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Proceedings of the Special Senate Committee on the
Anti-terrorism Act

Issue 11 - Evidence - Morning meeting

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OTTAWA, Monday, May 16, 2005

The Special Senate Committee on the Anti-terrorism Act met this day at 10:05 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).

Senator Joyce Fairbairn (Chairman) in the chair.

[English]

The Chairman: Honourable senators, I call to order this twenty-third meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act.

For our viewers, I will explain the purpose of this committee. In October 2001, in direct response to the terrorist attacks on New York City, Washington D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, in respect of the Anti-terrorism Act. Given the urgency of the situation, Parliament was asked to expedite the committee's study of the proposed legislation,and the committee agreed. The deadline for the passage of Bill C-36 was mid-December 2001.

However, concerns were expressed that it was difficult to thoroughly assess the potential impact of the proposed legislation in such a short period of time and, for that reason, the committee agreed that three years later Parliament would review the provisions of the act and their impact on Canadians with the benefit of hindsight and a less emotionally charged public. The work of the Special Committee on the Anti-terrorism Act represents the Senate's efforts to fulfill that obligation.

When the committee has completed its study, a report of the results outlining any issues to be addressed will be presented in the Senate and made available to the government and all Canadians. The House of Commons is undergoing a similar study.

To date, the committee has met with ministers and government officials, with international and domestic experts on the threat environment, with legal experts, and with those involved in law enforcement and intelligence gathering. Today, we turn our attention to the question of civil liberties. This morning, we will hear from Mr. Alan Borovoy, General Counsel for the Canadian Civil Liberties Association, who is joined by Ms. Alexi Wood, Policy Analyst with the association. As well, we will hear from Mr. Alex Neve, Secretary General of Amnesty International.

Mr. Alan Borovoy, General Counsel, Canadian Civil Liberties Association: Thank you, Madam Chair. I suppose the best place to begin is with the cumbersome definition of ``terrorist activity'' because so much flows from it. We acknowledge that efforts were made in 2001 to narrow the definition and make it more viable. However, I regret to say that it was not a successful effort because it leaves serious gaps. I can best illustrate that with three examples. First, in Ukraine at the end of 2004 there were mass protests. If there had been a general political strike, which the protest leaders were urging, the possibility would have been high that the strike would have interfered with some essential facilities, thereby creating some of the risks that the definition of ``terrorist activity'' addresses. If Canadians had supported that general strike and protest, as many were supporting it, they might well have been guilty of a terrorist crime in Canada.

If there was an uprising in the People's Republic of China against the Government of North Korea or against the Government of Iran, and Canadians sent money to support the insurrection — even though a development like that would likely thrill democrats around the world and even if the insurrectionists tried hard to minimize civilian casualties — Canadians who supported those insurrections might be guilty of terrorist crime. If there is any difficulty in buying this, I am prepared to walk you through the definition and try to demonstrate that risk.

I take you to a more domestic arena for the third example. We have seen Aboriginal people, farmers and truckers, block major highways. When this is done, there is a not insignificant risk that police, ambulance, or fire service might be obstructed. These things can happen when you blockade highways, or if people have to take alternate routes in anticipation of the blockade. In all those situations, the people participating might be guilty of a terrorist crime.

In the case of the foreign situations, I cannot imagine a tyranny that could be removed without at least some element of civil disobedience, and in some cases, violence. I do not like to think that Canadians supporting the removal of a tyranny, in those circumstances, should be guilty of an offence in Canada. As far as the truckers and those people who may blockade highways here are concerned, that will remain unlawful, but it should not be a terrorist offence, as unlawful as it may be. That is the risk we run.

We recommend the way out of that is to limit the definition of terrorist activity far more severely. The goal should be coercion with anti-democratic objectives, with the means being the deliberate targeting of non-combatants for serious violence. I understand that it is not possible to formulate a definition that will catch everything on the terrorist agenda without including something that should not be there. I suggest to you, that insofar as they are doing damage with their agenda, it is going to be unlawful anyway. The special regime for terrorism should be confined to the most deadly activities.

I am dealing with things that you do not hear as often, because certain things are talked about more than others. The power to ostracize: by putting people on a list the government can transform them into virtual pariahs. This can be done, even though no offence has been committed or even charged, even though a court has not vetted it first, and this includes not only organizations but also individuals. Organizations have limited functions, but individuals have ordinary lives to lead. This includes not only individuals who may live halfway around the world, but also citizens and permanent residents of this country. Our view is that the power to list should not include citizens and permanent residents, individuals. There is reason to doubt the necessity of going that far. These things should have to be vetted by a court beforehand, and subject to vetting afterwards.

As to the obligation to inform when you come into possession, I can imagine a situation where if that power were enforced a lot more than it has been so far, and if people were required to inform on one another, it would make this country a far different place to live in. This requirement might be applied to some people in our community and the necessity of going that far is questionable. Our view is that the obligation to inform on, and to avoid business dealings with, people should be confined to those who are in the business of turning over large amounts of money and property, and it should be confined to listed organizations. People should not have to determine for themselves when they come into possession of property whether it is from a terrorist organization. If it is not on the list, they should not have to worry about it. The power to exclude information — I am getting close to my deadline.

The Chairman: Yes.

Mr. Borovoy: In that case, I will skip some of the powers; you have it in the brief. The safeguards in the act now are too few and too weak. We suggest that where information is being processed in camera and people who are affected do not have a chance to see it, at the very least, there should be a secured public advocate who can look at all the material and attempt to represent that person's interests at in camera sessions.

We suggest also — and this you may not have heard before — that some of the powers that are exercised might be unconstitutional. I regret that our courts are not as accessible as they should be to entertaining applications for declarations of unconstitutionality where some of these powers are concerned. The courts have insisted that there be a strong evidentiary base when there is an application for a declaration that certain powers are unconstitutional. Where you are dealing with powers that are exercised surreptitiously, and are supposed to be exercised surreptitiously, you cannot expect people to have the evidence they need to challenge unconstitutionality. We suggest that legislation should be enacted effectively directing the courts not to deny standing on the basis of an inadequate evidentiary base where what is at issue is the constitutionality of powers that are being exercised surreptitiously.

We also suggest the need for independent auditing of police and anyone else exercising surreptitious powers in the national security area. These should be subject to after-the-fact auditing by independents.

We would like to see a mandatory review of all of these intrusive powers at intervals of at least five years, for as long as these miserable, intrusive powers remain on the books, as the only way we can say to ourselves, to each other, to all Canadians and to posterity that these are inherently unwelcome and we are going to try our damnedest to get rid of them as soon as we are able to do that, all of which is, as always, Madam chair, respectfully submitted.

The Chairman: Thank you, Mr. Borovoy. I know you will have every opportunity to put in the parts that you did not put in during answers to questions. Mr. Neve, would you like to say a few words?

Mr. Alex Neve, Secretary General, Amnesty International: Thank you, Madam chairman. Good morning, committee members. Amnesty International appreciates the opportunity to be here today during this important review.

It will come as no surprise to any of you that Amnesty International's general request is that you put concern for human rights at the centre of your review of the Anti-terrorism Act. I say so not only because human rights are an essential concept; of course, they are, and I very much hope and expect you would attend to human rights for that reason alone. I say so additionally because the central goal of anti-terrorism legislation anywhere is obviously security.

However, security that is not firmly grounded in scrupulous respect for human rights is anything but secure. Rather, an approach of that nature — disregard for basic human rights — serves only to deepen inequities, creates further injustice and leads to resentment, divisions and grievances, all of which ultimately leave us with greater insecurity.

Our brief highlights a number of ways in which we consider Canada's anti-terrorism laws and practices to be in need of reform, reform that is necessary to ensure full conformity with our essential international human rights obligations. I do not have the time to go through all of them today in my presentation, but would welcome questions when we have the opportunity to engage in dialogue.

Let me begin with the scope of your review. We recognizethat you have been asked to review the Anti-terrorism Act,Bill C-36 as it was known during its hurried passage in 2001. Like many others, we urge you to take a wider view because most of Canada's action on the anti-terrorist front has been outside the act.

We welcome your decision to include a review of Canada's immigration security certificates in this process, but we urge you to add at least one more dimension. The legislation should address concerns about the involvement of Canadian law enforcement and security agencies in anti-terrorist investigations and operations outside Canada in cases involving Canadian citizens, and in circumstances where those operations have directly resulted in serious human rights violations. Failure to take that wider view in your review will leave your assessment of the act incomplete.

Properly understanding the act requires you to understand not only how and why it is used, but how and why it is not used as well. I would like to touch on four key recommendations in the areas of definition, secrecy, immigration security certificates and operations abroad.

Let me begin with definition. Mr. Borovoy has eloquently addressed the concerns here, which we share. We raised those concerns in 2001 when the act was making its way through the parliamentary process. I note that this challenge of creating the right definition of terrorist activities continues to elude the international community. The challenge of finding a definition that does not unduly encroach upon fundamental human rights or risk, including legitimate forms of political dissent, agitation and disobedience, is a difficult one.

In addition to what you heard from Mr. Borovoy, I would like to flag one additional concern that Amnesty International has about the definition. This definition includes political, religious or ideological motivation as a key element. At the international level, within various UN and regional treaties at both theinter-American level and the Council of Europe where a definition of some sort has been agreed to, treaties have avoided adding such an element to the definition.

As an example, here is the definition from the UN treaty dealing with the financing of terrorism:

Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

There is nothing about political motivation, religious beliefs and ideology.

Amnesty International agrees that governments have the right, indeed the obligation, to ensure that acts which are intended to cause death, serious bodily harm and other concerns of these kinds are investigated and, where appropriate, prosecuted. That should be the case whether the act is motivated by politics, religion, ideology or any other reason.

Adding a political, religious or ideological element to this offence, however, significantly increases the risk of racial, religious or political profiling and other related discrimination. In a sense, it effectively requires Canadian police and security services to investigate the politics, religion and ideology of suspects, witnesses, family members, community groups and others.

It sets the ground for the experiences of profiling that Canadian Muslims, Arabs, South Asians and other ethnic and religious minorities have frequently stated they have experienced at the hands of police, security officials and customs agents, including by means of intrusive questions about their religious beliefs and the details of where they worship.

It may facilitate and even encourage discrimination in Canadian law enforcement practices. It also introduces an element to the offence that may well be difficult to prove in court, and thus makes successful prosecutions more difficult.

For this reason, Amnesty International recommends that unless a clear and convincing case for its inclusion in a manner that safeguards against the possibility of discrimination can be made, the reference to political, religious or ideological motivation should be removed from the definition of terrorist activities.

Now for a word about secrecy, the Anti-terrorism Act included significant revisions to the Canada Evidence Act. In particular, the act established a draconian and highly secretive procedure whereby the government can, in any legal proceeding, block the public disclosure of potentially injurious or sensitive information, both of which essentially involve concerns about international relations, national defence or national security. The hearing as to whether the information should be disclosed is held in camera, and the mere fact that the hearing is even being held cannot be publicly disclosed.

Amnesty International has a number of concerns about this procedure. First, we are concerned about the inclusion of international relations in the list, in the definition of potentially injurious or sensitive information. This raises the prospect of information being withheld from the public, from the accused in a criminal trial and the parties to other types of legal proceedings simply because it might embarrass Canada in its dealings with another government, or become an inconvenience in international negotiations dealing with a trade or some other issue. International human rights law does not recognize this as a legitimate reason to curtail fair trial rights. Article 14(1) of the International Covenant on Civil and Political Rights, ratified by Canada, is clear in that respect.

Protecting international relations is not included and does not in itself justify excluding the public, unless there are parallel obvious and demonstrated concerns around national security, for instance. We recommend that the act be amended to remove international relations as a reason for curtailing fair trial rights.

I shall move now to the subject of security certificates.

I am sure that members of this committee are aware that four individuals are in detention in Canada, Toronto and Ottawa, pursuant to security certificates issued under the Immigration and Refugee Protection Act. One other individual has been recently released from detention in Montreal on stringent bail restrictions.

Amnesty International is of the view that the security certificate process may result in arbitrary detention and thus violate the fundamental right to liberty of these individuals. We have called on the Canadian government to reform this process for many years.

We welcome the fact that this committee is paying long overdue parliamentary attention to this significant blemish on Canada's international human rights record. The process does not conform to a number of essential international legal standards that are meant to safeguard against the possibility of arbitrary detention. Detainees are not informed of the precise allegations against them. They see only a summary of the evidence that is being used against them. Evidence may be presented in court in the absence of the detainee and his or her counsel. The detainee is not afforded a right to examine any and all witnesses who have been the source of that evidence. Furthermore, at the end of the day, the federal court considers only the reasonableness of the decision to issue a security certificate and does not substantively review it.

It is our view that individuals detained pursuant to certificates are effectively denied their right to prepare a defence and to mount a meaningful challenge to the lawfulness of their detention. This is in contravention of Canada's obligations under international human rights law, including Articles 9 and 14 of the International Covenant on Civil and Political Rights. The process should be reformed so as to bring it in line with Canada's international human rights obligations, including by ensuring a substantive review of the reasons for detention, and by making all evidence available to the individual detained so that any potentially unfounded allegations can be challenged effectively and meaningfully.

Last, I shall turn to concerns about Canadian operations abroad. There has been considerable international attention since the September 11 attacks focused on a U.S. practice of what has come to be known as extraordinary rendition. There are growing numbers of reports of individuals against whom allegations of involvement in or support for terrorist activities have been made, being arrested or detained directly by U.S. officials or with the tacit involvement of U.S. officials, sometimes in the United States and sometimes abroad. These individuals then find themselves dealt with outside existing legal frameworks, and certainly denied due process and other essential human rights protections. They ultimately end up being furtively sent to countries with abysmal human rights records, where they are subjected to extensive interrogation frequently marked by torture and cruel treatment.

One such case that has received considerable attention in Canada is that of Canadian citizen Maher Arar. These procedures do not stop with the United States. Amnesty International is concerned that Mr. Arar's case, along with at least three other cases involving the arrest, detention and torture of Canadian citizens in Syria, raise troubling yet unanswered questions as to whether Canadian law enforcement and securities agencies may have conducted their own version of extraordinary rendition.

In all four cases, there are allegations of contact between Canadian officials and Syrian authorities, both before and during detentions. The allegations raise the prospect that Canadian officials may have provided information that lead directly to their arrests and may have done so with the expectation, or with wilful blindness to the likelihood, that it would result in their arrests.

It also appears that information provided by Canadian sources likely served as the basis for the interrogation sessions in Syria during which those individuals were subjected to torture.

There are further concerns that information coming out of the interrogations was transferred back to Canada and may have been used by Canadian officials in the course of ongoing investigations of these four men and other individuals. International law makes it clear that information obtained under torture cannot be used in that way.

A public inquiry is underway looking at the question of what role Canadian officials may have played in Mr. Arar's case. Amnesty International has urged that inquiry to look at the wider pattern suggested by these other cases. We do not yet know whether the commission will do so.

I wish to leave this committee with three recommendations that are relevant to your review, recommendations that can go ahead regardless of where the inquiry ends up. First, it is critical to call on the Canadian government to ensure that there is some sort of full, public and independent review. I am not saying to establish another inquiry, but there should be some sort of public independent process of review of all instances of Canadian citizens detained abroad in these circumstances: cases involving allegations against the individuals concerned of involvement in, or support for, terrorist activities; of individuals who have been detained abroad in countries where the protection of their basic human rights was at risk; and where circumstances suggest involvement on the part of Canadian officials. That review must lead to discipline or criminal prosecution of anyone whose conduct has breached policies or protocols, or broken any laws. The review should also include an appropriate mechanism for awarding compensation.

Second, there is also a critical need for law reform. This present review of Canada's anti-terrorism legislation provides an important opportunity to ensure that happens. While recognizing that intelligence and information- sharing between Canada and other countries will continue and is a necessary practice, Canada needs to develop human rights protocols that will govern such arrangements. The Anti-terrorism Act would be one place where a legislative, regulatory framework could be established requiring that protocol and setting out the means for doing so.

Third, Canadian law must explicitly prohibit any law enforcement or security practices that intentionally or recklessly expose individuals to the risk of human rights violations such as torture in Canada or abroad. Canadian law does not yet do so. We have failed to incorporate properly in a full and robust way our obligations under the United Nations Convention against Torture. That important international treaty has not been fully implemented in Canadian law. This is an important opportunity to ensure that happens.

The Chairman: I thank both of you for your presentations. That has given us a good beginning.

Senator Kinsella: I wish to begin with the issue of review, and draw attention to section 145(1). That is the section of the current legislation that has mandated the setting up of this committee, which is reviewing the act. It reads clearly that within three years after this act receives Royal Assent, a comprehensive review of the provisions and operation of this act shall be undertaken by a committee of each House.

There is no mention in the act of a further review after this review has been completed. In other words, this provision of the act will have been fulfilled once this committee completes its work, in addition to that of the parallel committee in the House of Commons. For that reason, there is no review after this. I know you are interested in something far more rigorous than this, but even this provision indicates that this kind of review will not be there. Would you comment on that please?

Mr. Borovoy: Our view is that it is important to send out the message that the kind of intrusive powers that both of us have been talking about are unwelcome features of our law; whether or not we think they are necessary, they are not welcome. Even if we think they are necessary, they are not welcome. For that reason, it is important that we have an ongoing review, or at least a periodic review built into it. Thus, the country's attention will be focused on these violations and infringements of what we consider standard human rights and civil liberties that go on as long as the powers remain.

Senator Kinsella: I share that view. The arguments still need to be made about these powers in the tool box, some of which have not been utilized since the statute was enacted. When one uses that metaphor, very few construction workers I know carry around a jackhammer, a crane or all these kinds of heavy equipment in their tool box, but they call upon them and get them when they really need them. I noticed in your brief there was a reference to, and the suggestion made that, maybe we should repeal this act. If we repealed the act and the powers were needed in the future, Parliament has demonstrated from time to time, even as late as last week, that legislation can be quickly and expeditiously enacted.

Let us return to repealing this act. Returning to the status quo ante, what is your view?

Mr. Borovoy: You paint a very alluring picture. There are some features of the act, particularly where you talk about dismantling terrorist entities getting at property, which I find myself somewhat sympathetic to, knowing what I do about the age we live in. I do not know that we need to go as far as repeal, and I am not sure that the tool box metaphor is the best approach to this issue. I heard the argument made, if it has not been used why do you need it, and on the other side they said just in case we need it we have to have it there. I prefer the approach that says, why do we need this particular power and why do we need to go through them?

For example, we suggested that the power to put individual citizens and permanent residents on a list of terrorists no longer exists, and that the power should apply to organizations if it need apply, or to people who are not citizens and permanent residents who may live half way around the world. Consider that a good many of the people who are candidates for the list are likely to be under intensive surveillance already, thereby giving our security forces a pretty good opportunity to anticipate and intercept harmful activity in which they might engage. As far as property is concerned, there are numerous ways of trying to freeze assets and property without going so far as to put people on the list.

That is why we ask the question of how necessary that power is, and that is, I think, the more productive way to approach this, not by simply looking at whether it has been used or not used but by putting the powers in the position of justifying the need for them.

Mr. Neve: I want to add to that question. At the timeBill C-36 was making its way hurriedly through the legislative process in 2001, Amnesty International and many organizations repeatedly asked the government to make the case. We need the analysis; we need to understand what the gaping holes in Canada's current laws are such that this legislation, with many aspects that are draconian and harmful to human rights, is necessary. We never saw that at the time, and we continue to feel that is missing. Hopefully, through your review process you are able to press for some of that and may get answers to it. It is still very much lacking. That is one reason why many organizations put this recommendation out there. We have still not heard the case. Many organizations feel it was not necessarily gaping holes in legislation, but not enough funding here or an improvement needed in intelligence gathering there, and those were the real problems with respect to Canada's anti-terrorism practices.

Amnesty International does not say repeal, but parts of the act at a minimum need to be repealed. I have highlighted a couple of small pieces; things that need to be taken out of the definition, and things around the notion of what kind of information and evidence can be withheld in legal proceedings. Aspects of the act need to be reformed to ensure conformity with human rights obligations. Then there is the question of, what about all this stuff that is happening outside the act? I think this ties into the concern expressed from many quarters that goes further than saying, the act is not being used, is it so necessary? This concern is expressed as, the act is not being used but there is a lot of action happening outside of this act: What does that tell us about the need for this legislation if even with the legislation the practices are happening through our security certificate process or through the growing concern about what is happening abroad in places like Syria? Does that even further highlight that this act does not fit the need?

We felt there was something important in the anti-terrorism act which has unfortunately proven to be more theoretical than real. The act, although imperfect, marked a shift towards Canadian practice focusing more on justice and bringing people to justice for crimes, such as terrorist activities, rather than thelong-standing reliance on our immigration system to simply get rid of people, which does no good to anyone. It either exposes the individual concerned to injustice or gives rise to the very likely possibility they will escape justice. We hoped this act would be a departure from that practice, and would see Canadian practice start to focus on ensuring that there is justice and prosecutions here within our own court system in ways that comply with basic human rights standards. That has proven more theoretical than real, but it would be one caution in terms of not wanting to totally abandon what the Anti-terrorism Act seeks to accomplish.

Senator Kinsella: I like very much your idea of the need to set in place human rights protocols to be followed by those agents of the state who exercise any of the powers under the statute.

We can talk about it in relation to this. You drew our attention to the International Covenant on Civil and Political Rights, and Article 4 in particular. This article says that in times of national emergency, even when the life of the nation itself is threatened, there are certain human rights that are not to be abrogated, and one of those refers to section 7, torture. People have a right to be free from torture even in times when the life of the nation itself is threatened.

Article 4 is very interesting in that it also says there is to be no discrimination because of race and religion, et cetera. We have had a lot of discussion in this committee around the question of racial profiling. In the absence of a human rights protocol, we can understand the concern that is being expressed by those who feel or perceive themselves to be victimized by racial profiling, which is not justifiable even in times of national emergencies. It is never justifiable according to the covenant to which we subscribe.

I have been disturbed that now and again there is reference to torture. That is the term used. Others may use language such as the creative terminology of ``extraordinary rendition'' that you mentioned. We have to be vigilant not to be caught by things as simple as language such as ``vigorous'' interrogation, and words or phrases of that sort. I would be less concerned if the ideas that you brought forward would have to be expressed with a legislative foundation and human rights protocols.

Could you speak to some of those issues?

Mr. Neve: I agree with your concerns; they are critical ones. Two key recommendations come out of what you have expressed. The first is the notion of the human rights protocol. It would certainly need to have a legislative foundation that makes it an obligation so that it is not just a possibility but something required of the RCMP, CSIS and any other security agencies.

Second, we need to get our legislative house in order when it comes to the issue of torture. There is not yet a clear statement in Canadian law that says no one in any circumstances should ever be sent back to the waiting hands of a torturer. International law requires that of us, in addition to the provisions you have just highlighted.

The UN convention against torture, which Canada ratified in 1987, similarly says that torture is always without justification. You can never excuse it. It goes on to state explicitly that it includes sending people back to torture, and you are complicit in the torture if you willingly do that.

Frequently, and as recently as last week when Canada's record of compliance with the convention received its five- year periodic review, the UN has consistently chastised Canada for its failure to live up to that obligation, and has highlighted that as a concern in itself. It went on to state that we need to expect more of Canada. On this world stage where there is so much happening on so many fronts to erode the critical protection against torture, when a government such as Canada gets up in front of a UN committee and expresses those same sentiments, it is incredibly detrimental.

Torture is still a plague on this planet, and Canada should be doing everything to eradicate it. In section 12, our Charter of Rights and Freedoms provides a clear protection against torture, framed as cruel treatment in Canada, but we are missing that companion piece that clearly states that Canada should never in any circumstances send people back to face torture, even in security cases. We should turn to the Anti-terrorism Act's illusory promise of justice. Instead of sending someone off to the torture chamber, the prosecution should be launched here, if we have concerns. That is what the act was supposed to be about, and it is not delivering on that promise.

The Chairman: Thank you very much. This was an enlightening and important beginning.

Senator Joyal: My question is more on the level of principle than on the very precise elements of the legislation. You have covered many of those aspects that we have been studying with other witnesses whose briefs or testimony you might have had the opportunity to read.

I would like to come back to what I call the ``philosophical envelope'' of this bill, which is essentially based on thepre-eminent witnesses that we have heard at the beginning of our hearings about the right to security.

According to that approach, the right to security trumps all the other rights on the basis that if you do not have the right to security, all the other rights are meaningless, such as freedom of expression, freedom of association, freedom of conscience and so on. We are more or less trapped into the philosophy that, if we want to guarantee the right to security, we will easily accept that some of the other rights might be trumped, curtailed, suspended or limited in their application.

We have asked that question of various witnesses along the line, but we are still wrestling with what I think is a clear appreciation of what we mean by the ``right to security.'' To me, that is not entrenched in the Charter. There is no such thing in the Charter as the right of the state to security. When we say ``right to security,'' it is essentially the right of the state to maintain the right to security. As an individual, I want security against police search, investigation, wiretapping and arrest without reason and so forth. However, when we talk about the right to security, we are talking about the right of the state to security, and the responsibility of the state to maintain its continuity. That is essentially what there is in the definition of terrorism. Terrorism, as you read it and essentially, as I understand it, is ``... intimidating the public or a segment of the public with regard to its security, including its economic security, or compelling a person, a government or domestic or international organization to refrain from doing any act.''

In other words, it is to overthrow the government; that is essentially what people understand about terrorism.

For that reason, an important element to establish is where we draw the line, before we start looking into some of the operational aspects of ``the right to security.''

Mr. Borovoy: I like to think of my role here as one of questioning some of this conceptualism. I do not buy this way of resolving problems. You cannot determine in the abstract whether security trumps liberty or liberty trumps security. The question must be determined in factual context because, of course, there is truth in the proposition that without security, you cannot enjoy liberty. There is also truth in the proposition that without liberty, security becomes less desirable.

For that reason, the real question is how much of each do we want in what situations. That has to be approached context by context, to try to strike the most sensible balance it is possible to strike. In each situation of that kind, those who seek to intrude further on liberty should be required to justify why the demands of security require it. It is an ongoing and never-ending balancing exercise and cannot, in my view, be properly dealt with as an abstract proposition.

Mr. Neve: To add to that, I urge that you look to the international human rights system to provide the answer. Senator Kinsella referred earlier to article 4 of the International Covenant on Civil and Political Rights, which is a key piece of the puzzle.

The international human rights system was drafted with security in mind in the aftermath of World War II. Devastation, carnage, insecurity, violence and genocide were on the minds of everyone involved in drafting those treaties, along with the recognition that states must be able to take action to protect their citizens. The system, therefore, was set up with some rights recognized in themselves as being rights that we must constantly inherently balance against notions of security.

There are other rights, not of that description but subject to the extraordinary derogation power that Senator Kinsella was referring to earlier, that allow the state, if it can demonstrate a real public emergency, to encroach temporarily upon the enjoyment of those rights. There is a third category of rights that, no matter what, no matter how, no matter the circumstances, the state can never violate. They include the right to life, to freedom of religion and to protection against torture.

I would underscore that the system is cognizant of, and pays attention to, the very tension that you have described. The notion that we hear from many corners, that somehow we have to look outside the human rights system to figure out how to deal with security is, I would suggest, a non-starter.

Senator Joyal: You have raised the issue of the international obligations of Canada in relation to torture. Perception has been created in some milieux that Canada has not sufficiently played an international leadership role to promote respect of human rights in the context of ``the threat.'' There has been a period of time in which public opinion has been regularly conditioned to expect an attack. The threat of an imminent attack has created in people's minds an expectation that we should temporarily let the ``police forces'' do its work to come to terms with the terrorist threat.

How would you define Canada's international obligations in that context? Are you satisfied that, in the last few years, Canada has played a leadership role to maintain respect for, and preoccupation with, human rights in the context of the psychological war against terrorism?

Mr. Borovoy: One of the most important features of providing, or attempting to provide, leadership internationally is the example that you set domestically. Where you have powers that have not been demonstrated to be needed to deal with the security threat, then we forfeit our position or our aspiration to provide leadership in that critical area.

In this connection, I would like to give you an interesting example that I did not have occasion to mention earlier. We created in Bill C-36 an additional power for the police to engage in electronic bugging. As you know, Senator Joyal, that is a serious intrusion on personal privacy. We expanded it to cover all these new offences that were created. Yet, without this additional power, CSIS had the power, subject to certain safeguards, to use electronic bugging to monitor what the Canadian Security Intelligence Service Act calls, activities in support of acts of serious violence for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.

What conceivable act, preparatory to terrorism, is not included in that terminology? That terminology is so wide it could enable CSIS to monitor people who are fighting terrorism.

That being the case, what is this act accomplishing? The police have this additional power, and that means that the key safeguard we have in relation to CSIS, which is the Security Intelligence Review Committee, SIRC, does not have its review function where the police are concerned. I do not know if this is deliberate — I am just saying it is the result — but it has enabled CSIS to do an end run around the safeguard that was put in place to deal with this kind of intrusive intelligence-gathering.

That is only one of many examples — our material highlights others — where we have failed to provide that critical example we should provide if we aspire to any position of leadership in the world.

Mr. Neve: I agree with Mr. Borovoy. We have to be scrupulously attentive to our record on the domestic front, first. First, the basic rights of individuals who are impacted by Canadian security operations need to be protected. Second, we have that special responsibility on the world stage. When Canada does not take a firm stand against torture in the war on terror, when the Canadian approach to the definition of terrorist activities may set the ground for racial and ethnic profiling, when Canadian practices in security certificates or under the Evidence Act promote secrecy and possibly lead to unfair trials, and on and on, those are serious issues of concern domestically.

When you take that to the international level, you recognize there are nations all over the world who, as they craft their own laws and policies, look to Canada and say, ``Canada is willing to go down that road'' — nudge, nudge, wink, wink — ``it must be fine for us to do so as well.'' Those are, of course, countries with a much less stellar human rights record than Canada has. In those contexts, the human rights impacts and consequences will be much more devastating. Canada's ability to turn around later and stand up to those practices, and criticize them with clear credibility and moral authority, is significantly compromised.

Senator Jaffer: You have given us a great deal to think about. I was interested, Mr. Borovoy, in what you said about the listing provision, and not listing Canadians or permanent residents. The challenge, and I may be wrong, is that the UN requires us to list. The additional challenge is, as an example, students in our country who are from abroad may be scrutinized more and seen more as foreigners, which could lead to them being recruited. I would like your opinion on this.

Mr. Neve, I also welcome you here and recognize the work you have done with Mr. Arar, and the support you received in bringing him there. I want to thank you for all that work.

With regard to what you said about human rights and Canada's record, I have some angst. Canada has a great record until there is some kind of emergency, such as the issue of the Japanese or Italians during the Second World War. We are not proud of what happened to them. Now it is the turn of the Muslims and the Arabs to come under scrutiny. I am interested in what you said about the human rights protocol. I would appreciate hearing of any other country that is looking at this so we could look their work.

My related question is on racial profiling. I know you work closely with the community. The committee has repeatedly dealt with issues of racial discrimination in the context of anti-terrorism and, in particular, with authorities singling out individuals for greater scrutiny based on religious or ethnic characteristics.

Could you clarify your organization's experience in racial profiling and whether you have seen evidence that it has been occurring? What are you hearing with respect to racial profiling?

Mr. Borovoy: As for the UN obligation to list, you will recall from my comments that I did not focus on the obligation to list per se. I simply said it should not include citizens and permanent residents as individuals. Organizations are another question. To that extent, we would probably be home-free as far as any obligation such as that is concerned.

As for the additional safeguards proposed — having a public advocate attend the in camera sessions where these decisions are being made and deliberated, and the fact that listing has to be vetted by a court before it takes effect — I do not see any reason why those safeguards could not be done in international comity.

Mr. Neve: With respect whether there is an example of a human rights protocol adopted by another government to look to, there is not one to Amnesty International's knowledge. We are calling on the Canadian government to return to the notion of asserting and demonstrating leadership on the human rights front. It would be a tremendously valuable contribution to the international efforts within the UN system and non-governmental organizations. The need for a better framework and stronger legislative tools to ensure that human rights are not left behind in counter- terrorist efforts has been expressed by a number of states as well.

With respect to racial profiling, I wish that Amnesty International had the resources or the ability in the last two or three years to do a comprehensive piece of research. We hear it frequently. All I can share with you at this point is anecdotal.

Good work is happening within the community. I have seen an early draft of a report that the Council on American- Islamic Relations Canada has prepared called ``Presumption of Guilt.'' I am not sure if they are scheduled to appear before you or not. They are hoping to. It is a tremendous piece of work, and it is the result of their comprehensive survey of the community and gathering, documenting and analyzing the information.

If you are not scheduled to hear from that group, I would recommend it as a valuable source of thoughtful and careful effort to gather this information, analyze it and draw some conclusions.

Senator Andreychuk: I thank the witnesses for coming today and bringing up a point this committee has to wrestle with.

I want Mr. Borovoy to expand. You said the obligations to inform were troublesome. Rather than getting into specific sections, you can be caught assisting, aiding, and abetting, and you would not know it because you simply have an association with someone.

How do we get around those sections beyond the one you indicated, the listed organizations? Are you concerned about some of the other associations?

In other words, I may live next to someone and see some strange activity, but I would never think it was terrorist activity. Today I have to consider that possibility. I have to build that in, and yet I am in no way an expert on that.

Am I always obliged to disassociate myself, not to talk to my neighbours and not to talk to people? Is it a chill effect? Are you talking about more than the obligation to inform?

Mr. Borovoy: I know better than to try to give you legal advice, so I will not go in that direction.

I would like to spell out that kind of obligation. One concern I have, if that is ever enforced more regularly and more vigorously, is that we are likely to find ourselves in a position where people inform more to protect themselves, particularly if it is left to them to determine what a terrorist group is and they cannot look to anything; as long as it includes individuals.

There is a lot of talk about racial profiling, as there should be. I can imagine a situation where, if this provision were enforced more vigorously, you would have a lot of citizens and members of the community engaging in racial profiling to protect themselves from charges.

One problem of creating an obligation to inform is that it can erode harmonious relations among people. Talk about a chill? Yes, of course, that is the concern. That is why I would put them to the test of demonstrating, when we have all these other provisions — you cannot contribute to, facilitate, or participate in all these things — why they need that as well. I question that. I worry about the mentality that produces that.

A friend of mine puts it a nice way. He says, ``It is not enough for some of these people to put on a belt and suspenders'' — talking about the government people — ``but they also have to walk around holding their pants up.'' That is the kind of thing I am concerned about.

Senator Andreychuk: We passed the Public Safety Act and we gave a lot of powers in that act to the ministers that may be in charge of terrorism but they can also be responsible for other emergencies. It was after the outbreak of severe acute respiratory syndrome, SARS. In that act, we mixed terrorism together with all other emergencies.

It is such a different world. We have absolutely no idea what we are facing. We have to be armed and ready; otherwise we will be found wanting.

You say that is not the right approach because it does not take human rights into account. I agree with you. Yet, it was absolutely impossible to convince the ministers. They absolutely feel they must have these powers.

How do we convince a bureaucracy that feels it is under constant threat, and ministers who feel they will not be able to explain themselves? They have had the chill effect of 9/11. How do we get around that? You cannot engage the government. Ministers say, we need these powers.

If you say to them, ``You are arming yourselves with powers that are understandable today, but tomorrow you will be back saying, ``I thought of another scenario and I need more powers,'' how do we get off that treadmill?

Mr. Borovoy: It may help to think in the terms that we do not have to choose between everything and nothing. It may well be that in the age of terrorism, some additional power or information may have some justification. The fact that something may be justified does not mean everything they want is justified. That is the only way I can see of dealing with this.

When they come here, ask them precise questions. Why do you need this power? Why do you need this measure? Why do you need this kind of information when a person is getting on a plane? Why do you have to know their dietary or health problems? If they can give you a fair answer, that is all right, but if they cannot, I think you should put them to the test of demonstrating the need for it. That is why I say we do not have to choose between everything and nothing. A sensible approach would be open. I always like to say we can be open-minded without being open-headed. Listen to the argument, and make them demonstrate the need for it.

Mr. Neve: The critical piece here is putting the onus back on those who suggest that powers that intrude upon or violate basic rights are necessary and will give us greater security. The onus must be on them to make their case. I come back to this point about deporting suspected terrorists to torture, as an example. A number of times I have tried to press at ministerial, deputy ministerial and other levels for an answer to the proposition that I think is well founded. The proposition is that I do not see how greater security is achieved for us in Canada or globally to send a suspected terrorist off to be tortured, prospect number one, or to walk away scot-free in whatever country suspected terrorists are being sent to, prospect number two. How are these two prospects better than prospect number three, ensuring that they are brought to justice in fair proceedings, be it in Canada or elsewhere. That is the way forward. It is another example of not being an everything-or-nothing proposition. There is a road down the middle that conforms to basic human rights, which is a critical goal in itself, and, I would argue, that is our best bet for achieving security in the end.

Senator Andreychuk: You said not to list Canadians. Are you saying that we should list foreigners? I am with you when you said it should be organizations. Mr. Neve's point is that we are part of a global issue, and we should exercise some leadership. Why would we even put in foreign individuals, or did I misunderstand you?

Mr. Borovoy: No, you did not misunderstand me. I had a conversation with an Ottawa mandarin in the fall of 2001, when I raised the whole question of individuals. He said to me, ``Would you have any difficulty with putting Osama bin Laden on the list?'' I had to confess I could not get my knickers in a twist over that.

I said, ``All right, what about Canadian citizens and permanent residents?'' I had this discussion at the time that CSIS was created, because I said there should be a higher threshold for intrusive surveillance of Canadian citizens and permanent residents than for intrusive surveillance of foreign visitors. The question was asked of me about employees of the Soviet Embassy, for example. I found myself unable to get excited in response to that, which says this: It is not that there should be no protections for the foreign visitor, but protections do not have to be at the same level as those for Canadian citizens and permanent residents.

I remember getting into this argument and someone accused me of being inegalitarian. To a civil libertarian, that is a terrible thing to say. I remember saying to him, ``You want equality, so you are going to drop the standards for everybody.'' I always saw that as the consequence of that kind of approach. As a result, we zeroed in much more on these extra protections for citizens and permanent residents.

Senator Andreychuk: You testified on Bill C-35, and what happened there —

Mr. Borovoy: I am impressed with your memory.

Senator Andreychuk: We expanded the definition of diplomats so they could not be scrutinized, or would not be scrutinized, in the very way you are saying. Have we accomplished that, and have we not diminished your argument?

Mr. Borovoy: No, because diplomats have always enjoyed a special protection that others do not. I have been around too long, but I can recall getting into arguments with RCMP people at the time that CSIS was created. I was advocating tighter standards for citizens and permanent residents. They would give me an example of someone who came across the border. He was in a hotel room, and they suspected he was up to something, but they did not have all the evidence to establish the threshold that I said they should need for citizens and permanent residents. I said, ``I can understand a lower threshold for someone where you do not have the opportunity to gather the evidence, but I would insist on a higher standard for those where you do have the opportunity to gather the evidence.'' This response was the best way I could think of at the time of harmonizing the greatest protections you can get for people with security interests.

Senator Andreychuk: In Bill C-35, we exempted people who come here for international conferences and could be deemed to be diplomatic, and they would not be part of a diplomatic process. They could be a citizen of another country who would be cloaked, and we would have no say to the listing of their delegations, so we have given them a loophole.

Mr. Borovoy: When I testified on Bill C-35, I testified only on the power of the Mounties to keep people away from places where they wanted to demonstrate.

Senator Andreychuk: We will get you back.

Senator Day: Does it make sense for us to try to come up with a definition of terrorism that fits all circumstances? There are arguments that the definition should be broad, and I have heard, Mr. Borovoy, your comments today that it should be very narrow. The United Nations recently came to an agreement with respect to a definition of terrorism, but they seemed to be able to come to a decision only when the definition included a context. This was in relation to nuclear weapons, and the definition would include that aspect. Should we look for a lot of definitions, or should this committee make a recommendation for one definition?

Mr. Borovoy: The question you have raised is key. It is not possible to come up with a definition that will include everything in the terrorist lexicon without catching many other things in the same net. That is why I used the examples earlier of the protest in the Ukraine, the possible uprising in some of your favourite totalitarian countries and even civil disobedience in Canada. Whatever the terrorists do that is damaging is unlawful anyway. In our view, you do not need the special regime on terrorism to govern that. What you need it for, if you need it, is for the most deadly manifestations. That is why we talked about the deliberate targeting of non-combatants for serious violence. I have great difficulty conceiving why we need to go beyond that.

Mr. Neve: I wholly agree and would highlight that the few instances where, at the UN level, there has been agreement on a definition of terrorism, that is where it has gone.

I read earlier the definition from the UN Convention for the Suppression of the Financing of Terrorism, which states: ``Any other act intended to cause death or serious bodily injury to a civilian, ... when the purpose of such act ... is to intimidate ...or to compel a government....''

It does not go further into this broader, nefarious and highly problematic realm of disruption of services. This definitition gives rise to all kinds of concerns about legitimate protests, dissent and even turbulent, mildly violent protests falling into a rubric of terrorism, when there may be aspects of those activities that are criminal. The notion that they should be elevated to that serious opprobrium of terrorism is dubious at best and unquestionably human- rights problematic.

Senator Day: I do not disagree with your comment on the motivation portion of our definition of ``terrorist activity.'' It would seem strange to remove the motivation of ``political, religious or ideological purposes.'' If that were removed, would it not broaden the definition? Is that not a limiting factor?

Mr. Neve: You would have to combine that portion with this notion we have talked about of limiting kinds of harm to the highest order concerns about violence against civilians or non-combatants. The combination of the two would narrow it in a way that would help human rights protection. I highlighted earlier the concern about including the ``political, religious or ideological'' piece, which is that it opens up possibilities around discrimination and profiling. Even if you have the more limited definition around what kinds of harm are captured in the definition, the ``political, religious or ideological purpose'' will still be there.

Senator Day: Another area on which I would like your view flows from Mr. Borovoy's comment that there is a gap in oversight for international policing for which SIRC does not have authority. Have you given any thought to the parliamentary security oversight group and whether it could achieve the broad mandate? There are a number of oversight mechanisms in various areas of government, including the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP. The Minister of Public Safety and Emergency Preparedness is on record as recommending a security oversight group of parliamentarians. However, when we put that to some of our witnesses, they were not convinced that parliamentarians, even with the appropriate security clearance to ask of authorities why such power is necessary and how it is being used on an ongoing basis, could close some of the gaps that you now perceive. Do you have a comment in favour of, or against, this kind of parliamentary oversight?

Mr. Borovoy: I do not think it is an either/or proposition. There is a case for broadened parliamentary oversight but it would not be the same as having a model similar to SIRC for all national security activity at the government level.

It makes sense that an agency of that kind is not fettered by political interest, although there is a role for those who are so fettered by political interests. I see an important role for the kind of agency that is unfettered politically and has ongoing access to records, facilities and personnel to evaluate and propose solutions for problems, even if there is broadened parliamentary oversight.

There is one more role that I did not mention in my remarks: the role of the minister. Canada has a very strange convention, in my view. In areas such as this one, there is an inhibition about ministerial involvement in police activities for national security. It stems in large part from the reluctance to have political interference in the integrity of investigations. The problem is that a minister could hardly be accountable for breaches of civil liberties performed by the police in the area of national security unless a minister could be involved in some way. Our suggestion is that the minister should be liberated to become involved, but those instructions should be put in writing so they will be subject to ongoing audit. In that way, we could have a more accountable system: ministerial direction in writing and an after- the-fact review by an independent agency and parliamentarians. If this is the civil liberties counterpart for belts and suspenders, so be it.

Mr. Neve: It is not an either/or situation because there is a demonstrated need for both. Most often, we are great fans of greater parliamentary oversight, responsibility and review with respect to any issues that have human rights impact or consequences. Yes, a parliamentary role in this area seems advisable. There is a gap at the more operational level of oversight and complaints, demonstrated by cases such as Maher Arar and others. Those cases are about the complexity of interrelations between the various agencies, some of which you can figure out and some of which you cannot figure out. The notion that numerous individual complaints would have to be made in seven different directions to try to gain any sense of accountability, and then to puzzle over the ways in which all those fit together, would be daunting for the individual affected by law enforcement or security operations.

At a more operational level, an agency is needed similar to SIRC but with a broad mandate to encompass the full range of security mechanisms on the security front. That has been clearly demonstrated.

Senator Day: The concept of parliamentary oversight in the security area would not deal with individual complaints but would look at the legislation on an ongoing basis, by accessing confidential information by virtue of their security clearance. That oversight would be similar to the situation that you described of security certificates and lawyers with security clearance who could act as advocates at in-camera hearings. Unlike this group, parliamentarians would perform periodic reviews of legislation because their reviews would be ongoing. Is that your concept of a parliamentary oversight group?

Mr. Neve: That would be most welcome.

Senator Stratton: I would like to look at the temper of our times. Last week there was an event in the United States whereby a single-engine aircraft flew over the nation's capital; and we all saw the result.

We are living with a very sensitive nation next door to us. Because they are so close, we are pushed to remember what happened and are careful how far we go. There is enough on the record now of events that have taken place whereby our security has been brought into question by the United States, and in some instances, rightfully so.

You can look at this and say, there has not been another event, and perhaps there has not been another event because of the approach that has been taken. After all, we are in a game of intimidation; they intimidate us and we intimidate back. We have perhaps overreached in this intimidation factor, but maybe by overreaching we are preventing an event from taking place. I look at it in that perspective and I would like you to at least view it from that perspective for a moment.

I agree that Parliament should do a review every five years or thereabouts. It should have a parliamentary oversight much in the way that Senator Day has stated. I do not think the process should be public, if the oversight body is independent, because in many cases the oversight discussion of a case can be particularly sensitive. I do not agree with your public requirement.

Then you said the government agencies have belts, braces and hands in the pockets and they have gone too far. You have described, in essence, a belt, braces and hands-in-pockets process that you modified with Senator Day's question, which I was happy to see because I think you should back off slowly from the ultimate position that is taken now, simply because there is no record of further events.

In another instance, you say we should not identify individuals but groups. I question that because you can have one or two individuals plotting terrorism without connection to a larger organization. I look at the two individuals in the Kansas City bombing. That was a pretty loose-knit group. Why would the investigation of that not be allowed, and those people intimidated, in much the same way we do now? Why would they have to be part of an organization? I question that.

Last, and my second question, are you concerned with the terrorism laws being used to investigate criminal activity? Have you seen evidence of that and if so, could you put something forward to us?

Mr. Borovoy: I start from the top to the extent that I can remember it. That is not a suggestion that there was anything wrong with your question, it is wrong with my memory.

Senator Stratton: I do not think so, I tend to ramble.

Mr. Borovoy: That is not what I meant.

I did not base any argument I have used on the fact that it has not happened, and that there has not been another serious terrorist incident on the North American continent. In fact, in my exchange with Senator Kinsella, I said earlier that I do not want to use that kind of an argument. I want to put officials to the test of demonstrating the need. I do not draw too many inferences from the fact that it has not happened. I do think we are living in a dangerous time and I do acknowledge those dangers. I do not try to minimize them one bit in any of the answers I have given.

No, senator, I did not back off from what I said about belts and suspenders. I was prepared to apply the belts and suspenders argument that I criticized only when it was used for civil liberties purposes. However, as far as I am concerned there still are more powers than there ought to be.

However, all these things have to be tested. I know there are limits to testing because experience is the best, and when you are in a preventive ball game I know it is very difficult to demonstrate. However, you have to invite people to envision what you are concerned about, and get them to spell it out so that you can argue with it and question it. That is the best we can do and that has to be done. That is one of the reasons why, when I went into this whole business about the power to list, I anticipated some of the protections that society already has, and question why you have to do that in addition. A critical difference between individuals and organizations is that organizations have limited functions to perform, and individuals have ordinary lives to lead, and so when an individual goes on a list, that is a far more devastating experience than it ever could be for organizations.

You ask about examples. We know of the one example of an Ottawa man of Somalian origin who was put on the list, and how devastating an experience it was. I do not have details beyond what I have read in the press. We are concerned about preventing that. Yes, we are concerned about preventing terrorism as well. It is a joint enterprise, but someone has to explain why you need this, this and this, and you have to put those requesting the powers through that test.

I am not sure that I can be more helpful in my response without a more specific case from you.

Senator Stratton: With respect to criminal activity, do you have, or have you seen, examples whereby criminal activity has been explored using the terrorism act?

Mr. Borovoy: As I sit here, I am not aware of examples like that but I do not know how readily that could come to light, particularly when you talk about the use of powers for preventive purposes. Where the name of a game is prevention, an awful lot of things are not going to come to light. You could have a situation where some powers are used more broadly than they should be.

One problem we are aware of is that there has been some question arising out of section 38 of the Canada Evidence Act. We know there was a statement made by the Chief Justice where he said something to the effect that the court cannot even acknowledge that they are seized of certain cases. I do not know what was involved there, but we do know that these things can be shut off without us ever finding out. It is a difficult conundrum and I am not prepared to draw too many inferences from the inability to point to terrorist acts being committed. I would not draw too many inferences from the inability to cite misuse of the powers we have created. We have to be careful about drawing too many inferences there too.

Mr. Neve: On that latter point, Amnesty International similarly does not have any specific information about cases where the act may have been used in the context of criminal investigations. In our brief we have made a recommendation for the need for a better approach to reporting how the act is used. The reports, issued now on an annual basis, are perfunctory and do not provide any context as to how the powers are being used. They simply give numbers saying this provision was used once, this provision was never used, and it is usually zero and zero.

We are not suggesting the report give all the details; but a report that gives a greater sense of context, without even necessarily giving identifying details, might help ensure there is a place of information where you can get the answer to that question.

We have also suggested there needs to be a better federal-provincial compilation of how reporting happens. Right now, at least for the general public, it is difficult to piece together. The reports are in different places and have different reporting cycles — some have not reported yet and some are behind in reporting. That would be one way to help ensure there is a record out there to give answers to those questions.

Mr. Borovoy: I neglected to mention the business about reporting on individual cases. That is not the kind of thing I would expect a SIRC type of review to do. It would look at policies and practices more generally.

Senator Fraser: I apologize for my late arrival this morning. I came in from Montreal in splendid time and I found myself sharing the Queensway with a large number of slow tractors.

I have two questions. The first is for Mr. Neve and the second is for both of you. On the matter of security certificates, I am interested in the recommendations that all evidence be made available to the individual detained.

Beyond the security certificate matter, the suggestion that the person involved is not allowed to know enough is something that has come up in other elements within this legislation. We must have a balance; as everyone keeps saying, this committee is charged with trying to find the balance. Determined as we are to protect the rights of the innocent, we have to bear in mind that some of the people involved may be bad people, and some of the evidence involved may be related directly to real national security problems.

I have been struck by a recommendation that has come from the Canadian Bar Association and maybe one or two others. In such cases, they recommend that there be an amicus curiae or similar person who has security clearance, who could have access to all the information and would plead for the person in question. Would that satisfy you?

Mr. Neve: We would view that as being a considerable improvement over the current system. It is a model that has been used in the United Kingdom with some limited success. The committee members may be aware that some of those individuals in the UK system, who are called special advocates but serve essentially the role you described, have spoken out critically about the process. They felt their role, which is meant to serve the purpose you have described, has been undermined and ineffective.

In our view, the model would have to be combined, at the very least, with revisions to make it clear that things such as international relations, for instance, cannot serve as a basis for withholding evidence from the public, let alone from the individual concerned. The model would also have to make clear that the evidence that is being withheld is limited to specific, serious concerns around national security. That would be in keeping with international human rights obligations.

The model should be combined with a more effective judicial role, so that it is not this minimal notion that the Federal Court of Canada simply has to ask itself, is it reasonable? The Federal Court should be convinced on the balance of probabilities that the case has been made. There needs to be stronger judicial oversight. Perhaps, the combination of those three kinds of reforms would take us where we need to go.

Senator Fraser: My second question has to do with lists of entities. I understand your point about giving the person or entity in question time to make their own case before the list is made public. However, I have had a continuing difficulty of another nature. When the list is first drawn up, there is an appeal process built in; you can appeal to the court if you think you have been wrongly listed. However, the list is drawn up on the advice of the Solicitor General Canada. If you lose in court, you lose; you are on the list.

Two years later, the list comes up for review, but at that point the list will be maintained or changed only on the recommendation of the Solicitor General to cabinet. I have wondered if it is necessary to build in at that point, at the very least, consultation or further input so that the Solicitor General — who put you on the list in the first place — is not the same organization that decides to keep you on the list. Does that seem to you to be worth exploring?

Mr. Neve: Certainly — we have serious concerns that the process, including the element you have just described — although we did not attend to that part in our brief, is flawed and needs stronger safeguards to ensure that the kind of devastating impact that wrongful listing can have on an individual or organization is avoided. I would think that something in the direction you are describing would be a helpful contribution.

Mr. Borovoy: I think what is important — yes, there ought to be the ongoing possibility of court review — is that before a person can go on the list there also ought to be a prior need to have a court approve it. I think that is essential, before anything — person or organization — can be put on the list.

Senator Joyal: I would like to come back to the issue of the so-called extraordinary rendition program; that is, a country transfers a person to his or her country of origin because the person is viewed or seen in Canada as constituting a security risk. I have the impression that we are shifting away something that we should be responsible for, or that the international community should be responsible for.

If Canada comes to the conclusion that a person who wants to be admitted to Canada constitutes a security risk, I think it is a responsibility shared by the international community that this person is afforded the opportunity to be judged in the appropriate court of justice. By sending the person back to his or her country of origin, with no formal guarantee that the person will not again be submitted to torture or indefinite detention, are we not foreclosing our human rights responsibility?

A person who constitutes a security risk should be judged accordingly. There should be an international level to judge, especially if the country where the person would be sent back to does not have a justice system or a constitutional human rights guarantee that would satisfy Canada that the person will be first treated, and then judged, fairly. Is there not a black hole in the international community for the treatment of those persons? What should Canada do to ensure the international community comes to terms with a real solution to that problem?

Mr. Neve: You are quite right. It is a long-standing gap and it is not only with respect to terrorists; it is largely with respect to human rights abusers. We have lived in a world for centuries where the citizens of this planet who commit the most egregious crimes are the ones most likely to escape justice. You are more likely to end up in a courtroom if you beat up one person in a barroom brawl than if you orchestrate and oversee the systemic torture of 100,000 people. Some of that is changing. We have the International Criminal Court that has been established at the international level. Nations are finally starting to bring their laws into line with the notion that people should be held accountable for those kinds of international crimes — terrorism, crimes against humanity, genocide and war crimes — regardless of where they committed the crime, their nationality, or the nationality of the victims. There is a shared international responsibility to ensure that impunity no longer reigns.

Though there are exceptions, a troubling reality on the terrorist front is that many nations have responded to cases involving allegations of terrorism against a foreigner trying to seek admission to the country, or even already admitted into a country, by deporting the individual. This practice forgoes an extradition process or some kind of process premised on the notion that this removal from Canada will effect bringing the person to justice somewhere else. That is what extradition is all about. Most of these cases do not proceed down that avenue. They use our deportation process, which has no assurance that there will be justice at the other end of that plane trip back home or to whatever country the individual is being sent.

Second, the process does not include safeguards to ensure that further human rights violations will not occur. Torturing the torturer or torturing the terrorist does not get us anywhere. It keeps us trapped in those cycles of violence, impunity, terrorism, human rights abuse and insecurity, which is at the heart of our whole global mess.

Canada needs to break those cycles of impunity domestically and continue to assert leadership at the international level.

Mr. Borovoy: In some ways, the easy part is to resolve these issues in the abstract since the world community is not responding adequately, as you say. The harder part is what Canada can do in particular contexts. I do not know many of the facts around some of these suspected international terrorists. If I did know the facts, you would be suspecting me. I do not know those facts, but I can imagine that in some cases, we cannot get at the evidence. We may have someone who dropped into this country. We did not invite them here, they just came here and learned. We have some evidence, but not enough upon which to base a prosecution. However, it may be enough to base a deportation on. What do we do? Those are tough questions. We are trying to reconcile the protection of our people from terrorism with some kind of fair play.

The ongoing challenge is to use as much ingenuity as we can to introduce additional safeguards into the mix, recognizing that there is no answer that will be satisfactory, but each answer may be less unsatisfactory than the previous one. For example,that thinking is what has given rise to this idea of having a security-cleared public interest advocate in the in-camera sessions. I could add another point for those who are currently in detention facing deportation. That may never happen, because we do not want to deport them to the place that is prepared to accept them.

For example, the court has a limited review power — its role is to determine the reasonableness of the certificate — but SIRC might be asked to look at the circumstances and announce publicly whether it agrees with the merits of the deportation that has taken place. SIRC does not have the power to reverse the deportation, but it would be able to put pressure on the government in situations where the government used questionable judgment, and the limited review power of the courts would not enable them to do much about it.

I put that forward as a possibility, to try to address the concrete difficulty of what to do to reconcile these awful conflicts.

Senator Joyal: Mr. Neve, what kind of guarantee should Canada get from the countries of deportation? In other words, what kind of elements should Canada take into account on the basis of your experience before deporting people to their country of origin or one of the countries of origin. Sometimes people have more than one country of origin. They were born in a country but have lived all their life in another one. Those situations are very complex. What assurance should Canada get to maintain its commitment to respect human rights, especially in the case of torture or unlimited detention?

Mr. Neve: There is a two-step process. First, the case must be assessed to determine whether there truly is a substantiated and serious risk that the person will be tortured, or will experience other serious human rights violations. That process is multifaceted and involves looking at information, for instance, from Amnesty International as well as from other international organizations such as the United Nations, or looking at Canada's own diplomatic information. If we have a post in a certain country, that would be an important source from which to seek information. There is a wide array of material, much of which is at the disposal of decision-makers in our refugee process as well.

Once the determination is made as to whether the risk is serious, especially if it is something like torture, then our view would be that there is no second step of seeking an assurance. You do not turn to a torturer to ask for a promise that they will not torture; it is simply not reliable. Assurances with respect to human rights concerns are only effective in a limited number of circumstances. Canadian law requires, and Amnesty International very much endorses, that before deporting or extraditing someone to the United States, where the death penalty is a possibility, that we seek an assurance from U.S. authorities in advance that they will not seek the death penalty. We support that because we think the U.S. justice system can be relied upon to live up to those assurances.

Most nations that torture regularly prohibit torture in their laws and ban the practice in their constitutions. To ask that nation to make a promise not to do something that they are not supposed to be doing in the first place is a false assurance. If we think the torture is real, we need to explore other opportunities to bring that person to justice, including in our own court system.

Senator Jaffer: I would like to get your assistance on the issue of privacy rights. You mentioned that the powers of CSIS and the RCMP have increased and we heard from the Privacy Commissioner that she would like some kind of judicial oversight reinstated in this process. There is an international campaign of mass surveillance building on warnings from a previous Privacy Commissioner that intrusions on privacy have become systemic. On the other hand, security people say there must be a culture of prevention. We need to be able to respond quickly and cannot always go to the judge. I would like both your views on this subject.

I would also like to hear what you have to say on the subject of outsourcing. For example, if Canadian Visa cards are being processed in the U.S. that raises many privacy issues.

Mr. Borovoy: There is judicial oversight, but the oversight of the judiciary is being reduced in some respects and other types of oversight are being reduced. Judicial oversight is reduced to the extent that for the new terrorist offences they have provided that the duration of a bugging warrant can be for a year instead of60 days, as it is for so many other offences in the Criminal Code. We ask the question, how necessary is this? You could not fill a thimble with the number of times courts have refused applications to engage in electronic bugging, so how necessary is it to give them a year? The only thing that I see this expanded warrant accomplishing is reducing the amount of judicial oversight. We do not see a plausible explanation for that.

In so far as this applies to the police and the electronic bugging power for all these new offences, there is no SIRC to conduct review of what they are doing. For that reason, we say either repeal the power or invite SIRC, or perhaps even both. As far as we are concerned, that would be the proper response.

Senator Jaffer: What about the question of outsourcing to the U.S.?

Mr. Neve: The prospects of what could be the outcome of that are very distressing. From an Amnesty International perspective, we would rarely oppose something like that outright, but it would be absolutely vital that there be clear and effective human rights safeguards in place to ensure that nothing, in doing so, is going to lead to sharing of information in ways that will facilitate human rights violations.

Senator Jaffer: Have either of you had experience with the practice of hawala, the informal way of sending money overseas for people who come from countries that do not have good banking systems?

Mr. Neve: I do not have direct experience, other than to note that the case Mr. Borovoy referred to earlier of Liban Ali Booh, the Somali man here in Ottawa who found himself listed — it is called something else in a Somali context, not hawalas. I cannot remember the name of the financial process, but that was exactly what was at stake there. Obviously some very wrong assessments and decisions were made in his case, which shows how problematic it can be.

Mr. Borovoy: I regret I do not have enough experience with money in any respect. My colleague Alexi Wood reminded me of something as far as judicial oversight is concerned. Part of the reason we may have less oversight than there ought to be is the responsibility of the judiciary itself in narrowing the rules of standing so much that it is not possible in a number of cases to challenge the constitutionality of some of the surreptitious intelligence gathering that is going on.

The Chairman: Thank you very much, colleagues, and thank you so much to our panel today. It has been a delight to have you. This situation is very difficult, and it is good for the committee to spend a morning listening to not only your expertise but your passion for human rights and fair opportunity.

Mr. Borovoy: Before you wrap it up, if I may say this, I have seen a number of these telecasts on CPAC, and we have looked at a number of the transcripts. We just have to say to you that we are very impressed the Senate of Canada is doing this kind of diligent work and we are very grateful for it.

The Chairman: Thank you very much. On that mutually happy note, we will conclude this part of our session.

The committee adjourned.

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