Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 15 - Evidence - Afternoon meeting
OTTAWA, Monday, September 26, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:40 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: This is the thirty-third meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act. In October 2001, in a direct response to the terrorist attacks in New York City, Washington D. C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti- terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation, and we agreed. The deadline for the passage of that bill was mid-December of 2001.
However, many concerns were expressed that it was difficult to thoroughly assess the potential impact of the legislation in such a short time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and a less emotionally charged situation with the public. The work of this special committee represents the Senate's efforts to fulfil that obligation.
When we have completed the study, we will make a report to the Senate that will outline any issue that we believe should be addressed and allow the results of our work to be available to the government and to the Canadian public. The House of Commons is undertaking a similar process at this time.
The committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts, those involved in enforcement and intelligence gathering and representatives of community groups. Last week committee members travelled to Washington for meetings with some colleagues in Congress.
This afternoon we will hear from the representatives of organized labour groups. We are fortunate to have with us Mr. James Turk and Ms. Maureen Webb, from the Canadian Association of University Teachers; and Mr. Ed Cashman and Ms. Seema Lamba, from the Public Service Alliance of Canada.
We should have an interesting exchange of views around this table. As always, colleagues, I would ask you to keep your questions as concise as possible and the answers should be as crisp as possible so that we can get everyone in.
[Translation]
Ed Cashman, Regional Executive Vice-President, Public Service Alliance of Canada: Honourable Senators, first of all, let me thank the members of the Special Senate Committee on the Anti-terrorism Act for inviting the PSAC to participate in its review of the Anti-terrorism Act. Our President Ms. Nycole Turmel sends her regrets for not being here today.
The PSAC is a national union with members from coast to coast, in every province and territory. Our membership is diverse and growing. The majority of our 155,000 members work for the federal government in its departments and agencies. We should also point out that many of our members work for departments and agencies that have responsibilities under the ATA.
In 2001, the PSAC provided a submission on Bill C-36. As you are aware, the legislation was introduced in the aftermath of the tragic events of September 11, 2001 when governments the world over were struggling to restore a sense of security and safety. At the time we argued, strenuously, that legislation designed to meet this objective must be tempered, must respect human rights, and must ultimately strike a proper balance between the two.
Our conclusion then and now is that Bill C-36 failed to strike that balance. How, however, almost four years after the adoption of the ATA, the fear that inspired our commentary on Bill C-36 has turned to reality.
The PSAC is affiliated with the Canadian Labour Congress and is a member of the International Civil Liberties Monitoring Group. Both organizations are presenting detailed submissions to the Special Committee. The PSAC supports these submissions which are focused on broader implications of the ATA.
The PSAC strongly believes that the issues raised in these submissions, such as security certificates and the deportation of Mahar Arar from the United States are of fundamental importance and deserve the full attention of the Special Committee.
Our submissions will focus on the following: the definition of terrorism; privacy issues; and the impact of anti- terrorism measures on workers.
The ATA provides a vague and overly expansive definition of ``terrorism'' and ``terrorist activity'' that can be interpreted to include activities that have little to do with terrorism and much to do with the right to political dissent.
The definition includes the notion of ``ideology, politics and religion,'' and can lead to intrusive state action, including political, religious, ethnic and racial profiling. These actions go well beyond what has been accepted in our society prior to this legislation.
CSIS's interpretation of terrorism includes what has been in the past considered political dissent. In CSIS' 2001 Public Report dated June 12, 2002, it is stated:
Canada is confronted by domestic terrorism issues related to Aboriginal rights, White supremacists, sovereignty, animal rights and anti-globalization issues.
The PSAC and the labour movement have been outspoken during political debates and opposed government policies in areas as diverse as international trade agreements, privatization, Aboriginal rights and the rights of equity groups.
CSIS's interpretation of activity that can be defined as terrorism stifles political protest and its chilling effects cannot be understated.
The ATA amendments to the Privacy Act, Security of Information Act and the Canada Evidence Act have chipped away at state transparency, public accountability and the right for the public to be informed. Enforcement and security organizations have powers to be more intrusive in people's private lives.
Yet, there are few mechanisms to protect individuals from this intrusion. For example, the new secrecy provisions of the Canada Evidence Act prevent the Commissioner in the Arar Inquiry from making public any ruling to keep documents secret on national security grounds.
Another example is the ability of the RCMP to obtain a warrant to raid the home of Ottawa Citizen reporter Juliet O'Neill under the new Security of Information Act, formerly the Official Secrets Act. Ms. O'Neill had been critical of the police investigation of Mahar Arar in her reports for the newspaper. It is important for the public to have information and allow for public debate on fundamental human rights and civil liberties.
The measures under the ATA and other legislation such as the Immigration and Refugee Protection Act, Public Safety Act and in the non-legislated measures such as the Smart Border Action Plan and the Safe Third Country Agreements are complicated and intrusive on civil and human rights.
The review of the ATA should take a holistic approach and take into consideration any measure that form Canada's anti-terrorism response. For example, the IRPA has security certificate provisions parallel to those under the ATA. The IRPA denies the right to due process and to a fair and open trial to non-citizens suspected of representing a risk to national security.
The Smart Border Action Plan is also of great concern because it deals with the creation of integrated databases, data mining and airline passenger risk assessment screening , including the creation of ``no fly'' lists, as well as all information sharing agreements with the United States.
The Safe Third Country Agreements have already negatively impacted the ability of refugees to claim refugee status in Canada if first claiming status in the United States. These acts and measures pose not only a major threat to human rights, civil liberties and due process but also contribute to the erosion of power and authority from our democratic institutions such as the judiciary and legislature to a handful of ministers.
Such delegations of authority are open to the arbitrary and potential abusive application of secret powers through ``orders in council,'' ``regulations'' and ``security certificates'' that are not subject to adequate oversight and parliamentary approval.
[English]
It must be noted that union members whose jobs require them to cross the Canada-U.S. border on a regular basis have asked to be transferred to other areas of work so as not to be faced with the ongoing sense of being under suspicion or special scrutiny as a result of their name, colour of skin or religion. Unfortunately, hard statistics are not available to document the extent of this problem, whether in the workforce or at Customs and Immigration entry points, as few people are prepared to come forward with complaints for fear of calling more attention to themselves.
Although not directly related to the Anti-terrorism Act, federal public service workers who are applying for or seeking other positions of employment in the federal public service may also experience racial profiling.
Although security clearances existed prior to the Anti-terrorism Act, there appears to be greater scrutiny as the security agenda of enforcement agencies continues to expand. There is a need for a detailed analysis of whether workers are being denied positions due to these security checks, and if so, whether there are effective recourse and monitoring mechanisms in place.
This need is only further reinforced by the recent high-profile case of Bhupinder Liddar, a public servant whom CSIS declared a security risk after he was appointed to a diplomatic posting to India in 2003. In a secret report obtained by The Globe and Mail and other news organizations, Paule Gauthier, the former chairperson of the Canadian Security Intelligence Review Committee, SIRC, found that she was purposely misled by CSIS in an attempt to shield the spy agency from fallout that might prove to be embarrassing to the service in the context of Mr. Liddar's appointment and its subsequent suspension.
The article outlines Madame Gauthier's criticism of the quality of the investigation and the fact that investigation notes have been destroyed so they could not be reviewed. That is from The Globe and Mail article of September 14, 2005, under the headline ``Watchdog `misled' by CSIS: Secret report blasts agency's investigation of public servant deemed a security risk.'' The reporters were Bill Curry and Colin Freeze.
The above-mentioned report from SIRC is important in light of the changes to security clearances required for employment in the federal public service. For example, Transport Canada has proposed extensive security clearances for airport and marine workers. The clearances for marine workers include tracking of detailed personal information such as information about spouses, common-law partners, ex-spouses, ex-common law partners, mothers, fathers and in-laws. They also include criminal checks, law enforcement and intelligence checks, CSIS security assessments, immigration and citizenship status checks and credit reports. Transport Canada is also proposing to expand the security clearance requirements to workers who oversee air cargo and other sectors.
It should be stressed that this impacts not only immigrants, some of whom will have difficulty in obtaining documentation from their home countries, but also workers who have been posted overseas or who have visited other countries for more than three months. However, immigrants and workers may not receive the attention of the media since many of these cases are not high profile; yet the impact is the same: loss of employment and stigmatization.
This is a major concern to all workers in Canada who are at risk of not obtaining security clearances and losing their jobs. Furthermore, security clearances are very invasive. Investigators scrutinize the personal and private lives of individuals. These clearances required for security may not even be related to the work performed.
PSAC believes that the unnecessary invasion of workers' privacy in order to obtain security clearances is at odds with employment equity initiatives. The requirements of security clearances such as obtaining documentation from other countries are a barrier, particularly for immigrants and racialized workers, to obtaining initial and further employment in the federal public service.
The extent of this barrier is as yet unknown since this information is unavailable. The danger of the Anti-terrorism Act and other measures is that they will become permanent and/or models for other legislative changes. These measures give unprecedented investigative and discretionary powers to enforcement and security organizations. There is no sunset clause that would allow Canada to go back to a time when fundamental values and constitutional rights could be restored. The legislation and its implementation need to be monitored and decisions vested in the government, and its ministers need to be subject to third-party review.
James Turk, Executive Director, Canadian Association of University Teachers: The Canadian Association of University Teachers represents more than 48,000 academics at more than 100 universities and colleges across Canada, and we are pleased to have the opportunity to be with you today. I am joined by Ms. Webb, Legal Counsel to CAUT, who played a significant role in the preparation of our submission to you.
Your committee has a special and difficult responsibility in considering the review of this act. It is a special responsibility because, arguably, this legislation goes further than any legislation in memory in changing the balance between civil liberties and the powers of police and security authorities. It is a difficult responsibility because you are being asked to review legislation that is daunting to read — it is 186 pages long — and even more daunting to figure out the implications of because it amends about 20 other pieces of legislation.
Preparing this brief for you was a top priority for the Canadian Association of University Teachers because in our view, the entire purpose of the university is dependent on a strong foundation of civil liberties in a democratic society. We fear that those very civil liberties are being threatened by this legislation. Our advantage over many other witnesses who come before you is that CAUT has as members law professors at virtually every law school in the country, and we have drawn heavily on their expertise in the many areas of law that are affected by this legislation.
I will ask Ms. Webb to go into more detail on this, but to give you an overview we will tell you that the problems this legislation has created, or can create, are so serious that you should be recommending its repeal. We will tell you that there is absolutely no need for this legislation, that the Criminal Code gives more than adequate powers to police and security authorities to do what is necessary to make us as safe as we can be made from terrorism; and second, that there is no need for this legislation in order for Canada to comply with our international obligations save for one small area about which Ms. Webb will tell you. We will also tell you that part of the difficulty is that terrorism is not a legal, but a political, category.
Ms. Webb will tell you that both the United Kingdom and the United States do not define terrorism in their legislation. By defining terrorism, we are introducing into criminal law something that is not there, and that is motive. Mens rea, or intention, is part of criminal law, but the law judges behaviour on the act, not on the motive behind it. It opens the door to a host of fundamental problems that threaten the stability of our entire system of criminal law.
We will finally suggest to you that this legislation gives enormous power to the executive, that is, it centralizes power such that the Attorney General can effectively shut down and prevent the release of information from any body that has the power to compel testimony, including parliamentary committees.
This bill was passed quickly as a result of the horror of September 11. It was felt that there was a need in our country and in many others around the world for precipitous action in the face of these horrible events. However, there was recognition that when something so significant and complex is passed so quickly it needs to be reviewed. The problem you face is that the minister responsible for this legislation maintains that not one error was made in the haste of the fall of 2001 and there is not one comma or period that needs to be changed in it.
We are fearful of what that advice means and have taken the trouble to provide a detailed brief for you. If the committee would like, we would be happy to provide more detail as you undertake your consideration, precisely because this legislation is so difficult and complex. We are happy to draw on the expertise of law faculties across the country in helping your committee get to the bottom of various aspects of this law and their possible implications.
Maureen Webb, Legal Counsel, Canadian Association of University Teachers: I will begin with the first point raised by Mr. Turk: There are no gaps in the criminal law or in Canada's international obligations without the Anti-terrorism Act. Prior to the passage of the ATA, the Criminal Code had more than enough provisions and principles to cover the phenomenon popularly known as ``terrorism.'' We list these at page 26 of our brief. I do not have time to take senators through them, but rest assured our law professors across the country have been looking carefully at this question. A thorough explanation of how the Criminal Code more than adequately covered acts related to terrorism can be found in our brief.
Not only are the offences provisions adequate to cover the phenomenon known as terrorism, but also the law of incomplete offences in Canada is extremely broad and casts a wide net around all those persons assisting terrorists. We describe that at page 27 of our brief. There are more than enough sentencing principles in the pre-existing criminal law to ensure that tough sentences are meted out to people who commit terrorist acts. We describe that at pages 29 to 30 of our brief.
We testified before the House committee last week. We have yet to see or have explained to us what the government intends when it claims that there are gaps in the pre-existing criminal law. I have not come across a list of the alleged gaps, and certainly our experts say there are none. I understand that this is also the view of Mr. Serge Ménard, member of the House committee, who was Solicitor General of Quebec for many years as well as a criminal lawyer. He was acting at a time when Quebec was fighting the biker gang wars.
The ATA is not necessary to the fulfillment of Canada's international legal obligations. This is an assertion that government officials often make, but when one studies what those international obligations are, it becomes clear that Canada had fulfilled them prior to the passage of the ATA. What do those international obligations consist of? There are 10 international terrorism conventions that Canada has an obligation to implement, along with Security Council Resolution 1373, which was passed in September 2001. The terrorism conventions target specific criminal acts related to the phenomenon of terrorism, such as hijacking, bombing of public places and hostage-taking. These conventions ask that states criminalize such conduct and make it subject to their universal jurisdiction. I am sure senators are aware that when a country asserts universal jurisdiction, it means they can prosecute and punish crimes no matter where, or against or by whom, they were committed. These 10 international terrorism conventions ask that states comply in this way. Security Council Resolution 1373 also asks that specific criminal acts related to terrorism be criminalized, although it does not ask for universal jurisdiction.
All of the conduct referred to in the 10 international terrorism conventions and Security Council Resolution 1373 was criminal prior to the passage of the ATA. All of the conduct that those instruments required Canada to assert universal jurisdiction over were subject to Canada's universal jurisdiction prior to the passage of the ATA, with one small exception that we have identified with the help of our legal faculty across the country. Canada had no universal jurisdiction over bombing offences that did not constitute crimes against humanity. For example, all of the bombings that occurred in Madrid, London and Bali would probably constitute crimes against humanity. Hypothetically, there could be either failed attempts or bombings that had few casualties connected to them and so they would not be considered crimes against humanity. The Convention for the Suppression of Terrorist Bombings requires that Canada assert universal jurisdiction whether or not the bombings constitute crimes against humanity. This was one small jurisdictional gap in the pre-ATA scheme.
This gap is filled by subsection 7(3.72) and section 431.2, added to the Criminal Code by the ATA. We say that these two sections are the only ones necessary in most of the ATA's 200 pages to fulfil Canada's international legal obligations and to criminalize terrorist conduct. The rest of the ATA is either redundant because of pre-existing law or goes far beyond what Canada is obliged to do under the international instruments. We detail that concretely in our submission.
The second point raised by my colleague was the problems of trying to define terrorism and inserting this essentially political concept into what is an important legal framework. I think it is remarkable that the terrorism conventions and Security Council Resolution 1373 do not define the term ``terrorism,'' and they do not require Canada to define it. As I mentioned, these instruments focus on the criminal acts associated with the phenomenon of terrorism. They do not define terrorism but they claim that these acts should be criminal and should attract universal jurisdiction and severe sentences, regardless of the motive behind them. The international instruments ask us to criminalize them and subject them to universal jurisdiction, regardless of the motive behind the activity. One could take hostages in pursuit of $1 million to retire on, but it would not matter because the focus would be on the activity and not on the motive.
Without being obligated to do so, Canada has attempted to define terrorism and to insert this into the Criminal Code and other pieces of legislation. In the area of criminal law it has led to a real nightmare. When the definition of terrorism is used to define criminal offences, you begin to focus not on the activity but on the motive behind it, and you introduce motive as an element of a crime. In other words, you introduce it as something that the Crown must prove beyond a reasonable doubt in order to establish the crime.
When you do this you change the whole shape of criminal law. Motive as an element of a crime, and not merely as a consideration taken into account at sentencing, is foreign to both domestic and international criminal law. In the ordinary criminal law, the fact that you embezzle money for greed, revenge or to make a political statement is irrelevant to whether you are guilty of theft. The Crown has to prove mens rea, or intent, but that is a different concept altogether from that of motive.
When you attempt to define terrorism you are not only introducing the idea of motive into criminal law, but also a particular kind of motive. You are saying that acts done for particular kinds of political or ideological motives are terrorist acts and that the Crown has to prove beyond a reasonable doubt that particular kinds of political or ideological motives existed in order to prove guilt.
For decades the experience has been that it is impossible to come up with a formulation that distinguishes between targeted political and ideological motives and the ones that you are willing to let go.
Definitions of terrorism cannot help but be either over-inclusive or under-inclusive; over-inclusive in that they include civil disobedience or violent acts directed at oppressive governments or occupations, or under-inclusive in that they fail to capture violent conduct against civilians that ought logically to be included but is not for purely political reasons — conduct by state actors or quasi-state actors. Therefore, we would submit it is impossible to define terrorism in a legally consistent and applicable way.
Our contention is borne out by the experience of the UN. The UN has debated the meaning of terrorism for decades. More recently, since 9/11, there has been enormous pressure on the UN to finish a comprehensive treaty on terrorism and come up with a definition of terrorism in the fall summit on the UN reforms this month.
Despite that pressure and intense efforts to reach an agreement on a definition of terrorism, the efforts have fallen apart again. States are still debating whether Palestinian suicide bombers, Israeli tanks in occupied territories or American activities in Iraq constitute terrorism or not. Even the UN, under intense pressure, has not, over decades, been able to come up with a workable definition.
The result, when you overlay a terrorism framework on the Criminal Code, is this incredibly complex, convoluted, vague and manipulable scheme that can never be fixed. You can tinker with it as much as you like but you will never be able to fix it because it is inherently flawed conceptually.
The government has also repeatedly made assertions that the ATA is a carefully balanced law. However, we would submit to you that it is not balanced at all. It violates many of the principles of the Universal Declaration of Human Rights; it violates many important Charter guarantees. It is perhaps one of the most serious threats we have ever seen to the essential liberties that make Canada a democratic society.
Ben Franklin is credited with having written that those who would give up essential liberty to purchase a little temporary safety deserve neither safety nor liberty. I think it is highly questionable whether the ATA buys us any temporary safety. There is nothing in it that would deter suicide bombers. There is nothing in it that helps police penetrate the circles in which terrorist acts are planned; but what is quite clear is that it undermines our essential liberties in an extremely serious way.
Those essential liberties include things like pluralism, centuries-old legal protections in criminal and other processes, individual civil liberties like freedom of association, freedom from unreasonable search and seizure, freedom of expression; and important institutional balances that I would think parliamentarians would be concerned with — things like the separation of powers, judicial review, freedom of information and accountable government. These essential liberties are the necessary conditions for our individual and collective security.
When the government says that the ATA is Charter-proof, they do not mean that it does not violate Charter guarantees, which it does in abundance, but rather that they think that courts will uphold these violations under section 1 of the Charter because of the pressing concern of combating terrorism. That is a dangerous argument for committees like yours to entertain because, first, courts have been notoriously weak in times of national security at upholding an independent line from the executive branch of government. We know this from the experience in South Africa and in the U.S. during the Second World War.
One cannot count on the courts to do one's work for one; but more than that, legislators like yourselves are the first line of defence and it is your responsibility to look at an entire act and assess it in a timely manner in a way that courts will never be able to do. They will never be able to look at the entire act and fully assess its dangers.
Those dangers include things that are even more insidious than individual violations of Charter rights. In our brief, we spend quite a lot of time on a study done by a professor, formerly from Tel Aviv University, who has looked historically at draconian laws in various countries and tried to describe what happens once they are enacted — and they are usually enacted as temporary legislation or reviewable legislation like the ATA.
He finds that in almost every case, they become permanent laws. Their provisions intensify. The numerous restrictions that are initially put on them to hem them in and protect normal legal rules or individual rights wither away. They function-creep; they start out being used for one purpose and increasingly are used for others.
The executive branch of government, in particular, becomes accustomed to their use so they start using them more often. They pave the way for new and more extreme laws. They become the new normal, on top of which more laws are added in increasing doses over time.
Most important, and I think this should concern members of Parliament from each party, they change permanently the structure of government. Most particularly, they concentrate enormous amounts of power in the executive branch of government at the expense of the judicial and the legislative branches. Over time, this power accretes and becomes impossible to unravel and rebalance. When the alarm bells about what draconian laws have done to a society finally go off, it is often too late to do much about it. That is why we urge you to look carefully at this law.
It is an extremely complex law. You have spent days and days hearing government witnesses telling you that it is not dangerous, that it has been carefully thought out, and giving you generalities. One thing our brief can do is take you through the nuts and bolts because our members have the legal expertise to draw the map and show you, issue by issue, what is really underlying the assertions that the government is making.
The Chairman: Thank you very much, Ms. Webb. We appreciate that and all of the briefs.
Senator Andreychuk: I would like to thank both of the presenters for their thoughtfulness and the detail that I think we will have to look at. In light of the fact that I have another committee, I will ask a short question, Ms. Webb.
I think you are right that we have moved the yardstick as to what is acceptable for an executive and have created powers that we would not have given to the government under normal circumstances. In the research that all the professors have done, has there been any study to point out that we have started to use these tools within our criminal law for purposes other than terrorism? Alternatively, are we using the label ``terrorism'' in a way we would not have before the law came along?
Ms. Webb: It is early days. I know the Muslim community has said that they have been visited extensively by CSIS; and CSIS tells people that if they do not cooperate they will be hauled into an investigative hearing, so they are threatened with provisions under the ATA.
We know from the Arar commission that one of the most alarming sections in the ATA has to do with the amendments it makes to the Canada Evidence Act. It allows for things like secret trials, secret court records, secret accusers; the identity of the ministers and the prosecutors can be kept secret.
The existence of a hearing can be kept secret. This is a Kafkaesque situation.
Capping that secrecy regime is this extraordinarily arbitrary power of the federal Attorney General to block disclosure of information about any proceeding in the country in which evidence can be compelled. That includes your own proceedings. That includes parliamentary proceedings; not only public inquiries, criminal trials and administrative proceedings, but also Senate and House of Commons parliamentary committee proceedings. We go into some detail about the kinds of things that governments might want to block, and the power to do this is virtually unfettered.
We take you through that in our brief, but if the AG says something has to be secret, he has the power to make it secret. We saw the first example of this in the Arar commission, an important public inquiry that has a serious and time-sensitive mandate to fulfil. The AG has moved to block the first disclosure by the commission of its summaries of in camera evidence and the 55-page decision of Justice O'Connor.
This threatens to tie the commission up for years in the courts. The commission has decided that, although this was supposed to be a public inquiry, rather than try to disclose anything it will move straight to its final report. There is great fear on the part of the commission. Ron Atkey, a former member of SIRC, has said that they fear that the Attorney General will use his power under section 38.13 of the Canada Evidence Act to veto disclosure of the final report of the Arar commission.
That is outrageous. It is serious, and it could be used for all kinds of things. It could be used to hide government wrongdoing, to hide sponsorship scandal-type material, tainted water scandals and financial improprieties. There is no requirement that the veto be in the public interest. There is virtually no test, except for what the government wishes to keep secret. That is an example that should be particularly alarming.
Senator Smith: Mr. Cashman, you had a strong objection to security clearances. Are you opposed to security clearances across the board, or in what kinds of situations do you think they are warranted and justified?
Mr. Cashman: We certainly are not opposed to security clearances. It is the way that the clearances are being conducted to which we object. I can give you some examples, if you would like.
In our paper we spoke about the marine transportation workers. Clearances for federal government workers originate from the department but through CSIS. Transport Canada is now setting up its own agency to do these clearances, not necessarily in concert with CSIS, so there is a parallel process going on.
Senator Smith: Who would you have do it?
Mr. Cashman: We believe that there should be a central agency and that the rules should be established clearly for all to understand.
Senator Smith: You do not object to security clearances per se?
Mr. Cashman: No.
Senator Smith: Ms. Webb and Mr. Turk gave a very studied and thoughtful presentation.
Were you here this morning?
Mr. Turk: No.
Ms. Webb: No.
Senator Smith: We had lengthy presentations from the Canadian Jewish Congress and B'Nai Brith. B'Nai Brith says that the threat of terrorism is real and immediate, not just to their community but to Canadians of all religious and ethnic backgrounds and that the response has to be commensurate with the clear and growing danger of terrorism on Canadian soil.
Of course, they are also concerned about the rise in incidents of anti-Semitism — vandalism at synagogues and things of that nature. The Canadian Jewish Congress says that they believe that terrorism is a real and present danger, necessitating the clear, cohesive and adequately funded responses of the ATA and corollary statutes. They do not think we should overreact, but that we certainly should not under-react. B'Nai Brith thought we should be a little tougher.
No one wants to pick on a particular group, but the Jewish community is very concerned, and we all have memories of the terrible things that happened years ago. Are they missing something? How would you respond to the briefs that they so articulately presented to us?
Ms. Webb: We agree that terrorist acts are heinous and that their perpetrators should be brought to justice if possible, but I would ask you, and them: Which provisions in the Anti-terrorism Act deter or prevent terrorism? We asked this of the House committee last week. They had no answer, although they had heard weeks of government testimony.
This overlay of the terrorist definition in the Criminal Code does nothing to deter suicide bombers. It opens the door to capturing a lot of ordinary political activity under the criminal provisions, but it has no deterrent effect. None of these provisions, we submit, give police the ability to penetrate the circles where terrorist acts are planned. Good intelligence, people who speak the right languages, people who understand the right communities, people who are able to infiltrate circles, good police work and good intelligence work would help prevent terrorist acts, but none of the provisions of the Anti-terrorism Act do that.
Mr. Turk: Since September 11, we have all responded in horror and felt the urgent need to do something in the face of terrorism. Looking back some years later, the question is whether there is anything in this act that is necessary for dealing with the actions that we call terrorism. Our submission, despite the presentations you heard this morning, is that the Anti-terrorism Act does not, on the one hand, give authority that did not exist previously under the Criminal Code, whereas, on the other hand, it introduces a lot of other things in the name of fighting terrorism that potentially and fundamentally can undermine our civil liberties.
I am surprised that those who are using the threat of terrorism to urge you to accept this unprecedented attack on civil liberties do not have a better historical recollection, because that kind of unrestrained centralization of power in the executive is the very instrument governments that did horrible things, including to Jews, used. Our struggle is how to maintain a balance despite the outward pressures on us, to protect our democratic traditions and our balance of judicial, legislative and executive authority.
The danger and the worry is that the best-intentioned people are trying to stampede us into an uncritical acceptance of things that we think will come back to haunt us and undermine our democracy. That would certainly be my reaction to the recommendations you heard this morning.
Senator Smith: I am not arguing with what you say. I am just trying to have people air their thoughts.
Mr. Turk: I understand.
Senator Smith: Two weeks ago I was at a Commonwealth parliamentary conference. I was at the same one a year ago, because it is an annual event, and they had it in Toronto. This one was in the South Pacific. Two years ago it was in Bangladesh. It was interesting, in that we had had sessions on this subject before and you could sometimes sense a little difference in the approach of the Conservative MPs from some of the Labour MPs as to how they would respond, and then the London bombings occurred. After that, there was no difference at all. They were both trying to come to grips with what we have to do to ensure that such events do not continue. I am not talking about specific words here; it is more the music than the exact words. That is something that we cannot totally ignore — the feeling of the Canadian public that we are doing everything that can reasonably be done without fundamental breaches of our traditional civil liberties, et cetera. This is a challenge that never ends.
Mr. Turk: The point you make, Senator Smith, is absolutely essential. We cannot do anything in the face of these actions. On the other hand, the special responsibility of our parliamentarians is not to be driven by a kind of herd mentality in the face of horrible things. In a representative democracy, the House and the Senate are bodies that need to take the time to look at the larger implications. After horrific actions, whether it is the London bombings, Madrid or 9/11, there is a desire to leap ahead and do something. That is why we are so happy there is this three-year review and that you are looking at this so seriously. In responding to that and telling Canadians we are responding, we do not want to do things that undermine the basis of our democratic society. We think that is the danger in the ATA.
Ms. Webb spoke about some of the things that need to be done. We do not need this legislative change. We do need better policing and resources for police to do their jobs, better training and better understanding of how to create diversity within the police force so that we can penetrate various cells and groups. There is much that needs to be done. We are here to say to you that the Anti-terrorism Act is not part of what needs to be done. It causes grave threat to things that we value without solving a problem that everyone is worried about.
Senator Fraser: You all make an eloquent case. Mr. Turk and/or Ms. Webb, you make it plain that you want almost all of this law jettisoned. Assume for the purposes of my question that that does not happen. A number of people who appeared before us, including, if memory serves, the Canadian Bar Association — but do not hold me to that — have suggested that it would be useful and healthy if, in the various procedures that are conducted ex parte, where the subject of the proceeding is not allowed to be there, if there were a friend of the court present. That is, if there were a requirement that there be someone there to make the case against going ahead. Do you think that would be a useful tool? Remember, I am assuming for the purposes of this question that we cannot just kill the bill off.
Ms. Webb: I know Paul Cavalluzzo from the Arar commission was saying that they had developed ways of cross- examining CSIS and other security agencies in camera that they thought would be effective in testing secret evidence.
Yes, there will always be national security concerns in proceedings, and legitimate ones. The question is how to prevent officials from using national security as an excuse. Laws existed before the ATA. There were exceptions for disclosure of national security evidence in the Freedom of Information Act, the Privacy Act and PIPEDA. The ATA suspends all of those regimes and puts in a new one, and it does some absurd things. The Chief Justice of the Federal Court was complaining about the ATA amendments that made court records and judgments secret. The judges in the Federal Court did not even know if they could read or share judgments that they had written that were going up to the Supreme Court of Canada. That is how badly drafted and absurd the legislation is. It is all a new overlay on top of existing law that already dealt with national security, but there was oversight. There were regimes that gave judges, freedom of information commissioners and privacy commissioners some oversight capacity of the national security arguments that the government was making. We would argue that the pre-existing regimes were more than adequate, well balanced and had appropriate oversight mechanisms. The new regime that the ATA imports is really carte blanche. We give a detailed description of it; I would encourage you to read it.
Senator Fraser: I have been going through it.
Ms. Webb: The issue that caps all of the secrecy provisions is section 38.13 of the Canada Evidence Act, which allows the federal AG to ban the disclosure. Even if the Supreme Court rules that there is no national security issue here and the material should be disclosed, the federal AG can move in and say, ``No, I overrule the court.'' That is an alarming prospect; namely, that the government can have anything banned just on their say so. They do not even have to give a public interest reason for not disclosing information.
As to a friend of the court, I know it has been talked about in connection with national security certificates, and I take it that the House and Senate committees have the mandate to look at national security certificates? I know that the House has.
Senator Fraser: We can consult our chair on the breadth of our mandate.
Ms. Webb: That may be a discussion, but you must understand the bigger picture. That is why we say, ``Get rid of section 38.13,'' no matter what party you belong to. You might trust your own party at the moment, but another party will be in power another day. It is antithetical to government accountability.
Mr. Turk: You are faced with the difficult task of dealing with this extraordinarily complex piece of legislation. There are two ways you can look at it. First, you can require anyone who tells you to take a particular part out to justify that. We would be happy to do that piece by piece. We would encourage you to ask anyone who maintains, as the government is currently, that the bill is fine, to justify any piece that should be left in. They should be able to clearly explain to you why that piece is necessary, why the powers that it allegedly provides did not exist previously. It is hard to get down to that level of detail.
I think you will come to the same conclusion as we have, that there is almost nothing in this act that is necessary.
Senator Fraser: I have been reading this while I have been listening. You do go into a great deal of detail, and I take your point, Mr. Turk.
I have two more questions. I will keep them tight, and I will ask you to keep your answers tight. I know that Senator Joyal has been waiting patiently, and for all I know, so is Senator Stratton.
First, a number of witnesses, and indeed the first iteration of this committee, have suggested a parliamentary officer with oversight of everything covered in this bill. Do you think that is a useful idea?
Ms. Webb: There is the national committee of parliamentarians.
Senator Fraser: No, this would be an officer of Parliament akin to the Official Languages Commissioner.
Ms. Webb: Our position would be that there should be an oversight body for all security and anti-terrorism powers and authorities. That is what the Arar commission will be recommending. It is looking at that issue of oversight.
Senator Fraser: Did you just give us a scoop?
Ms. Webb: I doubt I did. That is one option that they are considering, and it exists in other countries.
Senator Fraser: Second, on the matter of the famous definition of terrorist activity, many witnesses have suggested that we should use the UN definition because they do not like the fact that our definition includes motive. My own bias is that I love including motive because, as has been rightly pointed out, motive is so hard to prove. If you do not prove it, your case is lost and you are back to the regular business of the law. If we do not recommend jettisoning this law, which do you prefer — a definition that makes it harder to use this law or the UN definition?
Ms. Webb: The UN definition has not been agreed to. There has been a recent proposal, but they were supposed to come up with a definitive definition this fall, were they not?
Senator Fraser: There is one that is regularly cited to us, and someone else can give you the precise reference.
Ms. Webb: One has been floated. While they are looking it up, I would say that there should be no definition of terrorism in the criminal law.
Senator Fraser: Terrorist activity.
Ms. Webb: Or terrorist activity, because it is the act that should attract guilt, regardless of motive. The Crown will have to prove motive. If they fail, the person will be acquitted, so there may be guilty people who go free. There is a real danger under this law that not only will the innocent be charged, arrested and convicted, but also people involved in ordinary political activity, like farmers in a cavalcade going down the highway or people selling milk to globalization demonstrators. The ATA can capture all that activity, but guilty people could go free because the Crown must prove beyond a reasonable doubt the motive as well as the act and the intent in a terrorist act. When people are acquitted, they will go free. You cannot then charge them again under the Criminal Code. That would be double jeopardy. I do not see any advantage either way to having a definition.
Senator Fraser: Thank you. It is the definition from the UN Convention on the Suppression of Terrorist Financing. I thought so, but was afraid to say so out loud. It was adopted by the Supreme Court of Canada in the Suresh decision.
I thank you very much. That is instructive.
Senator Stratton: It has been fascinating listening to you. As many people here know, whenever we receive a piece of legislation in our chamber, I always come from the position of why do we need this law. For the libertarians of the world, hearing what you said this afternoon would be music to their souls.
However, we must look at the reality, namely, the law is here, as Senator Fraser has said, and will likely remain. If you had — and I am not expecting an answer necessarily now — your druthers, because I believe that we should take those sections out that we do not need, what would you remove by priority? Do you have a sense of that that you could give me? Yes, we could kill the entire bill, but that will not happen. What would you like to see removed?
Mr. Turk: Ms. Webb will answer your question more directly. I want to preface her remarks, however, because we were asked the same question in the House subcommittee.
Starting from the premise that the bill will stay is most unfortunate if indeed we are right that there are virtually no redeeming aspects to it and many dangerous ones. Although we will answer your question, we would rather maintain strongly that our position that this bill should go is not a bargaining position so we can remove some of the more negative provisions. It is an attempt to say to you as honestly as we can on behalf of the academics of this country that the dangers here far outweigh the benefits and that the best thing that this Senate committee and this Parliament of Canada could do would be to say, ``We made a mistake. This bill is not necessary. There are things that are necessary to protect us against terrorism and we will do those, but this bill was conceived in haste, was well intentioned but, on reflection, was a mistake.''
Senator Stratton: I think for the foreseeable future, because of the way things are, particularly after London, that this law will continue. I do not like it, and it is good to hear that you do not like it. What about a sunset clause? What about saying that after a number of years, it ends? If we do another review in three years, we will continue on. I think that if we want to do something concrete, there should be a sunset clause so it ends on a certain date. Would you recommend that?
Mr. Turk: A sunset clause is better than not having a sunset clause. Taking out the more odious parts of the bill is better than doing nothing. Certainly a sunset clause is preferable to simply another review, which would continue it on.
Ms. Webb: I think a sunset clause would do far more than a review because you would have a situation where each provision would have to be justified before it was re-enacted, and then there would have to be careful clause-by-clause analysis.
Senator Joyal: Welcome. I will start with the Canadian Association of University Teachers.
I understand from the first line of your brief that you represent 48,000 teachers. That is a fair-sized group of Canadians all across the country with a high level of credibility — from universities. How do you explain that in all the points that you have raised, including that the first victims of terrorism are the people who were the object of the anti- terrorism measures, there is always that discrepancy in Canadian public opinion between the fear of terrorism and the readiness to sacrifice part of their liberty if they can be assured or convinced that they will be better protected? How do you explain, as teachers — especially university teachers — that in Canada, a country with such a long tradition of a ``culture of rights,'' that people still feel ready to abandon some of those rights in lieu of security?
What have you done over the past three years to address that situation? One of the minister's key arguments when she appeared before the committee was to quote some statistics on how well those measures were received by Canadians. Certainly we are able to discuss any sections, but first we must address the context in which the bill would be implemented on any given occasion.
Mr. Turk: Prior to beginning my work at the CAUT, I taught for many years at the University of Toronto. One area in which I did a great deal of work was the social history of the Cold War period. Canada, like virtually every other country in the world, has a long history of the very problem that you have identified. In periods of crisis and great fear, abstract commitments to civil liberties are often sacrificed. People are willing to sacrifice them to purchase what they think will be some security. The immediacy of security can easily trump a philosophical commitment to civil liberties. We saw that in the internment of Japanese Canadians during World War II. We saw that in legislation against communists and left-wingers introduced in the aftermath of the First World War. In the United States and Great Britain we have seen any number of occasions when public fears led to a sacrifice of theoretically important protections. One of the reasons we have the kind of parliamentary system we do is so we do not hold a referendum immediately after a vote and everything goes out the window. In our parliamentary system, legislators such as senators can not only look at the immediate concerns, but also balance them against what they understand to be necessary to protect our democratic society. Such balancing needs to be done.
We are saying to senators today that this legislation, in the name of trying to fight terrorism, in fact tips the balance in an unacceptable way while not making any appreciable changes to any legislation that will be helpful in fighting the acts of terrorism that we all abhor. We are endangering our traditions of civil liberty and of balance between the three arms of government to try to buy protections that we will not be able to purchase. In far more repressive societies than Canada will ever be, I hope, terrorism has not been prevented by the passing of laws because many other kinds of actions need to be taken. There are ways to do it, but this kind of legislation is not one of them.
We began speaking about this when the bill was initially introduced. We have had discussions with faculty across the country. The Harry Crowe Foundation, a charitable foundation, will host a conference on academic freedom post-9/11 at the end of October in Toronto. Many of the leading experts from Canada, the United States and Europe will speak to the dangers in reactions of this kind. We are trying to educate about it but we have to deal with the same thing as this committee. There is an enormous, understandable revulsion against these kinds of actions and a fear of what we can do about it, but this is not new. I would recall your attention to where Ms. Webb started, with Benjamin Franklin's quotation. There have been any number of times in our history, and there will be again, when we thought we could purchase security by unduly limiting civil liberties. We do not succeed but we do threaten civil liberties in a way that changes the character of our society. Some of us would argue that we could end up with the kind of society of which terrorists are exponents; and we do not want that to happen. We are arguing for something in principle at a time when people are frightened and desperate.
Senator Joyal: I call that the ``reality test.'' Individually and collectively, senators on this committee have wrestled with that in discussions on the first draft of the bill. We made recommendations then, and now we are at the second stage with this review. Some sections of the bill have not been utilized, especially ones that speak to investigative hearings and powers that some want repealed. The investigative hearing might have been used once in respect of the Air India bombing.
We could reach a consensus with you and share your apprehensions about the dangers in one of the other aspects of the bill. However, we must face the reality, as you recognized, that Canadians need assurances that the government is doing all it can, because over the last three years we have all seen other incidents of terrorism, such as in London last summer, in Madrid and in Bali. As well, we have seen what is happening in Iraq, which has become a place of training schools for terrorism. Witnesses appeared before the committee, some from CSIS, who spoke to that very issue. We cannot say that terrorism is on the wane or has disappeared; on the contrary, it still exists. Any government in Canada would have to face the reality that Canadians are expecting initiatives to answer their fears while balancing those measures with the traditions and protections that they enjoy.
There is no question that this bill contains strong limits on those traditions and protections. It is the role of the committee to monitor the use of those exceptional, or exorbitant, in the legal context, powers and see that they are not used for the sake of enhancing the power of the executive, to be used for any purpose. It would be difficult for this committee to recommend that the act be repealed if we are not, as Senator Stratton said, into an intermediary stage. At that stage, we would have to monitor closely the use of those exceptional powers on a daily basis, having built into the system the necessary safeguards and protections. In that way, we could send a message to government or the executive that any use of such powers would be closely monitored. We are caught in a conundrum because the fear is real. We cannot deny its existence, and the recent events in London prove that.
However, I agree with you that some of those measures would have a limited impact on fighting terrorism. You cannot eradicate terrorism by simply passing legislation stating that from this day forward there is to be no more terrorism. As I mentioned to this morning's witnesses, the United States had a great deal of information prior to 9/11 that, if properly dealt with, probably would have helped to prevent the catastrophe. However, we can only try to make the best of the situation we have, which is difficult.
What kind of support would the CAUT recommend that could help Parliament, especially if we establish a monitoring and oversight body, to ensure on a daily basis that we maintain the awareness among Canadians that we have to fight for the recognition of rights? There is no such thing as passing legislation and rights are automatically recognized.
Mr. Turk: That is absolutely true.
Senator Joyal: What changes could we make to our approach to this situation to help us address the objective that you have stated?
Mr. Turk: At the very least, if you do not recommend repealing it, have a sunset provision so that anyone who wants to continue any piece of it would have to justify it — that would be a useful first step.
Second, as I indicated at the beginning, on behalf of our members we are prepared to assist your committee or the Parliament of Canada in any way we can, drawing on the resources of the university and college faculty across the country, in dealing with these matters. We are happy to do that.
Do not forget that there is no act that we would call a terrorist act that was not already prohibited by the Criminal Code of Canada prior to the ATA. The ATA does nothing to criminalize behaviour that was not already criminal. The challenge for Parliament is to talk about what we can do to make this a safer country. We are saying that these legislative changes are not part of that package. There are all kinds of other things that should be part of that package and we would be happy, on another occasion, to talk about those; but this legislative package does not do anything that is necessary that was not there before.
It is, in a sense, an illusion to give Canadians a feeling that we have done something by passing the ATA that will help prevent terrorism. We have not. We have not criminalized any behaviour that was not already criminal.
Ms. Webb: I think Canadians expect and will follow good leadership. On these issues, people do not know what will make them safer. They are looking to legislators and security experts to suggest things, but the ordinary Canadian does not understand the implications of this act. All they hear are the platitudes.
When Prime Minister Chrétien decided that Canada would not go to Iraq, that did not seem like an inevitable decision. However, when he made it, it was an extremely popular decision among Canadians.
You do not pass a flawed and dangerous act that will then be on the books for years and years just to be seen to be doing something. You will not be able to monitor all of these implications. This act is so loose; as a lawyer, just looking at the Criminal Code sections, these provisions are so convoluted. They give an overlay to the criminal law that makes its principled application very difficult — the complexities and the unpredictable train of criminal liability. Over the next 20 years, there is no way that any kind of oversight will be effective in reining in all of the excesses that are possible under this act.
If you look at the study conducted by Oren Gross of other draconian laws, you just have to read a few case examples to see how quickly this kind of legislation can get away from you.
[Translation]
Senator Joyal: Mr. Cashman, I would like to draw your attention to the middle of page 3 of your submission where the following is stated:
There is a need for a detailed analysis of whether workers are being denied positions due to these security checks ...
Your organization, the Canadian Labour Congress, has made provision for grievance mechanisms in its collective agreements. Since you are federal government employees, you are protected by the Canadian Human Rights Act, as well as by the Public Service Labour Relations Act passed in 2003 which clearly sets out the grievance procedure and the application of the provisions of the Human Rights Act.
The legislation may be invoked and the Human Rights Commission may intervene on a person's behalf, make representations and even appeal an adjudication ruling handed down in a human rights case.
To your knowledge, have there been any cases where the application of security measures should have lead to the filing of a grievance with the board, that is where a person may have felt that his rights and privacy had been violated?
Mr. Cashman: If a person applies for a federal government job and is not retained, that person is not entitled to file a grievance, because he is not considered an employee. However, with respect to his security clearance, recourse is available through SIRC.
However, there was a case recently where it was difficult to get answers. The person in question wanted to know why his security clearance was denied. We had a difficult time finding out what information was on file on that individual and today, that person still does not know why his security clearance was denied because SIRC is not willing to disclose all of the information that would shed light on this situation.
It is difficult for someone who is not a federal government employee. However, a public servant may file a grievance, but here again, if information on file is not shared, if evidence is not forthcoming, it is difficult to counter the findings in the report of the security officer who denied the security clearance.
Senator Joyal: In the past, a person applying for a so-called ``sensitive'' job, that is a position requiring a certain security clearance, had very limited rights of appeal if his application was rejected. That person was refused employment, but under the recognized principles of the Human Right Act, he cannot be discriminated against, that is to say he cannot be refused employment on the basis of his sexual orientation, race or gender.
A person who is discriminated against on one of these grounds has some recourse available. Recently, the Supreme Court recognized the right of individuals to seek redress when actions taken are clearly discriminatory.
However, in matters of security, should there not be a mechanism in place whereby decisions are reviewed by an independent party, if the discretion enjoyed by the administration is exercised objectively and on reasonable grounds, not merely on the basis, for instance, of...
[English]
... racial profiling or national origin, because we do not want to have X,Y,Z in the public service because of national origin or because of religious practice, for instance.
[Translation]
What redress mechanism do you advocate be put in place when cases of discrimination on one of these grounds is noted?
Mr. Cashman: In such cases, we would seek a review by a third party. Let me give you an example. Take an individual who worked at an international airport in Canada prior to September 2001 and who was subsequently was unable to obtain the necessary security clearance. New rules of procedure and controls were put in place for all personnel.
Furthermore, this individual had worked for six months as an English teacher in another country. Because Canada is not on good terms with this country, it could not ask this country's security services, through the SIRC, to investigate the person's activities during this period.
There is no evidence that this person was engaged in any criminal activity during his time abroad. However, given the six-month gap in his file, he was not able to obtain the necessary security clearance and therefore lost his job. It would have been nice to have this person's file reviewed by a third party.
It is a matter of contacting persons to let them know why they did not obtain their security clearance. They have a right to know.
The definition of ``terrorism'' and ``activity'' has also changed over the years. One Canadian Prime Minister was on the CIA's list in his youth because he had visited China in the days when people did not do that.
Today, our security services use standards and criteria which date back to the 1950s to decide who gets, and who does not get, a security clearance. All we are asking is that this list of standards and criteria be updated to respect the rights of Canadians who hail from countries around the globe.
[English]
Senator Joyal: Requesting access to a country is one thing. A country can decide what kind of person it will admit. You need a visa to enter many countries, and they can refuse you a visa. It is theoretically the same for Canada. We can refuse a visa to anyone who applies to come to Canada. Going to another country is not a right. A country gives you permission to stay there for a certain period, or permission to work. It is a different situation when a Canadian applies to the public service or applies for a promotion within the public service. If a Canadian is the object of a decision that is discriminatory in nature or does not afford due process to the person, there are different grounds of appreciation.
I am trying to understand from you at what level there are weaknesses in the system where corrective initiatives should be taken to protect those persons, either when they apply the first time or when, from within the service, they apply for another position that requires a security check and they cannot get the security clearance. I want to learn from you the different stages of protection that a person might have.
Mr. Cashman: That is where a third party would be of great benefit.
Senator Joyal: Could you be more precise about ``a third party''?
Mr. Cashman: In the context of security clearances, the concept of a friend of the court would be good. There would be someone there to watch out for your interests. If there is something on the file they cannot give you, at least a third party other than your accusers would be allowed to review the document and have access to full information.
Senator Joyal: There is currently nothing in your collective agreement that allows you to request that?
Mr. Cashman: I wish there were. We have heard that the Charter may not offer the protections we want, and certainly a collective agreement would not either.
Senator Joyal: Within the present system, one would have to work through the grievance procedure to get redress. It can happen that people are wrongly identified. We have seen that with passenger lists, and a person can seek redress in our system. If people are denied freedom of access to a job or an airplane, there must be a mechanism for them to appeal to have the decision reconsidered and to be informed of the reasons they are refused. That is an essential element of our entire system.
We have included more security measures and at the same time have put into place mechanisms to receive grievances, complaints or allegations that a person has been unfairly treated, such as we have done with regard to air passenger lists. You must have a good reason to deny someone access to an airplane because to fly from one part of the country to the other in Canada is sometimes linked to family issues, the right to work and so forth. We have the right to mobility in Canada under section 6 of the Charter. If you prevent someone from taking a flight on the basis that his or her name is on a list as a security risk, the person has the right to question that.
I am trying to understand the logic of the system with regard to what you have said in your brief.
Mr. Cashman: The danger of the ATA is that there is a belief that it is overarching and decides everything. Some of us believe that the Charter is overarching and that other legislation should fall under it. If you do not respect basic rights and freedoms, then the recourse mechanisms do not exist as they should, and the protections to ensure that peoples' rights and freedoms are respected are not there either.
Seema Lamba, Human Rights Officer, Public Service Alliance of Canada: Staffing issues cannot necessarily be grieved. If someone applies for a promotion and is denied a security clearance, it cannot go through the grievance process.
There is another mechanism, that being the appeal mechanism. The appeal mechanism has very narrow grounds of abuse of authority, official language and something else, I think. There are limited recourses in the grievance process, or even the appeal process.
You could potentially file a human rights complaint with the Canadian Human Rights Commission. There are provisions that if there are security concerns, the commission can refer it to SIRC. We have a case in progress dealing with that, but it has not been completed so we have not been able to assess how effective it is. I am sure we will get more such cases.
Senator Joyal: Do you have any statistics on the number of people who have been turned away on a first application for security reasons? Is there no capacity for them to have the decision reviewed to ensure that it was taken on proper grounds?
Mr. Cashman: The difficulty from a union perspective is that we only represent people who are hired. If you do not get hired, the union does not have jurisdiction to assist you. Even if we had jurisdiction, people would not necessarily know to turn to the union because they did not get the job in the first place.
Senator Joyal: Of course. However, you have not looked into that aspect of the situation? The Canadian Association of University Teachers is concerned about the implications of the legislation. In the federal government, as you mentioned, there are many departments in which a person can be the object of a security check. I do not know in how many departments a security check might be an essential element of maintaining one's job or of being promoted within the public service.
Mr. Cashman: There are many such jobs.
Senator Joyal: This affects applicants, too. I raised the question because I do not believe that we have looked into this before.
Senator Smith: Ms. Webb, am I correct that you are a law professor?
Ms. Webb: No, I am not. I was a fellow at the Human Rights Institute at Columbia University in 2001.
Mr. Turk: Ms. Webb is a lawyer on the staff of CAUT.
Senator Smith: When Mr. Matas was speaking this morning, he pointed out that it is somewhat ironic that prior to 9/11, the most serious terrorist attack anywhere in the world, with the largest number of deaths, was planned, organized and executed in Canada, the Air India disaster. He lamented that there had not been an inquiry. We had a dialogue on this. As you are probably aware, Bob Rae has been asked to study this and report back. I cautioned that these inquiries are sometimes useful but sometimes tend to turn into feeding frenzies for a bunch of lawyers — I regret to say that as a lawyer myself. There was a municipal inquiry in Toronto — a good one — and they racked up over $20 million for a municipality to pay.
In terms of what really happened with Air India — and they did not get convictions — CSIS messed up some evidence and erased tapes and the Mounties did not appear to have been too efficient. Another fundamental problem was that some people who obviously knew things were too terrified to testify. Did you have any thoughts on that? Mr. Matas had a strong hope that an inquiry would be recommended. Do you have any thoughts as to whether there is much point in holding an inquiry some 20 years later?
Ms. Webb: I think there were fundamental flaws in the way that members of the security intelligence organization did their work, just ordinary intelligence work, and kept track of their evidence.
Senator Smith: I think that is clear.
Ms. Webb: The ATA was available when the case was coming to trial and they did use the investigative hearing provisions. How much did that help to get them a conviction?
Senator Smith: It obviously did not.
Mr. Turk: That is right.
I know less about the example that you raise than many of you, except that clearly a failure of police practices caused that problem or contributed to the difficulty they had in getting a conviction. Perhaps even with exemplary police procedures they may not have been able to get a conviction; I am not sure.
As in so many of these things, the problem was not the lack of law that would criminalize the behaviour that led to that event. The problems are probably elsewhere, which is what we are suggesting in dealing with terrorism. We need to strengthen a variety of aspects of how we work to try to prevent these things, but changing the law is really not one of those, even though that may seem like an obvious solution; when you look at it carefully, it is not.
Senator Joyal: Senator Smith prompted me to make a statement.
I wonder, in the case of destruction of tapes and of papers, if it is not the easiest way for any group to what I call ``fly ahead.'' In other words, we see it in the Liddar situation, where the head of SIRC, Madame Paule Gauthier, wanted to look into the case and suddenly the paper was shredded or it disappeared. The same with the tapes of the Air India bombing, which was a serious crime, and suddenly, the police have destroyed those tapes.
What are the rules about keeping the material, the proof, the tapes, the papers and whatnot? It is strange when there is an investigation a couple of weeks after the decision has been taken — the Liddar case is not an old case, dating back 10 years or so, it is a recent case in the last month or so. What happens when somebody destroys the papers? Who gives the authorization to destroy the papers? These are some of the aspects of giving ways to CSIS and the secret services of covering their backs — not to talk about lower parts of the body — when they feel that there is something wrong or that they dropped the ball. Nobody can look into the case because suddenly the proof has disappeared. There is something wrong in the system, Madam Chair. That must be mentioned here. It is not proper that an investigation like the Air India bombing cannot come to any conclusion when there was an investigation by the court because an essential part of the proof is missing. The same is true of the Liddar case, as Mr. Cashman mentioned in his brief this afternoon. That should be part of our recommendation — who is responsible for the paperwork and for authorizing the shredding of the results of an investigation?
The Chairman: We have more hearings to come, as you know, Senator Joyal. We will also be seeking to meet again with the ministers and probably Mr. Judd from CSIS. Those questions can be put at that time.
In your view, would the establishment of an independent parliamentary oversight body be particularly useful or valid? Starting from the premise that you have laid out here about the laws that now exist, would that view preclude the notion that should the anti-terrorism law still proceed, such an office would be helpful?
Mr. Turk: Our dilemma is we see this legislation as fundamentally flawed and changing the character of our Criminal Code by introducing motive into it, and parliamentary oversight, as Ms. Webb said — and perhaps she can elaborate — would not capture well the profound potential effect of this legislation over time. It is a dilemma. There may be certain parts of this legislation for which, if it continues, having parliamentary oversight is better than nothing. However, if it gives Canadians the sense that the fundamental problems will be somehow partially or largely taken care of, I think that is misleading.
If this legislation is continued, then the best thing you could do would be to have a sunset clause for it to be renewed in three years or whenever. Each aspect would have to be justified, rather than, as now, under a review, any aspect you want to get rid of has to be explained away; that is the inertia that leads to the continuation of the legislation.
Ms. Webb spoke to this subject previously and may have something to add.
Ms. Webb: There are so many provisions you can oversee, but the government and the police have the power. How would an oversight officer look at the AG's veto of disclosure of information? The information is never seen. The AG wants to cover up information related to a miscarriage of justice, a defence program, a political scandal, an operational fiasco, a fraudulent vote, and he has the power to do so and does not have to give reasons. What good does an oversight body with those kinds of powers do?
Senator Joyal: The AG might have to report that he has used those powers, according to the legislation. He can skip away by, as I say, shredding all the paper, and we had an example earlier on. However, if the AG, before he resorts to section 38.13, has to keep records, at least there is a record that the power has been exercised in relation to. There is a possibility of keeping track.
Ms. Webb: What if he used the power in relation to the Gomery commission? We would never know. The officer would never be able to expose that.
Senator Joyal: That depends. If we establish the position with the full power of a parliamentary officer, that person can have access to sensitive information and can be informed that that power has been exercised for X, Y and Z reasons and that the minister should be allowed to use it according to the act. If it is merely for administrative or internal purposes, as you said, like the Gomery commission, it has nothing to do with international relations, defence of Canada or national security per se because it does not involve a third party or a group that is criminalized in the Criminal Code. There is a possibility, in my opinion, of having at least a minimal record of the use of that power, if a proper oversight mechanism is established, without jeopardizing the need to maintain confidentiality on some key issues of Canada's security needs.
Ms. Webb: The issue is that if you have legislation that gives government officials carte blanche, which large parts of this act do, it is a small band-aid solution to put in a public officer to keep track of how they use that carte blanche. The carte blanche is the egregious part of the equation. Putting a band-aid on it and saying, ``Let us know how you are using this in a bad way,'' is not helpful. I would challenge you to devise a system where the oversight officer would get to the bottom of many of these issues.
Senator Joyal: It is a question of trying to instil the principle of what I call a balance; that is, the need for the administration to take discretionary measures and be responsible for them. The Gomery commission is looking into the principle of ministerial responsibility and then the balance of other interests, which is, essentially, to remain within the rule of law. To remain within the rule of law, you have to circumscribe the extent to which that discretion exists and make sure that when Parliament delegates that responsibility, Parliament retains the capacity to appropriately monitor the discretion given to the administration. The system lends itself to that kind of logic. How do you define it in practical terms? I agree with you that there might be some difficulty, but the system lends itself to that.
Ms. Webb: However, the rule of law has to begin with the legislation itself.
Senator Joyal: Absolutely.
Ms. Webb: If you give carte-blanche powers, it is not the rule of law.
Senator Joyal: Yes, but it depends on the kind of system that you establish within the discretion that you give to the administration. If you give total, absolute discretion, with no review capacity, no counterweight in the system, then I agree with you that this is a blank cheque and no one has the right or the capacity to monitor the system. If we can do it on the legal basis of security certificates, with an amicus curiae and a judge who is specially trained to look into those issues, with the officer of Parliament, with the proper access to documentation and so on, then there is a possibility of devising a system where there is a counterweight. I agree with you, and that is why we recommended in our first report that there should be some kind of balance. I totally agree with you that what is there now is unsatisfactory. However, we are trying to understand how to reorganize the system to re-establish that counterweight.
Ms. Webb: The ATA is 186 pages long. There are many different provisions. At the end, you were talking about security certificates. There may be specific things that could be done in that context, but to put in an oversight officer who monitors and hears reports on the entire ATA is not an adequate solution because the ATA itself does give unfettered discretion, carte blanche, to police, security and intelligence services and the executive branch of government. Monitoring is not ensuring the rule of law.
For example, would you prefer that the oversight officer see information on a fraudulent vote or a controversial defence program or some other kind of government fiasco rather than parliamentarians? Should the law be set up like that? Is that an adequate check? No.
Senator Joyal: However, there are various checks. There are various officers of Parliament. There are five officers of Parliament who have specific responsibility in relation to the executive government. The Auditor General is one. The Auditor General reports to Parliament and Parliament can decide to receive the recommendation, act upon it or leave it there.
The Privacy Commissioner and Access to Information Commissioner have their own responsibilities within the administration, and there are fights between the government of the day and those officers. We have seen it in the case of the Prime Minister's agenda. That is close to your examples about votes or covering up something. The courts have ruled on this.
We have the other officers of Parliament, the Official Languages Commissioner and the Chief Electoral Officer, who review the way that an act is implemented so that nothing is tilted in favour of one party or another.
There is nothing in the system whereby we cannot conceive that an officer of Parliament will be invested with the necessary power along with the protection of the discretion that the administration has to have to protect generally the interests of Canada. We all recognize that. I do not think that conceptually it is not feasible.
Ms. Webb: Yes, but you are changing the structure of the existing law.
Senator Joyal: Yes, of course.
Ms. Webb: You are taking the normal review that is done by the courts, by the freedom of information officer, by Parliament, in all of these areas, and you are saying, ``Well, we will let the government take all of these oversight mechanisms away under these areas of law and, as compensation, we will put one person in charge of oversight.'' Also, if the law itself says to police, ``Arrest whom you wish,'' and to the executive branch of government, ``Hide what you wish, you have the power,'' then what kind of oversight is really possible?
Senator Joyal: I think that the Arar commission is looking into that, because the commission itself was faced with the use of some of the provisions of the ATA. The Arar commission is a test of the system, especially its weaknesses. Justice O'Connor, who is outside the system, wanted to look into the system and was faced with the barrier that exists whereby information is off limits. The way I understand the hearings, his report will identify to which areas he was denied access. The fact that he has been denied access and the reasons why should be the object of a review, as well as the system in place, to be sure that there is no abuse of the discretion. I think you are right about the way that the act can be used, but the Arar commission, the way I understand it, this committee and the other report that we are expecting will give us an opportunity to see how we can rebalance the system. That is the reasonable, logical approach we are trying to follow to plug the hole, as you said, of absolute discretion and cover-up. Essentially, you say this act gives the authority or an unfettered capacity to cover up anything in the administration. No sensible person would like to have that. There is no doubt about that. Not one of my colleagues around this table would like that. That is why the Arar and Gomery commissions are so important. They will give us the essential principles at stake in the administration so we can see how to improve the system to maintain due process and the rule of law. That is essentially what we are trying to achieve.
The Chairman: We are well beyond our original time limit. I know that people are busy and have other things to do. We knew coming through the door that this would be an interesting afternoon. You people are on the front lines of some of these issues, and we are on another front line. It has been a very useful afternoon, and we certainly thank you for taking the trouble to come here and for taking the issues so seriously, as do we.
The committee adjourned.