminal acts; the use of the Public Safety Act to allow passenger information to be cross-referenced for purposes completely unrelated to terrorism, and you will find other measures listed on the first page of our submission.
These dramatically expand state powers at the expense of individual rights and freedoms, not to mention due process. We strongly recommend that your review go beyond the strict borders of the Anti-terrorism Act. The CBA believes that the overall impact of all these measures requires careful consideration. The government must take the opportunity afforded by this three-year review to formulate a comprehensive long-term policy for national security. That policy must protect the individual rights and freedoms that are fundamental to and, indeed, define Canadian democracy.
I will now ask Mr. DelBigio to address the CBA's other concerns.
Mr. Greg P. DelBigio, Chair, Legislation and Law Reform Committee, Vice-Chair, National Criminal Justice Section, Canadian Bar Association: Honourable senators, I am very pleased to participate in this important review. This review is, of course, critical to ensuring that fundamental rights and freedoms are protected within Canada and also at the same time ensuring that there are adequate tools for law enforcement and for the protection of Canada.
This review is an opportunity for further dialogue, which is necessary to strike a proper balance between individual rights and law enforcement and national security.
I will touch briefly upon four areas of concern. The first is the breadth and the scope of the legislation; the second is the blurring of law enforcement and intelligence gathering and security functions; the third is the loss of privacy; and the fourth is the need for accountability.
I am not the first to say that the breadth and the scope of the legislation is impressive and of concern. It is somewhat extraordinary for religion, politics and ideology to be incorporated into the definition of crime. The listing of entities is a new step for Canada and, although the facilitating and financing offences are not exactly new, and some of the language that is found in this law is similar to that which is found in the organized-crime/criminal-organization provisions, it is nonetheless of concern because of its uncertainty of meaning and the scope of the activities that are potentially captured.
The law enforcement and intelligence gathering in national security functions are of concern. Traditionally, law enforcement has been characterized by the collection of evidence as defined by law. What comes with that is a guarantee of reliability. There will be, under the traditional model of law enforcement, a scrutiny of evidence and law enforcement techniques through a trial process. The trial process is public and creates a further level of accountability.
Public testimony before the Arar commission, and before this committee, has made us aware that there is a new manner of law enforcement called intelligence-led policing. It is information gathering rather than evidence gathering. There is the use of surveillance, the use of wiretap, the use of informants and the compulsion of third parties, for example, through the gathering of information through FINTRAC. Individuals will be targeted at the discretion of law enforcement or intelligence agencies. In contrast to the traditional law enforcement model, intelligence gathering is not public; therefore, an essential component of accountability is lacking.
Furthermore, once information is gathered, it may be shared with other countries. This committee has likely heard that there is a relatively free flow of information, a sharing of information between countries. Once information has been shared, there is no control over the subsequent use or subsequent sharing of that information.
All of this ties into the third area of concern, which is with respect to privacy. Intelligence-gathering techniques are many and varied. There is an ability to track travel; there is an ability to track credit card use; there is, through surveillance and other means, an ability to track associations between people; there is an ability to take covert photographs and obtain wiretap information; there are paid informants, the use of third parties, such as FINTRAC, and investigative hearings. By means of all of these techniques, profiles of individuals and organizations may be constructed. That information will be entered into a database, or any number of databases, and the concern is that the information may be incomplete and inaccurate.
Again, that information will be shared between agencies and countries, and the individuals or the agencies that have been targeted or may be the subject of this information gathering may not know that that has occurred. Consequently, there is no opportunity to check the accuracy of the information or to correct inaccuracies, and there is no opportunity to have information removed or to control the use of the information.
This creates a profound risk to privacy, and for that reason accountability is absolutely essential. It is imperative that Canadians know in some manner what is being collected, how it is being collected and how the information is being used. What agencies are collecting intelligence, for example? What techniques and technologies are being used? How is the information being used or shared?
I would suggest that this committee needs to ask if the current practices are consistent with the rule of law. Are current practices consistent with the values that define Canadian democracy? I would urge this committee to ask questions, such as how threats to security are to be measured. How are intelligence failures to be guarded against? Those are important questions, because it is on the basis of an assessment of risk that certain measures are going to be potentially justified.
In the absence of an accepted methodology with respect to the measurement of risk, it is very difficult to know how, or what, extraordinary measures can be justified. What limitations on the rights to privacy are justified? What extensions of law enforcement and intelligence gathering powers can we tolerate?
Minister McLellan, in speaking about security certificates, referred to them as being extraordinary measures. I would urge you to accept that extraordinary measures demand extraordinary mechanisms of oversight and accountability. The burden is on the government to justify laws that will limit liberty or erode privacy. It is for that reason that we say that there should be a unified, national, independent review mechanism. A patchwork of review is not good enough. A patchwork of review leads to the possibility of slippage.
There must be a power to make inquiries; there must be a power to respond to complaints; there must be a power to analyze the cumulative effect of the operation of laws.
With respect to the effect upon the legal profession specifically, the independence of the bar is essential to the functioning of Canadian democracy. The legal profession must be able to provide legal services without fear of investigation or prosecution. The providing of legal services must be specifically excluded from the ambit of the act.
Finally, by way of my remarks prior to any questions, I say that Canada is founded upon fairness and equality. The CBA says that hate crimes must be condemned and vigorously prosecuted. Equally, we say that racial profiling in the investigation of a crime, and, of greater concern, in the gathering of intelligence and information, cannot be tolerated.
Senator Kinsella: As always, the Canadian Bar Association is a tremendous resource for parliamentary committees, and in this instance there is no exception.
I should like to probe a little more deeply into the issue of oversight. You referred several times to the traditional law enforcement model, both the operational and the traditional divisions, or the taxonomy in law as a science. Have you reflected upon issues of the world in which we live in today, whether those paradigms are adequate, whether that is part of our problem in understanding and analyzing the kind of anti-terrorism measures that we would need? From a practical point of view, any time a legitimate legislative authority enacts legislation it limits the rights of the citizens under our tradition. That is the nature of law and legislating, although I could argue that in some fields like social, economic and cultural rights, law actually enriches the substantive nature of certain rights.
In this instance, however, our concern is legitimate limitations on the rights of the citizen. You have underscored the blurring between evidence gathering and intelligence work. Three years ago, Parliament recognized the principle of accountability and oversight, and thus the necessity of having a committee like this was placed right into the statute. Some of us thought there should be a complete sunset provision and that many of these provisions should cease to exist after a period of time.
Would you talk a bit more about the kinds of oversight? If the government does not accept amendments to the substance of the provisions of the act, what kinds of oversight mechanisms would you recommend? In your written brief, there is reference to another independent oversight committee that would go beyond the reach of the CSIS review committee. Could you speak to that, please?
Mr. DelBigio: With respect to the paradigms of law enforcement and intelligence gathering, I do not think that anyone can seriously contend that it is adequate to simply respond to crimes or offences once they have occurred. There is no doubt that some form of intelligence gathering and some kinds of proactive measures are essential to guarantee the safety of Canada and Canadians.
The concern that arises through that is the lack of accountability, because so much of that will be covert. As I speak to you today, I have very little data with respect to how extensive the intelligence-gathering activities are. Perhaps you do, but the public does not. Therefore, it is very difficult for the public to assess the extent to which the existing oversight is adequate and, if it is not adequate, to determine how best to craft a new model.
One of the critical concerns, as the CBA sees it, is that because the intelligence gathering does not occur in public there is an absence of public accountability. Let me say one more thing, if I may: there is undoubtedly a cumulative effect that I would suggest this committee should be concerned with. It is not just what the RCMP is doing, it is not just what CSIS is doing, it is not just what information is being shared with the United States; it is the cumulative effect of all of the operations, the intelligence gathering, the information gathering of all agencies, all of the sharing of information into that cumulative effect that has to be of concern to Canadians.
That is the reason that we suggest that there be a single entity of some sort that is tasked with the responsibility of overseeing all other entities to ensure that they are complying with the law. Also, even if there is compliance with the law by all those entities, it is essential to ensure that the effect of all of that meets with the standards that Canadians expect with respect to privacy and the preservation of the integrity of the person.
What information is being collected? How is it being stored? What is being done with it? The public does not know the answers to those questions; but even if the public does not get the answers to those questions, the public can perhaps take comfort in the fact that there is an independent review mechanism with the authority to find the answers to those questions.
Senator Kinsella: That is helpful. Federally, we do not have an office of ombudsman, but given the experience we have had in Canada at the provincial level with the office of ombudsman, and bearing in mind the offices of ombudsman in other countries, such as Spain, where the role of oversight is fairly proactive and the ombudsman is there to protect the citizens and the citizens' rights from the maladministration of law — and, in this instance, it would be the maladministration of extraordinary measures, do you think it would be worth Parliament's taking a look at that?
Mr. DelBigio: The CBA has specifically not made a concrete recommendation with respect to what this might look like. I know there are many potential models for oversight. The ombudsman model is one of them. I expect that the Arar Commission is likely to make some recommendation with respect to this, but what is most important is that the entity responsible for it must first have full authority to make inquiries and respond to complaints. Moreover, that should not just be one of the various tasks that the oversight body has. This is too important for it just to be added on to the various tasks that an existing body is performing. It is too important and is likely also too big. The ombudsman model might a good one, but it is just one of many possibilities. I would suggest that this committee look at specific models.
Senator Kinsella: We have heard witnesses suggest to us that the Anti-terrorism Act, which is the specific instrument we are examining in this committee, has not been used very much since it was enacted. Do you think Canada is any safer because we have had that act in place, even though it has not been used? Secondly, do you think that our Criminal Code provisions and other statutes would have been adequate for the task and that we really did not need the Anti-terrorism Act, its being passed in the atmosphere at the time, which was the tragedy of 9/11 and the international pressures and international requirements by UN efforts? Do you think we could repeal the Anti-terrorism Act without any threat to Canadian security?
Mr. DelBigio: That is a difficult question, because I am operating without the required data. In my opening remarks, I talked about the importance of coming up with an appropriate method of assessing threat. It is very easy to assert the existence of a threat, but what that really means and how that is to be measured is much more difficult.
When government people appear before you and make assertions with respect to threat, I assume they are operating on the basis of information provided to them by intelligence-gathering agencies. I do not have that source.
Are we safer today than we were? I simply cannot say. One piece of public data that might be available is to ask if there have been any criminal prosecutions, or have mechanisms such as the investigative hearings been used? We know there was an attempt to use that and it did not go anywhere.
Have there been any preventive detentions? I think the answer is no, but I do not know that for certain. If the answer is no, you might say that that is some indication that these laws are not needed. Does that mean they should be repealed? The question is whether or not these are laws are neutral when they are sitting around in the toolbox of laws. I suggest that the some of the laws might have a neutral effect and they can sit on the books without concern. However, I think the extraordinary measures should continually be reviewed. Whether that is achieved by a sunset provision or an ongoing awareness that they need to be scrutinized, I do not know.
If I can make two more brief remarks, the problem with some of these laws being on the books is that they do not sit there in a neutral fashion. The law-enforcement agencies and, more important, the intelligence-gathering agencies are going to be guided by the presence of these laws in determining whom to target, how much information can be properly gathered and how it can be gathered. Therefore, although they sit there on the books and there may not be a prosecution, I have no doubt that the intelligence-gathering agencies are guiding themselves in accordance with these laws.
As for international requirements, frequently, they are cited as the basis upon which Canada must enact certain laws. Sometimes the manner in which an international requirement translates into domestic law is rather ambiguous. For that reason, we say it would be useful for there to be a requirement, where an international requirement is relied upon as a basis for domestic law, that that be specifically cited.
Senator Jaffer: Thank you for coming again in front of us. You clarified some things for me on the intelligence process. I thank you for that.
I have a question that is bothering me very much and I believe the CBA is the right group to answer it: What is the role of the judges in all of this?
The judges, unfortunately, cannot speak out on these matters — although we know that one judge has expressed his concern about being given a different role. The challenge that I see for the judges is that they are used to an adversarial process in our country, where the defence and the prosecution prepare their cases and the judge is there to listen to both sides and make a determination.
However, with secret trials, we are asking the judge to play a very different role. I want to get your ideas as to what you think we should be doing about this. We are now asking the judge, really, to look out for the defendant not necessarily with evidence in front of the judge, but with intelligence reports in front of him or her. As you know, normally defence counsel has complete disclosure from the Crown and then there is an explanation from the accused as to what has happened. Now we are asking the judge to decide whether the person should be detained. The judge does not speak to the defendant, nor does the judge hear evidence; it is only intelligence reports. That is of great concern. We are asking our judges to fill a completely different kind of role. I would appreciate it if you could give us your impressions on this issue.
Mr. DelBigio: I can comment briefly. I agree that this is an area of critical concern. Unfortunately, our colleague, Lorne Waldman, who has had a medical emergency this morning, is the person that we had hoped would be here to speak to such matters. However, I will do my best to answer your question.
There is no doubt that our legal system, and the strength of the legal system, is premised upon an adversarial process. It is one that is based upon disclosure, one that is based upon an opportunity for cross-examination and one in which the judge makes a determination based upon the evidence as presented, cross-examination upon that evidence and submissions by counsel. As soon as any of those steps is removed, there is a risk that the quality of justice may suffer.
We have made a recommendation that an advocate of some sort be appointed to protect the interest of an accused in a secret hearing. When Mr. Roach was here, I think he spoke about a model of that sort. That is something we would urge this committee to consider.
Criminal trial experience has demonstrated time and again that information that is presented needs to be tested, because too frequently the information that is presented by a party may be incomplete or may present only one side of the story. In the absence of complete disclosure and an opportunity for testing, there are risks. Some form of advocate may minimize those risks.
Ms. McGrath: If I could add a point about the role of the judges and their feelings about the role being changed, I would make an analogy to a situation in which judges are allowed to speak out. That is in the area of the vast increase in unrepresented litigants who are appearing before the courts on a regular basis at every level, whether it be the provincial courts, the superior courts or even the courts of appeal in the various provinces. The judges have spoken out in those situations; they feel uncomfortable about the fact that, rather than being an independent arbiter of the dispute before them, they are now required to try to assist unrepresented litigants in defending their interests to some extent, advising them on the law and procedure. That is not their role, and they feel uncomfortable in that role.
If you use that as an analogy, you can probably come to some conclusion as to how judges feel about this particular change in their role.
Senator Jaffer: I know that Mr. Waldman has experience in this area. Is it possible, Ms. McGrath, to ask Mr. Waldman, if he is able, to give a reply in writing on this question, as we know he has had a lot of experience on this?
The Chairman: We can certainly make that request, senator. I would preface that by asking Ms. McGrath to express to Mr. Waldman the anxiety of this committee on hearing he has had some physical difficulties. We wish him the very best for a speedy recovery.
Senator Jaffer has made a good point. Mr. Waldman has been before us before and we would like to have his views on some of these issues.
Ms. McGrath: We will consult with him and have him provide his answers to the extent that he is able.
Senator Jaffer: In your submission, you say that hate crimes and racial profiling need to be condemned and that the investigation of crimes, if based on profiling, cannot be tolerated. Could you expand on that point? As you may have read, Minister McLellan's point of view is that there is no racial profiling happening in her department. What are you hearing from your members in regard to racial profiling?
Mr. DelBigio: There are two problems. First, when people speak about something as important and yet as delicate as racial profiling, there needs to be a clear understanding of what that might mean. So long as there is a possibility that people are operating upon different definitions, there is a risk that conversation will be not as constructive as it might otherwise be. Courts have begun to address that problem.
The second problem is how to know when racial profiling is occurring and obtain concrete information that it is occurring. The best indication of this is going to come from persons who are most at risk. However, these people are at times, or potentially will be, unwilling to report this.
Profiling can occur in any number of ways. Sometimes it results in a criminal charge, where a court then hears information and is able to address the issue concretely. Sometimes, though, and perhaps more frequently, it will occur in more subtle ways, like the stopping of a car and making inquiries of people in the street, where there is no charge. It can happen in ways in which it is very difficult for formal mechanisms to be engaged that will result in a formal scrutiny.
It is of great concern that this might occur. I do not say that it does, but there is a risk that it will occur in the intelligence gathering function, which is as covert an activity as can be imagined. One needs to ask questions such as: “Are those agencies that are given the task of gathering information or intelligence provided, potentially, with some extraordinary tools and techniques to do that? Are they engaging in racial profiling?” I do not know how to answer that.
I have read that certain groups are saying that racial profiling is occurring. The reports that might occur from certain groups cannot be ignored. Is it occurring? Perhaps the best information comes from those people who are saying that, yes, it is occurring. If certain groups are saying that since 2001 members of their groups have received more attention from the police than previously, that is data that counts as something and it cannot be ignored.
Senator Jaffer: In your presentation you spoke about the scope of legislation and whether is being oppressive to religion, politics and ideology. Can you expand on what you were saying?
Mr. DelBigio: The definition of “terrorist activity” in the Criminal Code specifically refers to acts that are committed in whole or part for political, religious or ideological purposes. The criminal law now specifically incorporates politics, religion and ideology into its scope. What that means is that law enforcement and intelligence gathering agencies will now take into account the politics, and religious or ideological beliefs of certain groups in determining whether or not those groups should be targeted for law enforcement or intelligence gathering purposes.
That is extraordinary in the sense that there are risks attached to that. The risks attached are that certain political or religious groups will be targeted, potentially, by virtue of their religion or politics alone. Remember, the law says, “...in whole or in part.” You need to ask, “What does that mean? What does that actually capture?” It is not just what that captures for purposes of there being a criminal offence committed, but what does that capture mean when law enforcement or intelligence gathering agencies are determining whom they will target and why they will target certain groups?”
The Chairman: We are at 10:45 am and we are hear until noon, so, if we can try to be crisp and quick, we will all get a chance to speak.
Senator Stratton: In the executive summary of your presentation you refer to the scope of the parliamentary review. You say:
In our view, the three-year review should go beyond the Anti-terrorism Act, and look at the overall impact of all expressed anti-terrorism measures, as well as measures which operate in that context.
You list examples thereafter.
With respect to looking at the review, have you had the opportunity to look at what has transpired in other countries? For example, the U.S., Great Britain and Australia all enacted anti-terrorism legislation. How does Canada compare to those countries? Could we take advice from what some of those countries have done in that field? I ask that because you are saying that we should go beyond where we are now.
The second question is that in the beginning we asked that this committee take a look at the impacts of the anti- terrorism legislation on other legislation — legislation that you have addressed here. In other words, if other legislation may have been passed as a result of the anti-terrorism bill, do you feel that there are other areas specific to anti- terrorism — and I know you have listed some of them, but I mean other specific acts — that should be addressed specifically with regard to this? That is a nebulous question, but it is one that we are trying to answer to ensure we are covering the bases properly.
Senator Kinsella talked about the possibility of using an ombudsman, and it certainly strikes me from your presentation that you were alluding to the fact that it should be a specific oversight group or committee looking at what is taking place with the Anti-terrorism Act. Is that a correct summary on my part?
Mr. DelBigio: With respect to other countries, what is occurring in other democracies is of course of interest. However, what is going on in other countries is not and should not be determinative of what occurs here.
Every country must operate within its own laws, and it is most important for Canada that we operate in accordance with the Charter of Rights. We are fortunate to have such a well-developed body of important jurisprudence that can guide lawmaking so as to ensure that important rights are recognized and protected.
There have been two important experiences in other countries that this committee can take note of, and I know they have been addressed. As was the case in Canada, Great Britain and the United States passed laws following September 11, 2001. Their high courts have now had the opportunity to review their laws having to do with the detention of people. Each of the high courts struck down provisions of detention. That is significant in the sense that it illustrates the manner in which a law enacted in haste or in a climate of fear or uncertainty might overstep the reach of what is appropriate, or might, in plain language, miss the mark.
Here in Canada, the investigative hearing provision went before the Supreme Court of Canada; the Supreme Court of Canada upheld the constitutional validity of the provision, but, in doing so, the court made some very important remarks with respect to the way in which these hearings should operate; of most importance was the fact that the procedure crafted at the first level in British Columbia with respect to that hearing focused upon secrecy and, with respect to the lack of information being made available to the public, the Supreme Court of Canada emphasized the need for openness.
Second, in the minority judgments, concern was expressed with the way in which the investigative hearing was being used within the context of the criminal prosecution that was occurring at the time. As I say, those were remarks that were made in the minority judgments; however, the fact that any judge of the Supreme Court of Canada would express concern with respect to the manner in which the extraordinary provision was being used in that context is of interest. It is important that this committee take into account what is going on in other countries, but that is not determinative of what should go on in Canada.
With respect to other acts that should be taken into account, I am not sure I can specifically refer you to anything right now. We referred to a number of acts in our brief, and I am not sure I can mention anything else beyond that.
With respect to the oversight of the accountability mechanism, we say there needs to be specific oversight of the cumulative effect. Again, it must be specific because of the breadth of the operation of the anti-terrorism provisions generally; the cumulative effects generally are so broad that there needs to be a specific mechanism of oversight. I do not know if that answers your question.
Senator Stratton: It would appear that what you are getting at is that it should be independent of any other responsibility and it should be specific to this area. That is what you seem to be saying, and I want to get a yes or no.
Mr. DelBigio: We say yes, but recognizing that there are many mechanisms for oversight. We also say yes, recognizing that there will always be resource considerations, but it is important. This is complicated. The benefit of a specific oversight mechanism is also that it enables an entity to develop an expertise and to develop a corporate knowledge. It can develop that expertise through the years and it can establish a database. As that occurs, the ability for there to be effective oversight will grow. It will be enhanced. Does that better answer your question?
Senator Stratton: It does, thank you. I know you are trying to be careful here, but I would agree with you. We have to make recommendations, and it would appear that what you are saying here is that there should be some independent oversight. I do not think we should necessarily go further than that, but I was trying to get something specific. If you are making a recommendation, this is what I would believe in, because it does need to develop over the years and it does need to have a corporate memory. As far as a recommendation from you and from this bar, I appreciate that.
Mr. DelBigio: If I may make a final remark with respect to that, a distinction needs to be drawn between the types of different oversights that might occur. There is, of course, an oversight by Parliament that might be with respect to whether or not a particular law should remain on the books, whether a particular law is unconstitutional, or whether there are sunset provisions. That is very important and should continue to occur.
An independent body doing oversight will be engaging in oversight of day-to-day operations. I do not mean the managing of the operations of the RCMP and whatever agencies there might be, but managing the cumulative effect of those operations, managing complaints that might arise with respect to those operations and ensuring that those operations that are occurring covertly are nonetheless occurring lawfully and in a manner that accords with the values that define Canada.
Senator Joyal: I am tempted to continue in the vein raised by Senator Stratton and Senator Kinsella earlier. I am trying to figure out in my mind where we are after three years. When the anti-terrorism legislation was introduced, as you noted in your opening remarks, it was in answer to extraordinary times and extraordinary measures. There were sunset provisions because we were in extraordinary times. By definition, “extraordinary” is something that normally changes, otherwise it becomes the norm, or becomes a daily practice and loses its extraordinary character or aspect.
We have heard from the minister responsible for public security, as one of the first witnesses, and we have heard from the Minister of Justice. Both of them pleaded to maintain the law as it is, except that the Minister of Justice had some qualifications about the security certificates and wanted us to look into those aspects. I think I am not misquoting him by stating that the extraordinary measures were there to stay.
If we accept the government premise that those measures should stay as is, and bear in mind your own analysis that we have changed something in the system that is much more important than just the anti-terrorist legislation, namely, the accumulative effect of the other legislation — the Immigration Act, the Public Safety and Transportation Act, and the amendments we have brought to the Criminal Code in terms of allowing criminal offences to be committed under certain circumstances by police officers or representatives of police officers and so on — should we not counterbalance the system by the fact that all those powers are now there and can be used as such, not only in an isolated way?
In the paper last week, when we were adjourned, there was a quote on page A1 from the National Post by Mr. David Harris, a former CSIS agent who is now a security consultant. He said that the Fateh Kamal group, named after the Montreal shopkeeper who was its well-travelled ringleader, has been shattered by security agencies using what one former intelligence agent called “the Black & Decker approach,” using every implement in the tool shed.
In other words, if we are to live with a Black & Decker approach in the system, we should have building inspectors. We should have someone who has the responsibility to look carefully at how all those specific powers are used.
The problem we have to face with the government announcement now is that there will be a special parliamentary committee charged with the responsibility to follow up on parliamentary oversight of those activities. In fact, as we know it, Parliament has an oversight mechanism, but they will not be able to do their work unless they are supported by someone with access directly in the system who can develop that corporate memory or knowledge from one agency to the other, from CSIS to the RCMP, from RCMP to information gathering, and from immigration officer to the border agencies. There are so many groups now that are active, and I say that is appropriate, because it seems that it is the Black & Decker approach that prevents terrorism, if we accept that premise.
However, we need to have something else in the system, if we are to accept the conclusion, which the Minister of Justice and the minister responsible for public security have proposed to us, that we should not change anything in the act but keep it as it is. Otherwise, we will find ourselves in the condition whereby, as Senator Kinsella has said, we will work on what I call not the preventive aspect but the curative aspect. An ombudsman is a curative aspect; it is when someone has agreed that the person goes to the ombudsman. The problem we have now is to develop a preventive approach. To develop a preventive approach, we have to have someone in the system who is permanently there to look into how the powers are used and make the proper proposals to the parliamentary committee so that Parliament maintains its capacity to balance the system. As you said, we are in the dynamics here of balancing the rights of the citizens with the objective of security. That is where we must be sure that the rule of law is maintained, because that is the only game we are in here. It is to maintain the rule of law in the context of fighting terrorism.
Am I too broad? Am I not seeing how the system works? After having gone through all the study you have done of the legislation, do you feel that at this point something else should be done?
Mr. DelBigio: It is exactly right that, if some or all of these laws remain on the books, Canada should not adopt an attitude of indifference to, or casual acceptance of, those laws. If it is the case that there are ongoing threats that are so significant and so imminent and based upon such reliable information that these laws continue to be justified, that is information which I am not privy to. Someone else will have to make that assessment.
If that assessment is made, it remains the case that some of the laws are extraordinary. They are not extraordinary because they have been on the books for one year or two years; they are extraordinary because of the powers they create, because of the scope of the laws and because of the potential effects of the laws through intelligence gathering.
I said that extraordinary measures require extraordinary mechanisms of accountability. I think it is quite correct that the oversight mechanism must have at least two objectives: one being to prevent wrongs from occurring, or at least to ensure that there is compliance with the rule of law, and the other to be curative. There must be both of those powers. For an entity tasked with oversight and accountability to have the power to have full access to data, and to conclude that the rights of a particular group have been violated, and yet not have the power to do anything more would simply be inadequate.
Again, the full details of what that mechanism of oversight will be will obviously have to be the subject of ongoing and careful discussion. The question of whether or not an extraordinary mechanism of oversight is required has, in my view, an easy conclusion. It is required.
Senator Joyal: In your presentation, you refer to the definition of terrorism. In your brief, at page 30, you seem to be of a different opinion than the Minister of Public Safety, who contended that the reference to politics, religion and ideology is essential to be maintained. In fact, when we first had to discuss the definition of terrorism, there was great concern among the members of the legal profession that that aspect was very delicate in making an assessment.
To me, one of the key elements to racial profiling stems from religion. We all know that, if you are a practising Muslim, regularly go to a mosque and are part of the activities of your community, you are more susceptible to be the subject of surveillance and identification. We have all been reassured by the police officers who were here previously, the Commissioner of the RCMP and members of the Ontario police forces, and even of the Ottawa police, that that does not happen. They use a euphemism, which is “risk assessment” rather than racial profiling.
If we are to address seriously the issue of racial profiling, should we not review the definition of “terrorism,” as suggested in your recommendation on page 9 of your brief?
Mr. DelBigio: We strongly recommend the definition in the recommendation on page 9, which comes from a United Nations convention. Mr. Waldman would have been better able to discuss this, but that definition has been utilized within the context of immigration law. Having multiple definitions of “terrorism” at work in Canadian law at best creates confusion or uncertainty. The one recommendation that we propose might address the concerns that exist at law — the harm that is caused through an activity. That definition does not include any of the complications of incorporating politics, religion and ideology, and it should be adopted. Therefore, we go back to a question raised, and a remark I made earlier, about the manner in which Canadian law is derived from international commitments. The definition of “terrorism” as set out in the Criminal Code goes beyond the UN convention in ways that are problematic and troubling. I see no need to incorporate politics, religion and ideology. I see that a great many problems could arise through the incorporation of those considerations into criminal law.
Senator Joyal: I will move to the other recommendation in respect of the security certificate. I refer to pages 30 and 32 of your brief, where you recommend allowing an appeal from a Federal Court decision on the reasonableness of a security certificate, with leave of the Federal Court of Appeal, and recommend that persons detained for security reasons be entitled to a detention review after 48 hours, after seven days and then every 30 days.
Could you expand on that? Do you think those elements could be fought on the basis of the Charter? Your suggestion here seems at first sight to be in contradiction to the guarantees that are enshrined in the Charter. As you said in your opening remarks, the Charter should provide the basis for our system in terms of protection afforded to citizens and their right to due process and the benefit of the rule of law. In your presentation, you did not expand on those aspects that are fundamental to the objectives of the committee this morning.
Mr. DelBigio: Regrettably, we expected Mr. Waldman to speak to such matters today. I can briefly attempt to answer your questions, but it does not fall within my area of expertise.
Detention, or the deprivation of liberty through the operation of law, is an extraordinary measure. Detention must be justified in a manner that is transparent and there must be an opportunity to dispute its lawfulness. The way in which the deprivation of liberty through detention might accord with the principles of fundamental justice is guaranteed by section 7. The way to ensure that it is not arbitrary, which would violate section 9 of the Charter, is through incorporation of due process and opportunities for review.
Senator Joyal: I will move to page 34, concerning the protection of information received by the solicitor in the context of solicitor-client confidentiality and the recommendation dealing with section 83.1 of the Criminal Code. Could you expand on that? Should this committee recommend such a change as a priority?
Mr. DelBigio: The Canadian Bar Association has made submissions in respect of laws over the years. When there has been a risk to the integrity of the solicitor-client relationship or a risk to confidentiality or privilege, we have vigorously defended the importance of the preservation of the relationship and the maintenance of the relationship and confidentiality. We continue to do so within the context of the inclusion of lawyers in the reporting requirements in respect of the money-laundering provisions. There are ongoing cases in respect of that and so I will not say more. Any dosclosure requirements that could capture the solicitor-client relationship and, through the operation of law, mandate the disclosure of privileged information would clearly be contrary to the broad interests of Canadian law and democracy. The Supreme Court of Canada has had opportunity on a number of occasions in recent years to discuss and to affirm the critical importance to Canadian Democracy of an independent bar and of the solicitor-client relationship. That is grand language, but it is not inappropriate in the consideration of the issue.
Section 83.1 requires every person to disclose the existence of property or information about a transaction or proposed transaction in respect of certain property. The concern is that the provision might well capture a lawyer who, while providing legal services, receives information from a person within the context of providing those legal services and that information is privileged. If section 83.1, properly interpreted, were to require the disclosure of privileged or confidential information, then we would say that it should be amended so that the disclosure of that information is specifically exempt from the operation of the law.
I have used some qualifying language in my response, but I will never qualify the importance of preserving privilege and confidentiality and of protecting the integrity of the solicitor-client relationship.
Senator Fraser: Welcome. I found your brief extremely interesting and a number of your recommendations quite appealing, but there are a couple that I did want to explore a little further with you. One has to do with the question of the definition of terrorist activity, if we could go back to that.
Our law now says that in order to be considered a terrorist act, the act must be committed in whole or in part for political, religious or ideological purposes, objectives or causes. It must be committed for those reasons. The UN, I would gather from your brief, says that to be considered a terrorist act, an act must be one that is under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature. Even the UN does bring in these famously difficult qualities of politics, philosophy, ideology, et cetera. I would like your comment on this. It seems to me that, when the UN says that an act is under no circumstances justifiable for this reason, that is loose and sweeping language open to all kinds of abuses in either direction, and lets real terrorists off the hook or, depending on the judge and the prosecutors, sweeps up people who are not terrorists at all. It seems to me that our definition offers more clarity and more certainty in terms of what we are dealing with. Tell me why you do not agree with that?
Mr. DelBigio: Section 83 incorporates the political, religious or ideological purpose as part of the crime. Criminal law is typically concerned with the prevention of harm, and with the upholding of certain standards within Canadian society. The harm portion of the definition is found in the section that deals with the intimidation of the public with regard to security by the intentional causation of death or risk to health or property damage. That is the harm. If that is the concern, the question that needs to be asked is what does it add? How is the value or the protection afforded by criminal law enhanced through the inclusion of the political, religious or ideological purposes? I do not see that it is.
You can, for example, look at any of the other provisions within the Criminal Code, and you can take as serious or as insignificant a crime as you wish; but let us take murder. The offence of murder addresses the harm. The penalty addresses the extraordinary harm. The penalty will also address whether it is a planned murder or not. The motive is of no concern. It is the harm that is the concern. Now, let me add a clarification. Motive within the context of murder might be evidence of planning, or deliberation, but that is simply an issue of whether or not it goes to first or second degree murder. It is not part of the offence. The question that needs to be asked is, if the criminal law is concerned with harm, and this provision is, how is the protection from harm enhanced the through the inclusion of political, religious or ideological purposes? I do not believe it is.
Here, within the Criminal Code, it is part of the definition of crime. A political objective can in some instances become a criminal offence.
The UN definition seems to refer to possible justifications for certain actions. It is recognition that certain political, religious or ideological purposes might justify certain actions or certain speech. For example, you can think of certain statements or certain other acts of speech that might be justified on the basis of an ideological purpose, or certain gatherings that might be justified for an ideological purpose.
That is the difference; one is incorporated into the definition of the defence and one seems to refer to possible justifications for actions.
Senator Fraser: It seems to me that the logical conclusion of your argument is that we would just scrap anti-terrorist law and deal with it all as ordinary crime.
Mr. DelBigio: About three years ago we asked whether or not the existing offence provisions of the Criminal Code were adequate to cover any of the concerns that might arise. To say that it should all be scrapped is perhaps too broad, in the sense that the provisions include offence provisions, investigative provisions and whatnot. Causing death or serious bodily harm, which is referred to in the terrorist activity definition, was already a Criminal Code offence.
Senator Fraser: Your answer to that is already enlightening me on what I now think will be the thrust of your answer to my next question, which has to do with your recommendation that the Criminal Code be amended to require the Crown to prove criminal intent to find anyone guilty of a terrorist offence. Your brief immediately preceding that recommendation, talks about the wide scope of the definition of “facilitate,” suggesting that, for example, the services of cell phone manufacturers and car rental companies might even be captured under this definition. Fascinated, I turned to the definition. The definition includes everyone who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. We have just established that the definition of terrorist activity also includes pretty stiff requirements about intent.
I was not quite sure, when I first read your brief, what would be improved by your recommendation. Can you explain that to me?
Mr. DelBigio: The provisions of concern are 83.02, 83.03, and 83.04. Look at the language in 83.03, for example. That is providing or making available property or services for a terrorist activity. It refers to financial or other related services, intending that they be used or knowing that they will be used. It is disjunctive. If one presumes that the drafters of the legislation included a disjunctive clause for a purpose, one must query what it is intending to be used for and how that is distinct from knowing that it will be used. However, then the intent or the knowledge component is further watered down by the subsequent words, “in whole or in part.” Therefore, one must query what it means that something will be used “indirectly” or “in whole or in part.” “Indirectly” comes from the very first line; “...for the purpose of facilitating or carrying out any...” is a disjunctive phrase, where “facilitating” is somehow being distinguished from “carrying out.” Then we have “...or for the purpose of benefiting...” There is a lot of language in there that is at best uncertain in scope.
The knowledge reference, the requirement of knowledge or intent, is potentially watered down by all of that language. That is the concern. Courts have not yet had an opportunity to consider what all of that means, and perhaps many judges will be thankful that they have not been required to instruct a jury as to what all of that means.
There is a concern that a criminal offence be precisely defined so that people can know how to remain within the parameters of law so that they are not inadvertently subjected to the powers of the criminal law. The further concern is that it may be assumed that intelligence-gathering agencies are being guided by these provisions in determining whom to target and what type of information to collect.
Questions might be posed to such agencies as to how broadly they interpret this so as to understand how broad a net is being cast through these types of provisions.
Senator Fraser: That helps to some extent, since your brief did not refer to 83.02, 83.03, and 83.04, but to 83.19 (2), which has to do with clarifying the scope of “facilitating.” However, I think I understand the fundamental position you are advancing here, so I will not take up any more time.
Senator Day: Good morning. I can be fairly brief because most of my questions will revisit questions already touched on. Regretfully, Ms. McGrath, most of my questions will be going to Mr. DelBigio, but if you would like to intervene on any questions please do so.
The first question is one I should have asked at the first with permission of the chair. At the end of your formal introductory words, I did not hear what you said. I wrote down that the gathering of intelligence “cannot be tolerated.” Did I mishear you or were you talking about the blurring between evidence and intelligence in making that point?
Mr. DelBigio: I was speaking within the context of racial profiling. The point that I intended to make, and obviously did not make with the clarity I had hoped, was that intelligence gathering or the targeting of persons for the purpose of intelligence gathering cannot be based upon racial profiling.
Senator Day: We agree with that. We have raised that issue on several occasions. We are always assured that that is not being done, but we also hear that certain people feel it might be. Therefore, we have to get to the bottom of that.
You talked about individual rights and freedoms and the importance of maintaining individual Canadians' rights and freedoms. Do you also recognize the importance of individual Canadians having a reasonable anticipation and expectation of security?
Mr. DelBigio: Absolutely. I know that Minister Cotler spoke of his theory with respect to the manner in which security issues and freedoms are interrelated, but there is no doubt that, in the absence of security, either there will be no rights or the rights will become somewhat meaningless. There is no doubt that it is essential to consider rights and freedoms, but it is also essential to consider the needs for effective law enforcement. No one denies the difficulties associated with effective law enforcement and the need for it. In Canadian jurisprudence, the constitutional jurisprudence, this tends to be described as a balancing and, in the words of the Supreme Court of Canada, “a delicate balancing” that is struck between the preservation of rights and freedoms and the providing of tools for law enforcement.
This is perhaps closer to art rather than science, in that it does not lend itself to the precision of a mathematical calculation. However, the balance will be struck on the basis of informed considerations, on the basis of vigorous and free discussion, and, most important, on the basis of full information. I have said it several times: It is very difficult, sitting in this position without the benefit of complete information, to assess the extent to which there is a risk, the magnitude of the risk, the imminence of the risk, or the extent to which considerations of risk will either justify the need for law enforcement provisions or justify the limitations of rights and freedoms. It is my hope that this committee will have the benefit of that full information and can make a fully informed recommendation.
Senator Day: This committee agrees with you that we should be taking a broader view. Even though we are established based on the mandated review of Bill C-36, the anti-terrorism legislation, we are taking a broader view and looking at the impact from a cumulative sense, as you have recommended.
Let me go to another area of questioning using that same concept. With respect to review and oversight, you made the comment that you have heard what the Minister for the Department of Public Safety and Emergency Preparedness has said in terms of a parliamentary oversight group; however, you went on to discuss the oversight role that you see for a parliamentary group as really reviewing the sunset provisions and whether the law should continue, and that type of thing. However, this other group you recommend is an umbrella oversight group that would review day-to-day operations and look into the cumulative effect.
Given the proper mandate, would a parliamentary group not be the best group to look at the overall cumulative effect on an ongoing basis? It is my understanding that that is what the Minister of Public Safety and Emergency Preparedness has in mind, not the traditional role of a parliamentary committee to review the legislation, but to review the operations and ensure that the checks and balances built into the legislation are indeed there, and that, if they need more, the necessary recommendations would be made.
Ms. McGrath: The role of Parliament is to engage in policy making and to determine whether policy is going in the right direction or needs to be reviewed. I think we are looking at an oversight committee that is more specific than that, one that needs the expertise and ongoing development of the work they do looking at the day-to-day operations. I am not sure that a parliamentary committee would have either the time or the expertise to engage in that kind of review.
I would think that we may looking at something along the lines of SIRC, which actually engages in the operational oversight of security and intelligence services, something that would have that kind of expertise and, as Mr. DelBigio indicated earlier, that kind of corporate memory. That is very important, particularly given that this is a very complex area. You are dealing with a number of different pieces of legislation. You are dealing with intelligence gathering, as Mr. DelBigio indicated, not only by the RCMP and CSIS but by front-line police officers in every community around the country, so that all this information is being shared across the country and across international borders.
In those circumstances, we need an oversight group or committee that has the expertise and the time to deal with all those issues.
Senator Day: The expertise is one issue. With regard to the time, if a parliamentary committee were designed with expertise and dedicated the time, do you believe that that could be achieved, or would it simply be inconsistent with the parliamentary role?
Ms. McGrath: I think it is inconsistent with the parliamentary role and also inconsistent with the reality that members of Parliament and members of committees will change over time, much more frequently than some of the oversight committees we have had where people have longer terms and develop the necessary expertise.
Senator Day: Longevity and corporate memory may be an argument that the parliamentary committee should be a Senate committee, where there is longevity and expertise built up over time.
Finally, I will go back to the definition of “terrorism.” I understand and accept your first point, that we need a definition of “terrorism” for our collective legislation in this area. In the last two or three weeks, I have seen that some progress has been made in the United Nations in the area of looking for a general definition. Are you familiar with that recent advance in the United Nations with respect to the general definition?
Secondly, are you particularly supporting the definition in the United Nations Convention for the Suppression of the Financing of Terrorism or did you just land on that convention because in 1999 they were able to come up with a definition for that specific convention?
Mr. DelBigio: This is something Mr. Waldman would have been best able to answer. It is a definition that I understand has been incorporated into other areas of law and has been used in other contexts. It is a definition that does not incorporate the problematic considerations that we have addressed.
With respect to developments that are occurring at the UN, I am generally familiar with them, but I am not comfortable to speak to them in any meaningful way.
Senator Day: I hate to ask you to take another mandate back to Mr. Waldman, but could you ask him if he has any further comment in that regard? The definition of terrorism is critically important and is probably one of the recommendations that this committee will consider. It would be helpful to know whether the definition in the Convention for the Suppression of the Financing of Terrorism is one that he would recommend versus the ongoing work of the United Nations.
Senator Jaffer: May I request that we invite Mr. Waldman to appear before us on another occasion?
The Chairman: Certainly.
Senator Jaffer: On page 41 you recommended that the federal, provincial, territorial and local governments adopt legislation, bylaws, policies, regulations and procedures to define racial profiling and that they take concrete measures to document, sanction and prohibit it.
Have you thought of a definition of “racial profiling?” I see in your material on page 39 that the Canadian courts, in R. v. Richards, have said that:
...criminal profiling based on race... (which) refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group ...[and] is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
In your submission, at the bottom of page 40, there is also a quote from Mr. Beare's paper entitled “Policing with a national security agenda,” wherein he talks about the “dangerous foreigner in our midst.” We all know that people of racial minorities are not necessarily foreigners to this country. They were born here; they live here; they have a right to be in our great country.
Have you thought about a definition? If not, would you give some thought to it and provide our committee with what you think the definition should be and what kind of sanctions you are considering for inclusion in the act?
One of the challenges is that racial profiling is not only practised under the terrorist act; it has now spread all over. What my colleagues were saying about oversight is very important.
Mr. DelBigio: Through resolution, the CBA has adopted the definition of “profiling” as defined by the court. We can provide that resolution. It is my understanding that there is a round table meeting occurring right now that is addressing the issue. We would encourage this committee to consider our definition as a good one. However, as happens with so many things, it is conceivable that definitions will evolve as we gain experience with the manner in which a certain definition is being relied upon, and the definition of “terrorism” is a good example of that.
With respect to sanction, it would greatly depend upon which agency is engaging in racial profiling and how. For example, there are, if I recall correctly, some cases in which the sanction for racial profiling by police officers within the context of criminal prosecution has been either the exclusion of evidence or stay of proceedings. I cannot remember which. A very strong message has been sent.
We include the requirement of sanction, because it seems that the issue is so important that simply a prohibition without sanction might not be good enough.
Senator Joyal: I would draw the attention of our witnesses and guests to pages 42 to 45 of the brief, dealing with privacy and protection of personal information. This is an issue that has not been mentioned on the record this morning in the expansive way in which it is treated it in the brief.
You identify many weaknesses in the system, since the adoption of the anti-terrorism legislation, in terms of the changes that were brought to the Privacy Act, and to the fact that there is no “harms” test. There is no limit to the conditions under which a certificate should be issued; there is no length of time specified for the duration of the certificate; and there is no check on the certificate. You expand on those aspects in your brief and then you make recommendations. Could you, in a nutshell, give a resumé of those recommendations so they will be part of the record this morning?
Ms. Tamra L. Thomson, Director, Legislation and Law Reform, Canadian Bar Association: This is an issue that we raised in our submission three years ago and it was not acted on then. We are still recommending that it be acted upon now.
For all intents and purpose, where a national security issue is in play, the provisions of the Access to Information Act, the Privacy Act and the Personal Information Protection and Electronic Documents Act are thrown out. The protections that are provided by those acts for personal information are not in play.
We are recommending that those aspects of the Anti-terrorism Act be repealed or, alternatively, that specific criteria be put into place as safeguards, and those are listed in our submission. Of course, the preferred action is for the repeal of those provisions so that, regardless, we have the protections of the Privacy Act, PIPEDA and the Access to Information Act, and so that the Information Commissioner and the Privacy Commissioner have their usual oversights for those issues.
Senator Joyal: If they are not repealed, you clearly suggest that there should be criteria and review mechanisms so that there is balance in the system. You argued in your opening remarks that, if we change something in the context of the protections that are afforded to citizens under the Charter and under the rule of law, that should be compensated for by appropriate mechanisms so that there is in fact in the system the same kind of equilibrium between what the citizen is expecting in terms of fair protection and what the citizen incurs in the context of the anti-terrorism, if he or she is the object of a certificate that opens the citizen to invasion of privacy without due protection by an oversight mechanism that in fact maintains the proper balance in the operation of the system.
Ms. Thomson: That is correct, yes. It is consistent with the message throughout our submission that the protections that citizens can ordinarily rely on should be even more apparent when extraordinary measures are brought in.
Senator Fraser: On page 25 of your brief, you have two recommendations concerning the Canada Evidence Act. The first one, which has to do with making public the fact of an application to the court under section 38 and associated clauses, seems straightforward and very attractive.
I get a little lost, and I am truly asking for an explanation here, with the second recommendation, which is that section 38.06 be amended to preclude the use of summaries of evidence in criminal proceedings. I have two questions here. “Summaries of evidence” pops up in various places in this legislation, not only in this particular part of the law, which has to do with international relations and national defence and security. Therefore, are you applying your “summaries of evidence” thing broadly? In criminal proceedings — I am betraying my ignorance here — are we talking all criminal proceedings anywhere and everywhere, or just those brought under this particular section? I am not sure what you are asking us to do here.
Mr. DelBigio: I will answer in part, if I may.
What distinguishes all criminal proceedings from other proceedings is that criminal law, as it has sometimes been described, is one of the bluntest tools available, and it is an extraordinary power of law that will potentially result in the imposing of a penalty which will include deprivation of liberty. It is within that context that it is of critical and perhaps most critical importance that an individual have a full opportunity to understand the case that he or she has to meet and to test that case. Adjudication of guilt or innocence must be based upon full information and not just upon summaries.
Senator Fraser: So it is anywhere and everywhere.
Mr. DelBigio: Realistically, one would not tend to see summaries of evidence in routine cases in the sense that it is everywhere and anywhere, but, in practical terms, summaries will be found in a few cases. It is my guess that, if you were to go to the provincial courthouses throughout the country today, it is unlikely that there would be any case based upon a summary of evidence. Yes, all criminal proceedings coud have a summary, but, as a practical matter, it will be certain kinds of cases that attract the use of summaries.
Senator Fraser: You would not object to having them used in investigative hearings or preventive detention, because I think they come up there too.
Mr. DelBigio: Preventive detention is a deprivation or a restriction of liberty, and and so it is again a powerful mechanism that should not be based upon summaries. With respect to investigative hearings, the second part of your question, that will occur in stages. The first will be the application stage, which will look something like an application for a search warrant, which will be based upon summaries, and the hearing is the taking of information.
Therefore, I am not sure that the issue of summaries of evidence will occur in that context. It might occur subsequently, when the information is elicited and the investigative hearing is being subsequently relied upon.
Senator Fraser: Thank you; I am a little wiser.
Senator Kinsella: If no amendments were made to the Anti-terrorism Act, what would your opinion be in respect of a review of the act in three years? Is the provision for the existence of this committee totally functus — a one-time thing? Do you think that a committee would be mandated by the statute to review the act three years hence?
Mr. DelBigio: If I may, I will take the easy way out in response. Any ambiguity or uncertainty in the act about a mandated three-year review should be eliminated by the inclusion of an amendment.
Senator Kinsella: The three-year review should be mandated in the act?
Mr. DelBigio: If it is not clear in the act, then there should be an amendment to clarify it.
Senator Kinsella: On page 49 of your brief you drew our attention to the issue of charities. We have had evidence from other witnesses that some charities have provided funds that in some way end up in the hands of people who support terrorist activities. Would you say a word or two in the time remaining about the provisions in this act and whether you think that should be tightened? You alluded to guidelines, but will you be satisfied with those? Could those guidelines be made pursuant to regulations? Is there regulatory authority in the act or should there be a statutory amendment?
Ms. Thomson: The provisions in the act in respect of charities are quite ambiguous. Some international cooperation groups that appear before the committee will comment on the impact of their operations in Canada and overseas. They need guidance as to their conduct under the act; and we have suggested guidelines. Those would be in the form of regulations, although when taken in conjunction with some of the other recommendations for change, some of those guidelines would be in the form of legislation, because we have recommended some changes in the operations.
The Chairman: I thank our witnesses for a vigorous and rigorous morning. Mr. Waldman is on our witness list for another meeting and we will look forward to hearing from him at that time.
The committee adjourned.