Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 11 - Evidence - Afternoon meeting
OTTAWA, Monday, May 16, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:05 p.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I would like to call this meeting to order.
This is the twenty-fourth 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,as a direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the requestof the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation. We agreed, and the deadline for 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 that legislation in such a short period of time. For that reason, it was agreed that three years later, Parliament would be asked to examine the provisions of the act and the impact on Canadians, with the benefit of hindsight and a less emotionally charged situation with the Canadian public.
The work of this special committee represents the Senate's efforts to fulfil that obligation. When we have completed this study, we will make a report to the Senate that will outline any issue that we believe should be addressed and will allow the results of our work to be available to the government as well as to the Canadian people.
The House of Commons is undergoing a similar process at this time.
The committee so far has met with government ministers and officials, international and domestic experts on the threat environment, legal experts and with those involved in enforcement and intelligence gathering.
This afternoon we will continue our consideration of the question of civil liberties. We are joined today by Jean- Louis Roy, the president of Rights and Democracy, who has with him his senior assistant, Lloyd Lipsett. We are joined also by Philippe Robert de Massy, who represents the Ligues des droits et libertés, and has with him a lawyer with his association, Denis Barrette.
As always, colleagues, your assistance in keeping questions and answers as crisp and as quick as possible will be greatly appreciated. We have the benefit of having our hearing from now until 3:30, and we will begin right away.
Gentlemen, I believe you have some brief initial statements, and then we can get right into questions and answers.
I should tell the viewing audience as well today that I do not usually appear here with a cast on my arm. I had an unavoidable accident on the weekend, but it has no effect on the job whatsoever.
Over to you, gentlemen.
[Translation]
Mr. Philippe Robert de Massy, lawyer, Ligues des droits et libertés: It is a great honour for us to be able to make a presentation before you today in order to exchange ideas on what we feel to be an extremely important piece of legislation, adopted three years ago, and which calls for a mandatory review after three years, which you are in the process of doing. The league is a member of the International Civil Liberties Monitoring Group.
This is a coalition of organizations, established already more than three years ago, which fights for human rights against the backdrop of antiterrorism, which led to the adoption of the Antiterrorism Act. In particular, the Canadian Bar Association and numerous associations of individuals advocating for the promotion of human rights are members of this monitoring group.
We believe that it would have been very beneficial had the Senate heard from the monitoring group speaking on behalf of all of these organizations. Today, the Ligue will be speaking on its own behalf. You have already heard from the Canadian Bar Association, for example, but it would be extremely interesting, as part of your work, to invite the monitoring group itself. It does a tremendous amount of work and has ties, internationally, to numerous other organizations. In my opinion, and in the opinion of the Ligue I am representing today, it would be very important that you hear from this group.
As a result of statements made by certain ministers at the beginning of this legislative review, we could question and wonder whether or not, given the categorical statements that appeared to be arguing in favour of maintaining and perhaps even further developing this piece of legislation, the decisions have already been made. We could think that it would be futile to discuss the matter.
However, we have come here, today, convinced that we are addressing a committee that is open-minded, which truly — as the chairman has just said — wants to get an idea of what this legislation is all about, three years after its adoption. Should it be maintained in force? Should it be amended? I am, obviously, hoping that our comments and reports will be beneficial to you in this context.
First of all, I would like to point out that it is our conviction which permeates throughout our brief. The Anti- terrorism Act is a tremendous threat to the rights and freedoms of all Canadians, and not just those Canadians who belong to certainethno-cultural groups who have, up until now, been targeted in particular. Added to this, I would say that the Anti-terrorism Act is perhaps a greater threat to our rights and freedoms than terrorism itself.
As I provide you with an overview of our brief, I would like to try to convince you of the fact that this legislation — and this will be our conclusion — must not only be questioned but must, in short, be repealed.
Initially, I will describe Canada's tradition of promoting and respecting human rights. The first part of our brief, entitled ``A misleading law,'' points out that terrorism is not the only current threat to human rights in the world and that we have to be very careful that we do not, because of this act, lull ourselves into a false sense of security. Right now, throughout the world, lots of human populations are subject to totally unacceptable conditions that may very well fuel terrorism.
The second part of the brief, entitled ``A useless law,'' points out that the legislation enforced three years ago, namely in 2001, already provided many tools to take action against individuals who violated individual rights or laws or who committed crimes. We already had an entire arsenal to combat terrorism.
Our third point is that this is a dangerous law. I will point out, in somewhat terse terms, some of the very tangible dangers that this legislation poses in terms of human rights and freedoms, which we referred to earlier and which are part of the Canadian tradition that we want to see maintained.
I do not believe that there is any need to develop, in detailed fashion, our tradition with respect to human rights. We are very familiar with the Canadian Charter of Rights and Freedoms, which stipulates in sections 7 to 13, a certain number ofrights and freedoms that it protects. More particularly, in sections 8, 9, 10 and 11, there is a range of protections against detention, arbitrary imprisonment, the right, on arrest or detention, to be informed of the reasons, the right to be tried within a reasonable time, et cetera. I am indicating but a few.
We also mention the Canadian tradition of adhering to the major international instruments. When it was time to sign a major covenant, Canada was among the first nations to do so. The covenant that concerns us at present is the International Covenant on Civil and Political Rights, which contains most of the rights found in those sections I quoted from the Canadian Charter of Rights and Freedoms.
In examining this anti-terrorism act against the international backdrop, it is important that you understand that the International Covenant on Civil and Political Rightscontains very strict obligations. In particular, I would refer to section 4, subsection 3:
Any State party to the present covenant availing itself of the right of derogation shall immediately inform the other States parties to the present covenant, through the intermediary of the Secretary General of the United States, of the provisions from which it has derogated and of the reasons by which it was actuated.
We will see, in short order, that the Anti-terrorism Act contains numerous derogations which, there is no doubt, must concern you. As far as I know, Canada has never informed the Secretary General of the United Nations, of the derogations contained in the Anti-terrorism Act so that the Secretary General could then inform the other member countries of the United Nations of this matter.
Most of us, and this is another important aspect, have experienced exceptional measures in our lifetime - because the Anti-terrorism Act does indeed provide for exceptional measures. I am referring to October 1970 when the War Measures Act was imposed. We all know the results of that event: the hundreds of absolutely useless and unjustified arrests that were made and had to be subsequently compensated. The Ligue des droits et libertés would encourage you to review the Emergencies Act, which replaced the War Measures Act in 1982, because of concerns that a situation like that of October 1970 could be repeated. Some of you were probably here when the Emergencies Act was adopted and are probably more familiar with it than I am.
This act is interesting because of the precautions taken, going so far as to mention, in the preamble, the International Covenant on Civil and Political Rights that I just referred to, and stating that all emergency measures in Canada will be carried out in accordance with international covenants.
What really strikes you, when you look at matters from this perspective, is the extent to which this Parliament has taken infinite precautions in defining an emergency situation,but did not do so in the fall of 2001, following the events of September 11, when all the panic ensued. We were all moved by these spectacular events. Three years later, we can and must take the time and ensure that as many citizens as possible participate in this debate on what Canadians want in terms of human rights. Do we want to maintain legislation in force which, eventually, could allow so many violations of these rights?
Finally, we draw your attention to the fact that a great deal of analysis has been done at the United Nations. During the question and answer period, we could go into more details. There is an obvious link between terrorism and the violation of human rights. Terrorism is, of course, a violation of human rights, but terrorism is born in situations where human rights are not being respected. A special reporter for the United Nations, Kalliopi K. Koufa, said that an analysis of contemporary terrorism demonstrated that, generally speaking, the States that were the most mindful of human rights were also the least likely to be confronted with domestic terrorism. We are saying that this is a useless piece of legislation because the Criminal Code,the evidence legislation, already contained, back in the fall of 2001, all of the provisions required, plus some additional powers with respect to the fight against organized crime. In the situation that we will be examining in a moment, we have completely changed the grounds justifying a police officer to take action. Under traditional law — and that has always been the case — there needs to be reasonable and probable grounds for believing that a crime has been committed before action can be taken. In this case, we are in a situation where a mere suspicion triggers intervention.
This brings us to the third aspect: a dangerous act that goes against the very foundations of democracy. Here we list a certain number of aspects of the act: the introduction of procedures and trials involving secrecy; a definition of terrorist activity that is open to abusive applications; broad powers of investigation and arrests; arbitrary control of information and secrecy; no requirement for rigorous accountability and dangerous incorporation of the Anti- terrorism Act into the Criminal Code. This was an omnibus act which amended many other acts.
In fact, if you examine the revised statutes of Parliament, you will note that you cannot find the text for the Anti- terrorism Act. You will find an act of only a few pages, which lists sections referring you to the sections of other acts. The ordinary citizen cannot make head or tail of it or find out what the Anti-terrorism Act says.
Our first recommendation is that the act be repealed because it is useless and contains far too many major dangers to our rights and freedoms, dangers that are not justified because of their effectiveness or benefits that they may engender. The second recommendation is that there needs to be rigorous oversight of the manner in which the powers of surveillance, enforcement and investigation that are given to intelligence and police services, and also the powers of ministers, are exercised. The triggering factor for enforcement action by the police and intelligence officers must no longer be a mere suspicion of terrorist activity but must be based, as has been the tradition over the past thousand years, on reasonable and probable grounds to believe that a crime has been committed. Reports on the activities of police and intelligence services should be prepared by independent commissioners and there should be penalties provided for abuses. Victims of abuse must have a remedy in damages. There are 15 or so sections in the Emergencies Act which deal with the compensation to potential victims of this legislation.
Mr. Jean-Louis Roy, President, Droits et démocratie: I am accompanied by Ms. Iris Almeida, who is known to several members of the committee.
We are pleased with the work done by this committee, which is one of those rare places where thought is given to issues of security and the protection of human rights in our country at this time. We will be presenting you with a long- term vision as we question what we are looking to create in this country. Do we want a culture of freedom? Is this to be a culture of human rights or, instead, a culture that responds to hate, to significant intervention, at certain times in history to massive intervention which reflect hatred? We are very deeply attached to the Canadian Charter of Rights and Freedoms. We are attached to all of its sections, but especially section 15 on the equality of citizens. This is why, a little later on, we will talk to you about racial profiling in this country. We have always thought and still believe that Canada should — not because it wants to be viewed as somewhat of an absolute example or because it has a mission in the world, but because of the very nature of what this country is all about, as a result of its composition, both its current and future complexity with respect to the diverse communities comprising Canada, respect the international right of human rights to which, as you know, it has adhered.
I am hoping to cover many questions. We are here to deal with some very important issues. We cannot summarize everything or say everything in a few sentences.
[English]
First I will underline the fact that there is an important international dimension to the review of Canada's anti- terrorist law and policy. Furthermore, our human rights concerns and obligations are international in scope, so our so- called balanced approach must extend beyond our borders.
Second, I will question whether we have adequate mechanisms to analyze the threat on an ongoing basis. We cannot properly measure the adequacy and effectiveness of our anti-terrorist legislation and policy, as well as a huge investment, if we do not have a clear view about reliable information, intelligence and analysis about the threat environment in Canada at the continental level and internationally.
[Translation]
The first and most pivotal issue that we are grappling with is one that our partners and Canadians are dealing with, and one which we believe this committee and the Government of Canada need to examine. What is the nature of the threat today, the threat that forces us to respond? Is it the same threat that existed on September 11th, 2001? What aspects of this threat have evolved? In terms of control, have we successfully dealt with the so-called funding networks of the terrorist groups? What does it mean today, four years later, when we talk about dismantling certain so-called ``terrorists'' networks and the liquidation of individuals who, apparently, were linked to these networks?
How do we answer these questions? I am fascinated to note that last week, a major Toronto newspaper obtained a report that no one could get, through the Access to Information Act. The report, which should have normally been made public, was not disclosed until a major battle had been fought. The only comment that we heard about this report came from an American police officer posted to Montreal.
What was the nature of the threat? Who can provide us with accurate information on this issue?
[English]
Third, I will challenge the adequacy of our current democratic oversight mechanism, as well as the internal checks and balance for our new security-related agencies, mechanisms and procedures.
[Translation]
I believe that it is absolutely essential that we bear in mind, in the work that we are all doing and that we are happy to do with you today, that there has been in this world, on this continent and in our country, a significant increase in the powers and authorities of the State, in a system where the checks for protecting freedoms have remained more or less the same. I am fascinated by the fact that this question has been asked in all countries that are reviewing anti- terrorism legislation. A massive political, legislative, institutional and financial investment was made in security whereas the checks have remained extremely fragile.
As a reference, I would like to cite the example of the report of the 9/11 Commission produced in the United States. This report called for the establishment, within the American government, of a board.
[English]
There should be a board within the system to oversee all guidelines we recommend to defend our civil liberties.
[Translation]
This type of initiative has occurred here, in the United States, in England and just about everywhere in the world.
I would like to go back to these issues of surveillance which form the very core of our brief.
[English]
I would like to address the issue of racial profiling.
[Translation]
Over the past few months, we have, at droit et démocratie, been in contact with all of the human rights commissions in Canada, in all of the provinces and territories including Nunavut. The issue of racial profiling is not a secondary matter, given the diversity of our country. The Minister of Justice, Irwin Cotler, speaks about multicultural democracy, and rightly so. A multicultural democracy implies some very specific things. We should exercise caution with respect to anything that may have an impact, one way or the other, on section 15, on racial profiling. Before going into more details, I would like to make the following comment.
[English]
I would like to make the following overarching point about human rights.
When it comes to discussion about human rights and security or anti-terrorism, it is common to frame the issue as a question of balance. While I am glad that the issue of human rights is being raised, I nonetheless believe that this conceptualization is weak and problematic for a number of reasons. I outlined those reasons in a presentation I made in May 2004, which is included in your binder at Tab 2.
Instead of talking about balancing human rights and security as if they were separate and distinct issues, I believe it is more fruitful to talk about bridging human rights and security.
Minister Cotler is not far from us when he is not completely bound by —
[Translation]
However, Minister Cotler is not entirely bound by his obligations to cabinet. He does not use the expression bridging but instead the following expression.
[English]
The idea is of an integrated and inclusive approach to appreciating the fallout with respect to civil liberty, et cetera. Instead of talking about balancing, we think it is more fruitful to talk about bridging.
[Translation]
Instead of talking about balance, we think that it would be preferable to talk about integration.
[English]
If we probe the balancing metaphor, I am concerned that our efforts in the field of human rights since September 11 are imbalanced in comparison with our security effort. This is the case, first, in our financial investments; second, in our coordination effort; third, in the new political administrative structure; and fourth, on multilateral activity. We may have a balanced rhetoric about human rights and security, but there is little balance at the operational and political level.
Most important, an integrated approach to human rights and security or anti-terrorism has the best chance of preventing the human rights violations that are so damaging to individuals, the fabric of our society and the foundation of our democracy.
In the aftermath of September 11, nearly every government reacted quickly to the shocking events in New York, Washington, and Pennsylvania with new anti-terrorism legislation and policy.
[Translation]
The Auditor General of Canada writes clearly, in her 2004 report, that we have set this machine in motion by asking all groups, departments and institutions likely to play a security role the following question: What do you need? What are you dreaming about? According to her, these people replied that there was no comprehensive plan established at the outset.
On three occasions, the 9/11 Commission stated in the introduction to its report that the time has come for reflection and review.
[English]
To help us grapple with the issues of anti-terrorism, we now have the benefit of important judicial decisions from the Supreme Court of Canada, the Federal Court of Canada, the BritishHouse of Lords, and the U.S. Supreme Court. We havethe 9/11 Commission. The anti-terrorist laws of other countries, including the U.S. Patriot Act, contain mandatory review and sunset clauses, and we can expect that there will be revisions similar to those that bring us together today.
I am also interested in the movement that is going on inside the United Nations. The Security Council Counterterrorist Committee is increasingly taking human rights concerns into account in its resolution. The reason is to create an operational link to the UN Office of the High Commissioner for Human Rights.
I am underlining the ongoing work of other important democracies and key military organizations for three reasons. First, I would like to introduce one of our principle recommendations to the special Senate committee. There must be an ongoing review mechanism for Canada's anti-terrorist legislation and policy. It is simply premature for us to declare that we have got the balance absolutely right for the future.
We can anticipate that there will be important procedural and administrative lessons to learn, for example, about preventive arrest, security certificates and the proper use of personal information. We can anticipate that there will be research about the use of racial profiling and forms of training to prevent its noxious effect. We can anticipate court decisions that will affirm our fundamental democratic values and human rights' commitment. Canada must give itself an ongoing review mechanism to benefit from the international lesson in best practices, rather than isolate itself in its own legislative and policy bubble.
The second reason I refer to the international dimension of the current study is that since September 11, we have seen a patchwork of new anti-terrorist legislation at the national level, a patchwork that currently leaves many gaps. In previous testimony, you have heard government lawyers explain such a distinction in reference to the Canadian security certificate, rationalizing that particular process because the individuals targeted are immigrants who want to stay in Canada. I will discuss the security certificate in more detail later. The immediate point is that Canada must respect and reinforce its international, human rights, humanitarian and refugee law, which are the norms and standards that fill the gaps between national anti-terrorist law and help delineate the limits for creating various categories of human beings.
[Translation]
The legal rights in section 7 of the Canadian Charter deal with an almost sacred matter.
[English]
This brings me to the third point I would like to make about the international dimension. Important witnesses refer to Bill C-36 as the continuation of Canada's work at the United Nations on a dozen anti-terrorist conventions that we have signed but have not ratified prior to September 11, as well as the fulfillment of our obligations to the Security Council afterwards. For us, it is very important.
A lot of witnesses referred to the international anti-terrorist convention that we have signed. I did not notice any mention of our international obligation relating to the human rights treaties that Canada had signed and ratified prior to September 11, which contain important principles for our so-called balanced approach. Of particular relevance is the International Covenant on Civil and Political Rights and the Convention against Torture, to cite two examples.
[Translation]
I believe that we must come to an agreement. I believe that Canadians will follow us. If the government does not listen to us, I believe that broad coalitions will need to be established following this legislative review. It is unacceptable, and it will never be accepted in a country such as ours, that we should tamper with or make compromises on fundamental human rights, including the notion of torture.
Madam Chairman, we understand that exceptional security measures are to be temporary. We would like the government to state this more clearly in the spirit of the Canadian Charter. My friend Philippe Robert de Massy wants this act to be repealed from our statutes. We are saying that, if we need to have such legislation on exceptional security measures, then such measures should be temporary and we should know how long they will remain in effect. We must move quickly to indicate, somewhere in the legislation, and in a manner which respects the spirit of the more significant enactment to which Canadians are referring, which deals with rights and freedoms, and which reflects their understanding and perspective on the issue of rights and freedoms.
Madam Chairman, I would like to deal with another broad issue: on what basis do we evaluate the context of terrorist threats? Do we have mechanisms to provide a credible assessment and an analysis of the terrorist threat? A recent and important step was taken with the establishment of the Integrated Threat Assessment Centre, which will truly assist with the analytical work based on existing intelligence. I would like to ask the committee to ensure, first of all, that we know how long the exceptional security measures will remain in effect. Secondly, we also need to ensure that the regular security measures are enforced. We need to read, reread and possibly memorize the report of the Auditor General of Canada. Before we resort to exceptional measures, we must use the regular measures to protect Canadians and, clearly, today's ordinary measures are not what they should be. You are aware of what was written in the New York Times on April 19, 2004, — ``The attacks of September 11 seemed to come in a stunning burst from nowhere.'' But now it appears clear that the prediction of a possible attack by al Qaeda had been communicated directly to the highest level of government and that they did not do any follow-up. There are ordinary measures that come before exceptional measures —
[English]
``... the threat assessment be subject to critical analysis and review by public authorities outside the security and police establishment.''
[Translation]
It is essential that we establish centres where our policies can be analyzed and assessed outside of the regular police and security machinery.
We feel that such assessments must be done on a regular basis. We feel that such assessments should be tabled in Parliament and made public.
I will take two minutes to explain the nub of our report.
[English]
As we confront the question of how to bridge security and human rights, we must access the tools at our disposal. As I have previously mentioned, despite the comforting rhetoric about balancing security and human rights, until this point, our investment in new, improved and effective security measures to meet the current threat to security far outweighs our investment in new, improved and effective human rights mechanisms. When there is such an asymmetry in this investment, we must ask ourselves whether human rights are truly valued.
[Translation]
Further to September 11, Canada invested nearly $10 billion to improve our security. These policies focused primarily on improving coordination between the numerous organizations and departments concerned, in setting up a new Department of Public Safety and Emergency Preparedness, a committee of the cabinet on security, public health and emergency preparedness, an advisory board on national security made up of experts and an integrated threat assessment centre. The national security policy provides for permanent, reassuring mechanisms. You heard about them here.
[English]
In concrete terms, the notion of democratic oversight is to be operationalized through a mechanism like the Cross- Cultural Roundtable on Security, the National Security Committee of Parliamentarians, and the government's commitment to the legislative review, but will this oversight mechanism be effective or sufficient?
[Translation]
We note that all of these mechanisms have been announced rather than created. And when they have been established, they were established slowly and very recently.
[English]
The Cross-Cultural Roundtable has its first meeting in March 2005. The National Security Committee of Parliamentarians has not yet been created.
[Translation]
As you can see, the analyses are extremely useful. You have no doubt read the report of the department of national safety, which explains how complex all of this is. This leads us to believe that it will take a great deal of time before this committee is established.
[English]
This raises an important point about how binding democratic oversight mechanisms are that are founded upon policy and not upon law. We must also inquire about how close to the top-secret center of the new integrated security structure these reviews and oversight mechanisms are located. Will they have full access to information?
Another issue that we cannot ignore is the fragile oversight we have regarding possible deportations relative to the security certificate system. We have heard testimony from government officials that affirms that it is the responsibility of Foreign Affairs Canada to get some form of diplomatic assurance that deported individuals are not subject to torture or other human rights violations.
[Translation]
In summary, this is unacceptable. It is unthinkable that a country such as ours believes that Syria, Egypt and other countries will keep their word when in fact they have traditions, torture rooms and the war against terrorism, since this is the expression that is no doubt used, we cannot rely on them.
You are familiar with the Human Rights Watch report which contains a very important chapter on Canada, namely, anin-depth analysis of the assurances given to Canada by a certain number of countries and what this really all meant. We do not make a formal recommendation pertaining to this matter at the end of our report. I would like to make a more meaningful recommendation, if possible. Canada should never, regardless of the circumstances — and there are other means that our country can use — extradite men or women on our soil, to countries that use torture.
Madam Chairman, I believe that we should all look at the possibility, against this backdrop, of bridging security and human rights.
[English]
It is necessary to examine the possibility of having high-level positions created for human rights experts within all the new security-related agencies, including the Department of Public Safety and Emergency Preparedness, and alongside the National Security Advisor to the Prime Minister.
[Translation]
I absolutely want to address the issue of racial profiling.
[English]
From a human rights perspective, equality andnon-discrimination are fundamental principles. To date, our efforts to ensure that racism does not permeate our anti-terrorist practices appear to be mostly rhetorical. The Cross-Cultural Roundtable is only beginning to work. There are alarming reports, as I mentioned earlier, about intimidation and discrimination.
I was very interested in the consultation paper published by the commission of inquiry into the action of Canadian officials in relation to the Maher case. We can read in that brief as follows:
A number of the intervenors in the Factual Inquiry have raised concerns about racial and ethnic profiling inArab and Muslim communities in the wake of September 11th, submitting that such profiling undermines the liberty, privacy and equality rights of many innocent Canadians. At least in the present context, it is said that there is an additional risk that members of the Arab and Muslim communities, including recent immigrants and non- citizens, may feel reluctant to complain about the conduct of police authorities.
[Translation]
This lies at the heart of the Charter, and it is the heart of Canada. I am referring to section 15.
Madam Chairman, the conclusions and recommendations are included in our report. They summarize what I have told you.
Senator Kinsella: I do not always know where to begin. But I will begin with Mr. Roy. In your brief, on pages 21 and 22, there are seven recommendations. Several of these recommendations are based on the hypothesis that the government will agree to amend this act.
Section 145.1 provides 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 the Senate or House of Commons committees. But once our review is finished, it is over. Parliament has to make amendments to this act, if we consider the exact words contained in this section.
I would like to start because you alluded to the theory of our colleague, the Minister of Justice, Mr. Irwin Cotler. I think Mr. Cotler's theory was based on a false parody. I come from the school that says that there is unity with respect to human rights. Mr. Cotler's model is dangerous, because the right to security to some extent overrides the other rights.
Mr. de Massy mentioned section 4, which refers to security situations in the country. Under these circumstances, where the very life of a state is jeopardized, there are very rigid restrictions, the state has an obligation to protect, respect and promote rights. Section 7 deals with righteousness and this act could never be repealed.
The issue of racial profiling was also raised. The conventions mention there is no repeal with respect to being free or racial or linguistic discrimination. Consider the fact that the Government of Canada ratified these conventions with the written support of each government of Canada and that all of the provinces wrote a letter expressing the desire that Canada ratify the conventions. So we are not just talking about the federal government.
There is a very big domestic obligation. It is the norm that we have to follow. In my opinion, this bill was adopted under tragic circumstances. Now, four years later, the circumstances have changed a great deal. But regardless of whether or not circumstances have changed, we have to follow the norm and that is the norm. Mr. Roy, you asked a question about the nature of the current terrorist threat. I would like to ask you how you would answer this question about the current threat for Canada and also for our neighbours. Also, should we make amendments, to what extent do we have to use the norm, the principles and the well-established rights in international law, as we review the legislation?
Mr. Roy: You have asked me many questions all at once. I will try to answer you. As to your first question, I have faith in your committee. Your recommendations will be strong enough to convince the government to amend the legislation. And if need our support, we will be at your side. The act must be amended and must include ongoing review mechanisms. It would not make sense for us to say, among ourselves, that this act must remain unchanged for the next five, eight or ten years, or indefinitely. You said, as did Mr. Philippe Robert de Massy, that the international reality has changed significantly.
Earlier, I quoted Mr. Cotler, not necessarily to support his theories, but as amicus curiae for our own thesis. I feel that this idea of putting security first and foremost is a pernicious one. Instead, we should be saying: first and foremost human rights, which include security. Security is a human right. Life, physical safety, security, that is what all of the major international conventions state. And to say that security should dominate from now on? Unfortunately, that is what I think.
We have made a tremendous effort with respect to security. There was continental pressure, there were the emotions of the moment, there were so-called international risks, et cetera. I am wondering if we are not in fact giving the terrorists quite a victory. We are in their territory and they are not in ours. I find that particularly worrisome.
Senator Kinsella, with respect to what you said aboutarticle 4 of the protocol, we will not debate that issue because we have a deep agreement between us, and I knew that, with respect to this idea that there is no degree on what is contained in this article.
What is the nature of the threat? I would like to be able to answer you. I was struck by the fact that when your colleagues from the Senate, the members of the Standing Senate Committee on National Security and Defence carried out their study, they indicated, in their report, how they did not receive the cooperation of the people, in our country, who hold this type of information. They explained how they were unable to have access, if not to the individuals, at least to the documents and real information.
I am not the one here who is going to tell you about the nature of the threat but I will, however, say one thing. One aspect of the threat, I believe, is explained in the UNDP report on the state of the Arab world. I believe that this report should be read and reread. It states that 1.8 per cent of the people in this large region of the world have access to Internet. The gross national product of all of the Arab states is lower than that of Spain, which accounts for 14 per cent of all Arab countries. Fewer people are attending schools at all levels, except religious schools.
As part of the mandate of our organization, Droits et démocratie, we are pursuing more and more activities in these regions of the world; in the Far East, in the Middle East and in the Maghreb.
In my opinion, part of the threat lies there as well, whenfifty-five per cent of university graduates, be they young men or women in Morocco, are unable to find employment and do not see how they will find one associated with their training in the foreseeable future. I have no answer, honourable senators, as to what is the nature of the threat, but your question does make me think about this report.
Mr. de Massy: First of all, I would like my colleague to talk about his recent experiences, which will be of interest to you.
Mr. Denis Barrette, Lawyer, Ligue des droits et libertés: I am going to answer part of your question and your concern which I would call the « no pasaran » of fundamental rights — what my colleague called the « the core human rights ».
Last week, I was in Geneva attending a meeting of the Committee Against Torture, which was examining Canada's fourth and fifth report. There I heard, with my own ears, the Canadian representative state that it was acknowledged that Canada's position on the exceptional nature of the Suresh decision, which dealt with an individual who was returned to a country where they practise torture, is completely incompatible with the Convention Against Torture. The Canadian representative subsequently added that, nevertheless, it must be understood that, in certain cases, one must weigh the rights of the State, national security and the rights of the individual. He did not finish his sentence, but it would have been about the rights of the individual to not be tortured.
And yet, as we are all fully aware, in international law, this is a ``no pasaran,'' the protection against torture. There is one thing that cannot be done, regardless of whether we are talking about war, an epidemic or national crisis, and that is torture. Beyond the debate and beyond the committee report that will be made public next Friday, the committee will probably denounce Canada for the criteria used in the Supreme Court Suresh decision.
I believe that this incident has taught us two things. First of all, in my opinion, that shows that we have all got a tremendous responsibility not to cave into this mentality of ``security foremost'' which leads to similar reasoning, whereby the rights of an individual not to be tortured are weighted against the rights of national security.
Second lesson — there are others but I will be brief — we all have a tremendous responsibility, whether we are advocacy organizations or parliamentarians, particularly at this time, to promote human rights and freedoms, because we must not wait until the Supreme Court tells us, article by article, in a 170-page document — you have certainly seen this, Senator Kinsella — paragraph by paragraph, and it will take 20, 30, 40 or 50 years and who knows how many victims, how many Maher Arars, will suffer until such and such a section is in compliance with the Charter of Rights and Freedoms whereas another one is not, despite a Supreme Court decision, because the Supreme Court is entitled to make a mistake. Despite all of that, we will wind up with condemnations from international organizations. We all have a tremendous responsibility, particularly you at present, because you are reviewing the Anti-terrorism Act, and we must not wait until court decisions tell us that rights and freedoms must prevail.
Senator Kinsella: The review of the report on Canada is open, correct?
Mr. Barrette: It was open.
Senator Kinsella: It was published in the United Nations documentation. In other words, it would be accessible to the committee?
Mr. Barrette: Yes.
Senator Kinsella: It might be a good idea, Madam Chairman, for our researcher to get a copy of all the documentation concerning this very important testimony, in my opinion, on torture.
Mr. Barrette: The report will be tabled next Friday. However, there was no clerk to record the testimony, but people who were present heard what I passed on to you. The report on torture may not please the Canadian government, unfortunately.
Senator Kinsella: Thank you.
[English]
The Chairman: We will try to get hold of that.
[Translation]
Mr. de Massy: I would like to add something to what my colleague just said, that we should not wait until court judgements are handed down. It is very important to say that in recent decades there has been a trend on the part of Parliament to leave it up to the courts to decide on sensitive issues — whether abortion or others — and to say that in any case the courts will tell us whether what we are doing is right or not. Some day, parliamentarians will have to adopt much more proactive approach with respect to the fundamental principles on which our society is based.
I am in full agreement with Senator Kinsella's comments, and I could not have said it as well as he. We are talking about essential features, and that we cannot sacrifice, not to mention the expense involved for people to present court challenges and to defend their rights. For example, with respect to the House of Lords, last December the judges were extremely cautious when it came to contradicting Parliament's assessment regarding the state of emergency.
If Parliament decides that we are in a permanent state of emergency, it is very likely that the courts will say that this is a judgement call, and that they are not in as good a position as parliamentarians to make such a judgement. However, the Supreme Court judgement last year regarding Air India is the only interpretation of a provision of the Anti-terrorism Act that we have to date regarding the Vancouver Sun matter. The justices were extremely cautious and in no way called into question the state of emergency.
In closing, I would just like to make two points: First, the comments made by the United Nations Secretary General, Kofi Annan, in Madrid, a few weeks ago during a Summit on terrorism. If these remarks are not yet part of the committee's body of research, I would suggest that you include them in your considerations, along with the extremely rich and important report of the High-Level Panel on Threats, Challenges and Change.
At Kofi Annan's request, the report has been made readily accessible on the website of the Secretary-General of the United Nations. We refer to it in our brief. This website is one of the places where we found some very thoughtful comments on the threats facing much of the human race at the moment, which are very different from terrorism. However, the report in no way minimizes the threat posed by terrorism.
The UN Secretary-General said in Madrid that human rights experts, including those at the UN, all agreed that many of the anti-terrorism measures being introduced by governments at the moment were a violation of human rights and fundamental freedoms. He also said that respect for human rights was not only compatible with anti-terrorism strategies, but that it was an essential component of these strategies.
In order to understand what he means, we must think about all human rights, including everything Jean-Louis Roy was just referring to: not just the right to equality, the right to non-discrimination, but also, all the economic and social rights people have around the world.
Senator Joyal: My first comments are to Messrs. de Massy and Barrette. In listening to your opening remarks, I was convinced, — since you had adopted such a far-reaching first conclusion: that mainly the act be redrawn, — that I wondered, and I apologize for being so direct, whether it was realistic in the current context. I am very critical of certain provisions of the act in its present form, but the preamble to it does make a very direct reference to the Canadian Charter of Rights and Freedoms. Paragraph 5 of the preamble states:
Whereas the Parliament of Canada, recognizing that terrorism is a matter of national concern...while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms.
As a good jurist, I would grant you that the International Covenant on Human rights is not mentioned. However there is at least a very direct and clear reference to the Charter and the values it reflects. These values are also reflected in the international covenant and the major international instruments to which Canada is bound.
Does the vigour of rights in the society not depend ultimately on the society's level of democratic awareness and its democratic vigour? Later, in your reply to senator Kinsella, you qualified your approach by saying that our culture of rights may have become a legal culture, that is, as soon there is a problem with the Charter, people turn to the courts. However, in my view, a culture of rights is rooted first and foremost in a democratic culture. Rights are respected and recognized first of all in the democratic life of a country. There is a sort of awareness by people of the spontaneous respect for the values expressed in the Charter. Since we have had a Charter of Rights and Freedoms for a very short time in Canada — about 20 years — a great deal of emphasis has been placed on the legal approach. There are over 500 cases, judgments and decisions by the Supreme Court on the Charter and the legal profession and canadian institutions have often referred matters to the court, because very often, politicians did not want to make a interpretation decision, as the Supreme Court has said, so as to correct anomalies and set a direction.
If I recall correctly, it was in the famous Southam case that Mr. Justice Dickson said that in 1984:
[English]
``The Charter has a remedial and purposive objective.''
[Translation]
That means that the Charter is there to correct previously existing situations and to prevent others in the future. The Supreme Court has recognized two objectives in the Charter. If this is the case, we cannot — as you mentioned in your reply Senator Kinsella — expect that the Court will be the final response to all the flaws in our laws. Democracy, that is Parliament itself, the House of Commons, the Senate — on a daily and on-going basis, must ensure that the provisions and values of the Charter and of the international instruments are guaranteed. I am not surprised — at my age, one is no longer surprised — but rather puzzled that the conclusions of your written presentation did not adequately stress the fact that we cannot change everything in the act because certain things will not be changed. One part of the act implements the international instruments put forward by the United Nations, and we agree with that part of the legislation. Do we not prevent abuse by strengthening the review procedure providing for in the act, for example with respect to the provisions having to do more specifically with the Criminal Code which seem extreme to us after a few years of implementation? The exercise we are engaged in is one that is typical of life in a democracy.
You are here, you say what you think. The cameras are here and parliamentarians ask themselves some questions and remember what you said three years ago. You come back. We try to do a very thoughtful study of the implications of the legislation. Is that not the greatest service we can provide for human rights and for democracy — namely to strengthen the ability of Parliament, and thereby raise the level of public awareness about rights, rather than simply withdraw the act because it has some holes in it? As Senator Stratton was saying this morning, we cannot simply start disregarding the continent, starting tomorrow. We do live in North America. The Americans are not far away, and they are at war. There is an undeniable reality that I do not like, but I have to deal with it nonetheless. Is that not what we should be trying to do initially?
Mr. de Massy: This was an omnibus bill that amended a number of other acts.
On page 28 of our brief, we said that it was integrated into all our statutes and that it amended many fundamental sections of the Criminal Code and other important legislation such as the Privacy Act and the Access to Information Act. This is a huge foreign body with infinite ramifications. We feel very strongly about the expression that was used. We have no choice, this act will work like a cancer in all our other laws if it is not withdrawn in its present form.
Do we need to think about putting forward a separateAnti-Terrorism Act? I have no answer for you on that. In the United States, the act is separate, as it is in England as well. Here, the act has infiltrated all our other laws and has made some very harmful amendments to the Criminal Code. These amendments violate principles we considered absolutely sacred with respect to individuals who have been charged and imprisoned. I would like to let you hear what Denis Barrette has to say about this.
Mr. Barrette: Of course, the Ligues des droits et libertés has often adopted a radical position in the past. It is true that we are calling for the withdrawal of the Anti-Terrorism Act. This act has infiltrated all our laws, largely in the Criminal Code, and the Evidence Act, where it changes the entire procedure for trials and even that of the public inquiry into the Maher Arar matter, which was suspended. It also makes changes to the Access to Information Act and others, and in our view, it is not necessary. We do not deny that there may be problems regarding terrorism. We do not deny the fact that we need to combat terrorism. The question is whether we have used the means already available to combat terrorism. Why not use them? Three years later, what result has the Anti-Terrorism Act achieved? What real use has it been? Except to comfort some who insist on security at all costs. I come now to the other point you raised regarding oversight procedures. This is a concern of the Ligues des droits et libertés and all human rights organizations throughout the world — the need for an oversight procedure for anti-terrorism measures. In the case of Canada, there is not just the Anti-Terrorism Act, there is all the sharing of information and the increased number of databases, one of the results of which was a story like that of Maher Arar, who, following a sharing of information between Canada, Syria and the United States, found himself, a Canadian, caught in a situation we have now heard about. Why is it that today we cannot correct information, which may be false, that has been given to the FBI by the Canadian agencies? I, Denis Barrette, have little or no way of correcting the information in Canada if it has to do with national security. And I have even less way of doing so if the information is in the hands of the FBI.
I fully agree with Senator Joyal when he says that the Canadian Charter of Rights and Freedoms belongs to everyone. I am going to read you a quote from the Supreme Courtin 2003, Nova Scotia v. Martin.
The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All laws and lawmakers that touch the people must conform to it.
The Supreme Court tells us that we must proactively consider the Charter of Rights and Freedoms before enacting and renewing legislation. It is our collective responsibility as citizens and politicians to promote the Charter of Rights and Freedoms.
In terms of possible review mechanisms for anti-terrorist legislation, we agree, but we believe that the precise mechanism may remain to be found. There is very little publicity around Senate committees. We understand that it is public and that the meetings are televised, but we feel that there should be a very broad awareness debate among Canadians on their rights and a true debate on the threat.
As for the concerns of Western governments, following the events of September 11, 2001, following anti-terrorist legislation, governments have tabled 207 reports one year after Security Council resolution 1373.
That same year, there were over 1,400 human rights reports that had not yet been submitted by states.
So one might ask how much actual concern about human rights there has been since 2001.
[English]
Senator Andreychuk: Thank you for all the briefs and books. I also want to acknowledge Iris Almeida, who has been working on this for years long before terrorism became a key issue.
I have two questions, one of which goes back to this issue that we were talking about on balancing rights. I believed in this concept of balancing rights, because security is a right, freedom of speech is a right, and freedom from torture is a right. It is a question that we always have to balance in our society when rights come together. The problem was the way that the government framed the issue after 9/11, saying, ``To protect our security, we have to abrogate some of our rights.'' Instead of understanding that security is a right and it is one of our rights that is continually being balanced, it has been entrenched in the minds of Canadians that in order to have security, they have to give up human rights. Would that be a fair assessment?
[Translation]
Mr. Roy: I think you answered the question. I draw a parallel between your question and Senator Joyal's question to Mr. de Massy, about citizenship.
The prevailing impression in our country today is that some of our rights have been curtailed for security reasons. I do not know how that impression can be changed with legislation, as it stands, and the institutional build-up and budgets as they stand.
[English]
On the basis of what I just said, people have the impression that we have spent a lot of money. We have prepared new legislation and created new institutions. The net result is not a balancing between rights and security. We have, on one side, all our resources, or a lot of our long-term resources, and new international cooperation. On the other side, senator, can you give me one example of a binding oversight mechanism, a real one, that we have created in the last three years — a mechanism that can be independent, can function impartially, has the necessary resources and effectiveness, is time-bound, is accountable to Parliament, is representative of Canadians, and can have access to all information?
Senator Joyal: We have the Auditor General.
Mr. Roy: We did not create the Auditor General in the last three years.
[Translation]
It may be a matter of perception. I respect your position, Senator Andreychuk, on the idea of balance. However, if we retain that philosophy and perspective, we are ultimately going to confirm the theory of balance rather than of the link between rights and security.
[English]
Senator Andreychuk: That is the point I was trying to make. Somehow, we have lifted security out of what was traditionally an issue within human rights and set it apart. We are in danger of looking at security as something different than one of our rights. Accountability is the issue, but not just in this bill. There has been a cumulative effect created by the bills we have recently passed. We are zeroing in on Bill C-36, but this committee has said that we have to look at all the other pieces of legislation that have been passed. Your question of whether there are oversight mechanisms on those other pieces is as valid as on this bill.
Are we also suffering from the fact that we have not entrenched human rights international legislation into our national law? For a long time, we have lauded ourselves for signing and ratifying treaties, but we are not taking the next step in the human rights treaties of entrenching them in our national law in a consistent way. Consequently, there is a disconnect between our international obligations and what we are doing in Canada. It seems to have come to the fore in our terrorism situation. Is that one of the problems that also needs correcting? It would be a different kind of oversight. It would bring our international obligations into Canada in a binding way, and citizens would then have a better understanding of our obligations and, therefore, our rights internationally.
[Translation]
Mr. Roy: That is something that very often makes me go on a bit of a rant. In my view, a great democracy and a federal state like ours cannot afford to sit there and do nothing. Other federal states have worked on this complicated political question. Granted, the work may never be completely done. However, we will never move Canada forward if we do not, between the federal state and the provincial and territorial states, find an avenue for human rights issues to bring us as far as you hoped, by including the obligations that we have signed in our domestic legislation.
In two and a half years, since I have been with Rights and Democracy, I have attended all kinds of conferences, and I have been able to observe the worst reasoning put forward by Canadians to justify this situation. For example, there are a number of conventions of the International Labour Office that we have not signed. I recently heard comments that the provinces were wondering why we should sign, since we are further ahead than most countries in the world.
If we refuse to sign any convention where, in our opinion, we have made more progress than others, no international convention will stand up, because every country will think it is further ahead on some point or other.
Once a great federal system like ours stops building, there is a risk of cracking, and then there will be a real problem. We need to ensure that politicians do their duty. We cannot be hesitant about asking this difficult and complex question. We probably won't find the answer overnight, but we cannot ignore the question.
I would like to add a comment in response to Senator Joyal's question about citizenship. I agree with your basic statement that rights are primarily exercised by a strong and vigilant citizenry. We are a country of debate and training. But you should see the state of extreme poverty — except perhaps for Ontario — in which the law commissions of this country find themselves. I have visited all of them. It is scandalous, I have to say. What programs have been cut? The education, training and outreach programs, in a country where, in the biggest city, 50 per cent of citizens are not of Canadian origin. In order to learn the law, these people need to be spoken to in their language and in fora held specially for them.
We are not doing that. The enlightened citizenry to which Senator Joyal referred is also something that needs building, and I am quite concerned that currently, when it comes to new Canadians, who are increasing in number and that is a good thing, and when it comes to the younger generations, we are getting further and further away from that enlightened citizenry.
Mr. de Massy: If there is time, there is something I would like to add.
[English]
It is interesting how you put the question, Senator Andreychuk. A slight contradiction between the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights can be read insection 1 of the Canadian Charter. In this particular instance, it may be important for the legislator to bear in mind that there is a bet, if I may.
When the anti-terrorism legislation was adopted, it was considered to be a legitimate measure in a democratic society under article 1 of the international covenant. The chances are good that the courts would consider it in that light and accept it, although it contains an important violation of the international covenant. My colleague alluded to the fact that before the Committee against Torture, there was a big question mark that seems to have been approved by the Canadian representative on the quality of the interpretation of human rights as stated by the Supreme Court in a specific case in respect of extradition.
As well, in response to your question, since 1948 we have witnessed a big struggle concerning the reconciliation of our human rights and how to organize human societies so that all human rights can be exercised, while maintaining the right to protection against terrorism, including the right to safety, water, food, a decent life and freedom of expression. I did not bring the document with me, but a UN summit in Vienna in 1993, which you are aware of, speaks to this in article 6 of the final declaration.
[Translation]
The indivisibility and interdependence of all human rights, that is the big challenge. We have to find solutions, including when we are combatting terrorism. The Secretary General, Kofi Annan, said that the UN has to combat terrorism, and has to continue to insist that in the fight against terrorism, we do not compromise essential values. In particular, human rights and the rule of law must always be upheld. It seems to me that terrorism is in and of itself a direct attack on human rights and the rule of law. If we sacrifice human rights and the rule of law with the steps we take, we are playing right into the hands of the terrorists. I find that to be a very clever way of putting it. There is a lesson there for all of us.
[English]
Senator Joyal: I will try to be brief. Mr. Roy, I would like to refer to your third recommendation in English because the word in English has a different meaning. You said that Parliament should make public reports about the evolving threat environment and its assessment of the work of our security apparatus.
[Translation]
The word ``threat'' is not neutral. It refers to the whole psychology of defence policies after World War II. We have resolved one conflict only to find ourselves in another, equally large, and with equally large implications for freedom. We need only think of the United States, how the Soviet threat was addressed politically and ultimately gave rise to all kinds of initiatives and so-called measures for the protection of liberty, which led to initiatives that we now criticize in hindsight.
At the end of the day, is public debate on the threat not the best guarantee we can provide for the protection of rights and freedoms?
[English]
If I understand correctly, you think there should be a center for threat assessment. I hope you are not suggesting that we create an international body outside Parliament that would be responsible for measuring the level of threat and for reporting that information to Parliament regularly if the threat were worse in one aspect or the other of the international reality.
[Translation]
I feel that the public debate about the implications of this language is much more harmful, much more of a threat to rights and freedoms than anything else.
I am not anti-American, not at all, but, given how the situation in the U.S. has unfolded since September 11, 2001, we cannot help noticing that every two or three months, the threat level was raised to red, yellow or even white. When they felt that public opinion seemed critical in terms of support for the proposed measures, the level was raised. And since the last election, the threat advisory system has fallen off the radar screen. Apparently the threat has subsided with the new administration.
I have to admit that this type of situation leaves me somewhat perplexed. There is no doubt that in Canada the threat to the lives of Canadians is less immediate, because for the last five years the Canadian government has not used the threat advisory system. It seems that we have taken our responsibilities and that the government has taken measures. We can criticize these measures and say that it is a bad law, but all this did not happen in a context of psychological propaganda, Canadians were not told to tape their windows because the threat was so severe that we could expect a bacteriological war tomorrow morning. I am not underestimating the possibility that something could happen in Canada, quite the contrary, because Canada is such an open and porous society. In fact, we have to recognize that the threat was taken advantage of the most by the United States, more than anywhere else. You may remember that people said that the September 11 terrorists came from Canada and that they all crossed the border into New York or Boston, and into Washington and elsewhere. We realize that this type of statement was politically motivated. We cannot ignore the political debate in evaluating the implications of measures we take which affect human rights and freedoms.
If Parliament is to undertake a review, as you suggest, and if it is to report to the public on the changing threat context, or of the threat of the forces of evil against the forces of good, are we not being derelict in our public duty when we feed into the system which everyone is using to their own advantage, and when we use the system to force politicians to retain more powers than necessary to protect the country, when in fact the threat we are facing is completely different?
Mr. Roy: We would need much more time to respond to that passionate question which revolves around the nature of the debate Canadians are having, as compared to the debate Americans are having, something which also involves public and political input, including that of government.
I am not sure I followed every issue you raise. But I mostly understood what you said with regard to the fact that the American government exercised a lot of pressure by, for instance, the threat advisory system.
Two years ago, Janice Stein studied the issues Canadians were debating. It seems that many Canadians are preoccupied by security issues today. In cultural or ethnic communities, more particularly the Arab or Muslim community, the issue is being debated. Many of our fellow citizens feel threatened, and this is happening in a country where between 30 and 50 per cent of people living in major cities come from elsewhere.
I hope this issue will be clarified in the debates and conversations we will have, and that Canadians will have among themselves, too.
Rights and Democracy has organized delegations in 40 universities across the country. These issues interest and concern young people from Newfoundland to British Columbia. In fact, the diversity of our country has made it difficult for us to integrate this subject in a unilateral way.
But it is a good thing that Canada did not take heavy-handed measures. I do not think it is in the nature of our country to resort to psychological propaganda. However, I was surprised at Ms. McLellan's intransigence with regard to the act. The debate we are having right now is not intransigent.
It is a very complicated issue. Ms. McLellan's department has just published a report on the implications of the creation of a parliamentary committee on security. Indeed, this problem raises several complex matters.
When the House of Commons Standing Committee on Foreign Affairs, which is chaired by Bernard Patry, decided to hold a series of hearings on Islam, we were closely involved in the process. Mr. Patry had asked us to help him develop a work plan on the subject. The commission attracted a significant degree of interest in Canada. I did not think that it would be so, but people wanted to come and speak and many have asked for the document and referred to it.
The role of Parliament is also to foster debate among Canadians about unreported issues, issues which were created by the government or which the government controls, issues which the government has access to and which the media obviously must report. That is why the idea of including oversight mechanisms in the act is interesting. The act stipulates that it is to be reviewed in three years. This does not mean that this parliamentary committee, under recommendation 3, will reinvent the wheel. However, its first role will no doubt be to establish a certain number of facts.
In answer to Senator Kinsella's question, the issue was raised as to what the nature of the threat might be. The issue needs to be debated publicly and we need to understand whether there still is a threat. One day, I hope, we will be able to know whether there is a threat or whether there are certain trends or movements. However, what we are dealing with here is a threat to national security, and whether this country is threatened by forces which might strike at its very heart. This is where legislation on security must come into play. We are not dealing with just any threat, but with a very real one. In this regard, you are right to say that we have to choose our words carefully. Perhaps your question also dealt with the meaning of words. However, the situation is fairly exceptional.
Canadians are also wondering about how public resources are being allocated. Regardless of who was in power after September 11, the issue has nothing to do with which government was in power at the time, but rather with the notion of government. There are very few projects which suddenly receive an investment of $10 billion — but if there are, please tell me.
I do not want to be a rabble rouser, but I want to come back to what we were discussing earlier, which is the fact that we should be studying the extreme weakness as far as human rights are concerned. In the last few years, human rights have taken a beating several times over. One province has even decided to abolish its Human Rights Commission, which is an extraordinary step to take in a country like ours. People are wondering whether other provinces are also thinking of following suit.
Senator Fraser: My two questions will be brief and I hope the answers will also be short.
My first question is for Mr. de Massy. When you talked about the international conventions to which Canada is a signatory, you reminded us that any deviation must be reported to theUnited Nations. You mentioned the deviations included in Bill C-36, which have not been reported.
Is there a list of these deviations? Has someone drawn up a list or is there a document which indicates, point by point in this context, our obligations under various conventions? Also, and more seriously, would the list include the areas where Canada has deviated from those conventions and would there be examples provided of why we chose not to go along? And if certain exemptions were reported, whom were they reported to, and when? Are we the only country not to report our deviations, or has this become a general rule?
Mr. de Massy: You have asked me a question which I find difficult to answer exhaustively.
Senator Fraser: I am not asking you to do so now, but does such a list exist?
Mr. de Massy: The list of deviations exists. In fact, generally speaking, the deviations by government are indicated when a convention is signed. So it would be easy to find the list of deviations, which were made when a convention was signed, on the Internet, on a site containing all the instruments.
I remember that Canada asked for exemptions under two major conventions. What I was saying earlier is that under the antiterrorism legislation, there are clear exemptions to international conventions on civil and political rights which, if Canada wants to maintain them, will have to be reported to the general Secretariat of the United Nations. However, I doubt that this was done. The only thing that was said about these exemptions was that they respected the Canadian Charter of Rights and Freedoms. The only concern was whether the exemptions could stand up to section 1 of the Canadian Charter of Rights and Freedoms. But I do not think that our international obligations had been taken into account.
Senator Fraser: Are there other countries in the same situation? Or are we the only ones?
Mr. de Massy: I cannot give you an answer with regard to their antiterrorist legislation. It is a good question and I will look into it.
Senator Fraser: Mr. Roy, I only have the English version of your brief in front of me, so I will quote from page 18 of that version:
[English]
In your submission, you speak about investing in prevention by creating substantive and integrated oversight mechanisms that we now have the opportunity to strengthen and entrench in law.
For instance, we believe it would be useful to havehigh-level positions created for human rights experts within all the new security-related agencies, including the Department of Public Safety and Emergency Preparedness, and alongside the National Security Advisor to the Prime Minister.
[Translation]
I would like to have some more details on the mechanisms you are proposing. The high level positions you refer to would be created through legislation. What would the mandate be of the people in those positions? Would it be a mandate to consult, to advise, to monitor reports after the fact, to control?
Mr. Roy: I guess that would depend on the place. If you are talking about the National Security advisor to the Prime Minister, in that team, that person would not have to make a report. The person would have to make sure that any advice given to the Prime Minister with regard to national security includes Canada's obligations as far as human rights are concerned, Canada's obligations in these areas, and the advisor would also have to refer to other national obligations which may be affected. When I look at the scope of the work carried out by the deputy Prime Minister, the Minister of National Security, and I am not questioning the work itself — she received the mandate from Parliament or from government — you nevertheless wonder whether someone, somewhere in this environment, is making sure that Canada's traditions are upheld. As Senator Joyal reminded us, and he was right to do so, we have a fairly young tradition. I was struck by the very tough statement made by the Minister of Justice, Mr. Cotler, when he described what Canadian society was like before the advent of the Charter of Rights and Freedoms, and the fact that our rights were weak, and when he described the situation many of our fellow citizens were in individually or collectively.
Senator Fraser, I am trying to remember the time when we both wrote for the same editorial pages, in two different languages, in the same city, and the fact that you always seemed to get to the point faster than me. We have to keep in mind the fact that in the last three of four years, a huge security infrastructure has been created. What has been achieved from an institutional and financial point of view was tremendous.
On the other hand, you might wonder how to maintain that relationship, since no one is talking about a ``balance'' through a presence which will support the other argument or the elements which are part of the overall argument. Why did the House of Commons committee feel it was necessary at some point to create a subcommittee on human rights? I think that answers your question. Finally, it seems that no one found any time to discuss human rights. So it was decided that a committee would be created on that subject. It has been done and rather well. The subcommittee was created and it reports to the committee its concerns which, I now feel, have been heard by a stronger standing committee.
Senator Fraser: Just a reminder, here in the Senate we created not a subcommittee, but a Standing Committee on Human Rights chaired by Senator Andreychuk.
If I am not mistaken, you are suggesting a high-level counselor rather than a monitor in the usual sense of the word? Both can be useful.
Mr. Roy: When you create the position of an advisor, for security purposes, you have definitions, proposals, powers that are conferred upon some institutions — there are a host of security institutions — that when you engage in such a fundamental exercise, you should make sure human rights are factored in and reaffirmed.
Some recent documents addressed the issues we are considering today, yet the words ``human rights'' are not even mentioned once. The security effort is mentioned. If this were to go on and if there were to be another attack, a dangerous imbalance would be struck.
[English]
Senator Jaffer: I have a number of questions but just to answer about the threat indicator, we had a red alert last week with this plane on top of the White House, so we still do have some threats.
Mr. Roy, you were talking about the cultural round table that came into place in March. Where I sit, it has taken a long time to come into existence. It was supposed to be in place last June. Just so you know, the parliamentary committee received substantial sums of money. Mr. Kenny and Mr. Lee have been travelling and they have recommended the next stage, so they have been working on it. You may have missed that.
I have a number of questions on creating a high-level human rights position. I must compliment you; listening to you today, it has struck me how much money we are spending on security. You have made it crystal clear how poor our human rights bodies are.
From what I have understood you to say about creating positions in departments for national security, are you looking at an ombudsman position or would the position simply have the role of advising ministers on obligations of human rights? When I was listening to you, I was wondering if you were thinking, do the Department of Justice and the Department of Foreign Affairs already have people within their departments looking at whether we are following international obligations? Do they not play that role?
Mr. Roy: Senator Jaffer, you mentioned Foreign Affairs Canada. In the last 18 months or two years we have been associated with many dossiers, Zahra Kazemi and others. I have been struck by the amount of time that the minister himself and the deputy minister have spent in small committees trying to fix the Canadian position in difficult situations where matters of human rights are at the centre of various foreign policy dramas.
I am not here just to say that the Prime Minister and the various committees that we have created should recall that this country has human rights obligations within Canada and in relation to the rest of the world, and that we have accepted responsibility for this. Although I hope I am wrong, I believe that all we have created in Canada and will create in the next years, if the emergency situation persists and the switch is not turned off on the other side of the border, is a culture of fear and difference, a culture where racial profiling will become extraordinarily significant. As Mr. de Massy said, we must fully accept that there may be serious questions related to security. No one is saying that there are no security issues, but we must try to make our choices and decisions in the context of a culture of preserving and strengthening human rights and democracy. That is our position.
What should we do, then? We believe that this vast system that we have created, which will cost us $10 billion and maybe more in the next five years, has no equilibrium at all. People say that they can see no equilibrium between human rights and security.
We have to find ways to build that equilibrium, and we believe that this preoccupation should be substantially represented in all those teams of people who work in the Department of Public Safety and Emergency Preparedness and as security advisers.
What do we really want? We want democracy, the state of law and human rights to win in this fight — because it is a fight in a way.
[Translation]
This is a major ideological debate in the world. If our words, our commitment and our funding are focused on security, we are playing somebody else's game. In this ideological debate, we have to demonstrate that we are fairly sure of ourselves. I would like for Canada, internationally, to lead the way among those who say that democracy is strong enough to not let itself be weakened when it comes under attack.
Mr. Barrette: Regarding oversight mechanisms, I must say that I do not know what the Ligue des droits et libertés's position is as to a Canada-wide human rights watch organization. But the Ligues des droits et libertés is involved in phase II of the Maher Arar inquiry dealing with the RCMP's monitoring policy. We suggested an international mechanism to monitor the actions of police officers, integrated police forces and intelligence agencies dealing with national security.
Why a national organization? Because police forces and intelligence agencies now work together as an integrated intelligence unit. They include the RCMP, the FBI, CSIS, sometimes the CIA, the Montreal police, the Gatineau police. All of these people now work together. Increasingly, this is going to come out of the Maher Arar inquiry. They share intelligence and create common strategies. If we are considering oversight mechanisms, they must be national oversight mechanisms for national security. Once the provinces agree to work with the federal government, they will have to agree to be subject to a Canada-wide monitoring agency.
On the international scene, I agree with Senator Joyal. I would not want someone to say that it is strictly an outside threat, say from a southern country — which we all know. However, in terms of oversight mechanisms, we should implement a recommendation made by the Macdonald commission in the 1980s. There is a great deal to be learned from the Macdonald commission, which did excellent work.
One of the recommendations, I believe it is recommendation number 56, mentions that any intelligence sharing or activity with police forces or foreign intelligence agencies must be subject to Canadian monitoring agreements. There needs to be a monitoring agency able to tell the FBI it can work with CSIS under certain conditions, including that of being subject to monitoring.
I wanted to respond to Senator Joyal regarding the issue of threat assessment. This is something we find in consultation documents, for instance from the Canadian Threat Assessment Center, which is working in an increasingly integrated way with the U.S. Threat Assessment Center. We end up in a situation where threat assessment, indirectly, is derived from foreign intelligence, U.S. intelligence. We know how much weight the U.S. carries, so it is important to be very cautious when it comes to threat assessment information emanating from the United States.
[English]
Senator Jaffer: The last time you were here you expressed great concern about electronic surveillance. The league specifically expressed concern that the broadening of electronic surveillance provisions in relation to terrorism offences would erode the right of privacy of Canadians.
Have your concerns increased in the past three years or are they the same? May I have your reflections on that?
[Translation]
Mr. Barrette: There has been an exponential increase in the number of databases since September 11. It may or may not be directly related to anti-terrorism legislation, but it is related to anti-terrorism measures. There is also the European Convention on Cybercrime signed by Canada as well as it by a majority of countries after September 11. This convention contains provisions which will allow for electronic monitoring. It is very technical. There was a project called ``Legal access'' now, it is called ``Lawful access'' which will allow for electronic monitoring of Canadians. What we are, of course, very concerned about, is the exponential increase in surveillance.
When databases are created from passenger manifests, profiling is obviously being done. We end up with data on hundreds of thousands of travellers. How can you pinpoint someone unless you are profiling them and developing profiling techniques. Unfortunately, profiling in general and ethnic profiling are closely related.
This morning, on the radio, I heard a former CSIS officer say that the face of terrorism in Canada had changed. In the past, the target was a non-Canadian citizen. Now, it is a young Canadian male, with education, and children. What distinguishes this person from the majority of young Canadians going to school is their ethnic or religious background. This is a dangerous path. We believe ethnic profiling is a result of the work that is being done based on electronic databases.
Mr. de Massy: The International Civil Liberties Monitoring Group includes the Ligues des droits et libertés, the American Civil Liberties Union and other organizations. It recently issued a press release. If you like, we can send you this press release as well as other material regarding the International Campaign Against Mass Surveillance. Two other somewhat more comprehensive documents illustrate the position we have taken regarding surveillance measures which are expanding nationally and internationally much like anti-terrorism legislation.
The American Civil Liberties Union website is an absolutely fantastic source of information. You will find extraordinary information on a number of matters we have discussed today.
[English]
Senator Jaffer: That is the International Campaign Against Mass Surveillance. I think we have seen that.
[Translation]
Mr. Roy: I have a comment to make on databases.
[English]
I would like to thank Senator Jaffer for raising that question. It is a good field to look at what we really want to do. We need a revision.
[Translation]
The review mechanism will lead to a number of things. It will allow us to see whether tomorrow, five years from now or ten years from now, this current dissemination of information will still be of use to us. Whether or not people are identified as a threat, they can be found in databases which are circulated here and there. Is this information kept forever? Perhaps this review is not ideal. Perhaps we will have to get back to specific categories requiring oversight.
Second, I would like to refer to a monitoring example we raised earlier on. Those of you who read the Auditor General's report may have seen that it refers to seven lists, two from the United Nations, one from Interpol, four Canadian lists and American lists. This information circulates freeway and data can becross-referenced. Could there not be some kind of monitoring of this data?
The lifespan of these lists is also of some concern. For how long is the information on these lists kept? Is data kept for several weeks, several months or several years? Can we get assurances that this information will not be used for other purposes? Several questions remain unanswered.
[English]
Senator Jaffer: Mr. Roy, I have to say to you that I did not think you really looked after democracy within Canada because I have seen your great work abroad and what you do overseas. I would like you to comment on what has happened to Canada's international reputation when other countries see us having secret trials, investigative processes, participating in rendition and also, more important for people like me, we still have not seen a resolution with respect to the Air India case, after 20 years,. It is very embarrassing for me as a Canadian senator when the Irish government has a commemoration for these victims and our government has not even acknowledged the pain. What does this do to our reputation?
[Translation]
Mr. Roy: Despite difficult circumstances over the last few years, Canada maintains great credibility on the world's stage. However, throughout the world, our partners are seriously starting to wonder what we are doing in this country. The idea of Islamic courts in Ontario, for instance, made headlines around the world. This is a question that is constantly being raised throughout the world. One of the first comments a Canadian will hear is often: you are doing exactly what we are trying to get rid of. Canada should beware.
We would need far more time than we have to address this issue. People still have great expectations of Canada. They are concerned and wonder about what you have mentioned. They would like Canada to show more intellectual and political rigour in the way it approaches world issues.
In passing, neither the Americans nor the Europeans are seriously going to look into the mess created by multilateral policies when it comes to international cooperation. A country such as ours should be in a position to do just that. Funding no longer goes to countries but to the World Bank and to international committees. If you want to know where the money for NEPAD went, you have to go to the OECD; funds destined to Haiti are at the World Bank. Canada is unable to assess exactly what it contributes as an individual country. It has great potential, but has not reached it.
Rights and Democracy organized a series of workshops in Amman, Jordan, bringing together citizens from nine Arab or Muslim States, including Iran and Syria. These workshops, that I attended, lasted several days. No other country has our multicultural potential, certainly not the United States. In fact, the 9/11 Commission report fully acknowledges this shortfall. Europeans have had a hard time with this issue and the number of reservations, so I am doubtful as to any results they may have obtained.
Today, we can easily bring together Palestinians, Syrians, Iraqis, Iranians, Lebanese, Yemenites and Moroccans to discuss the issues of diversity, equality and pluralism. They expect nothing less of us and we always deliver on that front.
I am not very familiar with the Air India disaster, because I was out of the country when the event occurred.
There had been so many victims and people that have suffered for so long due to these events, and it would seem logical that we would commemorate them appropriately. We shall see what the former Premier of Ontario will have to suggest to the government, in terms of going ahead or not.
[English]
Senator Jaffer: Your organization strongly supported Nigerian women on the issue of Sharia law, and I hope you will support Canadian women on that issue with the same vigour.
Mr. Roy: We had an extraordinary three-day meeting in Montreal of people and organizations from 15 countries. It was covered by all major media over the weekend, in The Globe and Mail, in La Presse, on Radio Canada International, and everywhere. This international coalition was created by us, and we met in Montreal for the express purpose of ensuring that our country will not go in that direction.
[Translation]
Mr. Barrette: I would simply like to share with you something that I remember from my trip to Geneva last week, which in a way expresses our common responsibility. I have already asked you to shoulder quite a burden and I will ask a bit more of you now; one expert said that if a country such as Canada is unable to comply with the convention against torture, that is a very bad message to be sending out to the international community.
[English]
Senator Kinsella: Page 18 of the brief from Rights and Democracy speaks of training. The idea of a human rights protocol for all those who utilize powers under this act is something that this committee might want to delve into. I want to thank Rights and Democracy for underscoring the importance of training. The best kind of supervision is the preventive. One way to do this is to train people to use those powers in a human rights fashion.
The Chairman: The passionate conversation this afternoon clearly reveals how difficult this issue is and how strongly felt it is by everyone on this committee and by those of you who are doing such fine work in your areas, both inside and outside Canada. As you can see, this is never an easy conversation. There is never enough time. Thank you so much for coming and sharing your information and your courage with us today.
The committee adjourned.