Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 19 - Evidence - Afternoon meeting
OTTAWA, Monday, November 14, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 3:33 p.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call this meeting to order. This is the forty-third meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act. For our viewers, I will explain briefly the purpose of this committee.
In October 2001, as a direct response to the terrorism attacks in New York City, in 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. We agreed, and the deadline for passage of that bill was mid-December of 2001. However, concerns were expressed that it was very difficult to thoroughly assess the potential impact of this legislation in such a short period of time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and the impact on Canadians with the benefit of hindsight and a less emotionally charged situation with the public. The work of this special committee represents the Senate's efforts to fulfil that obligation.
When we have completed this study, we will make a report to the Senate that will outline the issue that we believe should be addressed and allow the results of our work to be available to the government and of course to the Canadian people. I should say that the House of Commons is undertaking a similar exercise 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.
We have done most of our international conversations through the great new technology of video conferencing. In September we had direct talks with our counterparts in Washington and we have just returned from a very interesting set of discussions in London, England.
This afternoon, we have the pleasure of welcoming back two critical witnesses who have taken a keen interest in this committee's work. We have with us the Honourable Anne McLellan, Deputy Prime Minister, Minister of Public Safety and Emergency Preparedness and the Honourable Irwin Cotler, Minister of Justice and Attorney General for Canada. We also welcome Margaret Bloodworth and Bill Pentney.
We are very grateful that you are here to bring us up to date since your last appearance in February.
The Honourable Anne McLellan, Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness: It is a pleasure to be back before this committee as you conclude your thorough review required by the anti-terrorism legislation. I thank this committee for the diligence with which you have taken up this challenge.
We would like to thank you and the members of the committee for this opportunity to appear before you again. You have heard from more than 100 witnesses and received more than 60 submissions. You have heard from experts, officials, academics and ordinary citizens.
[Translation]
Consequently, I want to thank you for what you have done on my behalf and on behalf of Canada's government. I am sure that you have received the joint statement that we tabled. Each one of us will deal with certain aspects of it, and then we will be pleased to answer your questions.
[English]
As you have heard, the intervening three years since the passage of the Anti-terrorism Act, ATA, have not seen the terrorist threat diminish. From the public transit system in London, to Bali, New Delhi and now Jordan, we have seen innocent people, even children, killed indiscriminately in cold blood.
Following the attacks in London this past summer, al Qaeda reissued its list of target countries. Canada remains on that list. We must seek to prevent, disrupt and deter terrorist attacks from occurring in this country or from being directed or financed from this country. Towards such ends, the ATA remains a vital cornerstone of national security and an instrument of our international engagement of which my colleague, Minister Cotler, will say much more. Its aim is prevention and its powers are pre-emptive. It is, we believe, the right response, the right balance and the right approach. Canadians seem to agree. Public opinion research tells us Canadians want security and liberty, strong action and tough measures, but sensitivity in the application of those measures.
We are sensitive to the concerns held by some people in the Muslim and Arab communities. That is why the Mr. Cotler and I have met with individuals and organizations across the country over the course of the last year. We have increased and are committed to maintaining the constructive dialogue the government has begun with Canadians on this law and its implementation.
Recently, I was in the United Kingdom and I had the opportunity to speak with the home secretary, Charles Clark, and other officials. Canada and the United Kingdom have similar political systems. We both embrace diversity, and we have both been the victims of terrorist acts. Charles Clark spoke to me about the lessons his country learned from the July bombings. Canada is studying these lessons to enhance our security and contribute to the security of others around the globe. We have followed their effort to communicate with ethnocultural communities. This outreach program includes both the government and NGOs.
I was briefed on Prime Minister Blair's summit with Muslim leaders and approaches to community relations undertaken by the metropolitan police.
I briefed my counterpart on Prime Minister Martin's meeting with imams last July and on the work of our Cross- Cultural Roundtable on Security. The roundtable is an important initiative and engages members of Canada's diverse communities. The purpose of the roundtable is to help us understand their concerns and to benefit from their perspectives. This sort of dialogue will ensure that the implementation of the ATA is consistent with Canadian values.
Some witnesses have suggested that the listing provisions of the act, which seek to identify entities associated with terrorism, contain inadequate safeguards or that there are problems with the evidentiary process used to support listings. The primary impact of such listings is to deny terrorists access to funds and other assets. Those listed could have their property seized, restrained or forfeited, and institutions holding such assets must report this fact to authorities.
Since our last appearance, the Government of Canada has added three more entities for a total of 38. These listing provisions were included in the act to deprive terrorists of their assets and to give effect to the United Nations Resolution 1373, which called for such action on the part of member states.
We know that terrorist entities of all sizes and from all parts of the globe have set their sites on wealthy nations such as ours as sources of financing. Indeed, it is fair to say that all anecdotal evidence tells us we are one of their favourite targets for the raising of dollars for these activities.
Earlier this month, FINTRAC, which produces financial intelligence on money laundering and terrorist financing, reported that in the last fiscal year it made case disclosures to law enforcement of suspected terrorist financing and security threats worth $180 million. This is more than a twofold increase over the previous year.
Canada must do whatever is required to combat terrorist financing. The listing of entities is a central part of that, and of our commitment to the United Nations and the global community.
I know that witnesses have voiced concerns about certain aspects of security certificates and that this committee has been thoroughly briefed on their use.
I would like to emphasize some key points. These certificates exist under the terms of the Immigration and Refugee Protection Act and have been in place for more than two decades. The Honourable Joe Volpe, Minister of Citizenship and Immigration appeared before you this morning. As part of the immigration process, it is our intent to remove individuals subject to certificates from Canada, and in light of the risks they present, to keep them detained until then. Detention is appropriate because we are still proceeding to remove the individuals. Detention pending removal has been held to be constitutional and consistent with international instruments. Furthermore, under the process, should an individual choose to leave the country, the process would be suspended immediately and they would be free to leave. In the meantime, some choose to exhaust all legal avenues to avoid deportation, which is their right.
Since 1991, only 27 certificates have been issued, even though we remove approximately 9,000 people per year. This demonstrates that we use the certificates only as needed and only in extraordinary circumstances.
The judge examining the certificate in each case reviews all the evidence, and further determines what evidence may be shared publicly by way of an unclassified summary. The individual is therefore aware of the allegations and may then present evidence and testimony or call witnesses to testify.
With regards to the issue of non-removal of security certificate cases, based upon a substantial risk of torture in their country of origin, the Supreme Court of Canada in the Suresh case set out its judgment on these matters. I know this has been an issue of some considerable discussion and interest to this committee. As a government, we carefully balance the rights of the individual with the interests of national security.
The courts have examined elements of the security certificate process and have repeatedly upheld them as constitutional. Recently, the Supreme Court of Canada granted leave to review the constitutionality of the security certificate process. We look forward to the court's decision and we welcome the views of the committees who are reviewing the ATA on this matter.
The issue of removal is a global challenge. These are difficult and complex issues for all of us. I believe that our system incorporates extensive due process even for the most extreme cases. Our system seeks to strike a careful balance between the rights of individuals and the protection of society against threats to our safety and security.
When dealing with intelligence we are dealing with information that could save lives. We have seen the tragic consequences of improper intelligence gathering. The 9/11 commission report cites significant findings in relation to both the importance of intelligence gathering and the ability to analyze it in real-time, share it intelligently and get it back to the people who can stop those who would murder innocent victims.
Intelligence is the lifeblood of our security agencies. The terrorist threat has not ignored us, and if the threat has been mitigated, it is because of the work of our men and women at our borders, our immigration offices, and our intelligence and police service personnel.
Intelligence may at times present incomplete information. That is why it is so important to share information with others who may have complementary or confirming intelligence or may quite clearly throw into doubt a piece of intelligence, thereby ensuring that we do not act in an inappropriate manner.
As we have learned from both the bombing of Air India Flight 182 and the events of 9/11, pursuing and sharing intelligence between public safety agencies or other countries is a necessity. We cannot work in an intelligence vacuum. To ensure that we protect our privacy and individual rights such sharing does and must take place under strict conditions and protocols. Sharing arrangements are reviewed on a regular basis. The ATA helps to protect these rights by requiring annual reports, parliamentary reviews, and other safeguards. As you know, the Government of Canada has asked Justice O'Connor to make specific recommendations on an independent arms' length review mechanism with respect to the RCMP's work on national security.
The Anti-terrorism Act represents a truly Canadian response, reflecting Canadian values and is consistent with Canadian law. It was drafted with care, drawing on experience that we have developed over many years of study and through extensive consultation. The Government of Canada does not intend to repeal the act as the dangers are simply too great. As with any security measure, we must always strive to ensure our measures are adequate and strike the right balance.
I look forward to the views of the committee in relation to advancing this country's most fundamental of goals, the collective security of our people, and the protection of the rule of law and fundamental rights.
[Translation]
The Honourable Irwin Cotler, Minister of Justice and Attorney General of Canada: Madam Chairman, I am very glad to be here today with my colleague to partake in this common cause that unites us: the war on terrorism and the protection of human security.
[English]
I am delighted to be here with my colleague, the Minister of Public Safety and Emergency Preparedness, in order to participate in this important review of the Anti-terrorism Act.
I will begin by expressing my appreciation for the hard work and long hours of this committee. As you indicated in your opening remarks this is the forty-third meeting of the committee. The committee has heard a sustained set of witness testimony and has made visits abroad. Your review is not only mandated by section 145 of Anti-terrorism Act but also welcomed by this government and appreciated by all Canadians. Your review ensures that the best intentions and the best of studies are reflected in the best possible law. It sends a clear message that in drafting, enforcing and changing legislation to protect human security, Canada conducts its business in the sunlight of public scrutiny because sunshine is the best disinfectant.
[Translation]
The last time I appeared before this committee, I presented 11 basic principles of the war on terror, as well as their underlying values and principles. Even though these principles were very popular with this committee, I do not intend to repeat them today.
[English]
It is important to see those principles as reflective of the values that have always characterized and underpinned our country: tolerance, multiculturalism and commitment to human security. The story of Canada was written by many hands and told by many voices. Indeed, there are few countries around the world that cannot look to Canada to see their own reflection. This great diversity has always been our strength. Preserving that strength and extending it into the future requires that all Canadians live in a secure society. However, in a world where terrorism is given free reign, no society can be truly secure. We must join other countries around the globe and fight terror at ever turn with every juridical resource at our disposal. Each country must choose how it will engage itself. Former justices Frank Iacobucci and Louise Arbour said:
The challenge for democracies in their battle against terrorism is not whether to respond but rather how to do so.
Our choice was to proceed on the basis of human security rooted in the protection of national security and in the protection of civil liberties. Too often we see the latter two as a zero-sum relationship such that it is civil liberties or national security, personal freedom or national safety, or the rights of individuals or the powers of the state. In reality the two must come together in a complementary rather than contradictory relationship. We cannot talk about protecting personal freedom or civil liberties without first ensuring our national security. We cannot speak to protecting our security without that notion including and protecting our civil liberties.
The first and foundational principle is the protection of human security inclusive of both national security and civil liberties. This is the foundation for every other freedom and the starting point for the protection of our most fundamental rights. Transnational terrorism constitutes an assault on our most fundamental rights of democracy: life, liberty and security of person. Counterterrorism seeks to create and protect the conditions that make such rights possible.
A second principle emerged in the recent deliberations at the United Nations and I commend to senators that terrorism constitutes a frontal assault on international peace and security and on the very foundational principle of the UN Charter. The Secretary-General of the United Nations recently said:
Terrorism constitutes a direct attack on the values that the United Nations stands for: the rule of law, the protection of civilians, peaceful resolution of conflict and mutual respect between faiths and cultures.
Senators, I am attempting to address principles that have emerged since our last meeting or that reaffirm those that I shared with you in the manner of the international framework in which they have received support and sanctions.
The third principle that underpins our approach to combating terrorism is that while terrorism is a fundamental assault on the rule of law, we remain utterly committed to respecting the rule of law in our counterterrorism response. This, too, is consistent with the values in our Charter of Rights and Freedoms because we are a nation of laws founded on the rule of law. No individual and no group should be singled out for differential and discriminatory treatment because no Canadian enjoys fewer rights than any other Canadian. All are equal before the law and under the law, and all enjoy equal protection and treatment of the law. Simply put, our anti-terrorism law, for the purpose of protecting human security and human rights, must not undermine the very rights that are the stuff of our security.
The fourth principle is that of zero tolerance towards terrorism and that there can be no exculpatory or exempting terrorist activity. The United Nations Security Council stated:
We strongly condemn terrorism in all its forms and manifestations committed by whomever wherever and for whatever purposes, as it constitutes one of the most serious threats to international peace and security.
The fifth principle, again reaffirmed by the United Nations Security Council and emphasized by the Secretary- General of the U.N., is the danger of incitement as a proximate cause to international terrorism and the transnational character of that incitement.
The sixth principle is the importance of the prevention principle. In crafting our legislative response to terrorism, we adopted a position of prevention and pre-emption. In dealing with terrorists, we are dealing with a different kind of adversary. We talk about the war on terror but it is a different kind of conflict that requires different terms of engagement. Terrorists' aims and approaches are so different that our responses must also differ with each threat. On our part, there is a greater need, as my colleague put it, to detect and deter rather than simply to prosecute and to punish. Our goal must be to disrupt, disable and if possible, dismember the capacity of those who seek to do us enormous harm. Minister McLellan has said on many occasions that by the time the terrorists are on the plane, it is too late.
Let me turn now from general principles to more specific issues. I begin by placing the ATA in the wider context of international efforts to address terrorism that have emerged since we last met. If there is one overriding dynamic that has emerged since we last met, as Le Monde put it after the attacks in London, it is the globalization of international terrorism.
The ATA parallels actions taken by many of our international partners. Terrorism is not confined to national boundaries and no country can defeat it alone. It is truly a global threat and so we must develop a global response.
The Secretary-General spoke recently to the importance of drafting a comprehensive, international convention against terrorism. He spoke of ``civil and religious leaders raising their voices against terrorism.'' He spoke of denying terrorists the capacity to carry out their attacks. He spoke of developing state capacity to prevent terrorism through the promotion of good governance and the rule of law. Canada is trying to promote good governance in respect of our engagement with other justice systems abroad.
In September, Prime Minister Martin joined other world leaders at the United Nations in strongly condemning terrorism and welcoming the Secretary-General's counter-terrorism strategy. The strategy set forth by the UN Secretary-General is referenced in our written submission. The strategy and its principles dovetail with our Anti- terrorism Act.
Under the International Convention for the Suppression of Acts of Nuclear Terrorism, the Prime Minister has been a part of the continuing efforts to improve the international anti-terrorism regime. In that connection, the ATA has been a vital tool in enabling Canada to comply with Security Council resolutions that deal with actions against terrorism, thereby allowing us to meet recommendations on terrorist financing and helping us to implement and ratify a number of other important international agreements.
Fighting terrorism is never easy and it is never over. We must continue to update our policies and procedures to ensure that they are current and effective. In the wake of the London bombings on July 7, 2005, the United Kingdom and other nations reassessed whether additional counterterrorism legislation or actions were required.
As you know from your recent travels in England, the Prevention of Terrorism Act 2005 bill includes new offences regarding the dissemination of terrorist publications and making the glorification of terrorism part of the offence to encourage the commission of an act of terror. In addition to the terrorism bill, the Home Secretary also introduced a broad list of ``unacceptable behaviours'' as grounds to exclude and deport individuals from the U.K. Australia has followed Britain's lead, introducing a number of proposals along similar lines.
Both the Department of Justice Canada and PSEPC have been following these international developments closely. Canada already has measured laws that capture what other countries are trying to address and we have not felt it necessary to propose new measures or policies. However, we remain responsive to any recommendations your committee may make as a result of your review. We are willing to incorporate any appropriate measures, should they become necessary, from your canvass of comparative initiatives elsewhere.
In addition to these new international initiatives, we are also following parliamentary and congressional reviews of existing anti-terrorism laws around the world — in the United States and New Zealand, et cetera. Part of that ongoing effort is a need to keep our criminal law contemporary with current needs. Just as terrorism has evolved over time — increasingly with sophisticated methods — so must our criminal law change to meet changing circumstances where warranted. It is essential to have Criminal Code offences that allow us to convict those who facilitate, participate in or direct terrorist activities, as found now in the Anti-terrorism Act.
Terrorist organizations such as al Qaeda operate through multi-layered structures composed of cells and the assistance of many that may be only tangentially involved. The pre-2001 law with respect to criminal conspiracy was simply insufficient to address such situations, in particular, to pursue those who by indirect means facilitate terrorist activity.
With the Anti-terrorism Act, we now have such resources, built on the principles of criminal liability that have been developed to combat organized crime and that were introduced in 2002. In that regard, we are respecting organized crime.
The Anti-terrorism Act, denying terrorists the means to achieve their aims or carry out their activities, has also addressed other forms of criminal activity such as terrorist financing. This was referred to as the ``soft underbelly'' of international terrorism and needed to be addressed.
Some witnesses that testified before your committee pointed to the fact that many of the measures contained in the act, and those to which I have referred, have not been used or were used sparingly. With respect, I would suggest that the frequency of their use does not speak to the necessity of their presence.
Many of our laws, including our criminal laws, are used only rarely, but no one would argue for their abolition. Indeed, with respect to the provisions of the Anti-terrorism Act, it may be argued that Canadians can take comfort in the restraint used and the judgment exercised. This reserve speaks clearly to the seriousness with which we view these powers and the restraint with which they are exercised.
Minister McLellan has addressed some of the concerns raised by previous witnesses. For reasons of time, I would like to touch on two more issues. One concerns the definition of ``terrorist activity,'' which some have suggested is too vague or casts its net too widely. Other witnesses have argued that the motive clause encourages racial profiling. Let me make two points in response.
First, our long-standing principle is that counterterrorism laws and policies must conform to the rule of law. Discriminatory practices have no place in law enforcement. Even more directly, there is nothing in the definition of ``terrorist activity'' that seeks to target any particular group or criminalize political, religious or ideological activities. I recommended the interpretation clause for further certainty. The motive requirement is intended only for situations where extreme terrorist harm is caused for political, religious or ideological purposes, and which fall under the Criminal Code definition of terrorist activity.
Second, the motive requirement was incorporated into the Criminal Code in order to distinguish terrorist activities — to which special investigative and other provisions apply — from other types of criminal activity governed by separate provisions of the Criminal Code. In other words, it is intended to address a particular genre of international criminality.
I would also point out that a motive requirement was incorporated into the anti-terrorism legislation of other countries, including the U.K, Australia and New Zealand.
We take seriously the concerns that alleged racial profiling is being applied — and the concern as it has been so raised before this committee in the witness testimony. To address these concerns, my colleague and I have launched the Cross-Cultural Roundtable on Security. We both have had the privilege of meeting with its members and we will do so again next week. Theirs is an important voice to which we will continue to listen in the days and months ahead.
Beyond the roundtable, I will continue to engage in opportunities for public outreach with members of ethnocultural and religious groups to listen to their concerns and seek their counsel.
In addition, our government recently announced an action plan against racism, which will give even greater substance and perspective to our commitment to combating racism and racially based discrimination. I have also issued a national justice initiative against racism and hate.
Both the action plan and the national justice initiative have many elements but a single theme: In Canada, there is no sanctuary for hate or any refuge for racism. That is the clear and unequivocal principle that guides everything in terms of our enforcement and application of any anti-terrorism law and policy.
Let me touch on one other area of concern that has emerged from your hearings; that is the changes made to the Canada Evidence Act, CEA. With respect to the act, witnesses have questioned the need for the provisions set out in section 37 and section 38, which attempt to balance the rights of an accused to a fair trial with a potential harm that could result from the disclosure of security-sensitive information, especially as it relates to our international relations, national defence or national security.
Indeed, I reviewed this provision in its original form; I said that in its original form, those provisions were reason enough for me to have voted against the Anti-terrorism Act at the time. I proposed six amendments, which then Justice Minister McLellan adopted and they appear within the nature and framework of the present Canada Evidence Act.
In amending the existing sections our goal is to improve the use and protection of information by providing greater flexibility through, for example, creating the opportunity for evidentiary issues to be resolved early in the proceedings and to introduce a process of judicial review. Previously, the Attorney General could have issued the certificate without any reference to a legal process. Now, it can only be issued in the context of a legal process; it is subject to a judicial review and there are time limits, et cetera. Therefore, there has been a significant change in that regard.
The intent was to make the information available in ways that would serve the public interest, including facilitation of a fair trial, while also providing assurance to our allies that Canada can and will protect information obtained from them.
Section 38.14 of the Canada Evidence Act explicitly provides that the presiding judge may make any order he or she considers appropriate to protect the right of the accused to a fair trial, short of having to order the disclosure of the information, which can also be referenced as well.
While we believe that the amended sections strike the right balance, we have listened carefully to the views of the Federal Court and Supreme Court of Canada on the open court principle. We have read those judgments and reasons for judgment, and we are exploring ways to respond to their concerns in relation to the requirement in section 38 that CEA proceedings be held in private. We are open to any responses on your part in that regard.
In closing let me thank you and the members of this committee for the outstanding work you have done. The Anti- terrorism Act is an important tool in the battle with which we are engaged. Our government continues to believe that this law is necessary to protect the security of Canadians. We believe that this law is an expression of our shared citizenship. It is there to protect all Canadians and all Canadians can participate in that protection through the invocation and application of this legislation. It enables us to join our international partners in the campaign against terrorism. It does all this — and this is particularly important for us — in a manner that is fully consistent with Canadian values and the Canadian Charter of Rights and Freedoms, which is a threshold principle. The entire Anti- Terrorism Act has to go through that constitutional filter. This act was drafted with great care and founded on clear principles but it is not frozen in amber.
We welcome the results of your work and we will seriously consider any recommendations you may make. We are confident that with your informed contribution this law will continue to do what it was designed to do: help secure the rights and liberties of all Canadians.
Senator Andreychuk: There are many topics to discuss but I will try to choose one or two only. I do not want the ministers to think that these questions are our only concerns because I think we have heard some very valid opinions from Canadians and we need to air those issues.
Mr. Cotler, I think that while you have used the phrase ``human security,'' it seems to me human security is collective security versus individual security and the need to be protected from an overarching activity from the state that may or may not be appropriate. We are back to the same debate we had three years ago about striking the right balance.
Although security certificates are not in the bill, they are part of the overarching problem. If we are talking about international terrorism, how can we take people from our shores and put them in a country where they may be tortured and where they may have an opportunity to do even greater harm to us?
Are we still committed to removing people to a place where they might be tortured?
Have we moved on the Supreme Court recommendations in the Suresh case?
Ms. McLellan: As I have said here before, we have not removed anyone to a country to face a substantial risk of torture. We are in full compliance not only with the domestic law of this country but our international obligations. The court's decision in Suresh is, at this point, their latest word. As Mr. Cotler and I have said, we respect first and foremost the domestic law of this country.
They will have an opportunity to return to this issue in the future and as Minister Cotler and I have said, we welcome what they have to say because this is an ongoing, global concern and not simply a concern for our country. In fact, the removal of those who are non-citizens who are deemed a serious threat to national security for one reason or another is an ongoing challenge for virtually every civilized country in the world.
We are under an international obligation to take back those Canadian citizens who are deemed a security risk in other countries, and we do that as part of the civilized world, just as we expect those other countries to take back their citizens when they have been deemed a serious threat to national security in this country. That is part of the ongoing partnership and cooperation in the global world.
I can assure you we take back Canadian citizens who have been found to be a serious threat to national security in other countries and we take them back because they are our citizens. Once returned it is up to the Canadian taxpayer and our agencies to ensure that they do not become a threat to Canadians. We expect other countries, where the circumstances are appropriate, to do the same thing. That is what it means to be part of a comity of nations in relation to dealing with this scourge.
Senator Andreychuk: Are you saying that some torture or some risk of torture in another country is acceptable?
Ms. McLellan: We have never returned anyone to a country where they would face a substantial risk of torture.
I can give you examples where we have deported people to countries that come by our embassy, read The Globe and Mail, and have a cup of coffee. I do not mean to be flippant in any way so let me say very clearly that we do not deport to countries where anyone faces a substantial risk of torture. We monitor that situation through Foreign Affairs Canada. It may become important for us in the future, as we see with other countries, to seek assurances, however I can assure this committee we will not seek assurances without an independent third party monitoring agency or entity that would guarantee that the person is not subjected to torture.
Senator Andreychuk: What is the test of ``substantial'' risk of torture?
Ms. McLellan: The courts decide that matter. We make our determination based on intelligence gathered through Foreign Affairs Canada and on recommendations from a number of agencies and departments. We reach our conclusion as to whether we believe the individual faces a substantial risk of torture and the court then reviews our decision, as was the case in Suresh.
Senator Andreychuk: In light of time, I will not pursue this issue further.
I want to take up this issue of minorities who I think have made a compelling case before this committee. The Arab and Muslim communities feel that they bear the brunt of this legislation. Part of it is, as some eminent witnesses pointed out, that we have the motive requirement in our definition. To some it seems that we were sanctioning tying religion as an acceptable reason to scrutinize this community. Some felt that they could not practice their religion because others were misusing it.
We have not found any case where having the motive requirement of religious activity has been important. In fact, we have been given a very compelling case that it is the activity itself that is intolerable and that we do not need to go to this next stage of motive.
Motive is irrelevant when you are being attacked, whether you are in a subway or in a plane; it is the terrorist activity itself. Putting in a motive requirement puts a chill on a very valuable part of our society without real need for our protection.
Would the government consider removing that part of the definition as a signal to the Muslim community? Would the government make it clear that it does not want to investigate religious activity but terrorist activity?
That would be a signal to all law enforcement officers.
Mr. Cotler: I do not want to enter into debate but by way of response to the human security reference you made, in our view human security connotes both individual and collective security. It specifically includes the right to life, liberty and security of the person. This is an issue of personal security from terrorist attacks as it is collective security from terrorist attacks.
With regard to the motive requirement, if you go back to the proceedings when I sat as a member of Parliament and again when Justice Minister McLellan introduced the legislation, I objected to the motive requirement for two reasons. I was concerned about targeting because of religious or ideological considerations. I asked for an interpretation clause to make it clear that the motive requirement was not intended and would not be used for targeting. We made that clear in our presentations and in the paper that we have left with the committee. As I said, any form of racial profiling is utterly to be condemned and we will not acquiesce to it in that regard.
This is not something specific to us. The motive requirement is found in other countries' legislation. What is not in the other countries' legislation is the specific interpretive clause that makes it clear that its purpose is not to stigmatize any community based on its religious origin. We want to read this clearly and carefully into the record.
The irony is it actually makes the prosecution of a terrorist act more difficult because of the requirement for that proof of motive. Without it, it would have been easier to prosecute terrorist attacks. Therefore, if you want to look at it that way, it makes it more difficult for the prosecution and it is something that is not always considered or addressed.
There are other instances in Canadian criminal law where motive is relevant. This is not the only place you will find it. For example, the definition of first-degree murder in section 231(3) of the Criminal Code states:
Murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another.
More important is paragraph 718.2(a)(i) of the Criminal Code. It refers to an aggravated sentence provision as one that allows a judge to increase a sentence where the crime was motivated by ``bias, prejudice or hate based on race, national or ethnic origin,'' et cetera.
Muslim and Arab groups welcome this protection against bias-motivated crime by allowing that to be seen as an aggravated factor in sentencing. In this regard, I do not take it to be any more of a stigmatizing feature than it is a protective feature with regard to an aggravated factor and bias-motivated crime.
It appears elsewhere in the Criminal Code and it appears in other legislation. Australia, the United Kingdom, New Zealand and South Africa have passed legislation with a motive requirement that sets out various components of their equivalent definition of terrorist activity without the same protections as we have here, including the Charter.
Senator Andreychuk: You have made a compelling case that it is harder to get at the terrorists, and that is just the point. We seem to be targeting the community and not the terrorists. The compelling reason is not that we already have it in the Criminal Code but does it work for us here? I leave that thought with you and hope we will find it in the report.
Mr. Cotler: We welcome your comments.
Senator Andreychuk: I hope there will be many and I trust that they will be taken into account.
We have chipped away at some of the criminal law features and protections. I think what I found out is it is difficult to compare ourselves to the U.K. because although our systems are similar they do differ in some fundamental ways. The U.K. has different communities with different needs and different terror problems.
We have had a good record of rule of law. Are you prepared to have parliamentary oversight to assure the public that it is not just the government scrutinizing itself in double-check mechanisms but that there is an independent parliamentary scrutiny?
Ms. McLellan: Senator, you have the right to take up your work. If you want to review the legislation in whole or in part, any actions taken there under, that is the right of any committee of the Senate, it would seem to me.
If you were asking whether we would consider an ongoing review such as you and the House of Commons are undertaking, certainly, we look forward to your recommendations.
However, I remind you that we will be creating a parliamentary committee on national security. The committee will include senators and elected representative s from the House of Commons. It will be created under statute and will have a very broad mandate to consider aspects of national security including intelligence gathering. We look forward to this all-party committee. I am very close to introducing the legislation. This was an issue that the Prime Minister asked us to address as of December 2003. We have worked with an ad hoc committee, all parties, House and Senate, to develop a piece of legislation that is reflective of our expectations in terms of ongoing oversight.
That does not mean special committees of the Senate or standing committees of the Senate and the House of Commons cannot supplement it. We are willing and we will be creating a new legislated committee of parliamentarians to review national security and intelligence gathering in this country.
Mr. Cotler: I think the question of oversight is crucial. We need to appreciate the framework for oversight that we have which includes the Canadian Charter of Rights and Freedoms. It also includes international human rights undertakings that we are to adhere to as well. It includes the annual reports of the Minister of Justice and the Minister of Public Safety and Emergency Preparedness and the counterpart reports of provincial ministers of justice to provincial legislators as well as those we do. It includes the oversight of information and privacy commissioners' reports. It includes the requisite authorization or consent that the minister of justice may have to give for prosecutorial purposes of terrorist offences. It includes the enhanced judicial capacity written into the legislation with regard to certain offences. It includes the mandatory three-year parliamentary review which we are engaged in as well as the sunset provisions with respect to provisions relating to preventive detention and investigative hearings, let alone the report which we are anticipating from the Rae Committee of Inquiry.
I mention this only so that we appreciate that we have developed a set of investigative oversight frameworks. Again, any further recommendations are welcome. I did not want to leave it as if we are bereft of any oversight frameworks.
Senator Smith: In terms of input, and I do not need a response to this, I believe that the round table has been helpful in dialoguing with communities that feel particularly affected.
You are probably aware that we have heard many representatives and the biggest communities in Toronto and Montreal were under-represented. I ask you to review that, because that does not require any legislated changes.
I am very pleased that both of you have made time available on a pretty hot day around here. Thank God, explosions on Parliament Hill are verbal, and let us keep it that way.
Mr. Cotler, you are aware of a private member's bill with regard to suicide bombings. I have heard the argument that it really does not create a new offence. On the other hand, some people feel strongly about it. Have you reached any conclusions on this issue?
Mr. Cotler: I know that there is a private member's bill brought forward by Senator Grafstein. I have said that the question of suicide bombing is already included in the Anti-terrorism Act. It is included in the domestic implementing legislation with respect to the International Convention for the Suppression of Terrorist Bombings, to which we are a state party, along with some of the specific offences in the act itself. The legislative framework is in place.
I suggested to Senator Grafstein that if he wants to make a motion in order to emphasize the particular horror of suicide bombings that is one thing, but to ask us to enact legislation to prevent it when it is already prevented would not serve the very purpose that I think he has in mind.
Senator Smith: Going back to the other, bigger issue, this generation is particularly plagued by reaching the strategic balance between liberty and security. It is an ongoing question. I have approached this with an open mind. I cannot say I have heard any arguments from the various deputations we have had that would persuade me that Canadians would be better off if we repeal the legislation. As to whether some fine-tuning may be necessary, I still have an open mind.
The most delicate issue we have had to deal with is the perception of racial profiling. I know you are aware of this issue. It is probably inevitable.
When I look at your excellent joint statement, page 5 refers to the dozen significant attacks in the last seven months, not including Iraq and Israel, but it is the two in London and Bali and New Delhi, and Amman, Jordan.
When I saw that wife of the suicide bomber, I was mad at her, but I also thought that there was a person who was a victim of brainwashing. Since then, we have seen all of the Australian arrests. It is a statistical fact that all of these people come from that particularly sensitive community.
A number of national organizations that represent the Muslim community in this country feel they are being racially profiled. It is not that there is anything in writing anywhere but suppose a ticket agent at an airplane counter or immigration or customs official and things go off in their mind. There are areas of concern. The problem we have is with the number of Canadians in the Muslim community. There are hardly any.
How do you convey to this community that people are trying to be objective and fair to all Canadians? What words do we use? I think we all want to do this.
I invite both of you to open up the cupboards of your soul and try to reach out to this community so that they understand they are not being targeted in any particular way.
Ms. McLellan: You have put a very important issue on the table, Senator Smith, and one that not only Minister Cotler and I are very sensitive to but that the entire government and all agencies within the government are sensitive to.
On pages 24-25, we address the issue of the perception of racial profiling. We are taking a number of initiatives across government departments. You see the CBSA Fairness Initiative, which is being developed particularly but not exclusively because of concerns that have been expressed by the Muslim and Arab communities, as well as other communities.
The Royal Canadian Mounted Police will soon release their bias-free policing policy. In fact, our colleague Raymond Chan, as Minister of Multiculturalism, worked with the RCMP in the Lower Mainland of British Columbia to put a pilot project in place. The RCMP is taking the very positive results from that RCMP initiative in the Lower Mainland, working with a number of communities, and has decided to make it a national policy for the force. Mr. Cotler has already referenced our national action plan against racism.
Since the enactment of the anti-terrorism legislation, Mr. Cotler and I have been meeting with the Muslim communities. Last spring I had the opportunity to spend an afternoon with the representatives of COMO, which is an umbrella organization of Muslim organizations. I met with some 50 Muslim men and women in one of Toronto's largest mosques. For the first two hours, the community had an opportunity to meet and engage directly the regional directors of the RCMP, the CBSA and CSIS. It is important for them to establish a relationship with those people and for the community to establish a relationship with those directors. If they have a concern, they must feel comfortable in picking up the phone and calling and saying, ``I want to come and see you, because this is what I am hearing.'' Before it goes any further, I want to be able to put a face to the name, hopefully a friendly face. ``I want to talk to you. I want to come and see you. Will you come to the mosque or whatever the case may be?'' For the last two hours of that session, we had an opportunity to engage directly with the community around their concerns. We dealt with some very specific issues, and some were found to be unfounded allegations.
Two hundred and twelve imams in this country signed a fatwa after July 7. Their representative met with Prime Minister Martin and members of our caucus and engaged in frank and candid dialogue. Follow up is important.
The meetings are fine, but what comes from the meetings? Things like the CBSA fairness initiative come from those meetings. The cross-cultural round table cannot be underestimated in its importance in terms of representation from a number of important ethnic communities and the ability to engage. Those communities are holding round tables themselves as part of their work plan. They bring to us their first-hand understanding of their communities. That organization is still in the early stages of developing its credibility. This organization is unique in national security policies. It was put in our national security policy. In fact it was the first thing talked about in our policy. You will not find any other national security policy in the world that puts that type of entity first in recognition of the multicultural nature of our country and the commitment that we make to inclusion.
The point you raise is profoundly important. I think you will find a list of important initiatives in this document, but the point is it must never end. It is an ongoing dialogue where we deepen the levels of understanding and we understand more about the concerns and possibly unintended consequences. That is so important, and our government, starting with the Prime Minister, has made that commitment.
Mr. Cotler: I have been meeting regularly in every port of call in this country with Muslim and Arab groups. I have another meeting coming up shortly in Montreal, but I have met with groups in Montreal, Toronto, Edmonton and Vancouver. I sought to share with them some of the things I have shared here. Number one; there is no contradiction between the protection of security and protection of rights. It is not an either/or matter. We cannot speak of protecting human rights without protecting our security and we cannot speak about protecting our security without protecting human rights. We cannot, in the course of protecting our security, undermine human rights because that is the very stuff of security.
I try to begin with that threshold principle and say that is set forth in the Anti-terrorism Act, which specifically references the Charter and Canadian values for the protection of any kind of singling out of any group. We have expressed it here as something that is anathema that no group or individuals should be singled out for differential discrimination.
I am not unmindful of the fact, and when I meet with Arab and Muslim groups you can talk to them about the law, the good intentions, et cetera, and there still is a real apprehension that they are being targeted. I can refer to the Charter and I can refer to the relation between security and rights, but what I try to suggest is that the issue of terrorism is not something that is targeting groups other than Muslims. Muslims are also targeted victims of terrorism.
We need to turn this thing around. We should not engage in any alleged stereotypes with regard to Muslims and terrorists. It is the other way around. If you look at it now we just saw it with regard to Jordan. Increasingly, we are finding that Muslims are the targets of terrorism.
We need to look at the Anti-terrorism Act as representing a shared citizenship. We all, regardless of our ethnic or national or religious origin, have a shared commitment to preventing acts of terrorism because we are all prospective victims of acts of terrorism.
I meet with Jewish groups and they believe they are the targets of terrorism; I meet with Muslim groups and they believe they are the targets of anti-terrorism. I turn it around. I tell the Muslim groups they can also be the targets of terrorism so this act is to protect them. As for the Jewish groups, they can also be at some points improperly singled out in the enforcement application. Therefore we have this shared citizenship approach.
One other thing I do — it is a joke I once told this committee before — is I tell the Jewish and Muslim groups that there is one thing they have to at least acknowledge, that with regard to same-sex legislation I have brought them both together. I do make those kinds of references.
I would like to think that we can view this in terms of a shared citizenship response. That is why I produced an 11- point national justice initiative against racism and hate, which I share with all groups in the hope that they will see we have common cause against racism, against hate, against terrorism, against racial profiling, against singling out of any kind. It is a common cause and a common commitment that we all have.
Senator Joyal: I would like to come back to the issue of torture. Last Wednesday the United Nations released a report with the following headlines:
Six countries, the United States, Britain, Canada, France, Sweden and Kyrgyzstan have been singled out for violating the international human rights convention by deporting terrorist suspected countries such as Egypt, Syria, Algeria, and Uzbekistan, where they may have been tortured. The charges, which come at a time when the U.S. Central Intelligence Agency, CIA, is accused of running secret detention centres overseas, have been catalogued in a 15-page UN report presented to the 191 member General Assembly by Manfred Nowak, a special rapporteur on torture.
I have to tell you as a Canadian I was appalled to see the name of Canada in the article, especially taking into account the comments made by the UN High Commissioner for Human Rights, former justice Louise Arbour who has been quite outspoken in the previous months about the fact that torture is unacceptable. To see the name of Canada in that report speaks to me of some major mishap in the system.
Was Canada sleeping on the switch when Mr. Nowak conducted the study? Has the explanation you gave to Senator Andreychuk not been conveyed to Mr. Nowak and the other members of the study team? Do we not have any credibility in our presentation of the case?
Minister Cotler, all the senators around the table are very keen to make sure that the principles enshrined in the Charter are respected and upheld in our anti-terrorism legislation. To have such an egg on our face internationally is a major problem.
How do you intend to address the UN report so that our credibility is re-established and the proper corrections are made?
The report is in the hands of the 191 members of the General Assembly. I can understand that a report might be wrong, but I think we owe it to our reputation to take immediate initiatives to correct the conclusions of the report.
Would you inform us today what you intend to do in order to address that major issue?
Ms. McLellan: In fact, we do not accept the findings of the report. I stand by what I said earlier. We do not deport people to a country where they face a substantial risk of torture. In fact, we have numerous safeguards that include the federal court and the Supreme Court of Canada. That is why we have those protections, so that if one alleges that they face a substantial risk of torture they have the opportunities to have that judicially reviewed.
I take very strong exception to the United Nations suggesting that we do not have, quite truthfully, a system that provides some of the best safeguards in relation to ensuring that we are compliant with both domestic law, as defined by our own court, and international law.
Quite clearly, both Minister Cotler and I have indicated that we will not deport someone into a situation where there is a substantial risk of torture. That gets one into a discussion that we have already alluded to around assurances, third party monitoring of assurances, maybe even safe third countries, and so on.
Senator Joyal: Is it your intention to contact the Canadian ambassador to the United Nations and file the proper answer?
Ms. McLellan: I find those conclusions upsetting as well. I intend to contact the ambassador and determine on what basis those conclusions were reached.
Senator Prud'homme: Have you done that?
Ms. McLellan: Not yet.
Senator Joyal: The report, as I understand, was released two weeks ago.
Ms. McLellan: It was two weeks ago.
Senator Joyal: What I have here was November 9. It might be two weeks before it was made public.
Ms. McLellan: It is very current.
Senator Joyal: It is a very serious allegation and a stain on the reputation of Canada. We praise ourselves and you have been quite eloquent in describing our rule of law system. Minister Cotler has been expanding on the importance of the principles of the Charter. However, when a country like Canada is singled out in that context, it needs a major initiative of re-establishing the credibility of the country. I am sure that, in between the lines, it is the Maher Arar case that is singled out in that report.
Ms. McLellan: He was not deported by Canada.
Senator Joyal: That might be the confusion that the report addresses. If that is the case, it must be clearly explained to the United Nations because it will be part of our reputation from now on. Internationally, when any of our ambassadors address groups on human rights, they will be flagging the report under their eyes and we will be in the untenable position of credibility to foster the promotion of human rights internationally.
Ms. McLellan: I want to say one other thing before turning it over to my colleague. One of the things we need to clarify with the United Nations — and I will ask Ambassador Rock to do this — is whether or not those who were reviewing the situation were referring to Suresh.
You all know what the Supreme Court of Canada said. Therefore, they may have reached a conclusion on the basis of what the Supreme Court said. If they did that, as opposed to looking at what we do, then I find that to be outrageous and it is something that needs to be challenged.
Mr. Cotler: Thank you for that question. I have read their entire report.
Ms. McLellan: As have I.
Mr. Cotler: It does not only reference issues in the Anti-terrorism Act, it goes into matters relating to the definition of terrorism, which it calls ``overbroad.'' It goes into section 38 of the Canada Evidence Act and goes through other features of our public policy with regard to Aboriginal policy, and so on.
There is a series of critiques and that is part of what I said was oversight. We are a state party. We submit ourselves to periodic review; they tender and report. We have a year in order to respond to that report, we will do so because these reports are helpful in informing us and providing a critique. However, that critique must be informed. Part of their information is either misinformed or unduly simplified.
For example, there is Minister McLellan's answer on the issue of torture. They express concern about what is described as the wide definition of terrorism. They have said that Canada should adopt a more precise definition of terrorism so as to ensure that individuals will not be targeted on political, religious or ideological grounds. They can come to that conclusion at the end in any case, but there is no understanding, when they come to that conclusion, that the reference to political, religious or ideological purposes is a limiting aspect of the definition of terrorism activity, not an overbroad one, that helps to distinguish terrorist actions from other criminal actions in the Criminal Code. There is no reference to the fact that we have an interpretation clause to preclude it being used to stigmatize any individual.
I can go on. It is a rather oversimplified appreciation of what is well intentioned. As someone who has appeared before those committees, I know sometimes how they might work.
We need to provide a fulsome response not only on this issue regarding terrorism and torture but also on all issues that they have identified with regard to our anti-terrorism law and policy, and all other issues contained in their United Nations Human Rights Committee report. Just as you may have been properly concerned, if not outraged, by their reference concerning torture, I can tell you that other communities across this country with whom I met recently, for example, last week in the Yukon, Aboriginal groups also brought up the Human Rights Committee with regard to what was said regarding Aboriginal peoples.
We owe the committee a response so that where we deserve to be critiqued, let it be so but let it be based on an informed understanding of what we are doing.
Senator Joyal: In the Ottawa Citizen this morning, Chris Cobb reported that:
The government is considering introducing special legal watchdogs into closed court hearings involving suspected terrorists who are being held indefinitely without trial.
Further, in the article Chris Cobb writes:
The introduction of amicus curiae (friend of the court) will be considered shortly by the federal cabinet along with other measures including and appeal mechanism currently not available to those held under security certificates.
Are you in a position to comment on this issue that we have canvassed in this committee? Can you comment on the closed-door process within the Federal Court and the balance between the need to protect the security of the information and the need to allow the defendant a minimum of information in a balanced way? Can you comment on the right of the accused to be properly treated?
Ms. McLellan: That is an important issue for us. We believe — and that is why I spent sometime on it in my remarks — that the balance is appropriate and it has been found such by courts over and over again. They have offered comments, some of which we have taken up. We look forward to what the Supreme Court of Canada has to say on this matter, and we look forward to what this committee and the House committee has to say. At that point, we will assess the situation. The one thing I can say about the report in the paper is that it is false, in the sense that we are open to suggestions made by both these committees and by the Supreme Court of Canada. We will not pre-empt any of those processes because that would be disrespectful.
Senator Joyal: Are you still open to the issue of the length of detention time without an opportunity for the detainee to be brought to court?
Ms. McLellan: We look forward to the recommendations both of this committee, of the House committee and of the Supreme Court of Canada.
Senator Joyal: You refer in your earlier presentation to the legislation that has been introduced in the U.K. following the bombing of last summer in relation to incitement to terrorism and support to terrorism.
Ms. McLellan: That was my colleague, Minister Cotler.
Senator Joyal: Are you still of the same opinion that you expressed in August, namely, that Canada does not need such comparable legislation, that the present state of provisions that we find in the Criminal Code and in the Anti- terrorism Act are sufficient to maintain the level of security that we have in Canada?
Ms. McLellan: I will let Minister Cotler respond to that question. He talked about that in his comments but he and I agree on this subject.
Mr. Cotler: My view was, and I expressed it in my opening remarks, that I thought that we had, in our anti- terrorism legislation, in a measured way, addressed the issues that were being addressed in other comparative pieces of legislation. For example, on the issue of detention in the United Kingdom, I think our approach is far more restrained and measured and with appropriate safeguards.
I do not think we need to explore ways and means as other countries have found necessary to do to enhance the anti- terrorism tool kit. I leave that up to you. You will make your own judgment whether you feel that there needs to be an expansion or contraction.
In reference to amicus curiae, by way of context and background, in 1992, before 2001 and the Anti-terrorism Act and part of the jurisprudence in this regard, the Supreme Court of Canada examined the issue of in camera ex parte proceedings in Canada v. Chiarelli. It ruled that the process does not breach the principles of fundamental justice and it was not necessary that the individual be given details of intelligence and investigative techniques or sources used to acquire the information upon which the two ministers relied on in issuing the certificate. That was then, and you may say this is now. I am just offering context.
Some persons have asked the Federal Court to appoint amicus curiae arguing this was necessary for the purposes of having a fair hearing. The court rejected these requests in the Harkat case and the Mahjoub case in part on the basis that summaries are an adequate means of informing the individual. Having certificates reviewed by an independent judiciary is a safeguard that ensures fundamental justice.
Having said that, I will only repeat what I have said in a previous appearance: I welcome your views on the use of amicus curiae where it could be helpful in this process. I am giving you background without context saying that was then and this may be now.
Senator Fraser: On the matter of glorification, it was interesting that your statement referred to the U.K. experience. U.K. legislation did not invent that term; it was in the United Nations resolution. I am wondering if you can give us an assurance that from Canada's point of view, that is a step too far.
We have, as you have pointed out, laws against incitement to hatred. Bill C-36 makes it an offence to instruct someone directly or indirectly to commit terrorist acts, et cetera. It seems to me, ever since I first heard the word in this context, that ``glorification'' was a step too far in that it could apply to almost anything. There were people saying they thought Nelson Mandela was a great man. Can you give us that assurance?
Mr. Cotler: In matters of this relationship between freedom of expression and incitement to terrorism, we have taken a narrower approach and I believe a more correct and measured approach. Even before 9/11 and the Anti- terrorism Act our Criminal Code included the prohibition against incitement to hatred in a public place against an identifiable group.
With respect to incitement, we have parallel legislation in the Canadian Human Rights Act. In the Anti-terrorism Act in the post-9/11 universe, we authorized a judge to order the deletion of hate propaganda on the Internet. We then entered the Internet age with regard to prohibitions on incitement.
In my view, we now have a framework. We are a state party to international covenants and we have covenants on the elimination of all forms of racial discrimination and civil and political rights. I have looked at the UN Human Rights Committee reports on this issue and they support the kind of measured response we have taken with regard to incitement.
Finally, I do not think it is the United Nations that referenced glorification. I think it was the Council of Europe that did so. The U.K. was also acting in relation to the European Convention on the Suppression of Terrorism, which was open for signature as of May 2005. I think that may have been part of where this may have found resonance as well.
Senator Fraser: You are the legal scholar and I am not. I was sure I had read it in a UN resolution. If not, I am delighted to be wrong.
All throughout our hearings, the discussion about this legislation and about our whole anti-terrorist apparatus has tended to focus on what we need to do to strengthen protection against legal judicial abuses and strengthen the rights of those who may be detained or accused or suspected.
There has not been much, if any, discussion of things that the authorities might like to have in the way of broader powers. Are there any such areas?
Mr. Cotler: That is an interesting phenomenon. I have discussed it from the perspective of two models of criminal justice.
The first model is what I call domestic criminal law due process, regarding rights of terrorist suspects. My sense from reading the testimony before your committee is that the narrative of much of the testimony dealt with the domestic due process model.
One of the articles I wrote before becoming a minister, and I stand by it, is where I identified 14 principles of the criminal due process model that I had relied on in defending people who, in my view, were falsely accused of terrorist acts.
The second model is the international criminal justice model. What we are talking about here is not the domestic violence in relation to the domestic criminal law due process model. We are talking about international and transnational violence. We are not talking about ordinary crimes but about Nuremberg crimes that are akin to war crimes and crimes against humanity. With respect to the international criminal justice model and anti-terrorism, you need an international criminal justice response.
If you look at our Anti-terrorism Act, half of the act, which is sometimes forgotten, is actually the domestic implementation of 12 anti-terrorism specific treaties that we have ratified. That is the international criminal justice model. When you get to the specific offences, they are intended to prevent the transnational nature of the crime, which is not something that is readily combatted by after-the-fact punitive response. In the case of international terrorism, it needs to be deterred, detected, and disabled prior to it taking place because afterwards, as we know, it can be too late.
Senator Fraser: I am taking that answer as a ``no.''
Mr. Cotler: I am saying that you have to look at the two models together. You cannot look at one in isolation of the other.
I think that the testimony before your committee tended to emphasize one model, which was the domestic criminal law due process model. It is a valid model, but standing alone it is inadequate. You must look at the international criminal justice model, and that is our relationship also to UN undertakings, international treaties, et cetera.
Ms. McLellan: That was an outstanding answer. If I could paraphrase, I think the answer is ``no.''
At this point, we do not see the necessity for additional powers. However, part of our obligation is to review the situation both, as Mr. Cotler has eloquently put it, in terms of domestic concerns and the international milieu in which transnational terrorism breeds and lives.
That is not to say that at some point in the future we may not choose to come before both the House of Commons and the Senate in another forum to argue for new powers.
At this point, we believe that the act provides us and our agencies with the tools necessary to achieve our objective, both at home and abroad, and to do so in a way that reflects the necessity to respect the rule of law and individual fundamental rights as well as provide for collective security.
Senator Fraser: I did think that the question was worth asking. In London, the entire parliamentary battle is about getting more power.
Ms. McLellan: Ms. Bloodworth, the good deputy minister that she is, said that if the committee were to have a contrary view and want to give us new powers, certainly we would consider that recommendation.
Senator Fraser: I had hoped to solicit a response approximately in the nature of the one you have given.
Senator Andreychuk: I found it curious that we would say that the UN Human Rights Committee would not be taken in as forcefully as I would have hoped. However, we defend our legislation by using the UN convention. It is a curious way of looking at international law, and I hope you will reflect on that.
We have been zeroing in on the anti-terrorism legislation but the Immigration Act and the Public Safety Act also are relevant to our discussion. Both here and in London, we have heard that better intelligence is at the root of success if we want prevention to be the key. You can do all you want after the fact and the key to success is intelligence.
In my view, there has not been the kind of emphasis on putting intelligence front and centre because we are still in the implementation mode. Ministers and others have come before the committee and said that they are working on policies in respect of this and that. We appreciate that it is an ever-changing target; however, I would be more reassured if the emphasis were not on more laws but on a coordinated attempt to have the intelligence working with a prevention model. If we did the intelligence work up front, we would not be at this crossroads of individual rights versus national security.
Are you satisfied at this time that our intelligence system is working well and better than in 2001?
Ms. McLellan: I want to clarify that we are not seeking new laws. We believe that the laws are adequate and fair.
We have come a long way since 9/11, as have other countries around the world. On the financial side, we have added significant new resources to CSIS, Foreign Affairs Canada and Canada Customs and Immigration, et cetera.
Intelligence gathering, putting aside whether we collect the right amount from the right places, is reviewed on an annual basis. There is a plan for intelligence gathering that has been supplemented in dramatic ways since 9/11.
We have adopted the British Integrated Threat Assessment Centre model for taking intelligence. Virtually all other countries around the world that are like-minded Western democracies have done the same.
Senators might have had the opportunity to meet with Dame Eliza and her counterpart at MI5 when in London recently. Their process is proving valuable, although it is not without its required cultural change on the part of certain agencies. The model includes the creation of an integrated threat assessment centre where everybody comes together.
Canada's ITAC is located within CSIS and is a physical place with a director. Each government department that contributes in any way to intelligence gathering, including central agencies such as PCO, is represented in ITAC. Departments and agencies bring their intelligence to the table. The intelligence is analysed and then integrated risk assessments are prepared and sent to the front lines. In that way, they are able to understand the integrated risk assessment situation.
In many ways that is a major cultural change. People often see information as power. We have seen this play out in the United States in ways that they would concede have been difficult. We do not have the same historical cultural barriers as the U.S., but I would be wrong to suggest that we do not have cultural resistances. We have discovered cultural resistances to coming to the table. Most of us have discovered that the only way to use the collected intelligence is to analyze it and get it to the people who need it for stopping potential terrorist attacks, whether on a plane, in a subway or anywhere else.
In terms of the collection of intelligence, the Prime Minister and I have been clear that we need to collect more foreign intelligence. We will continue to work on that. We live in a global environment and it is important for us to do our own intelligence gathering, both at home and abroad, and then analyze it and determine under what terms and agreements and protocols it is shared and with whom.
You are right in saying that everything we do in this area should be intelligence-led. Risk assessments help us in the effective deployment of human and financial resources.
Senator Andreychuk: You are satisfied that you can rely on the intelligence that you receive?
Ms. McLellan: It is an ongoing process. Not all gathered intelligence is of the same worth. That is why CSIS, for example, corroborates the intelligence that it collects. We are fully aware of the risks of acting on suspicion, rumour and innuendo. With an integrated threat assessment centre, intelligence gathering agencies and departments are able to check on one another in terms of confirmation and validation through a variety of intelligence sources.
Intelligence gathering is a nuanced, subtle business that relies on well-qualified people. Mechanisms such as an integrated threat assessment centre, independent oversights through SIRC or a public complaints commission and the new parliamentary committee are extremely important.
Mr. Cotler: I might need to offer a corrective to an unintended characterization. Senator Andreychuk said that she was disappointed that I did not appear to take the UN Human Rights Committee report as forcefully as I should have done. I did say in my remarks that I do take the UN Human Rights Committee very seriously. That is why I read the entire report in respect of all the issues. That is why we are a state party. We also signed the optional protocol to allow individuals in Canada to make complaints against Canada. That is why we submit our periodic reports and, hopefully, always on time. That is why we welcome the critiques, and these critiques by the UN Human Rights Committee. That is why we welcome the opportunity to provide a clarification — that is the point.
It is precisely because we take them seriously that we think a clarification needs to be offered so that no mistaken characterization of what we are doing remains on the record. That is all I am saying. I know Mr. Nowak well and I think he would welcome our clarification where it is appropriate.
Let me conclude by saying we welcome the critiques. We take them seriously. They help us in our work. However, like everyone else, they can sometimes be misinformed and it is our responsibility to offer a corrective, which I believe they will welcome when it is offered.
Margaret Bloodworth, Deputy Minister, Department of Public Safety and Emergency Preparedness Canada: I do not think there is any question that we are much better off now than we were four years ago in terms of overall coordination and in terms of the actual quantity, because the government has invested significant resources.
I do not think anyone involved in any way with intelligence would ever suggest that intelligence is perfect. By definition, it is fragmentary and bits of knowledge. It can often be valuable bits of knowledge but it is not always complete. Second, it will never be 100 per cent preventative — ever.
The Chairman: Thank you very much. You have 30 seconds, Senator Prud'homme.
[Translation]
Senator Prud'homme: We are a senatorial committee with the same rights as everyone else; I know that I am the last one to speak but to hear that I only have 30 seconds —
I will simply tell Madam the Deputy Minister, whom I hold in high esteem, that the term I would like to use is ``reliable information.'' You never said that word although it is in your vocabulary. Because there are some sources of information that I find unacceptable.
[English]
I have had long discussions with Mr. Alcock over the years on this question. How trustable is the information that we receive? I ask for all the rules of law.
I just learned the cost of being courageous for Bhupinder S. Liddar. He just won, but not many citizens would have the guts to go that far and to wait that long for justice. That is what concerns me.
I do not regret saying what I am going to say. For 50 years next year on one issue, and 40 years on November 29, 2007, I have been involved in certain questions pertaining to the Middle East. I regret that we do not make any effort to get to the root of modern terrorism. If all these great intellectuals that are surrounding me, including people at the head table, would put as much effort into getting back to the roots of the problem, as Mr. Trudeau always taught me — I was an instrument of Mr. Trudeau's hand for many of the activities I have done in the past, I shall say that in the Senate. Now the time has come to go for broke; I am old and tired and on my way out. However, there are things that have to be said and I regret very respectfully that no effort is being made to go to the root of modern terrorism.
Today, if you really want to be re-elected or if you want to have action, all you have to do is use terrorism. Then I could see all these big farmers in the southern United States saying, ``this is terrorism, go ahead, do anything you want.'' I am afraid that spirit is invading Ottawa too easily. I am concerned about that. I have friends in Edmonton and many in Montreal — maybe not in certain parts of west Montreal, but certainly in Edmonton — and they are very concerned about that.
If we were to make efforts in getting to the root of what I predicted 40 years ago, and repeated ever since, at great risk being the subject of inquiry by the MacDonald commission. I say that publicly for the first time — yes, I was the one who was secretly examined by CSIS without my knowledge. However, I said you have a job to do, do it. I have a job to do, which is to be risky for my country for peace of mind. We have not done so. I regret to say that if we were to scrutinize — and I conclude because the chair, who is a good friend, is very nervous when I take the floor.
The Chairman: I am not nervous.
Senator Prud'homme: Well, excited — I have a reputation, from Mr. Castro, of being able to speak longer than him. Having listened to the two ministers, I realize that both Mr. Castro and I have met our match today.
As for talking about terrorism, and as one who tried to go to the root of it as a Canadian, I am not defending anything else but the integrity of Canada.
[Translation]
And let me repeat this in French, the only thing I want to do is to defend Canada's integrity — I did not say French Canada's or Quebec's integrity. I have spent my life doing this, and I am disappointed. I went to the Middle East but I was never alone in Palestine. The only time I went to Palestine was with the Minister of Justice, accompanied by Mr. Jean Chrétien who got lost in the north, south, east and west. You remember that famous trip. And I must say that the Middle East issue is at the root of the international cancer, but we always put it aside.
[English]
We always put it aside because this is the untouchable subject. I regret to see that the last person who should be responsible for talking about terrorism is the Minister of Justice of Canada. That is my statement. You can answer. I would be delighted to have a debate.
I am going to have a hell of a debate talking about hate literature in the Senate because I intend to produce an amendment to the hate literature. Instead of making a speech, I will quote all the letters I received the last three weeks just because I had the nerve to call the Iranian ambassador into my office instead of just declaring we condemn, we condemn.
I have never seen a country that condemns terrorism more than Canada — there is no more vocabulary left — but we do not engage people and we do not go to the root of the problem. I know many people around here agree with me because they will come and say, ``I agree so much with you but I cannot repeat it too loud.''
Why should I talk longer? I intend to defend Canadians and there is racial profiling. I come from a working class district where there are a lot of these people that you have been talking about. Go and talk to them. Do not live in the high class — go into the street. I just did that two weeks in a row because I have to attend to a lady in my family every day where I live — I refuse to move. Then you will see, unfortunately, there is still racial profiling. Is it part of life? I do not know, Madam.
I keep looking at the Deputy Prime Minister because I have great respect for you. That does not mean I have no less respect for a minister of the Crown because I believe in being respectful to ministers of the Crown, whoever they may be.
The Chairman: Thank you very much, Senator Prud'homme.
Colleagues, this marks very close to the end of our hearings. We will meet again and then work on our report.
We want to thank you for the time you have given us this afternoon. If we need any further discussion, we will get in touch one way or another with you.
Thank you very much both for coming and all of your officials.
Ms. McLellan: Unfortunately, I have to go. I have to chair a meeting at 5:30 p.m., but I think Mr. Cotler wanted to add one thing in relation to something here.
If the rest of you would excuse me, I do not want to prevent my colleague from being able to say a few words.
Senator Prud'homme: We thank you for showing up.
Ms. McLellan: It is always my pleasure.
Senator Prud'homme: The spirit here is much better than in the House of Commons. I was there at one time and I know.
The Chairman: Thank you very much, minister.
[Translation]
Mr. Cotler: I share the same objectives as Senator Prud'homme. I began my presentation today by saying that our common cause is to protect Canada's integrity and the personal security of all Canadians.
[English]
I agree with Senator Prud'homme with regard to the root causes. They need to be addressed in two ways. I was a close colleague of my predecessor, former Prime Minister Trudeau, going back a number of years.
Number one, the United Nations said that terrorism from whatever quarter, for whatever purpose, needs to be prohibited. That is a principle that we enunciate and which the UN has asked all its state parties to adhere to. The second is, this does not mean that one should not do whatever one can to address root causes, whether it be the combating of poverty, economic assistance or responding to a request for assistance in the matter of the rule of law.
I am delighted to mention that we have invited the four ministers of justice of Egypt, Israel, Palestine and Jordan to come together and hold the first ever justice dialogue and they have agreed to do so. Canada will be hosting them with the purpose of having the four justice ministers reading from a common script with respect to a shared dialogue on justice.
Maybe they will all anchor themselves, as they put it, in shared principles in respect for human rights, good governance and the rule of law that will also have a peace dividend.
Senator Smith: Hear, hear!
The Chairman: Thank you very much, Mr. Cotler.
Senator Prud'homme: That is the first time that I have heard the word Palestine as a country.
The Chairman: It has been a long day. It was a pleasure to have all of you here today. We will adjourn until next Monday.
The committee adjourned.