Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 13 - Evidence - Afternoon meeting
OTTAWA, Monday, June 13, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:35 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, this is the twenty-ninth meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act. For our viewers, I will explain the purpose of the committee. In October 2001, as a direct response to the terrorist attacks in New York City, Washington and Pennsylvania and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation and we agreed. The deadline for the passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of that legislation within such a short time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and in a less emotionally charged situation within the public. The work of this Special Senate Committee on the Anti-terrorism Act represents our efforts to fulfill that obligation. When we have completed the study, we will make a report to the Senate that will outline any issue we believe should be addressed and allow the results of our work to be made available to the government and the people of Canada. The House of Commons is also undergoing a similar study at this time.
So far the committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts, as well as those involved in enforcement and intelligence gathering.
This afternoon we will be hearing from a very important sector of this study, the community groups, who will discuss how the act has affected them. We are fortunate to be joined by Riad Saloojee, Executive Director of the Canadian Council on American-Islamic Relations; Adam Esse, President of the Coalition of Muslim Organizations; Omar Alghabra, National President of the Canadian Arab Federation; and Khurrum Awan of the Canadian Islamic Congress.
We are delighted to have you here and eager to hear your presentations. I would ask all of our colleagues and presenters to be as crisp as possible so we can have the maximum exchange of questions and answers. Having said that, I believe, Mr. Alghabra, you are ready to start. Thank you.
Mr. Omar Alghabra, National President, Canadian Arab Federation: Good afternoon, honourable senators. I am pleased to appear before you this afternoon to participate in this important discussion. The Canadian Arab Federation is a national umbrella organization that represents the Canadian Arab perspective on issues relating to public policy.
Over the last few years our role has become more important than ever. The Arab community is one of the fastest growing immigrant communities in Canada. The Canadian Arab Federation, or CAF, seeks to empower Canadian Arabs by giving them a voice in public affairs through working with government, civil society organizations, media and the private sector by promoting equality on human rights to all. As Canadians we are proud of our country's commitment to human rights and dignity, which is evidenced through its vibrant diversity and strong tradition of democratic governance and respect for the rule of law.
We are pleased to join our colleagues today in offering our insight and unique perspective to your committee. We, along with our colleagues, were here three years ago when the Senate reviewed this bill. At the time, we shared our concerns about the type of culture this act would generate and the consequences it would have on our communities. I am afraid that over the last three years the experiences we have seen have confirmed many of our fears. We are not here to complain or whine. Our objective today is to provide information and propose real and practical solutions to the flaws of the act. We have put forth a submission to this committee that reflects our community's experience and details our recommendations. I hope to be able to give you a flavour of our submission in the next few minutes.
The introduction of new security policies and the practices of security agencies have resulted in a chill amongst the Arab and Muslim communities, a chill that has alienated a significant portion of the Canadian population. Members of our communities are sometimes reluctant to participate in community and religious organizations and charitable causes because of fear that may unwittingly attract the scrutiny of state agents or, worse still, be charged for terrorism offences where they cannot defend themselves.
Many members of our communities are new Canadians who have come from countries where security agents have an unchecked authority and where citizens are warned against engaging in any form of civic participation. Now they are witnessing similar practices, where members of the community are being investigated and interrogated. Many are being asked about their political and religious beliefs. Some are arrested in secrecy without charge or access to evidence against them.
It is easy to understand why a profound chill is spreading. This chill is having a negative social and economic impact by alienating more than a million Canadians and thousands of immigrants and refugees. We cannot ignore the catastrophic permanent damage those policies have caused to the lives of many individuals. I point to the life of Maher Arar where unsubstantiated information has caused a tragedy. I comment on the arrest of more than 20 South Asians in Toronto because of a cultural misunderstanding and unfounded suspicions. I remind the committee of the five immigrants or refugees who are detained under security certificates for a total of 200 months combined without charge or bail and have rights each one of us takes for granted stripped away.
A CARE Canada study documenting incidents where individuals were harassed and intimidated will be under discussion later this afternoon. Many lives have been irreparably destroyed, careers terminated, families fractured and friends avoided.
Most security agents want to do the right thing, namely, to protect Canada and Canadians. The combination of public fear, racial ignorance, a handicapped judicial review process and agents' mindsets that are determined and self- absorbed has led to many major mistakes.
Our recommendations are founded on the principles of transparency, accountability and efficacy. I will outline them.
The first recommendation is building trust and credibility to ensure that our security agencies reflect the diversity of our communities and to engage Canadians in trust building and educational programs.
The second recommendation deals with oversight and accountability. Democracy functions well when the executive is transparent and accountable to its citizens. There is a need to empower an independent and security-cleared body to deal with complaints seriously and implement corrective actions when necessary.
The third recommendation is with respect to profiling. We appreciate that the government has no policy on record to engage in profiling, but we believe that there are some disturbing operational patterns that must be acknowledged. Our organization and others are willing to work with the government on a comprehensive analysis of this phenomenon. Let us put this issue to rest.
The fourth recommendation concerns legal reforms. CAF endorses the recommendations that were presented to you a few weeks earlier by the Canadian Muslim Lawyers Association.
Please take a few moments to read our recommendations in detail.
With us today is a group of credible representatives from the Arab and Muslim communities who unanimously agree there are many problems with the current culture of secrecy and cultural misunderstandings. Not only is it marginalizing and disproportionately targeting our communities, but it also entails the inefficient allocation of scarce resources.
This review is crucial. It is the last chance to correct this act. Ignoring our call for reform will do nothing to help alleviate the chill or alienation of many concerned Canadians.
Mr. Riad Saloojee, Executive Director, Canadian Council on American-Islamic Relations: We are a national grassroots Islamic advocacy organization. I would like to take a few minutes to give an overview of the survey we conducted because it is germane to the issue of the community's impact.
I have attached a survey called A Presumption of Guilt: A National Survey on Security Visitations of Canadian Muslims as an index to our brief.
As a background to the survey, for the last four years or so since September 11, 2001, the Muslim community has been speaking about operational tactics and methods used by the RCMP and CSIS that have been unacceptable, improper and suspect. Those narratives have been circulating among the Muslim community primarily as anecdotes. We have received a number of them and documented some of them, but we are not able to document a great number.
We decided to do a best-effort survey to get a window into exactly what was happening in the Arab and Muslim community regarding those sorts of tactics. We did a survey. We circulated surveys at mosques, Islamic centres, Muslim events and on-line, and we received about 467 responses. Eight per cent, or 37 individuals, were contacted by the RCMP, CSIS or the police. In those 37 individuals' responses, we noticed a number of troubling trends.
I should say at the outset that we think an 8 per cent hit rate is a significant number. If that were extrapolated into the general population of Canadian Muslims of 580,000, you are looking at 46,000 security visitations.
We think that 8 per cent is a conservative number. Most people are simply too scared to report abuses. Most people fear reprisals or harassment. Most people come from countries where one never reports such incidents.
Anti-discrimination experts know that the dark figures of under-reporting are extremely high. In hate crimes research, around 90 per cent are not reported. When these reports concern security officials, it is safe to say that the number will be a great deal higher.
Within the survey, of the 37 people who were visited, 62 per cent said they did not report the incident when it initially happened. One-half of those surveyed said they knew another Canadian Muslim who also received a visit. It is safe to say that the incidents are under-reported.
Even so, the survey shows that the security officials are focusing disproportionately on young Arab males. Fifty- four per cent of those contacted were Arab, but only 35 per cent of the total sample are Arab. Eighty-nine per cent are male and 63 per cent are between the ages of 18 and 35.
In terms of their experience in meeting with security officials, about 46 per cent of respondents said they felt harassed, anxious, fearful or nervous. Twenty-four percent felt discriminated against. One in four was visited at work, which is an alarming trend.
Within the 37 visited, I will name the eight trends that we found in terms of the improper or unacceptable operational tactics.
One trend is that in a number of cases individuals were actively discouraged from having a lawyer or a third party present. They were told there was no need for a lawyer or that lawyers cost too much, and “What do you have to fear if you want to have a lawyer present?”
The second trend is aggressive and threatening behaviour when individuals were reluctant to visit with officials. For example, people were told, “Buck up and be a good citizen. What do you have to hide?” There was one case where the security agent blocked the individual's entrance into his house.
In the third trend, there was one case where an individual was threatened with the use of the Anti-terrorism Act that he must speak, that he ought to speak and he may as well speak; otherwise, Bill C-36 could be leveraged to force him to speak.
The fourth trend was numerous visitations at work, one in four. About 10 people were visited at work. Those visitations were quite serious. In some cases, the officials spoke to the superiors of the person in question. In another case, they spoke to an individual while he was speaking with clients.
The fifth trend was intrusive and invasive questioning. We have noted in our brief that the definition of terrorism under C-36 includes religion and ideology. It is our submission that that definition legitimizes and encourages probing into an individual's personal beliefs, religion and ideology.
A number of questions that we documented in the survey asked: Do you practice your faith? How practising are you of your faith? Do you pray? Do you visit the mosque? What do you think about the war in Iraq?
The sixth trend was improper and inadequate documentation. There were numerous cases where, when individuals asked for documentation from the agents or officials, they received cards that were not official cards with very inadequate documentation. We have left out the names of the agents in our survey, for obvious reasons, but to give you an analogy, if the agent's name was Joe, for example, the card said something like Joe's Garage, or Joe's Automotive Repairs, with a name and a pager number. I will be more graphic. This is a direct analogy from a card we have. It has a picture of a car, for example. When the individual asked, “Is this your card,” he said, “Well, we do not want to create fear in the community so this is the card we are giving you.” There were cards, for example, where agents only had their first name written down. You do not even know if that is the name of the agent in question. Joe or Bob with a pager number makes it impossible to file formal complaints, as you can well imagine.
The seventh trend was soliciting people to become informants through intimidation. In one case, when the individual declined to become an informant, the agent proceeded to recite the names of that individual's children as well as other pieces of personal information in an attempt to intimidate that person to become an informant.
The last trend was a visitation of a minor. We have one case of 16-year-old who was visited at his home and then told not to tell his parents about the visit.
There is much more that can be said about these tactics, as well as the link between these tactics and the Anti- terrorism Act and security certificates, but I will leave that for questions. Thank you.
Mr. Adam Esse, President, Coalition of Muslim Organizations: Good afternoon. I will make a very short presentation, giving two or three examples.
COMO, which is the Coalition of Muslim Organizations, was formed right after September 11, and now includes 35 organizations. It is an umbrella organization. Since 9/11, we have done a number of surveys regarding bringing communities together and forming good relationships with the other communities. We have been relatively successful with the Sikh community, the Canadian Jewish Congress, the faith communities — and we have done good steps regarding relations of the Muslim community with the others.
When we come to Bill C-36 and the impact that it has had on the community, I myself being a coloured person, being Muslim, being imam, being an immigrant, being all of these kind of profiling segments, I have seen things that I cannot even myself explain to the people.
My own community, whether they are from Somalia or wherever, meets me every day at the Islamic centres, the mosque, the congregations we have or any form of meeting. When I was coming from the airport just now, the person who actually picked me up was another Canadian Muslim. When I told him I was coming here, he gave me his own negative experience regarding our own security agencies.
Last week, a businessman told me his brother came from United Arab Emirates. When he reached the airport, one of the officers searched him. Later on, after his brother waited at Pearson airport for three hours, he left. He then got a call from the officer who had searched him. The officer asked him to come to the airport and the person agreed and late in the evening went back to the airport. The businessman told me that the officer wanted to take him to one of the rooms to conduct an interview. The man asked the officer why and the officer replied that the interview would be about the brother's case. When the man said he knew nothing about his brothers supposed case the officer told him that he should cooperate with him. The man was terrified to the point that he could not even call a lawyer. The man said he would cooperate but did not understand what was going on. The man told me that he was threatened and forced to stay in the room for a number of hours during which time he did not know if his brother had been arrested or not.
The officer told the man that his brother owed money for charges against him and that the businessman would have to pay them. The man said he would pay for the charges although he did not know what they were for as he had been unable to speak to his brother.
He charged that, and he wrote the letter that his own company was charged, who was not part of that kind of business, whatever his brother had, right or wrong. That person told me that he is so scared that he is thinking of closing his business completely.
I have a second example. We made arrangement three weeks back with the Deputy Prime Minister of Canada, security agencies and officers including the Canada border service agents, RCMP and CSIS, and we brought around 100 Muslim community leaders in Canada.
One of the incidents leaders told us of an incident that occurred while CSIS visited one of the Muslim houses, and the husband was not there. His wife was there. They forced her to open the door. She did. Then what they said was that person was assaulted to the point that she cannot talk to her husband, to her mother, to her father. She was afraid for her life. She came and told to me things that I do not want to say here publicly.
The case now is in the hands of CSIS. This is an example of what is going on in the name of Bill C-36 and in the name of our security agencies. They have enough power to do whatever they want to do.
Finally, I would say that bill looks to me like a two-tier system for the Criminal Code of Canada. The Criminal Code of Canada will deal with regular Canadians, which has been here for the last 100 years. Canadian Muslims will be dealt with by Bill C-36. That is what it is. I said that to the Deputy Prime Minister.
One of the incidents I personally come across is from a friend of mine from Kenya recently, one and a half years ago. I told Ms. McLellan that person told me a group of people were travelling inland in Kenya. He saw a number of young white people actually wearing Canadian T-shirts. He ran over to them and said, “How are you doing? I am Canadian too.” One of them took him aside and said, “Are you really Canadian?” He said, “Yes, I am.” He said, “You know what? We are not Canadians. We are from United States, but that is the only shirt we can hide ourselves under here.” That day, I said that the superpowers of this world are hiding under our own T-shirts. I am not saying we should not have a very good relationship with the United States and with others, but under which shirt can we hide ourselves at the end of the day?
The information that the leaders of Canadian Muslims have from their communities is something that cannot be explained. It does not matter how many letters we write or how many examples we convey to you, unless you live with it, it is beyond your imagination.
What we are looking for is very simple. We want Canada to be safe for everyone. We want equality and fairness. We want to be given the opportunity to be regular Canadians who abide by the law of the land. We love this country, its people and its system.
Mr. Khurrum Awan, Canadian Islamic Congress: I obtained my undergraduate degree in mathematics and business administration from the University of Waterloo. I am currently an LL.B. candidate at Osgoode Hall Law School in Toronto. I am a practising Muslim, 25 years old, and a member of a visible minority group.
The anti-terrorism legislation, in my view, makes me and other people like me an easy target for Canadian law enforcement agencies. The Canadian Islamic Congress represents the interests and concerns of thousands of Canadian Muslims, who draw from a variety of backgrounds, ethnicities and nationalities. Our community has been disproportionately impacted by a variety of legislative measures post-9/11, particularly the anti-terrorism legislation.
As this committee and the government begin to review these laws, we would like to draw your attention to some measures that are of particular concern to us.
We submit that the anti-terrorism laws represent a permanent and unnecessary expansion of state powers through the criminal law and other measures such as information gathering and information suppression powers. I want to point out that traditionally drastic measures in Canada have been permitted only in emergencies and have been limited in time. However, the changes introduced by this legislation represent permanent powers and changes.
The anti-terrorism legislation seems to indicate that we are in a state of permanent emergency. It is important to note that temporary, extraordinary powers, if needed, were and are still available under the Emergencies Act, although with more stringent review and control mechanisms, which provide for greater protection of rights. Further, the expansion of the criminal law remains unnecessary.
The cause of the World Trade Center attacks was a failure of intelligence and law enforcement, not a failure of the criminal law. The Criminal Code already contains sufficient powers to prosecute the perpetrators of 9/11. The offences of murder, manslaughter, hijacking conspiracy, being party to an offence, and harbouring were already present in the Criminal Code.
The criminal law response contained in the anti-terrorism legislation has resulted in a criminalization of political discourse and has in fact prevented a broader understanding of the underlying socio-political context of violent acts, which is essential to address the underlying causes of terrorism.
The expanded information gathering and suppression powers related to areas such as wiretapping, DNA tracking, and sharing of airline passenger information have undermined the privacy of ordinary Canadians, particularly members of our community who have withstood the worst of surveillance measures under this legislation.
The power to suppress information at trial could lead to serious miscarriages of justice as the accused is potentially denied a full and fair defence, a right that is protected by section 11 of the Charter of Rights and Freedoms. We note that the information and privacy laws of Canada already contain provisions to suppress sensitive information, although with greater scope for judicial oversight.
I would like to note that the historical experience in Canada has shown that permanent powers and unnecessary powers are in contexts that were not originally intended. For example, the War Measures Act, passed in 1914 and enacted during World War I was used during the October Crisis of 1970 in Quebec. There is also the danger that in future crises the government will demand even greater powers than the ones that already exist.
We submit that the changes made by the anti-terrorism legislation are incompatible with fundamental criminal law principles. Basic criminal law principles include the ideas that the offence must contain a meaningful prohibited act; that the accused must possess intent in relation to the prohibited act; that the offence is fairly labelled; and that the punishment awarded is proportional to the wrong in question. Many measures in the anti-terrorism legislation violate these principles. For example, paragraph (d) of the definition of terrorism provided in the Criminal Code does not require intent in relation to prohibited consequences. Overbreadth in paragraph (e) of the definition could still implicate anti-globalization protestors and strikes, despite the amendments that were made prior to the enactment of this legislation.
The risk of disproportionate punishment is very real. For example, the participating and facilitating offences are committed even though the activity in question is not carried out and the accused is unaware of the specific nature of the act to be committed. Further, this legislation provides for harsh and consecutive sentences.
From a procedural criminal law perspective, we are particularly concerned about the continued existence of the investigative hearing and preventive arrest powers. The power of the police to arrest persons without warrant on mere suspicion of terrorism-related activity is overbroad and unnecessary, given that the police already possess broad powers to collect information from suspects.
The power to extend the detention of individuals arrested without warrant for 48-hour periods indefinitely represents an exceptional surpassing of traditional criminal law procedures.
We submit that the anti-terrorism legislation infringes fundamental rule of law principles that are also enshrined in our Constitution. Themes of secrecy and confidentiality surround the anti-terrorism legislation, contrary to administrative law principles such as transparency, accountability, fairness and due process.
The Solicitor General can deregister charities or prevent their registration by simply issuing a certificate. Appeal rights are minimal. The Federal Court reviews the opinion of the Solicitor General for reasonableness and not for correctness. Also, the court can withhold evidence from the accused, so effectively a charity may have its registration revoked without a proper examination of the evidence and allegations against it. Under the certificate model, no public record of the issuance of the certificate is maintained.
The assumption underlying the anti-terrorism legislation seems to be that procedural safeguards are luxuries that the government can ignore in times of emergency, which in this case seems to be permanent. The problem with this assumption is that it is wrong. Rights are most threatened in crisis situations and that is when procedural safeguards must be applied most stringently. A significant rule of law infringement occurs through the overbroad and vague definitions which are prevalent throughout this legislation. The definition of terrorism is broad enough to cover legitimate resistance such as that of the African National Congress against apartheid.
Vagueness allows for excessive discretion for law enforcement and blurs the division of powers between the various branches of government. For instance, the Attorney General's certification powers mean that he or she decides what conduct is punishable and who is guilty of an offence. The vagueness in the law results in a lack of fair notice to citizens, particularly in our community, as to what activities are prohibited and what activities may fall within the scope of terrorism offences.
We submit that the anti-terrorism legislation remains incompatible with democratic values. The complex nature of this legislation means that it is impossible for the ordinary person to understand all of its implications. The short time frame in which this bill was passed indicates that there was little meaningful public participation in the measures introduced. The message was that Canadians and Canadian Muslims should trust the government, while official authorities defined acceptable levels of reversals to rights and liberties with only some meaningful public consultation.
As we review this legislation, there is a need for a participative and inclusive discussion of our security needs and the means used to achieve those needs.
We submit that the anti-terrorism legislation violates Charter values, including equality rights. In our view, ethnic and racial profiling has definitely occurred in the implementation of the anti-terrorism legislation. The legislation has had a disproportionate impact on Muslim, Arabs, South Asians and charities serving these groups.
The problem with ethnic profiling is that it is difficult to detect and to prove because it manifests itself in the subjective opinions of law enforcement. There is also a lack of reliable statistics to prove the extent to which it exists.
The negative consequences of ethnic and racial profiling in the Muslim community include stereotyping, stigmatizing, racism and unbalanced media coverage. Examples that we see through contact with our community include, discrimination in employment and the workplace, special attention at airports, and a negative impact on freedom of association and expression. I note that section 15 of the Charter protects equality rights, including the right not to be discriminated against on the basis of race or ethnicity.
The anti-terrorism legislation violates Charter equality rights, and many other Charter rights and values are implicated in the measures under this legislation and I touched upon them in other sections of my presentation.
We submit that the anti-terrorism legislation has had a negative impact on multiculturalism and conceptions of citizenship in this country. Ethnic profiling and targeting under the anti-terrorism legislation has endangered the sense of well-being of members of minority groups such as Muslims, Arabs and South Asians. The differential and unequal treatment of these groups in the implementation of this law is legitimated by this legislation and results in the negative impact on the multicultural fabric of Canadian society.
I submit that this legislation has had a negative impact on property rights and charitable fundraising. The legislation provides powers to freeze seize and forfeit property that has been or might be directed towards terrorist activities. The problem, however, lies in the vague definitions and criteria based on which property may be seized. Criminal liability is possible even if connection to terrorist activity is remote or uncertain.
The law also provides minimal procedural protections for charities, although many vulnerable persons and groups depend on them. The inherent risk in working overseas and in areas of conflict where it is often inevitable that some assistance will find its way to unintended persons or groups is completely ignored.
We submit that the anti-terrorism legislation has had a negative impact on several liberties. Due to time constraints, I will not get into that.
I will conclude with a number of recommendations. First, we recommend that changes made to the laws of Canada by the anti-terrorism legislation should be completely reversed. Second, and alternatively, we submit that a sunset provision should be extended to the whole of the legislation rather than just the investigatory hearing and preventive arrest powers. Third, with or without a sunset provision on the whole legislation, a central independent oversight body must be created to monitor the implementation of the anti-terrorism legislation, including maintaining statistics on the number of times that the law is used and the extent of ethnic profiling under it. Fourth, greater procedural protections must be introduced for charities, property rights and individuals accused of terrorism-related offences. Finally, this legislation is suffering from vague and overbroad definitions that must be amended to provide more explicit criteria for terrorism-related offences.
Senator Jaffer: Thank you for coming. We all know that we live in the best country in the world. I know of all your organizations and know that you will do much work in integrating communities into this great country. This is our country. I am among those who will tell you that the security services for the most part, CSIS and the RCMP, work to protect all of us.
When the Minister of Justice was here, he talked about a culture of prevention. When I hear from you, I hear about a culture of intimidation.
It would be useful for us to hear from you how the security forces can work with us so that we can ensure that they get the information they need to protect all of us.
You all have experiences of how not to work, how not to intimidate the community, but I am sure you have some positive recommendations for the committee.
If the security bodies do not work with us, they will not get the information they need to protect us. I am sure the committee would like to hear from you on that point.
You will have heard of the famous round table that is supposed to solve all our problems. It would be useful to hear what you think of the mandate of the round table and also how you think we can improve on the mandate and the workings of the round table. I would like an answer from all four of you.
Mr. Alghabra: Our purpose is to offer real and positive contributions to how we can, in our opinion, correct the flaws in the current security culture. We all agree with you that our security agents are working hard to protect all of us. Our intent is to help and work with them to do that effectively, while protecting everyone's rights and dignities.
In our submission, the first recommendation is trust and real security. Real security can only happen when there is an integrated effort that includes all Canadians. We have four specific items that talk about working with security agents. First, national security agencies and bureaucracies should be diversified by hiring qualified Arabs and Muslims as staff and policy makers. Second, engage in meaningful input, advice and direct participation from Arabs and Muslims on national security policy and law. Third, design robust training programs for intelligence and national security staff based on dialogue with communities and substantive education. Finally, rectify mistakes committed through national security investigations and the national security systems. An example is the financial tracking notices when individuals who are under suspicion are sometimes listed on a FINTRAC notice where banks and other financial institutions are notified of those individuals. Basically, that individual's right to access mortgages, line of credit, or to do business transactions has almost gone out the window, because he or she is now viewed as a potential terrorist. We need to reassure Canadians who have mistakenly fallen into that trap. We need to acknowledge those mistakes and somehow fix those problems.
There needs to be a concerted effort or an outreach to include Canadians to reflect the diversity of Canada and to enable our communities to be part of the process.
I assure you that Canadian Arabs and Muslims are very concerned about the security of Canada. I would dare to say, that they have been most impacted by terrorist acts like September 11 because not only, as Canadians, are we concerned about our own safety, but also we are concerned about the ramifications and the consequences that have ensued after the incident of such magnitude, where Muslims and Arabs have been profiled and viewed under suspicion. This process needs to start somewhere and it needs to be positive and inclusive.
As to the second question, my understanding is that the cross-cultural round table will be a committee that debates, discusses and offers information to the minister on what is perceived to be the impact of any kind of security legislation that the government is thinking of enacting, its policies or the ways in which it wishes to proceed.
We had some concerns about the selection of the cross-cultural round table. We are sure that all of the individuals who have been selected are capable individuals, but very few of them seem to demonstrate in their published resumes that they have worked extensively on the issues of community involvement and security impact on those communities. Our organization has recommended names and we hope that will play a significant role and that the individuals with the cross-cultural round table will also consult with others.
Mr. Esse: The first objective is to build bridges. We are here to take an initiative on that issue. As I stated in my opening remarks, we invited more than a hundred Muslim community leaders in GTA, and all the security agencies, as well as the Deputy Prime Minister of Canada, Anne McLellan. All of them were there, and we had more than four hours of discussion. Our aim was to discuss opening a dialogue and building bridges.
All of them, both sides, from the leaders of the Muslim community to the officials of Canadian security agencies, all of them admire, admit and even praise the system. They say, “This is what we want you to do, and we have to continue.” That should not be the first. It was kind of unique at the beginning, but we want actually to continue these gatherings and meetings.
Number two, we should have ongoing dialogue. It should not be one or two or three times, it must be continuing dialogue. We need to have honest and transparent activity as well as trust for each other.
The problem we have these days is that all Muslims feel labelled as terrorists. A person should be able to work with security. We absolutely believe they are working for the betterment of our people and for our security, and we praise that, but that must happen in the proper way. I could believe in this and be ready to support them and actually make their job very easy, but if they suspect me and my own people, how will everyone feel? I am asking you. If you try to assist but you feel the person, the security agent, already believes in the back of his or her mind that you are a terrorist, what can you do? You are going to defend yourself. That is the only way it will happen.
We should change that attitude. There must be trust and transparency. There should not be that kind of labelling. All of us will be lost if our own security agencies suspect us to be terrorists.
As my final point, I discussed this issue with the Minister of Justice, the Minister of Public Safety and Emergency Preparedness, and the Deputy Prime Minister in a round table discussion. I said, “You have absolutely made a mistake.” I wanted to be blunt about that point. It was very detailed.
We told them about our solution. As an example, none of these organizations who actually represent the majority of Canadian Muslims have been appointed, none of them, as a round table committee. That gives you an idea as to where the mistake originates.
I fully understand that they tried their best. They had more than 200 people to choose from, so they had to pick who the best ones were. They tried their best, but mistakes happened.
After we discussed the issue, they felt the same way. There are more than 400,000 Canadian Muslims in GTA or in Ontario. We have one person from St. Catharines, somewhere outside of Toronto. When you are talking about the Muslim community, you should contact the major organizations as well as the individuals known generally in the community. I can advise you of many of them, and we discussed that in detail with the ministers.
This issue should be corrected for the future. They tried their best and we appreciate what they have done, but it was not the result we were expecting.
Mr. Saloojee: There are a couple points I would like to mention. Firstly, this current apparent solitude between the Canadian Muslim community and the security agencies is something quite recent. It has not always been like this. It is not a manifested destiny that we will always have these sorts of relations or Cold War détente relations between the two communities.
The Muslim community in Canada has been here since the 1860s, and it has had a history of seamless integration into Canada. There has been a wonderful history exhibiting nothing about the clash of civilizations at all. Those are recent ideas and recent phenomena.
In the last three years, the relationship has certainly taken a beating on a number of fronts. For example, there is a litany of cases out there in the public record of people stigmatized, investigated as terrorists and then vindicated. It certainly seems that these mistakes are the rule and not the exception.
There have been the cases of Mohammed Atta, Liban Hussein, Maher Arar, the 23 Pakistanis, et cetera. These are real individuals whose lives are ruined.
That is one dimension of a failed relationship. The other is the very high profile Maher Arar case, as well as the other Canadians who found themselves detained and tortured abroad. There are at least four others in addition to Maher Arar. Arar is the most well-publicized case.
There are allegations of unacceptable or improper operational methods employed by the RCMP and CSIS in all of those cases. All of the men alleged some kind of harassment, and they all alleged that the questions they were asked abroad were identical to the questions they were asked by CSIS. They have raised the spectre of whether there is a Canadian style rendition where we do not send people abroad to be tortured, but we ask foreign agencies to pick them up and do our dirty work, to subcontract interrogation. That has had a difficult impact on the relationship.
They use troubling and problematic operational tactics and this need not be the case. There are less intrusive ways of speaking to people and gaining their trust. Nevertheless, these sorts of tactics have also made the relationship that much more difficult.
I think the key is one of consistent and sincere outreach and dialogue. Frankly, those things have not existed in the last four years. There has not been a sustained, sincere, concerted attempt to reach out to the Muslim and Arab communities. We feel that we are outsiders and that you are just here to investigate us. Of course, that is not the case. The perception is that you are here and you are investigating us, and we are the suspects in your eyes.
That breeds a lot of alienation, some of it justified and some of it not justified, where Canadian Muslims and Arabs see every RCMP officer and CSIS agent as inimical to their interests. The only way that can be remedied is by consistent, sustained, sincere, comprehensive outreach and education.
It is interesting to note in the United States when the Attorney General, John Ashcroft, wanted to arbitrarily investigate Arab males, many police chiefs said they would not do it. The reason they gave was that they had all these networks of trust and communication with Arabs and Muslims; if we are seen to be arbitrarily doing this, we will lose those relationships of trust and those networks of outreach. Therefore, the job of making America safer will be harder. That is the paradox; if you want to make Canada safer, you need the partnership of Arabs and Muslims. That partnership will be eroded when these sorts of tactics are employed.
Our suggestion in consultation and partnership with CAF is to diversify the national security agencies to engage in meaningful output, advice and direction from them. What is there to lose? I frankly do not know the reticence or the hesitation in reaching out and meeting regularly with Muslim community leaders, Arab leaders, and Arab activists and frankly talking about the issues. You can accept what we have to say or not.
There is certainly no harm in meeting and cultivating those relationships. In an ironic twist, there are more entrenched relationships in the United States than in Canada, and the situation is, in absolute and relative terms, worse in the United States. The FBI regularly has open community forums for debate. Eggs and tomatoes might be thrown, but there is nevertheless that sustained, open and transparent dialogue that simply does not exist in Canada. Apart from a couple of lectures here or there, or lunch bag seminars, there is very little by way of direct communication.
I will give you a beautiful example on robust training seminars that is very dear to my heart. A Caucasian professor who does racial profiling work has a friend who is a Black police officer. The police officer began his police work with the Toronto police force. Upon meeting his white friend, he said, “You white guys are crazy. The only calls I get are to barroom brawls and domestic disputes involving white people.”
From that the researcher derived that it is not a case of us being hateful and spiteful and cultivating these prejudices; it is a question of who you know and whether you spend enough time in the community to humanize your relationship with others.
I would venture to say that is very likely the case with the RCMP and CSIS. There is just not sufficient interaction. As Yoda says, not knowing people leads to suspicion, which leads to hate, which leads to the dark side. The dark side is a direct result of not knowing the other.
When I go to the mosque at four o'clock in the morning, I wonder what my neighbours think of this swarthy bearded guy going out every morning at four a.m. The simple explanation is that I am going to the mosque. However, not knowing that can be occasion for problems to arise. There has not been enough outreach.
Mr. Awan: The first part of the question related to how we could increase understanding between CSIS, the RCMP, other law enforcement agencies and the Muslim community. In general, increased transparency and accountability would help. That is why we suggested that we need an independent commission to oversee CSIS and the RCMP in terms of the Anti-terrorism Act that reports publicly on how often this legislation is used. The government is required to report on how often preventive arrest and investigative hearing powers are used.
A report was released at the end of 2002. At the end of 2004, when I did the legal analysis that laid the framework for this presentation, I realized that the report for 2003 on how often these two measures had been used had not been released. I am not sure whether it has been released since then, but I have seen nothing about it in any of my research.
My point is that there is not enough transparency and, as a result, the perceptions within the community are exaggerated. The Canadian Islamic Congress tried to lobby the government on our concern that many members of our community who are targeted under this legislation have moved to Canada recently and are often not aware of their legal rights. Where they come from, security agents can pretty well do what they want, while security agents have power in Canada, their power is not as extensive as in other countries.
There needs to be a concerted effort in the legal education of these people. We contend that the government should automatically provide legal aid for those detained or arrested under this legislation. We worked on that for a while, but it was put on the back burner because of all the things that have been going on in Parliament in the last few months.
We think it would be very helpful if people who are targeted under this legislation are informed and aware of their legal rights. I am not an expert on the recruiting practices of the RCMP, CSIS and the other law enforcement agencies, but they definitely need greater diversity. Many of these problems would be taken care of if adequate cultural sensitivity training was provided at the RCMP and CSIS and if their forces became more diverse.
I am not aware of the round table. I am sure that the Canadian Islamic Congress is aware of it, but I would have to consult others at the organization to know where it stands on that issue.
Senator Kinsella: As the witnesses know, the specific chore of this committee is to review the act that is presently on the statute books of Canada. We will reach a point in our analysis when we will have to ask specifically whether this act should be amended. I have understood the very helpful discussion so far.
I would like to go from real evidence, that is, experiences that people are telling you about, to what I call “soft solutions.” How do we make soft interventions, such as round tables, into hard evidence? What kind of amendment would we be well advised to consider to the Anti-terrorism Act that would require, by statute, such models of interventions as you have mentioned?
In 1988 or 1989, Parliament adopted the Canadian Multiculturalism Act. We talked a lot about multiculturalism policy in Canada through the 1960s and the 1970s. It was not until the latter part of the 1980s that we enacted a law, which required government commitment to multiculturalism. We learned through that process, which in part led to the statute, that, for example, heritage languages are not only good for Canada in terms of the promotion of the various heritages and communities in Canada, but also that heritage languages are the trading languages of the world. Multiculturalism began to make good sense business-wise as well.
Against the scourge of the modern world — terrorism — we need to capitalize on every resource available. One resource that is available is heritage languages, or indeed world languages.
It is necessary to them, not only for domestic development but also for our international partnership in the war on terrorism. That goes beyond language groups in the Islamic or Arab communities.
Can you conceptualize some hard amendments we can propose to the Anti-terrorism Act to give statutory muscle to these issues we are discussing?
Mr. Saloojee: We referred to a legal critique of the Anti-terrorism Act. We have endorsed, in general, the critique by Amnesty International, the Canadian Civil Liberties Association and also by the Canadian Muslim Lawyers Association. What we have done in cooperation with Canadian Arab Federation is endorsed the legal reform suggested by the Canadian Muslim Lawyers Association. Seven hard amendments would bring the act into conformity with the rule of law. The general concern with the act is that it largely guts the rule of law in this country. It changes the basic constitutional architecture in this country in a serious and potentially permanent way.
We recommend the elimination of secret proceedings and secret evidence as much as possible. Where evidence must remain a secret, we recommend the employment of security-cleared counsel to cross-examine and test its responsibility. The concern with that is self-evident. Having secret hearings and secret evidence is inimical to the basic constitutional guarantee of having a fair trial.
As the Arar case amplifies, the problem of having and using secret evidence is politicized evidence that is not credible and that simply cannot be tested seeps into it. The Arar case encapsulates so many of the concerns under the Anti-terrorism Act.
There is a case of a Canadian citizen who confessed to many things under torture and the threat of torture. What we have learned in the Arar inquiry is that the Canadian ambassador to Syria brought that signed confession back to Canada and distributed it en masse within foreign affairs and our security agencies. We know that when Arar returned that information was anonymously disseminated in the media. There were no less than three or four leaks against Mr. Arar saying he was a terrorist and had been to and trained in Afghanistan, and all of that came from the confession.
How did that confession become fact and evidence? How did it come into use in Canada and used to assassinate the character of Mr. Arar?
That case amplifies the problem with politicized, untested evidence coming from countries without checks and balances and without a democratic tradition. Secret evidence has to be eliminated. If evidence must remain secret for national security concerns, that is valid, but there may be evidence that does not compromise national security.
There are all kinds of creative ways to employ security-cleared counsel to cross-examine evidence and test its reliability. For example, the Arar commission has a friend of the court, Mr. Ronald Atkey, whose purpose is to have a clean, sober look at the evidence and decide if it violates national security.
The other suggestion is to recruit Arabs and Muslims as security-cleared counsel, which would provide the community with the perception that we are part of the process and not outside of it.
We recommend the complete abolishment of the process of security certificates. That is one of the most repugnant legal processes on the books. If you wanted to design a process that would time and time again violate a person's basic rights and put them away and lead to an unjust conclusion, this would be it. I do not think it is possible to come up with a more grossly flawed process than the security certificate process. Those who are sitting on security certificates, I think the combined time they have been sitting and languishing without charges against them is something like 14 years. These people have been sitting with no charges against them, unable to see the evidence, and much of that evidence might very well be evidence gleaned from a Guantanamo detainee threatened with a rubber bat beating. In one of the cases, that is precisely what happened. Evidence is coming from suspects who have been tortured or mildly tortured without access to legal counsel. That evidence would never be used in an open court; it would be tossed out.
The motive requirement, dealing as it does with ideology and religion, makes it legitimate to question people about their faith. The questions documented in the survey detail that. People are asked if they pray, go to the mosque, are observant. That sort of questioning is legitimized by telling security officers they have to look at ideology and religion. If they are preparing a legal prosecution under the bill, they have to look at that because that is a motive element of the offence. That leads to these witch-hunt questions.
We recommend that you sunset the entire bill on December 31 and ensure the government reintroduce it with rigorous debate, not a fake sunset where the majority votes it on. It needs to go through committee for examination and analysis in this more sober atmosphere than just after 9/11.
We recommend that the government redraft the facilitation offence to ensure innocent activity is not criminalized.
Senator Kinsella: One of my concerns is this statute provides for a tri-annual review and does not provide for any other review. If we are going to open the bill up for amendments, let us look very carefully at the suggestions you and other witnesses have made.
In some techniques used by officials carrying out investigations, whether it be CSIS officials or RCMP or others, are you telling us these people do not identify themselves properly? They come to your house and say they are so and so from such and such a service but do not provide bona fide identifiers?
Mr. Saloojee: Yes. I believe there are five or six documented cases. In one case, for example, the individual simply gave a first name on a card with a pager number. In another case, exactly that was given.
Senator Kinsella: Where in the Anti-terrorism Act has that power been given by Parliament to any peace officer? I know of no section of the Anti-terrorism Act that authorizes a peace officer to act in such a manner. Do you mean that the officer did not present proper credentials?
Do you know of any section in the law that gives them this right?
Mr. Saloojee: When the issue is raised, the response is that it is an unacceptable tactic, even on the part of law enforcement. They will agree this is an egregious tactic, and it is not acceptable.
Senator Kinsella: It seems to me it is illegal as well under the Criminal Code. We are apprehending a very serious violation of the laws of Canada. If anyone in those services is following these procedures, they should take note: Maybe some of us will lay charges against them.
In the community, is there a similarity to what we read about during the Pinochet years in Chile where so-called security people stating they represented the security service whisked people away?
Is this the kind of police state fear that is experienced in the communities?
Mr. Esse: I would say it is. Mr. Saloojee has given us examples, and yes, they are illegal activities. Canadian security officers agree that this is an unacceptable practice. in all the cases we raised. That is true, but even though they agree the practice continues. We must find a way for the act and its implementation to come together as one.
Our security agencies have been given extraordinary power and it is very easy for that power to be abused. That is the reality.
Senator Kinsella: That is another concern, chair, that with extraordinary power come extraordinary responsibilities.
Mr. Alghabra: I want to mention that the reason many of us are asking to expand this review is we feel a culture has been generated by this legislation and the Public Safety Act and security certificates within the Immigration and Refugee Protection Act. The legislation creates a culture of extraordinary power, where things can be much more flexible and ambiguous when you attach the words “threat of terrorism.”
You will even hear that when they review the act. How many times has the Anti-terrorism Act been implemented? They will say, “Maybe twice.” However, the fact of the matter is, if you want to count there is a person who is detained and the Ottawa Citizen journalist whose house was searched. They will say that it has not been used that much and ask why we are concerned.
We are concerned about the culture, the mindset and the extraordinary authority individuals and agencies are given to proceed whenever they deem it is necessary.
I will give two examples. At our organization, we had a posting for a communication director. One of the comments I heard from one individual was that he knew of another individual who was interested in applying but did not because he heard that CSIS and the RCMP monitor our organization.
In a second example, an individual wanted to donate money but he did not want to write a cheque. He said, “Can I give you cash?” I asked why. He said, “I do not really want anybody to be able to track that I donated money.”
Those are just anecdotes that I have come across, and there are plenty of examples. Is there a mindset within our communities that Big Brother can come down any day and arrest and detain anybody? Yes, there is.
Mr. Awan: You asked about amendments and I have two suggestions.
In general, we need greater procedural protections for individuals who are accused and for charities and other entities that might have their property frozen and suffer penal consequences.
For example, for serious offences in the Criminal Code, it is a fundamental criminal law principle that they provide an automatic right of appeal to a higher court. Homicide has an automatic right of appeal to the Supreme Court of Canada. You do not need official approval from the court to appeal to the Supreme Court. In this legislation, automatic rights of appeals are minimal. I cannot think of any place in the legislation that automatic rights of appeals exist. The scope for judicial review is limited. For instance, after you are issued a security certificate you have only a certain small number of days to apply for judicial review of the certificate.
In terms of other amendments, administrative law procedures require that the offence be sufficiently defined. The Supreme Court has often struck down laws for being overly broad because they allow too much discretion for law enforcement agencies to determine the offence. You gave the example of the police turning up and saying that it is an offence because your hair is too long, or something ridiculous like that.
Our point is that there needs to be greater definition within these offences so that law enforcement cannot act arbitrarily. It seems they have a free hand to determine what is and what is not wrong.
Within the security certification processes is a power that allows the government to list terrorist entities. The Governor-in-Council can issue a list which designates something as a terrorist entity without any judicial process. In our view, the cabinet should not have the power to list. It should be a judicial process in which you lay out the evidence against the entity and try to convince the court that this entity needs to be on a list.
Those were just some examples, but, in general, greater definition within the law, automatic rights of appeal, and greater procedural protections are needed.
Senator Fraser: My questions are for Mr. Saloojee. This survey is an important, useful and instructive work, so when I am probing, assume that I take that for granted and even one injustice is too many.
The sample here is essentially a self-selected sample. Normally, self-selected samples would tend, by their nature, to include people who have a more direct personal interest in, concern for, and experience in a subject.
Would I be safe in suggesting that the proportions you find here may be greater than the proportions in the Muslim community at large of people who have had unpleasant experiences, to say the least?
Mr. Saloojee: We have been quite clear in saying this is not a scientific study. We have no presumption about it being a scientific study. It is a best-effort attempt to look at the experiences of people. That is why we have emphasized the 37 narratives, of people who have been visited, their experiences and the trends in interrogation.
With respect to the statistics around the sample of 467 people, we tried to be broad and diverse. We gave it out at mosques, Islamic centres and Muslim events across the country and also online, so one-half was hard copy and one- half was soft copy.
In terms of those percentages, they are, I think, a window, so the 7 per cent hit rate. Therefore, 7 per cent of the samples received a visit. It could be higher or it could be lower. I think it confirms what we suspected all along. My personal sense is that it is probably a low-ball figure. It is probably a conservative figure.
We have sent copies to Minister Cotler and Minister McLellan to ask for an independent study. This is a window into what is happening. It is problematic and compelling enough that we need to have an independent survey. Let us have trusted, experienced experts conduct the survey. If we find out this is just a storm in a tea cup, great. You will assuage 600,000 Muslims and 400,000 Arabs that they have nothing to worry about. If we find there is a problem, let us deal with it. Let us have corrective action.
Senator Fraser: With respect to those who were visited at work, it strikes me as one of the most alarming forms of inquiry. Is there any indication of why they were visited at work?
Did the officers offer any reason why they visited these people at their place of work? Had they tried to call them at home or on their cell phone? Do you understand why they visited these people at their place of work?
Mr. Saloojee: We have vetted out all the non-security related narratives and see that not one person was charged. It was a “typical” or “standard” security interview or visitation.
From reading the narratives, I do not recollect that they tried to call them on their cell phone or at their place of residence. It seems clear from the narratives that this was a systemic or operational method used to scare a person into cooperation. You scare them in the sense that they think this is something serious. They do not have time to call legal counsel. They are told it is urgent. That seems to be the operational method.
Senator Fraser: From my rough calculation, approximately 45 people in your sample said they had experienced racial profiling. I am concerned about what racial profiling means to different people. The term has become so commonly used that it now embraces what most people would call clear blatant racism rather than a specific police technique. Did you have a sense that the word was used in that broad sense or was it more specific?
Mr. Saloojee: I would like to clarify. In the post-9/11 survey, that statistic relates to 2002 where people were asked, were you discriminated against? Then they were asked to categorize the discrimination. There is a difficulty with the people who said they were racially profiled in that previous survey because what is meant by that? Some people understand it to mean discrimination, which it is not; some people mean it more specifically in terms of investigatory or surveillance targeting.
The findings of the current survey make it clear that the Muslim community is targeted and the figure of 7 per cent visitation is very high and even more drastic when it is extrapolated.
Senator Fraser: I am not disputing that. I am trying to get an understanding of what it is that you have found and what is happening.
My last question has to do with this appalling situation of people alleging to be security officers turning up and failing to identify themselves. I am not saying it did not happen. I have a terrible feeling it probably did, but is there any chance that some of these people were not in fact security officers, that they were criminals preying on vulnerable populations? There are criminals who extract information about people and then use it against them.
Mr. Saloojee: Certainly it is a possibility. Is it plausible? I would suggest not for a number of reasons. There are circumstances where people are visited and there is improper identification. In some cases the officer identifies himself with the government or the Privy Council and when pressed admits to his affiliation with CSIS.
This is a common incident in the Muslim community and the survey makes it clear that this is a frequent occurrence. It confirms what we have known all along.
It is also possible that John or Joe was the individual's first name. They may not be impersonating anyone. However, the reality is it is not an official card.
Senator Fraser: It does not help if it just says Joe, even if it is the man's real name.
When you brought this to the attention of the police and the ministers, apart from saying that this is unacceptable, did they say they would do anything?
Mr. Saloojee: I will be perfectly blunt. Before the study, we mentioned this anecdotal evidence to the RCMP, CSIS and the ministers in question. Now we have something on paper. There has not been a very bona fide response to the survey. I do not think it has been taken with the seriousness it deserves. Minister McLellan has long maintained that racial profiling does not exist. When the minister responsible for overseeing the RCMP and CSIS says that racial profiling does not exist, it makes our community look like we are fabricating these incidents. When there is that ideological roadblock, it precludes looking into this with the seriousness it deserves.
There are some indications that the situation is turning around. We hear that indeed this behaviour is illegal and the allegations must be pursued. We hope the survey is an impetus for a course of corrective action.
Mr. Esse: I have an example of people dressed in RCMP uniforms visiting a community, looking for one particular person. They asked for the person. The people who were there were actually handcuffed. They were middle-aged people whose identification was taken from them. The targeted person was not there and they were released. Those people then talked to their friend and said that the police wanted to see him. They told him about the handcuffs and the intimidation.
The person went directly to the police station and asked why they were looking for him. The police officer looked his name up on the computer and said it was not there. The man asked him to look throughout the whole Toronto region to see if he was wanted. The police officer looked throughout Ontario and told him his name was not there. The people who were handcuffed were not profiled in any other way; they were terrorized. No one knows who employed the interrogators.
Senator Smith: I thought I heard you use the phrase “five documented cases.” Did I hear that correctly?
Mr. Saloojee: I believe there were five cases of incorrect or improper documentation.
Senator Smith: There were five cases where there was inaccurate and misleading printed ID?
Mr. Saloojee: There were four cases when there were printed cards, and one case where the officer identified himself as a government agent or government official. When he was pressed, he admitted he was from CSIS.
Senator Smith: Who filed the complaint and what happened?
Mr. Saloojee: None of the individuals filed any complaints. The gentleman who was at our press conference had the guts and grit to speak up about his experience with the RCMP, which is incredibly unusual in cases like this. He mentioned that he tried to file a complaint, and there was no response to that complaint so he dropped it.
When this incident happened, he looked at the RCMP website and he could not find any complaint mechanism. He sent an email to them and there was no response, so he dropped the complaint.
In terms of those who have suffered these sorts of inappropriate tactics, the vast majority of people do not come forward and do not file complaints. That happens for a number of reasons that are fairly well-established in anti- discrimination work. People are scared, anxious and concerned about their identity and reprisals. In Egypt an idiom says that if you complain you go behind the sun, which means that you disappear. Most people come with that sort of baggage and thus complaining is the last thing on their minds.
The idea that you could be publicly linked, correctly or not, to terrorism is like the kiss of death in the community. In the broader community it is akin to being a pedophile or serial killer. Whether it is right or wrong, the mere stigma of being a terrorist is enough to dissuade people from coming forward publicly.
Shirley Heafey has spoken frankly and vigorously about how difficult it is to do her job. Her civilian oversight committee lacks teeth, because there is stalling on the part of the RCMP and she cannot investigate where she wants to investigate. When the head of the oversight body says this, I am sure that it inspires little confidence in those already disinterested from filing, to file.
Senator Smith: On the case where it turned out it was a CSIS person, was a complaint filed with CSIS, or do you know?
Mr. Saloojee: My understanding is that a complaint was not filed to SIRC, the body that oversees CSIS, primarily for the same reasons. The last thing people want to do is to be publicly known. Also, following the events of the Maher Arar case, and anonymous leaks about people that were well publicized, particularly in the Arab Muslim community, from anonymous government officials, cloak and dagger, people feel like their information could be leaked as well. Why rock the boat?
Interestingly, in a number of documented cases, agents told people not to tell anyone. In two cases, CAIR-CAN is making our job difficult. We do not have anything against CAIR-CAN, but you have to be for Canada. There was an active discouragement of people within a number of narratives to file complaints with third parties as well.
Senator Smith: Several of you have referenced the Arar case. The bad news is something very inappropriate, it would appear, happened there. I do not wish to prejudge the inquiry, but it sounds that way. The good news is that Canada decided to set up an inquiry to do their best to get to the bottom of it, at great cost.
I ask this in good faith. I simply do not know the answer. In your various organizations, not everyone may have known about Arar from day one, but once it became known, as with the Sampson case with the Saudis, and the other four that you mentioned, did your groups protest to those governments, both of whom are in the Muslim and the Arab world?
Do you go on the record; do you take a position? How do you react when you realize how they behave back there?
Mr. Saloojee: We have been very clear in terms of our public statements. Sheema Khan is the chair of the council and is a national writer with The Globe and Mail. She has a monthly column. She is intrepid and quite fearless in raising these issues. She is critical. She certainly is not a cheerleader of the Muslim community by any stretch. She is bluntly critical and has been that way over a wide variety of issues, ranging from lack of democracy to patriarchal structures, et cetera, and on the record as well.
We were very critical of the Syrian government, although, to be honest, certain members of the Muslim community said, “Well, it is a Muslim government, and if you criticize Syria, that will open the road to the United States for what might be an impending invasion of Syria, as in the case of Iraq.” We felt it our duty to be honest and critical of the Syrians who acted as surrogates for the United States and perhaps Canada. We do not know the extent to which Canada was complicit in subcontracting out the interrogation to the Syrians, but we have been critical of that case and others.
We have tried to draw a universal standard. It does not matter whether it is Muslims or people who are not Muslims who perpetrate these abuses; they need to be condemned. The Koran says words to the effect that those who believe or profess to be Muslims and have faith, stand up for justice, even if it is against your community, your people, your kinfolk and yourselves. Justice is seen as nearer to devotion to God. The standard must be one of a universal constant of justice, regardless of who does the injustice.
Senator Smith: I might also highlight the photographer, Zahra Kazemi, who was murdered in Iran.
Mr. Alghabra: I wish to echo what Mr. Saloojee said. Our position and principles are clear and universal and apply to everyone and every country. I wish to emphasize is that we are Canadian organizations. Our responsibility is to work on behalf of Canadian Arabs and Muslims, in building dialogue and relationships with our Canadian government.
We feel the Canadian government is accountable to us and we are accountable to our citizenship in Canada. Our emphasis and scope is on Canada and what we do as Canadians within Canada.
I do have a letter in The Gazette that was published on Saturday regarding Zahra Kazemi. We do address these issues, but the scope of our focus is Canada and what happens in Canada.
Mr. Esse: Another example occurred in the days following September 11. Muslim community leaders in Canada got together to condemn whoever was behind that tragedy. We advertised this message in The Toronto Star. Even if we wanted to say we are against that, who will take our advertisement? We do not have that much power to actually advertise, and to make sure everyone hears what we are saying.
In our mosques, our gatherings and everywhere, we condemned these injustices, whether they were committed by Muslim or non-Muslims, the people we love, the people we are not, whoever they are, in an equal way.
We sent condolences when Pope John Paul II passed away, just sending emails and letters, to those whom it concerned. We did the same thing for the anniversary of the Holocaust. However, who will actually announce what we are saying?
If one Canadian Muslim committed a wrong, we will be labelled as a whole. We see that injustice, too. Moreover, if anyone is to take the blame in the Arar case, it should be the United States; they deported him to Syria.
Senator Smith: The Syrian government would bear responsibility, as well.
Mr. Esse: I agree with you, 100 per cent, but where does it start? We believe that the United States sent him there and asked for him to be punished until he confessed. That is what we believe. If that is the reality, let us see where the problem started.
At the same time, whether they are Saudi, Syrian or Egyptian, or anyone else, we are absolutely against anyone who is doing injustice. As Mr. Alghabra said, we are accountable to our country, our government and our people. Our actual focus is to create awareness among our people and to say, “Look, you should be good citizens.” At the same time, we must convey the concerns of our grassroots, to our government, authorities and to the security agencies in a nice way.
At this point, we are saying that we are the first to collaborate with the security agencies and praise their work, but who will give us a guarantee that they would do that in an honest and understandable way? That is what we are asking.
Mr. Awan: As an organization, we have made public statements in the press condemning the actions of governments in Islamic countries. I do not want to refer to them as Islamic governments because they often are not.
We have condemned people ranging from Saddam Hussein, Islam Karimov, Musharraf in Pakistan, and dictatorial regimes around the Islamic world.
Our president, Professor Mohamed Elmasry, our vice-president, Mrs. Wahida Valiante, and various members of our organization meet with ambassadors from countries such as Syria and Iran to convey our concerns with the way things are back there and to press on issues of human rights and so on.
For example, recently, when the Palestinian Prime Minister Mahmud Abbas was here to meet with Prime Minister Paul Martin, Professor Elmasry attended the meeting and discussed concerns relating to the advancement of human rights within the Palestinian territories. It is something we continue while maintaining our focus as a Canadian Islamic organization.
Mr. Alghabra: Canadians are all immigrants. They could be second, third, or fourth generation, but the majority of us are immigrants. None of them are asked to explain what their countries of origins have done because they are Canadians.
There is a certain emphasis or liability on Muslims and Arabs that they always have to first of all condemn the countries where other atrocities have happened. Of course, rightly, there is nobody defending the atrocities, but Arab and Muslim Canadians cannot shake off the label. They are full Canadians, and they still have to explain if they have any attachment to their origins or any country of ethnicity.
Senator Joyal: I would like to come back to the issue of the round table. Some of your answers concern me.
The way I understand the government policy, or at least the one announced by the Minister of Public Safety and Emergency Preparedness, is that the round table is a privileged mechanism to establish, develop, and nurture a link with the Arab community.
Did the minister take your names or involve you in any consultations prior to the formation of the committee?
Adding a word on the “representativeness” of your body, if you are to be involved, of course there has to be some kind of a capacity to pass on the information to a group of citizens that support your community.
If you could do that, maybe it would help us to appraise the round table and what we can expect from the present round table.
Mr. Esse: Senator Joyal, I agree with you. The answer to your question is yes, especially when I am speaking on behalf of the Coalition of Muslim Organizations.
We sent a letter that started from April 20, 2004, to the Deputy Prime Minister and the Minister of Public Safety and Emergency Preparedness, who invited around 15 people nationwide to consult on Bill C-36. At the end of that meeting, Anne McLellan suggested that she wanted to form a round table committee.
As you know, following that, the election happened. Immediately after the election, the government announced the round table, the qualifications they needed, and there were a number of issues addressed on the website. COMO received an official letter from the government as soon as we showed interest. They said, “You can apply now; it is on our website.”
We did apply. The qualification said that one of your MPs should nominate you. We did that, and our representative got seven nominations from not only MPs but also the police headquarters and other community leaders.
One of our members from the Muslim Lawyers Association also applied, as did another member. We followed all of the instructions and yet, not one of us received an acceptance.
Following that, we discussed the issue with the Deputy Prime Minister, during which time they justified their selection. Seemingly, the CAR, CAIR, COMO, and the Muslim Lawyers Association are not part of the major Muslim organizations.
Mr. Alghabra: We received an invitation to apply and we sent a nomination. We also coordinated with other organizations on the nominations. Each organization here today submitted at least a name, and other organizations that are not here had submitted names, and we were surprised at the selection.
Just to give you a little more information, there are three Muslims, two of them are Arabs on this panel, and none of them are from the Toronto or Montreal area where the majority of Muslims and Arabs in Canada reside.
We had concerns. Again, this is not to say that the individuals on the panel are not intending to help the government deal with these issues. Maybe we just did not know about them, but not one of their published resumes have expressed or demonstrated an ability or history in working with these issues.
We wrote a letter to the minister expressing our disappointment and encouraging her to add another name or more than one name to the panel. That has not happened.
Senator Joyal: Mr. Saloojee, can you add to that?
Mr. Saloojee: Our position was that if the round table was going to be effective, it needs to be representative. The people on the round table need to accurately convey sentiments from the community to the round table and then reconvey the discussions to the community. It needs to be real so that the issues discussed are not the fluffy, throw- away type issues but the real ones that confront us as Canadian Muslims and Arabs.
They need to be the meaty issues of national security as well and how those laws affect the community, and they need to be effective. There needs to be something tangible, concrete, and solid that comes from this round table.
From my understanding, there have been only two meetings so far. It is probably premature to gauge the efficacy of the round table. There have only been two meetings and I am not certain what substantive topics will be discussed.
As mentioned by my colleagues, there are concerns that the round table will have a real impact on the lives of Canadian Arabs and Muslims.
Mr. Awan: In my individual capacity, my area of expertise with the Canadian Islamic Congress has been analyzing the anti-terrorism legislation and in that capacity I was unaware of the round table. That is not to say that the Canadian Islamic Congress did not apply for a position at this table. I am not sure whether they applied or whether a position was granted to our organization. I can check on that and report back to the committee.
You asked about our network. As I mentioned previously, we represent the interests and concerns of thousands of Canadian Muslims from a variety of backgrounds. Our membership is a little over 40,000. We represent both the Shia and the Sunni schools of thought and persons of all age groups and both sexes. Our contribution to the Islamic community and our position as one of its representatives has been recognized by the government. Within the last few months, we were invited to present on the citizenship laws of Canada before the committee on citizenship studying the same-sex marriage bill, in addition to being here today. We have written widely in the press. At the time of the last election, we published a first report from the Muslim community that was talked about widely in the mainstream media. That report evaluated all the serving MPs at the time of the 2004 federal election on a variety of issues of interest to the Islamic and the broader Canadian community. That report was widely distributed.
We have an electronic bulletin that goes out to over 300,000 people in North America. We definitely have the means to convey the governments' interests and concerns to the Islamic community in Canada, and in North America at large.
Senator Joyal: I am trying to understand how the round table can be effective if there is no community leader with roots in the community. Try draw to a parallel with official languages, in various provinces there are provincial organizations, such as groups of Acadian francophones and English-speaking communities in Quebec. In order to reach those communities, you normally appeal to the elected representatives of the community, and you have a general idea of their following in the community.
It is puzzling to me to hear that there is no one in your organization from Toronto or Montreal. As you said yourself, the largest numbers of your community are concentrated in those two cities and I do not see how you can build trust and confidence without leadership there.
We will be fooling ourselves about the impact the round table might have in the short term if its position is not reflective of the community and if its agenda's definition does not include cooperation with the leadership.
Did you have any input on the priorities that the round table should address?
Mr. Esse: We have not been consulted on that subject. In our recent meeting with the Deputy Prime Minister, we submitted our views regarding the round table and we reached a positive understanding. However, we believe that round tables should meet twice annually. We hope for improvement.
However, we made a very convincing submission with regard to numbers, representation, what should be done and how this can be effective. I hope that will be reflected in the future. We have done our best.
Senator Joyal: Mr. Alghabra, at page 8 of your brief you propose that the community design an investigative study undertaken by an independent panel of mutually agreed upon experts and that the panel should be the one to examine the policies, operational practice and so forth, and that the panel should travel across the country and make final recommendations.
I was naively under the impression that such an initiative could be undertaken under the round table. If we are to have a meaningful and conclusive study of racial profiling, the various groups must contribute to the design of the study so that we start with a general understanding of the conclusions.
I think that we have to “beef up” the round table, to use a common expression, if we are to get results from it over time. Otherwise, we will be circling around the issue but we will never be able to make any real improvement to it.
Mr. Alghabra: Before answering your question, I wish to make a correction. There are four Muslims on the committee, not three, two of whom are Arabs.
I agree that it is possible to generate this proposal through the cross-cultural round table. We are proposing a study on profiling. The scope is much narrower than the security impact on communities. I think this would be a great initiative for the cross-cultural round table to adopt and submit to the minister.
Our recommendation is to work with community groups and independent social scientists on an extensive and exhaustive scientific survey to put this issue to rest, to understand whether there really is racial profiling or whether it is an incorrect perception. If it is only a perception, the government can say so and the Muslim and Arab communities will be relieved and realize that this is just an unfounded fear. If it is found to be real, we can deal with it. Making accusations and defensively saying that it does not happen does not resolve the issue. Let us find out if it is happening. If it is happening, let us put mechanisms in place to alleviate it.
It is an important initiative to be undertaken by the government with other organizations. I wish to reiterate that it is hard for us as organizations not to feel left out of the process when none of our representatives is on the cross- cultural round table. The minister said that we will always be part of the dialogue and ongoing discussion, and we have been. We met with the minister just last month. However, the cross-cultural round table was established specifically for that purpose, and we believe that a representative of the organized civil side of the community should be at the table.
Mr. Saloojee: I agree with that statement. If you want it to be concrete and saleable, you must have community representation. There is no lack of intellectual and social capital in the Arab community.
There are many people with the expertise to be effective advocates for the Muslim community. You heard from Ziyaad Mia, who is for all intents and purposes our premier expert in national security matters. There are others like Professor Reem Bahdi and Dr. Rachad Antonius who gave testimony before the Arar commission this week. There are many people. The social capital is available.
There needs to be a signal to the Muslim community that we are interested in engaging them as a community. That has been lost in translation. If the round table is going to be effective, that must be recaptured. There needs to be a clear message given that we want to engage you as a community and are not fearful of you.
When you find that certain of the capable people are not present, it sends the opposite message that we are not serious. The perception on the part of the community could be that this is just a tokenistic overture, not a serious one. There is work that needs to be done on the round table.
The Chairman: Thank you to our witnesses here today. We have been conducting our studies in such a way as to get a background on many of the issues we had dealt with before and have been looking forward to bringing people from the community before us to get their opinions.
We are very grateful for the presentations you made this afternoon. We will certainly reflect on them seriously, and I am quite sure we will be keeping in touch with you.
The committee adjourned.