Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 3 - Evidence - Meeting of February 4, 2008
OTTAWA, Monday, February 4, 2008
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), met this day at 1:02 p.m. to give consideration to the bill.
Senator David P. Smith (Chair) in the chair.
[English]
The Chair: Honourable senators, I will make a couple of comments on the proceedings today before we start.
We have three separate panels. In our first panel, we have two gentlemen who represent different organizations. We have structured the panel this way because our plan for today is that we should complete hearing from all the witnesses who have been on the list for these hearings. It is probable — and we will perhaps have a procedural discussion at the end of the meeting — that Bill C-3, the counterpart to this bill, will be sent to the Senate in a couple of days. Because Bill C-3 has a deadline imposed by the Supreme Court, next week we may very well shift to Bill C-3 — we will have a discussion on that bill before we finalize it — so that at least we have the option of dealing with it within the time frame set by the Supreme Court for the limitation period.
I mention that item so you are aware of the situation and can think about it. We will return to that issue at the end of the meeting.
One of our witnesses has come from Vancouver, Jason Gratl, President of the British Columbia Civil Liberties Association. We also have Eric Vernon, Director of Government Relations, Canadian Jewish Congress.
We have a prepared statement from Mr. Vernon, so we will hear from him first. We will then hear from Mr. Gratl and open up the floor to questions for either of our speakers from members of the committee.
Welcome, gentlemen. Thank you for coming.
[Translation]
Eric Vernon, Director of Government Relations, Canadian Jewish Congress: Mr. Chair, thank you for the invitation to present to you the views of the Jewish community on the fight against terrorism in Canada and on Bill S-3.
[English]
Let me begin, honourable senators, by stating clearly that Canadian Jewish Congress supports Bill S-3. However, at the same time we would examine with interest any amendments that this committee might eventually recommend after completing its review towards strengthening the legislation as part of the overall anti-terrorism regime in Canada.
It will come as no surprise, I am sure, that Canadian Jewish Congress, CJC, for many years, and well prior to 9/11, has been a strong advocate for a comprehensive and effective counterterrorism regime in Canada on behalf of a community that is essentially twice targeted, that is, both as Canadians and as Jews.
In our brief on the legislation establishing the Canadian Security and Intelligence Service, CJC noted that:
If terrorism is allowed to implant itself in Canada because we are reluctant to establish realistic measures to prevent it, its impact will spread beyond any particular community to affect Canada as a nation and in the international forum. As terrorism grows more organized and more international in scope, so must the efforts to contain it be more organized, serious and efficacious.
Honourable senators, that brief was submitted in April 1984, almost 24 years ago. Yet, in the aftermath of September 11, it became clear how unprepared Canada was in dealing with the threat of international terrorism and its domestic manifestations. Canadian Jewish Congress was therefore gratified by the government's introduction of Bill C- 36, including the two sunsetted clauses at the heart of Bill S-3.
To date, Canada has been spared the agony of the suicide bombings and attacks that, since the turn of the new century, have become a commonplace weapon in the terrorists' arsenal, but our nation has not been immune to terrorism, not least, the tragic events surrounding the bombing of Air India Flight 182.
Canada's Jewish community has been targeted for terrorist violence by the likes of Ahmed Ressam and Jamal Akkal. Beyond that threat, we cannot but see the community's security in the context of the vulnerability of and the attacks on sister communities elsewhere in the world, both after and before September 11, 2001.
Given the multicultural and pluralistic nature of its society, Canada is especially vulnerable in an increasingly interconnected world to terrorist infiltration. While the vast majority of ethnic, cultural and community groups and their members pose no threat, terrorists are well positioned to exploit, intimidate or attract individual fellow ethnics and co-religionists into supporting, financially and otherwise, and providing valuable cover for, their activities in one way or another.
From our perspective, a decided strength of the Anti-terrorism Act was that it set its sights primarily on the prevention of terrorist acts rather than the apprehension and punishment of perpetrators.
Potential terrorist operations, or those discovered in progress, must be thwarted immediately. The powers of recognizance with conditions and investigative hearings introduced by the act remain important for the attainment of that purpose. The first and best line of defence against terrorism is effective and timely surveillance and intelligence gathering, intrusive though these defences may be.
We believed in 2001, and continue to believe today, in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.
Since the passage of the Anti-terrorism Act, Canadians have been passing judgment on how well it met the most fundamental challenge facing any democracy, namely, how to provide for the safety and security of its citizens while minimally impairing the basic civil liberties that underpin their society. The two measures that were sunsetted clearly provide a stern test to any democratic society. Those two provisions seem to epitomize the zero-sum game of protection of security versus protection of human rights. As we all know, the provisions ultimately died on the floor of the House of Commons.
From our perspective, one need not approach the debate from the either/or perspective of security versus rights. If terrorism is rightly regarded as an assault on human rights, it stands to reason that the implementation of counterterrorism measures necessarily protects the highest priority rights of life, liberty and the security of the person, the foundation of all other rights and freedoms.
The corollary, of course, is that these actions themselves must always be rooted in, and comport with, the rule of law. A properly framed and implemented counterterrorism policy enhances civil liberties and core Charter of Rights and Freedoms values, and protects them as part of our way of life, whose essence is threatened by terrorism.
A look around the world clearly tells us that terrorist acts remain a clear and present danger, and our security and police personnel must have sufficient authority to take preventive action to interdict possible attacks before they occur. The fact that these two measures have not been used in the preceding six-plus years may be grist for the mills of those declaring these sections as unnecessary elements of Canada's anti-terrorism arsenal. However, in our estimation, that fact tells us only that the dire predictions of mass human rights abuses flowing from such extraordinary authority were overstated, not that these powers are superfluous.
Nonetheless, we are fully cognizant of the severity of these measures, and we believe that Bill S-3 provides additional safeguards to reassure Canadians concerned about the potential adverse impact of these measures. These measures include the requirement that a judge to whom an application for an investigative hearing is made for a past or perspective terrorism offence must be satisfied that reasonable attempts have been made to obtain the information by other means. The additional parliamentary reporting requirements placed upon the Attorney General of Canada and the Minister of Public Safety address the need to maintain the two sections, namely, the allowance for further parliamentary review of these provisions and the new five-year sunset for an assessment of renewal of either or both sections.
As for the issue of parliamentary oversight, in our various submissions on the Anti-terrorism Act, ATA, and its subsequent reviews, Canadian Jewish Congress has recommended the appointment of a new parliamentary officer who, with the necessary staff, would be mandated to supervise and monitor the operation and enforcement of the ATA and attendant security-related statutory provisions, including security certificates — which, as Senator Smith noted, you will deal with next week. This new officer would provide a comprehensive annual report to Parliament on the implementation of all pertinent legislation and public policies.
This report would principally focus on whether Canada had the appropriate tools to "suppress, investigate and incapacitate" terrorist activity and whether this priority mission was being carried out in ways respectful of, and compatible with, core Canadian values. Although this recommendation may lie beyond the mandate of the present legislative review, I take this opportunity to reiterate it for your consideration.
Honourable senators, the most fundamental role of the state is to protect the safety and security of its citizens and core way of life. It would be the ultimate irony if, in striving to maintain civil liberties, we strip authorities of the necessary powers to stop terrorists and extremists from destroying our open and free society.
In our respectful submission, Bill S-3 deserves expeditious passage as it successfully meets the challenge in restoring the authority for the use of recognizance with conditions and investigative hearings, while providing additional safeguards for fundamental civil liberties and rights. I thank for your attention and look forward to answering your questions.
Jason Gratl, President, British Columbia Civil Liberties Association: Honourable senators, I am President of the British Columbia Civil Liberties Association; that position is a volunteer one. In my private practice, I practice criminal and civil litigation. It will come as no surprise, perhaps, that the British Columbia Civil Liberties Association does not support Bill S-3. In our view, the bill is both damaging and unnecessary to maintaining the fabric of Canadian values.
I will begin with a general remark, namely, that any examination of whether administrative, executive powers should be passed should not be undertaken without a re-examination of the definition of "terrorism" in the Criminal Code that underlines, informs and sets the scope and purpose of those new powers.
As we have maintained since November of 2001, in our view the definition of "terrorism" is simply too broad. The more conceptual problem with the definition of "terrorism" is that it fails to adequately differentiate —
Senator Baker: Do you mean "terrorist activity"?
Mr. Gratl: Yes, sorry, the definition fails to differentiate adequately between "terrorist activity" and "criminal activity"; that is, serious criminal activity. Every act of terrorism is already captured by the Criminal Code, whether it is captured by the offence of murder, the offence of extortion, or offences involving interference with internationally protected persons. Those matters are already covered by the Criminal Code. From a conceptual point of view, it makes sense to limit terrorist offences to offences that threaten to interfere with the Constitution of Canada itself.
At the moment, the definition of "terrorism," as stated in the Criminal Code, involves a motive element; that is, ideological, political or religious motivation. That element was struck down in the Khawaja case and has not been appealed. That primary functional distinction between terrorist offences and serious criminal offences has been undermined by this declaration of constitutional invalidity of the motive element. What is left to differentiate the definition of "terrorism" from a serious criminal offence? What is left is, a threat to corporate interest; a threat to economic interest; and disruption of essential services or serious property damages, for the purpose of effecting some political change.
The only remaining difference is this purpose of trying to effect a political change, and even that, properly speaking, is captured by an extortion provision, because extortion of a group still constitutes a criminal offence.
What we have fundamentally in the anti-terrorist spectrum of offences under the Criminal Code is a basic weakness in the sense that terrorism-related offences do not serve any special purpose, nor can the provision properly denounce terrorist activity. The definition is simply not tight enough to be capable of denouncing activity that is serious enough to be called terrorism. The word "terrorism" is, in effect, too diluted to be meaningful. It means only, serious extortion- related offence. Of course, it is easier to see that conceptual flaw now than it was in November 2001 because it is plain that Canada has not been subject to a serious terrorist attack. A terrorist-related case is ongoing, but that case was easily snagged and investigated by means of Internet-related investigations. It did not involve any special powers, special wiretaps or warrants. It did not involve an investigative hearing, and it did not involve a preventative detention. Plain old police work — gumshoe work — and good work from that point of view were enough to detect and apprehend the suspect in that case. No trial has been held to completion, so we assume the innocence of persons charged in that offence.
However, the other important and difficult aspect of terrorism-related offences is that these offences seem to provide an implicit authority to go after folks who could be considered a terrorist threat in the ordinary meaning of the word. Those people are people who can undermine the sanctity and strength of the country as a whole, or rather, people who could be considered folks who have been accused of politically motivated acts of violence or potential violence, but do not constitute a threat to the country. It is a kind of militant dissent that law enforcement authorities have considered themselves to be authorized to go after and there are a few examples of that dissent. The British Columbia Civil Liberties Association conducted a study of materials in the public realm, and we discovered that the RCMP and their Integrated National Security Enforcement Teams, INSETs, were engaged in the investigation of Aboriginal groups such as the West Coast Warrior Society and David Barbarash in British Columbia. Attempts have also been made to bring antiterrorist powers to bear in the immigration context, in the case of one Mr. Scarpitti, also known as Tre Arrow, who was a so-called eco-terrorist from the United States. He had fled the United States and he was on the FBI's ten most-wanted list. He was subject to terrorist-related enforcement and, of course, he represents no danger to the security of Canada in any meaningful way.
At the British Columbia Civil Liberties Association, we have seen a number of these cases. They are of concern to us because the expansion of enforcement power, rather than being targeted at terrorists, has been targeted at people who are political dissenters. It is fine for the police to investigate those people if they engage in activity that is criminal or threatens physical harm to persons or property, but it is something else entirely to deploy terrorist-related powers in those contexts.
We advocate an amendment to the definition of terrorism. We believe that the definition of terrorist activity should be any action that is intended to, or can be reasonably foreseen to, cause death or serious bodily injury to persons not actively or directly involved in a dispute with the intention of intimidating a population or compelling a government or international organization to do, or abstain from doing, any act.
Terrorist activity would be limited to contexts in which the essential integrity of Canada is threatened, that is, a threat to our current political formation, rather than merely a threat to corporate interests, economic interests, essential services or substantial property damage. We need to stay mindful of the difference between militant dissent and serious threats to this country.
Investigative hearings and preventive detentions also seem superfluous to us, and the evidence for that proposition is that preventive detentions and investigative hearings have never been used. There was the one Air India case in which a witness was brought before the court and an investigative hearing was initiated, but after an appeal to the Supreme Court of Canada, which upheld the validity of the investigative hearings, the investigative hearing itself was never held, so no information was obtained as a result of initiating that proceeding.
It does not appear to us, given the passage of five years without a single investigative hearing or preventive detention, that this power is necessary. Even if it appeared to be necessary in 2001, enough water has passed under the bridge to realize that the events of September 11, 2001, did not change everything. It was often said that September 11 changed everything. In our view and in our submission, we encourage this committee to stand by the principle that one thing that September 11 did not change is our fundamental values and our respect for civil liberties and democratic principles. September 11 is not a reason to alter fundamentally the relationship between the executive of government, the judiciary and the legislature, in the way that investigative hearings do, and so I will begin with the investigative hearing difficulty.
The primary difficulty with investigative hearings is that they distort the functions of the judiciary and the Crown. In essence, the course of order-making power of the judiciary is brought to bear on an investigation. That power places prosecutors in the role of investigators, which is unlike their usual role. It also places the judiciary in the position of presiding over a criminal investigation. Both those realities were considered by the Supreme Court of Canada, and they were judged to be constitutionally valid. Of course, the British Columbia Civil Liberties Association was disappointed with that decision, and we continue to disagree with the Supreme Court of Canada on the issues of principle.
In our view, there still remains time to uphold those principles at the level of this committee. We also note that, in dissent, Justice LeBel and Justice Fish upheld those principles of which I speak.
The second major problem with investigative hearings is that they reduce the right to silence not only for persons compelled to testify but persons who are questioned by the RCMP and the Canadian Security Intelligence Service, CSIS. That is to say, there remains an ongoing pervasive threat that if a person who is sought as a witness or as a suspect in a terrorist-related offence refuses to speak to the investigative authorities, that person can be compelled to testify, and it may well be that there are many cases in which this type of background coercive force of the potential of an investigative hearing has undermined an individual's right to silence. No statistics are gathered on that issue, and there are not, to our knowledge, any issues of protocol.
It will come as no surprise to members of this committee that the testimony before the Arar inquiry revealed that investigation of terrorist offences involves racial profiling. That admission was made by a member of the RCMP. I am happy to provide the citation to any honourable senator who might be interested. The citation amounted to an admission that the RCMP has established a terrorist profile, and the terrorist profile consists of an individual from a suspect group or targeted group, who, aside from membership in the targeted group, looks like an ordinary Canadian. That is, the more ordinary they look, the more they could be potentially a member of a sleeper cell.
That profile means that terrorist-related powers are being used against specific groups, and specific groups are being targeted. That use is entirely inconsistent with the multicultural society that we live in. It has the potential to create disaffected or disgruntled groups, and it is a legitimate cause for concern in our society.
Nothing in Bill S-3 would prevent the use of threats to initiate an investigative hearing to further racial profiling objectives that are modified by racial profiling activities. At a minimum, in our submission, a provision requiring the collection of information related to racial profiling should be included in this bill.
Turning to preventative detention, preventative detention is essentially a power to impose a peace bond or a control order on suspicion of a terrorist act. In our view, the threshold of suspicion is too low. Reasonable grounds for suspicion requires only articulable cause that is something more than a hunch but less than reasonable grounds to believe a proposition will satisfy the reasonable grounds for suspicion requirement. It requires only a constellation of facts that, together, raise a reasonable suspicion.
In our submission, there should be at least reasonable grounds to believe before imposing a recognizance. If that condition were the standard, nothing would differentiate a terrorist-related peace bond or terrorist-related control order from an ordinary peace bond under section 810 of the Criminal Code, which allows the imposition of similar types of restraints; reasonable grounds for a person to believe that their life or health is threatened by another person.
Again, we see that the powers of preventative detention, fairly and properly construed, are already embodied in the Criminal Code, and so preventative detention is unnecessary.
Subject to any questions, those are my submissions.
Senator Baker: I want to welcome both witnesses and to recognize the exceptional job they are doing in each of their respective roles.
I presume, Mr. Gratl, that in your opening comments you were talking about the definition of terrorism activity and not the definition of terrorism.
Mr. Gratl: Terrorist activity, that is right.
Senator Baker: Second, you raised an interesting point about R. v. Khawaja. You said that a determination had been made by the Superior Court of Justice for Ontario and that it had not been appealed. Toward the end of 2007, the Supreme Court of Canada said that the application for leave to appeal from the judgment of the Ontario Superior Court of Justice is dismissed. An application was made for leave to appeal, but it was refused by the Supreme Court of Canada.
Mr. Gratl: It was refused.
Senator Baker: I want to ensure that the record is correct on that matter.
I suppose the fact that this section was struck down by the Ontario Superior Court of Justice further solidifies your argument, which leads to the following question: Do you think that the portion of the definition of terrorism activity that was identified in that particular case and for which judgment was given by Justice Rutherford, I believe, of the Superior Court should be amended by the Senate and the House of Commons? Do you think that portion should now be struck from the definition of terrorism activity, given that leave has been refused by the Supreme Court of Canada?
Mr. Gratl: Thank you, Senator Baker, for your enhancement of my point. I appreciate that.
Some housecleaning to ensure that the public understands that the law has been struck down would be of benefit. As we saw in the same-sex marriage series of cases in the various courts of appeal and in the Supreme Court of Canada, the law had changed long before the House of Commons tabled a bill to change the law.
Often in the minds of the public, the workings of the judiciary can remain obscure, and to have clarification in the Criminal Code itself would help.
Senator Baker: We heard from a professor of law last week on the judgment in Vancouver Sun (Re), which said that the entire procedure, starting with ex parte, should be in open court. The professor suggested that the judgment of the court should be incorporated in this legislation; that is, that these hearings be undertaken under the principle of an open court, which then leaves to the various participants the possibility of making motions to do whatever is necessary under the rules of court as they exist. That direction is given in clear language by the Supreme Court of Canada. Do you agree with that judgement?
Mr. Gratl: We believe that the open courtroom principle should apply. That principle establishes a presumption that, absent an order to the contrary, a proceeding will be held in open court to allow the public access to the information and to allow the judiciary to be perceived to be doing the excellent job they usually do.
Senator Baker: Mr. Gratl, I listened carefully to your comments. You appear to have extreme difficulty with the confidential nature of the sworn informations to obtain and the information that the judge makes a decision on, in this particular case for an investigative hearing. Do you think that provision is comparable to, or worse than, the existing provisions that you deal with, probably on a daily basis practicing criminal law, as the provision relates to obtaining the background information on sworn informations to tap telephones in cases before the Controlled Drugs and Substances Act? That information is difficult to obtain and to defend as a defence lawyer. Does this legislation provide you with even more difficulty in obtaining the information that grounded the issuing of the order in the first place by the judge?
Mr. Gratl: Our larger concern with the investigative hearing powers are the distortion of the function of the prosecution and the judiciary. However, if investigative hearings were to be legislated back into existence, and we were asked, on that assumption, to tinker with the details, I do not think the British Columbia Civil Liberties Association would take exception to ex parte applications to obtain the initial order to initiate an investigative hearing. That situation would be comparable to situations in which wiretaps and search warrants are applied for.
If my recollection serves me correctly, in an application under section 83.28 of the Criminal Code, the Supreme Court of Canada upheld the ex parte nature of the initial application. The court required the presumption of openness to apply only to the later investigative hearing itself; that is, at the portion when the person subject to the order was brought in for questioning.
Senator Baker: However, it is difficult for a lawyer on the side you are normally on to obtain the underlying basis for the issuing of the order and the sworn information to obtain. If I read you correctly, then, you are concerned about the role of the Crown as it relates to these procedures outlined in this bill and the blurring of the existing line in Canadian law of the police doing the investigation and the Crown doing the prosecuting but taking a second look at the basis for the decision of the police to lay charges. Is this issue what you are referring to?
Are you referring to blurring the line between what we recognize as the normal role between the investigative branch in our society, the Crown and then the court?
Mr. Gratl: That is one of our concerns, true, but the other concern is also that the judiciary itself is called upon to engage in an unusual task. Usually, a judge makes some kind of finding, a finding of fact or a finding of law, typically both. Then, the judge applies one to the other and issues an order. In a civil case, a family case, that order could be a money order, a custody order, or an order for specific performance in a contracts case. In the criminal law realm, the order is for a committal, a conviction order or a sentence order, but throughout, the judge hears evidence, decides what the facts are on the basis of that evidence and makes a finding of law.
In the context of an investigative hearing, the judge performs none of that central role and is there solely for the purpose of two things. The first is to set the framework of relevance; that is the person who is under questioning cannot be asked any irrelevant questions. There is that minimal determining of evidentiary relevance. The second thing is to throw the person in jail if the person refuses to answer the question.
That purpose strips judges of their usual function, and of their usual stature, and in a way puts them in a position far too close for our comfort to the position of directly serving the will of the executive in the course of investigation.
In our view, that move to strip judges of their proper function in that way is dangerous, unnecessary and virtually unprecedented. In our view, something much more dramatic than September 11 should be necessary to engage in such serious toying with the balance of powers.
The Chair: What would be more dramatic than September 11?
Mr. Gratl: World War II would be more dramatic than September 11.
The Chair: Okay.
Senator Baker: My final question is brief. You started your presentation with the importance of the definition of terrorist activity in that it permeates all these laws that we are now asked to approve.
In the original law defining terrorist activity, as you pointed out, the provision has been struck down and permission has been denied to appeal to the Supreme Court of Canada on this matter. The Supreme Court of Canada has denied it. The provision placed as one of the essential constituent elements of the offence defining terrorism activity as being a motive associated with either a religious or, and then it spelled out three or four other areas. The courts interpreted that as being a condition of the pursuit of any of these activities we are now talking about relating to terrorist activity.
Therefore, why do you find it strange that the police were motivated to pursue a certain area of investigation if that area is, in fact, what Parliament passed in the legislation?
As a concluding question, did you notice the big question asked by Justice Rutherford in that decision was, why did Parliament pass that legislation. He only asked the question. Why do you think Parliament passed that legislation?
Mr. Gratl: It is always difficult to plumb the depths of Parliament's motivations. It is difficult for me to speculate.
The concerns articulated by Justice Rutherford are concerns that we share, as an organization. The same concerns are shared by the McDonald commission, the Mackenzie commission and other organizations similar to ours, and that concern is that the police, the RCMP, and CSIS do not engage in investigations of dissenters. An important distinction is to be drawn between the suppression of subversion and the investigation of dissent.
The law, as it was framed, incorporating political, ideological and religious motive was a license, in effect, for investigators to investigate the political, ideological and religious motivations of various people on the suspicion that they might be involved in some type of violent activity.
In effect, the legislation licensed the creation of dossiers of the type that were criticized by the Mackenzie commission on ordinary Canadians, who had committed the offence, in effect, of becoming politically engaged on a religious, ideological or political level. Those activities are not poison words. They are not a bad thing. They are, in fact, at the core of the freedom of expression values of Canadians; to be able to advocate on religious, political and ideological subjects. That construction of the terrorist activity definition had the potential to have a serious chilling effect on freedom of expression.
Senator Joyal: I refer to page 19 and 20 of your brief, Mr. Vernon, whereby you recommend the appointment of a new parliamentary officer mandated to supervise and monitor the operation and enforcement of the ATA and attendant security-related statutory provisions, including security certificates.
You are probably aware that in this committee, when we published our report last year, in February, recommendation 39 in the report was:
That a standing committee of the Senate, with dedicated staff and resources, be established to monitor, examine and periodically report on matters relating to Canada's anti-terrorism legislation and national security framework on an ongoing basis.
In your opinion, is the parliamentary officer a position that must be filled first before a parliamentary committee is established, such as the one suggested by the Senate, or should we stick to our recommendation to establish a standing committee dedicated to review and report on all matters related to anti-terrorism legislation and national security framework?
You did not make any qualification that your parliamentary officer would report to Parliament. As you know, many reports are tabled with Parliament and stay there. The reports are not acted upon or they are acted upon only when there is a crisis. We can give you examples.
Other reports are acted upon, such as the Official Languages Act, because a committee is attached to the Commissioner of Official Languages, but other offices of Parliament do not have a parliamentary committee attached to them and, as we know, their reports, most of the time, remain unstudied unless specific problems arise.
Did you consider that situation in making your recommendation, or in your opinion, is it sufficient to entitle a parliamentary officer with that task or job?
Mr. Vernon: Our main objective is to have an office connected directly to Parliament that would have powers and mandate to oversee all the apparatus of counterterrorism and national security.
The actual mechanics could be subject to various interpretations or models. In fact, it might be more useful to have the office somewhat at arm's length from Parliament but reporting directly to Parliament, perhaps through either the Minister of Public Safety or the Minister of Justice.
It is important to establish the office, whether it is connected to a specific standing committee or not.
Senator Joyal: The other conceptual problem I have with your suggestion is the responsibility of that officer: the line that would divide the two objectives of the responsibility of that officer to monitor all the agencies of the government responsible for security and the other objective, which is to monitor those activities, being respectful and compatible with core Canadian values. When I read "core Canadian values" in your brief, I understand those values to be Charter values; the rule of law and all the other values that are at the foundation of our democratic system of government.
It seems to me that sometimes there is incompatibility between the two responsibilities. One responsibility is for the efficiency of our security apparatus and the other is for how we manage that security apparatus while balancing the Canadian values in the Charter of Rights and the rule of law. In granting an officer two conflicting responsibilities, without a parliamentary standing committee to arbitrate at the right moment, does that concept not put the person in a difficult position?
Mr. Vernon: The person may be in a difficult position, but I think that is precisely the point. Our objective here is to have an officer of Parliament with a dedicated staff to make that precise kind of evaluation. The officer would look at the way in which the various elements of the anti-terrorism regime are implemented and act as a watchdog, to make sure that, in the implementation of those policies and provisions, basic rights are defended. The officer would also point out instances where there is a conflict and would make a judgment call as to whether, in that particular instance, the needs of security trump the needs of rights or vice versa.
Senator Joyal: Is it not the job of Parliament to perform that arbitration?
Mr. Vernon: Once Parliament has set out the laws, statutes and regulations, then the implementation of those regulations, statutes, policies and provisions could be handled by an arm's length office.
Senator Joyal: To a point, I agree that ensuring the efficiency of government agencies that have the responsibility of fulfilling the maintenance of security in Canada is a job per se. Many different agencies work in silos and so on. We know the substance of the report on the September 11 terrorist activity. The silos or the isolation of all the United States agencies — not knowing one another and what they were doing, and the left hand not knowing what the right hand was doing — largely explains the fiasco or the incapacity of the American authorities to have prevented September 11. If we want to achieve our goals, it seems to me that this job is one kind, and another kind of job is more related to the close look that one should pay to the operation of all the legislation, regulations and bylaws that apply in the implementation of various provisions of the ATA and the Immigration Act. You even mention the security certificate, so this officer would also deal with the Immigration Act. That is why I think a standing committee of Parliament and the Senate would be in a much better position to perform that arbitration, but not in place of other parliamentary responsibility, especially if those sections of the Criminal Code will have a life of their own, that is, if they are to stay in our system, and we need to oversee how are they are used.
We have heard the RCMP, and we expect amendments to the RCMP Act to ensure that the oversight of the RCMP is framed properly in the way that Justice O'Connor suggested in the Arar inquiry and so on.
It seems to me that it is essential that we, as parliamentarians, have both sources of information in the most objective way possible so that we are in a position to perform the arbitration instead of trusting somebody outside of Parliament and saying, "Do whatever you want, and give us a report annually, and we will be satisfied with that."
Mr. Vernon: I take your point, senator, and I certainly appreciate the many years of experience you have as a skilled parliamentarian. If you recommend that approach as the more effective way to perform this role, then we would be willing to look at that recommendation.
Senator Joyal: Thank you.
Mr. Gratl, I have three questions. The first one is in relation to a brief that we received from the Canadian Civil Liberties Association. Are you aware of the brief or the substance of the brief that we received? It is dated January 23. I think it has been circulated to the members of the committee. I will read the specific paragraph on page 2 of their rather short brief. It is four pages, but I want to read the section of the brief which seems to me to be most important:
While we have apprehension about any form that such a power of investigative hearing may take, the bill's — Bill S-3 — failure to draw a distinction between misdeeds already committed and perils imminently expected puts it well below the minimum threshold required for acceptability. In order to protect the interest of innocent persons as much as possible, any power to compel investigative evidence must be limited to the prevention of dangerous acts that have not yet been committed rather than the solving of crimes that already have.
What is your comment on that proposal of the Canadian Civil Liberties Association that, in using the investigative hearing powers, a clear distinction should be made between the prevention aspect and investigation or solving of previous crimes? In other words, where do you sit, during the course of an investigation, on finding the author of a crime?
Mr. Gratl: The distinction is helpful. It does not go as far as we would like it to go, that is to say, not to enact any type of investigative hearing whatsoever. The proposal essentially mirrors the recommendation of the House of Commons committee that studied the issue; that investigative hearings should be available only if there is an imminent threat of a terrorist offence or imminent threat of terrorist activity. We agree with that view as a mitigating proposal if investigative hearings were to be enacted.
Senator Joyal: When the RCMP testified in front of us last week, they put forward a distinction. Let me find their brief. They put to us a distinction in the presentation of Mike McDonell, the assistant commissioner, which I think was realistic. At the point in time when you try to question a witness or a person, it is difficult sometimes not to ask questions related to past deeds or past actions. I quote the assistant commissioner:
During the debate over the extension of the provisions, much was made of the fact that investigative hearings should be used only for preventive purposes. From our perspective, things are not so clear-cut. If an investigator has reason to believe that an individual knows something about a previous terrorist event and, during an investigative hearing, the witness implicates several individuals who are actively planning a future event, then the hearing serves both an investigative and preventive purpose. Investigating previous terrorist incidents can assist us in preventing future incidents.
That is the position of the RCMP.
Do you think there is common sense in the qualification the assistant commissioner makes about the distinction that we should make between the nature of prevention of investigative hearings versus interrogations that, at a point in time, might be open to past activities of the person who is questioned?
Mr. Gratl: In the criminal law sense, I agree with the assistant commissioner that officers question a suspect only in relation to future crimes, or potential for future crimes, and to confine themselves to that subject, rather than also questioning in relation to past events.
The difference, though, in the investigative hearing power is that it gives the officer's question additional force. That is to say, whether an investigative hearing is started or whether it is only threatened in the course of a conversation, the officer's questioning in relation to terrorist offences would tend to undermine the right to silence in a way that would be entirely inappropriate in the context of a criminal investigation.
A witness, whether inside or outside of court, is compelled to answer. Of course, the level of compulsion is less outside of court, and it is absolute inside of court. However, that compulsion only serves to highlight the difference between the terrorism context and the criminal investigation context. One context involves a serious threat to the country, a threat to the country as a whole that justifies the abridgement of the right to silence; the witness's ordinary right, in the usual case, simply to say, I do not want to speak to you about my father or son, or I do not want to talk to you about what I did while I was on vacation, or I do not want to speak about those subjects.
In the terrorism context, the more refined serious threat to the country context, that type of abridgement of the right to silence could be more justified, could come closer to being justified, and so the distinction is in that context.
Senator Joyal: I have one additional question about the peace bond. I listened carefully to what you said about the peace bond in your answer to Senator Baker. On page 2 of the bill, at section 83.28(b), line 10, in the upper part of the page, it states that a judge, of course, may grant the application on the basis that "there are reasonable grounds to believe that a terrorism offence will be committed."
The phrase I want to focus on is, "will be committed." It is not "could be committed," "might be committed" or "contemplated to be committed." It is compelling. They must have all the proof that the guns are there, the dynamite is there, the match is there and the perpetrator is there, ready to go. The offence will be committed. The situation is close to the commission of the offence.
Do you think that way of framing the context into which the permission or authority would be granted is enough to prevent too broad a possibility for an investigative hearing to be conducted?
Mr. Gratl: With respect, senator, I would say no. The reason I say no is that, again, the right to silence would be abridged in a context in which the country of Canada was not threatened; that its Constitution and political organization was not be threatened. What would be threatened, rather, is some lesser interest; important interests, of course, but significantly lesser interests. That is why that threshold is not sufficient. It serves as a reminder of the over- breadth of the current definition of terrorist activity.
Senator Joyal: In this committee, we agreed, in recommendation three last year, that we should revisit the definition of terrorism. We completely subscribe to the point of view you have put forward, and this point of view is reiterated in the Canadian Civil Liberties Association brief. There is consensus here that the definition of terrorism should be reviewed. There is no doubt about it. I do not have enough time to quote the brief of the Canadian Civil Liberties Association, but it has a lot in common with what you propose as a way to limit that use.
Once terrorism activities are defined, it seems to me that one parameter of the definition should be to limit the exercise of that exceptional power; that it should operate within parameters to control its use as much as we can.
Mr. Gratl: From our point of view, it is a limit. It is a preferable limit to allowing an investigative hearing to occur only on the basis of suspicion. I appreciate that this committee has voiced concern about the definition of terrorist activities, but in passing this bill or in recommending the passage of this bill, effectively this committee would endorse the definition of terrorist activity that is currently written into the Criminal Code. Therefore, without an amendment to that definition, effectively this committee would undermine its values as stated in previous studies.
Senator Jaffer: I have a number of questions. I will ask some of them privately, but I would like two issues on record, and I will start with Mr. Vernon. I have questions regarding the officer, but I will speak to you privately on that issue.
I think we should hear about one issue from you, and later, we will also hear from other witnesses about it. Do you think, after September 11, that anti-Semitism has increased in our country?
Mr. Vernon: The answer to that is yes, senator. Anti-Semitism was on the rise even prior to 9/11, but it certainly spiked after the attacks. We have seen levels of anti-Semitism rise in the four or five years immediately after the attacks to levels that we had not seen since the end of the Second World War. In the last year or so, things have calmed down somewhat, but anti-Semitism remains a persistent problem that all Canadians of goodwill need to address.
Senator Jaffer: Is one region worse than others?
Mr. Vernon: I do not know that it is better or worse in one region over another. Some issues have developed in the context of the reasonable accommodation debate in Quebec, but in the Greater Toronto Area, GTA, there have been a number of incidents, some violent. The problem needs to be looked at in a pan-Canadian way, though, and not strictly from a regional perspective.
Senator Jaffer: Mr. Gratl, I have a number of questions on the right to silence, but since we both come from the same area, I will meet with you and ask you those questions.
When you talk about changing the roles of the judiciary, are you saying we would lean more towards the civil law of investigation rather than the common law? Is that your concern with changing roles of the judiciary and the prosecutor?
Mr. Gratl: We have seen two cases arise. The first one is the tobacco case, in which the B.C. government legislated procedural and substantive advantages to themselves in suing tobacco companies. The second case is the section 83.28 case. In both those cases, the complaint and the concern was that the division of powers had been fundamentally undermined because the judiciary was essentially invoked to rubber-stamp the wishes of the legislature and the wishes of the judiciary. In that way, they could not form their proper function of holding the government at bay. In effect, the powers of the judiciary form a limit on the powers of the legislature and the executive. That role is their historical one, keeping all that stuff in balance. It is part of what keeps us from totalitarian systems where the executive, the legislature and the judiciary all line up on single issues. By having these different institutions, we can ensure not only the sanctity of our values — because we have separate repositories for those values — but we insure the long-term stability of our political union. Those goals are laudable, of course.
The concern is that when it comes to tobacco companies — and I am no friend of the tobacco companies — it is problematic for the legislature to choose a defendant to lose in a lawsuit, and single out that defendant for special treatment because their opponent is the government.
In the section 83.28 case, there is concern when it comes to offences that are widely denounced and there is public support for treating terrorist suspects, witnesses to terrorist offences, and people who have information about potential terrorist offences as though they do not have vital Charter interests. Those situations are problematic because the judiciary is not in the usual position precisely of articulating and defending those values. When the judiciary becomes subsumed to the wishes and interests of the executive, they are unable to be that repository of values that is able to function as a check on executive power.
Senator Jaffer: You have heard that we also have great concerns about the definition of "terrorist activity." If the definition was changed, do you think it would lessen racial profiling?
Mr. Gratl: I think there would be significantly less racial profiling. The use of terrorist powers would be confined to a narrow set of plans against the Dominion. The use of terrorist powers to investigate individuals who obviously do not lack the capacity or interest in plots of that scope would be much diminished.
The Chair: Thank you. This session was to end at 2 p.m. and we are now at 2:15. However, the representatives of the Canadian Arab Federation and the Canadian Islamic Congress are late. They should be here shortly.
I read a story last week in the National Post that I could hardly believe about a university student in British Columbia who had a web posting. It was not clear whether he belonged to some militant extremist Islamic group or was strictly on his own, but this posting encouraged murdering Jews and killing police officers. I wonder if either or both of you noticed that item, and have any reaction. It was under investigation but nothing had happened. Mr. Vernon, are you aware of that story?
Mr. Vernon: Yes, senator, we are. What is particularly problematic is that, in some circles, it seems to have fallen into the larger debate about free speech. We have seen human rights commissions coming under attack for what is perceived to be frivolous investigations in certain areas of freedom of expression. From our perspective, this item does not fall under that rubric. If it can be proven in a court of law that this speech is designed as a wilful promotion of hatred, we would look to the authorities to step in.
The Chair: Mr. Gratl, did you see that story?
Mr. Gratl: I have not seen that story. I am not familiar with those facts but I can mention only the obvious; namely, that killing police officers and killing Jews constitutes an offence. It is counselling murder. Whatever you believe about the balance between group rights and free expression, it is proper for the police to investigate that incident and bring them to justice.
The Chair: I think it also referred to people in the military that are involved in Afghanistan. That was the conclusion I drew. I could hardly believe that story.
Senator Joyal: I do not have a question on that issue but if we still have time with the witnesses and they will continue, perhaps I may ask another question?
The Chair: Until the representatives of the Canadian Arab Federation and the Canadian Islamic Congress arrive, we can continue.
Senator Joyal: In your presentation, Mr. Gratl, as in many other representations we have received so far, no one has raised the issue of the protection of witnesses. In other words, a person who is the object of an investigative hearing and is compelled to testify and to give information could run an additional risk that you and I do not have because we are not the object of such an order of the court. How do we protect a witness that is the object of an investigative hearing? Is it a preoccupation of yours?
Mr. Gratl: Protecting witnesses?
Senator Joyal: Yes.
Mr. Gratl: The protection of witnesses is part of the fundamental administration of justice. Witnesses who are too intimidated to testify or to testify truthfully do not serve anyone's cause, and they interfere with the workings of court processes.
I understand that in previous hearings the assistant commissioner of the RCMP, Gary Bass, made the comment that perhaps investigative hearings or an order compelling a person to testify would take the pressure off that person so that the person would have an excuse to testify against those who might put a course of pressure on them or threaten them.
I do not see how that argument works, because there have been no investigative hearings, and no statistical evidence has been collected on the issue. That seems to me to be sheer psychological speculation about what goes on in the minds of witnesses. It is not obvious that a person who is subpoenaed is in less danger of death. In any event, it would still remain open to coerce a witness into telling an untruth under oath. It could force them effectively into committing perjury. I do not see that the protection of witnesses is best served by compelling them to testify. Their protection would be best served likely by enhancing witness protection programs for witnesses who have information relevant to a terrorism investigation.
Senator Fairbairn: I wish to ask this question to both these witnesses and the ones who will follow them. The question goes back to our first committee on this issue after 9/11.
One recommendation and suggestion that in our initial study was that there be a real effort on the part of the government to put together a round table to contact various ethnic groups in this country that often felt, within their own parts of Canada, that they were not consulted about how these different sets of laws and operations should go. That round table did not happen quickly. In fact, it took a long time to put it together, but eventually it did occur.
Have you and your organizations ever had an opportunity to be part of that round table? It was an effort to reach the community where the most anxiety and concern was, and to work out ways in which there could be a good connection between the people within communities in Canada and their government.
Did either of you have an opportunity to take part in that round table as it was formed?
Mr. Vernon: The answer is no. As you say, the cross-cultural round table was set up for that purpose, and on paper it sounded good. We have not had an opportunity to provide input. We have not been solicited to provide input, and I am not sure that it has done as much as it could. It is important to at least acknowledge that there needs to be input, especially at a time when there are parallel fears of harm from groups that feel targeted by terrorism and groups that feel targeted by counterterrorism measures. We need to work together as Canadians to bridge those parallel fears if we can.
Senator Fairbairn: It is important to hear your response so we can give another push.
Senator Baker: Mr. Gratl, on behalf of the British Columbia Civil Liberties Association, you forward a suggested new definition for terrorist activity. Would this definition replace the whole section, a portion of which was struck down by Justice Rutherford? It seems to me from listening to the words you read out, that this definition was from a judgment of the Supreme Court. Was your exact definition not taken from Justice Cory's statement in some case?
Mr. Gratl: This definition is homemade. We agonized over it. We put all the intellectual force of the many years of experience of British Columbia Civil Liberties Association into crafting an appropriately tailored definition. We were informed by the history of litigation on the subject.
The Chair: I thank our two panellists for their attendance.
Our next panel includes representatives of the Canadian Arab Federation: Mohamed Boudjenane, Director General, and James Kafieh, Legal Advisor. The Canadian Islamic Congress is represented by Imam Zijad Delic, National Executive Director.
Imam Zijad Delic, National Executive Director, Canadian Islamic Congress: Honourable senators, I bring you greetings and peace from the Muslim community of Canada.
I can speak on behalf of a large Muslim population in Canada. I have worked with Muslims since I stepped onto Canadian soil in 1995, in many different capacities, from the position of imam, educator, mentor of youth, marriage officer, family councillor, spokesperson for the community and adviser to the three levels of government.
I have been with the grass-roots Muslim community for a long time. I know my community, and I know their concerns. Today, I will speak not from the legal perspective on the issue but rather, I will focus on the community perspective.
As I pointed out, I am a formally trained imam from Bosnia and Herzegovina with a Ph.D. from Simon Fraser University in British Columbia. I came to Canada as a result of discrimination against my people in Bosnia and Herzegovina. I personally know the pain and suffering of living under the siege of a regime in which one is guilty until proven innocent, a system where so-called preventive arrests were commonplace. Because of that experience, I chose Canada instead, as my homeland.
Canada for me is the country that represents true multiculturalism. It is a country of vibrant diversity. In addition to Aboriginal peoples, as well as founding British and French ethnic groups, it became home to many different ethnic groups. Canada, as you are well aware, is a country of immigrants. Twenty per cent of Canada's population, or almost 6.2 million people, were born outside Canada.
Therefore, Canada, for me and Muslim communities, is among the most polyethnic and polyreligious countries in the world today. In western societies, diversity is a reality. I believe, after doing my research Canada, that it is inevitable in this country, and that is the reason why in my research I call Canada a multi-religious tapestry and a mosaic comprised of diverse communities, or a society of Abraham.
As far as the Canadian Islamic Congress is concerned, it is an independent voice for Canadian Muslims, namely, Sunni, Shi'a, men, women, youth and seniors. I was driven to work with the Canadian Islamic Congress by the mission of the organization. I wanted to act as a facilitator and advocate for Canadian Muslims by encouraging them to participate fully in the national, political, social, cultural and educational aspects of Canadian life, thus contributing to the well-being of this great country.
Muslims in Canada are not a recent addition. In the last three decades, we have had our greatest immigration to Canada, but our history goes back to 1871 when there were 13 Muslims here. Our number grew quickly. The 1981 census counted approximately 100,000 Muslims in Canada. Only one decade later, that number had more than doubled to approximately 250,000 Muslims. In 2001, there were 579,640 Muslims in Canada. In 2004, there were 750,000 Muslims here, and it is estimated that by the end of 2010 there will be more than a million Muslims in Canada.
Canadian Muslims are a young population with a median age of 28.1 years compared to the overall Canadian median age of 37 years. Canadian Muslims are among the most highly educated citizens in Canada. Over 45 per cent of Canadian Muslims have one or more degrees. However, when it comes to employment, we have the second-highest unemployment rate, at 14.4 per cent. That is twice the national unemployment rate of 7.4 per cent.
Why do Muslims choose to come to Canada? From my research and from working with the Muslim community, I can give several reasons. Muslims come to Canada to seek better economic opportunities; to escape fear of political instability in their home countries; to access educational opportunities for their children or themselves, as in my case; to reunite with family members and friends already in Canada; to enjoy freedom of expression, be it religious or otherwise; and to enjoy freedom of association guaranteed by the Canadian Constitution. In short, as one of our Muslim scholars in Canada said, we all came here for a better life.
Canadian Muslims share the common objectives of all Canadians in wanting Canada to remain a safe and secure country. This objective is not merely our civic responsibility; it is also our religious responsibility. Indeed, our prophet — peace be upon him — said that it is our duty to love our country. It is compulsory for us to love our country.
When I came to Canada in 1995, I was asked what I thought about this country. I responded, with a big smile, that this country is the most Islamic one I know, due to justice. As our tradition says, God's law is there where justice is implemented; God's law is not there where there is no justice. I found that Canada had that reputation, and I hope it will continue to have that reputation.
Canadian Muslims also believe that Canada's security must be attained through respect for the inherent right of all individuals, regardless of their backgrounds, to be treated with dignity and to live free from harassment or any sort of discrimination. Security of our homeland matters to all Canadians and can be maintained without infringing on any of our basic human rights. For that reason, Canada must be consistent with its own cherished values, most notably the rule of law and respect for human dignity.
However, the Muslim community in Canada today is living under pressure due to criminal acts for which they are not responsible. Many Muslims have experienced racial profiling and some have suffered under the application of the Anti-terrorism Act. Yet, even in Canada, they and their families hesitate to speak up about these terrible experiences for fear of state reprisals and the social stigma of being associated with terrorism.
Therefore, any bill introduced in Canada that stereotypes minorities is plainly discriminatory and runs against the spirit of our Charter. When Canada introduces bills such as Bill S-3, we give the green light to those among the media and public who believe that it is acceptable to equate Muslims with terrorists.
We have several recommendations that I think could generate a positive discourse between Canadian Muslims and our government. First, Canada does not need any anti-terrorism laws. The Criminal Code, as it stands, can deal fully with terrorism-related crimes. Canada can be a leader, as it was before, in balancing security with human rights.
Second, Canada is safer if we all contribute to building trust. Indeed, lack of trust is one of the chief shortcomings of our current national security system. Since September 11, this mutual distrust between Canadian Muslims and the national security bureaucracy has been a major flaw impacting negatively on the way Muslims are treated and how efficiently they can engage and participate in mainstream society.
When people must always be on guard against something, there is no way they can contribute constructively to the country in which they live or to themselves.
Prevention is wiser than treatment. As a loyal Canadian Muslim, I ask myself why Canada did not learn more from the Maher Arar case. It was costly for our country in every possible way. It is not only a matter of spending citizens' tax dollars. More than that, Canada's reputation and integrity have been put to a severe test.
Education, engagement, participation and institutional integration through inclusion are far better alternatives. We cannot achieve all these desirable outcomes instantly. However, moving forward with good faith will create the atmosphere of trust, cooperation and engagement we need to make progress.
On policies and practices, profiling Canadian Muslims is an issue on which the Government of Canada and Canadian Muslims differ significantly. Muslims cannot accept that we are profiled as a security threat to our own country. If government policy is not engaged in profiling, its actual operational practices speak differently, as evidenced by many cases in Canada. Please do not give our law-and-order people more power without appropriate accountability.
Finally, Canada does not need laws that will prevent its citizens from feeling accepted, embraced, safe and secure. Canada needs to rethink its approach toward this bill and to focus on bridge-building between government and the many communities and groups that make us the unique mosaic we are.
As a Canadian Muslim, I personally believe that we cannot settle properly, reconcile properly or contribute properly if we need always to defend ourselves.
Mohamed Boudjenane, Director General, Canadian Arab Federation: The Canadian Arab Federation is pleased to contribute to this important issue and debate. With me today is James Kafieh, our legal advisor.
We distributed a small document. I do not know if you had a chance to scan it, but it is not a legal document. It is not a document that will talk about the judicial aspect of the legislation. It is more a series of observations because we are here, first and foremost, to talk about the impact of this type of legislation on our community, the Arab community.
I am sorry we did not have a chance to translate it into both French and English, but I will try to correct this situation by making part of my presentation in French.
[Translation]
The Arab community is certainly one of those most affected by the government's anti-terrorist agenda. Sadly, the community has become the target of a number of attacks and is the focus of racist stereotypes that exist in our society. Each time an Arab is detained under a security certificate, for example, or an Arab is suspected of carrying out or inciting a terrorist act, all Arabs are seen as terrorists.
The bill presented today, in our view, will serve only to exacerbate and heighten these perceptions of our society. Arabs have lived as a community in this country and on this continent for a long time. The community respects the country's laws. The community has contributed to the development of the nation we call Canada.
I am not here to teach you history, but I will just say that Amerigo Vespucci, who discovered this continent and gave it his name, had two Muslim captains, both Arabs, who were master navigators.
"Amerigo" comes from an Arab name "amiroco" meaning "your leader" or "your prince." The contribution made by Arabs dates from much longer than is generally thought and, sadly, longer than history teaches us.
These are people who have lived here for a long time and who have contributed to this nation's development for a very long time. Unfortunately, after September 11, each of us has become a persona non grata and our community is considered Canada's enemy.
It must be said that, after September 11, all Arabs were seen as potential terrorists. But all Scottish- or Irish- Americans were not when Timothy McVeigh blew up the federal building in Oklahoma City. The racist perception and the reactions to the Arab and Muslim communities in general are among the stereotypes that already existed in North American society. Sadly, the stereotypes have only been reinforced. Today, to be Arab is to be reduced to a simple equation: Arab equals Muslim and Muslim equals terrorist.
I am a Muslim of Moroccan origin. James Kafieh was born in Canada. He has Palestinian roots, and he is Christian. The majority of Canada's Arab community today is Catholic, not Muslim. Yet still, we are all Muslim and we are all terrorists.
The bill being presented today will only make the situation worse. The Arab community's position, and the Canadian Arab Federation's, is that Canada has no need for an anti-terrorism act. As Imam Zijad has said, we have ammunition and legal recourse enough to fight terrorists in the Canadian criminal justice system. Terrorists are like all other criminals. We have laws that provide our police with extraordinary powers so that they can, for example, combat organized crime, bikers, the Hell's Angels, the Italian Mafia. Those laws can be used to fight terrorists.
After all we have seen, we are still considering extraordinary powers for the police. We have seen the Maher Arar case; we have seen the case of those four Arabs who are before the Iacobucci inquiry. After all we have seen, the bill on security certificates may still be passed by the Canadian Parliament today. A number of constitutional experts have described the bill as something that will be tested by the Supreme Court and that cannot pass that test.
After all that, it is incomprehensible why we are considering giving extraordinary powers to the police.
The O'Connor report was very clear. One of the most important recommendations, essential for safeguarding democracy and civil liberties, seeks to make sure that the police have controls designed to keep them in check.
As Imam Zijad said, they must be responsible to the public and they must not be allowed to abuse their extraordinary powers.
To date, security forces have only once wanted to use the two sections that are now set to expire. They went to the Supreme Court, which allowed them to be used. But they have never been used. So why put them back on the table again?
I have mentioned some individuals and the cases of some victims. Mr. Benamar Benatta is another case that may well come up. This person was sent to the United States and put into prison for five years, like Maher Arar and others.
The impact on the Arab community in Canada is critical.
[English]
Racial profiling became rampant in our society. Being Arab or Muslim now means every time we cross a border or take a plane, we face huge scrutiny from our security services. At the Canadian Arab Federation, we receive on a regular basis complaints from people being harassed; being stopped for hours for no reason. The only reason is because their name is Mohamed or they have hijab on their head.
Hate crimes, according to the Toronto Police Services increased by 150 per cent after 9/11 and continued to increase against Arabs and Muslim in Canada. The public discourse and the media now have almost carte blanche to go after Arabs and Muslims under the pretence and disguise of freedom of expression. Freedom of expression is a fundamental value. I was a reporter for 15 years, and I know it is important, but when freedom of expression is used to entice hate crime, to vilify and demonize a community, it is not freedom of expression, and we do not need that here in this country.
Finally, a major element is this sense of being ostracized and marginalized. Arabs now, in spite of the fact that they are one of the most educated immigrant populations, have the highest unemployment rate in Canada. Arabs and Muslims now are afraid to engage as citizens in fundraising to help people who are dying in the Middle East or in Third World countries because they are perceived as fundraising for a terrorist organization. Arabs and Muslims now are no longer interested in participating in the political process because they do not feel it serves their needs and respects their values.
We are not here to question the importance of national security. However, too often when we argue that we must compromise our rights in the public interest, what we really mean is that we want to compromise the rights of others in our own interest.
Not only can Canada afford safeguards against racism, but we cannot afford not to have them. We are fighting against terrorists because of what we believe in — a secular democracy that respects diversity and safeguards the dignity of every individual. If we do not ensure the protection of minorities who emigrate to this country by putting forward legislation of the security certificate while at the same time ensuring the safety of our country, we will fall into this historic trap of scapegoating those who are different from us. We will succumb to our fear, and then the terrorists will have won.
The Chair: Mr. Kafieh, do you have any opening remarks?
James Kafieh, Legal Advisor, Canadian Arab Federation: No, I do not.
The Chair: I cannot resist asking the Imam about the subjects of tolerance, respect, accommodation, inclusiveness, and the CBC program, "Little Mosque on the Prairie." Do you have a reaction to that program?
Imam Delic: It is Imam Delic. Delic has the typical Yugoslavian or Slavic C-H. My first name is Zijad. The Y is silent, or the J is silent, pronounced as Y. This is Bosnian 101.
The Chair: Okay. I was in Bosnia.
Imam Delic: As far as this program "Little Mosque on the Prairie" is concerned, I was interviewed several times on the topic. I believe that the Muslim community accepted the view that, yes, it is sometimes nice to make fun of yourself, as long as it does not go too far. As far as I am concerned, I find it provocative in a positive sense, in that we must face certain challenges.
As Muslims in Canada, we live in a different context, and we cannot pack up our cultural baggage from back home, bring it here and live with it. We must, in a way, reshape ourselves within this new given context.
However, as far as accommodation is concerned, I do not like the word "accommodation." It reminds me of only a one-way street. I would rather say "embracement," "inclusion" or "integration," which are two-way streets, with constructive integration.
Yes, definitely it is a nice way to put forward the idea that Muslims in Canada are people who are trying to find their space and, of course, if they are not supported by the larger mainstream population, it would be difficult.
Senator Jaffer: Colleagues, after September 11, Imam Delic gave up probably two years of his life in B.C., and went from place to place as the voice of moderate Islam and represented us well. We miss him now in B.C. He is one of the few people who has defined, or tried to define, Islam as a religion of peace in British Columbia. Imam, I want my colleagues to know that you have a great history in representing the faith.
I have a question for you. Can you please explain the difference to the community before 9/11 and now? The challenges the youth face are important.
Imam Delic: Thank you, Senator Jaffer. I had the opportunity to work with Senator Jaffer in B.C., and I am honoured and happy that I know people like Senator Jaffer.
Our youth in Canada are definitely at a crossroads. There is a pressure from the home, and pressure from society. There is a pressure from the mosque, and pressure from the media. Wherever they turn, there is pressure.
In such a situation, they look for alternatives. If you do not accept them and give them alternatives that are "Canadian" alternatives, something I propose to the Muslim community is Canadian-Muslim culture, then, definitely we are looking into certain extremes. What I am afraid of the most is that if you do not offer them these acceptable alternatives, then they will turn around and take something that is dangerous, not only for them but dangerous for all Canadians.
On this note, it is important to mention that any terrorist activity that goes against Canada goes against Muslims. We are hurt much more than any regular Canadian. We are hurt because we are targeted by everybody else, and we are not part of the crime.
Yes, the youth at this point in time are looking for clarification on the issue of identity. As you are well aware, there are three types of identity, according to recent research on the issue of identity and citizenship. It is clear that there is an ascribed identity when we talk about religious identity in terms of Muslims. There is chosen identity that many young Muslims in Canada take because they are not following what their parents follow. They are trying to follow something in Canada, to make something that fits the Canadian context. There is declared identity. I am afraid of this identity. When Muslims come forward and declare themselves with anything as an Islamic, and declared identity is definitely something that is made under the pressure.
As a Canadian Muslim Imam who has worked with the Muslim community, I feel obliged to send a message that our youth need the support of the federal government, and that support must come through alternatives to give them to cut any fear that could make them alienate themselves from society.
Senator Jaffer: My second question is to the two gentlemen from the Canadian Arab Federation. We are looking at the issue of preventive detention and investigative hearing. Can you tell us if people you work with faced challenges when this legislation was in place? Have things changed since this legislation has not been in place?
Mr. Boudjenane: I know you are looking for specific recommendation because this is your mandate and role at this table. As I said, I am not a legal expert. I will not venture into a field I am no knowledgeable about. However, I can tell you the impact of this type of legislation, like others, on our communities.
I can tell you that people have been approached by the Canadian Security Intelligence Service, CSIS, and the RCMP to spy on other faithfuls in their mosque, and they have been blackmailed: "Either you do that, or maybe your family will not get access to their immigration papers." We have names. We have cases. This is not a paranoia situation. We knew students who have been harassed at their school and university campuses on a regular basis, questioned. A study done by Care Canada clearly shows that of 120 young Muslims and Arabs, 85 per cent had contact with security officials after 9/11. Eighty-five per cent is a high number.
There is a clear impact on the community itself. People are not interested, or are afraid, to get together and fundraise for a charitable case or a major crisis in the Middle East because they are perceived as helping Hamas, Hezbollah or whatever. That situation has an impact on the community and the role of citizens in your community.
Access to jobs in the labour market has been affected. People are not hired because they are Arab and Muslim. People have been fired.
We have a case with the Ontario Human Rights Commission where a young student was expelled from school because he had a fight with another kid. We are talking about 11-year-old kids. He had said, "I am going to come and kill you all." They kicked him out because they said this was a terrorist threat.
There is some ridiculous reaction to Arabs and Muslim. This type of legislation will just accentuate that reaction.
Senator Baker: Mr. Chairman, I congratulate the witnesses for their presentations. I will ask a question of their legal representative who is here.
Do you advise simply defeating these bills, for example, this particular one before us, or do you agree with the criminal defence lawyer from British Columbia, who appeared before this committee prior to your arrival? He suggested that the legislation be thrown out but also suggested an amendment. He attributed many negative impacts of this legislation on the definition of terrorist activity, which is throughout this legislation.
The case he highlighted was the Ontario Superior Court judgment last year, R v. Khawaja, in which the court struck down a section of the definition that Parliament had passed. We are not correcting that definition in this legislation. However, the court struck it down, and in the judgment, as this young lawyer pointed out to us a few moments ago, at paragraph 70, it says:
Anti-terrorism legislation in France, Germany, Italy, Austria, Netherlands, contain no definitional element of motive resembling that in the Canadian statute. As for the United Nations, it has never, it appears, endorsed a definition of terrorism that includes as an element that the acts are motivated by religious or other ideological purposes or cause.
Yet, we have it in Canada. The section that was struck down says in whole or in part by religious or ideological purpose, objective or cause. Another section in the definition that has not been struck down still says the same thing. It says for greater certainty, and I quote from section 1.1 of the definition:
For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition "terrorist activity" in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.
The point of the young lawyer from British Columbia, who appeared prior to you, was that definition is in the Canadian law. As it was described, it is a constituent element of the offence. In other words, it is a part of the proof of the offence. It is the requisite element of the offence. Proof of motive goes back to proof of having a religious, ideological or political purpose in the act.
Looking at this particular bill and the next bill to come before the Senate, do you suggest that there be an amendment to this definition, as suggested by Jason Gratl of the British Columbia Civil Liberties Association, or do you suggest, as he also suggested, the other option of throwing out both these pieces of legislation?
Mr. Kafieh, which of these options do you think best represents the thoughts we have heard here today?
Mr. Kafieh: Canada would be far better served by throwing out this legislation entirely. When the Canadian Civil Liberties Association looked at the legislation when it first came in, they made a proper suggestion. They said to go ahead. It seemed there was enormous pressure to place some kind of legislation on the books. They said pass what you want, but have it all expire in one year so, with calmer minds, we can come up with more sensible legislation. We knew we would end up with something different than what we were dealing with at the time because there would be moderation as people regained their sanity after 9/11 and we became calmer.
There has been no demonstration whatsoever that there was a deficiency in the Criminal Code to deal with the challenges we face. To abandon our values, especially in a conflict over values, makes no sense whatsoever. In essence, you have achieved for those stereotypical terrorists what they could never do themselves. They could never take away our democratic values or civil liberties. We have to do that to ourselves. They have put us in the position where that is what we are dealing with. With this legislation, we fundamentally undermine basic principles of our criminal justice system that developed over hundreds of years. This change is not something that will immediately affect everyone. The number of people who are likely to be involved directly will be very few initially, but in the longer term, even if initially the impact is on Arab and Muslim Canadians, you should not fool yourselves because, ultimately, it will spread to everyone. We look at this no-fly list, for example. The most famous case of people being stopped on the flights is a young child, for example, not of Arab or Muslim background. This kind of net, once cast, has a logic and momentum of its own, and eventually all the quality of our civil liberties will be undermined. Collectively, we will all suffer. This debate is not new. Ben Franklin took the position well over 200 years ago that a society that is prepared to trade a little bit of its liberties for a little bit of security will deserve neither and lose both. We are well on the way down that line. In view of the fact there is no demonstrated need for such legislation, we are much better off to stick with a criminal justice system that has served us well.
Murder has been illegal in this country for a long time. Conspiracy to commit murder has been similarly illegal for a long time. I do not see a deficiency in the legislation. The additional aspect of this issue is that when we talk about terrorism, the reason it is difficult to define is because it is inherently an emotive term. Some people call people "freedom fighters" that other people refer to as "terrorists." I am not talking about any one particular group, but I am saying there is a continuum of people. Probably the most widely accepted definition of terrorism is anyone who threatens or violates the state monopoly on the use of violence for political purposes. We have a right to defend Canada. We have laws in place to defend Canada. There is nothing deficient in the system of laws in the Criminal Code.
We have demonstrated that we can deal with the challenges that Canada faces with the system that existed before 2001. We would do ourselves a major favour if we eliminated the word "terrorism" from our legislation and dealt with the substantial harm that is done to our society. I do not care if someone is doing what they do for money or whether they are doing it because they are ideologically driven. What difference does it make if, ultimately, harm is done and we, as Canadians, need to defend ourselves from it?
Senator Baker: These nations that were mentioned by the Superior Court of Ontario, after an exhaustive examination of the anti-terrorism legislation in effect throughout the world, do not have the provisions in them that are in the Canadian legislation. That point is the sum and substance of the decision of the court.
Would you consider that we should go the route of some of those nations and remove all the impugned language that makes reference to religious and ideological purpose, objective and cause in the definition? It would be as simple as your position, which is that we have an adequate Criminal Code, we have a Charter of Rights and Freedoms. They balance out well in our society, and we do not need this legislation. I presume that is your bottom line.
Mr. Kafieh: That is correct. You have a great deal of work to do as senators. You are not passing laws just for the fun. Real business of the Government of Canada must be achieved. What is the purpose of legislation such as this bill? How will it make us safer? I suggest that it will not make us any safer. There is no inadequacy in the law. However, it will undermine our values as a society.
It has impacted disproportionately on Arab and Muslim Canadians and ultimately, as we already see in the no-fly legislation, ordinary Canadians are harmed. In fact, we have been told that if you are a real terrorist, your name will never actually appear on this secret list.
Senator Joyal: I listened to you carefully and I read your briefs. Thank you for preparing them.
Would it be better to introduce in Canadian legislation a clear prohibition to racial profiling? You seem to recommend that a signal be given clearly in Canada that racial profiling is prohibited. You seem to have concluded that when we send enough signals, an impression is created, that impression is an accumulation of various initiatives. Why do we not take then the contrary view and state clearly in a statute that racial profiling is prohibited in Canada? That would send a signal to every security agency and police force in Canada that it is an offence that is justiciable to profile racially at any level of the government or public administration. Why do you not speak in your brief about that view?
[Translation]
Mr. Boudjenane: Are you making those suggestions to put the anti-terrorist agenda and this bill into perspective or is that how you feel about them?
Senator Joyal: If we had such a provision in our statutes, it would not just apply to the Arab or Muslim communities, it would apply to everyone?
Mr. Boudjenane: Of course.
Senator Joyal: Whatever the ethnic background of the person or group who felt targeted by a legislative provision of the government and it would not just apply to federal laws but also to provincial or municipal laws. So we would have a very clear declaration in Canada that racial profiling is an approach that is completely removed from our way of doing things.
Mr. Boudjenane: You are quite right. We need a law of that kind. We do not need to go very far. Some years ago, we conducted a study in Kingston. The police was caught red-handed, as they say. The study clearly showed that blacks were subject to racial profiling.
In fact, 99 per cent of people arrested while driving were black. Racial profiling is used against Aboriginal, Asian, Arab and Muslim communities and against people of colour in general. Such a law would be appropriate in Canada to prove to the rest of the world that we respect our diversity and our Charter of Rights and Freedoms. However, having such a law does not mean that we would be protected against terrorism, security certificates or the Anti-terrorism Act. That is not true. It could perhaps eventually send a clear signal to the authorities and to the security forces that they must be careful. Perhaps they will be much more careful, but that does not prevent abuse. It might not prevent a case like Maher Arar's.
Senator Joyal: It would set it in an even more reprehensible context.
Mr. Boudjenane: Probably.
Senator Joyal: I would like to comment on a question raised by Senator Baker about the no-fly list. As you know, the United States was the first country to put this practice in place. Canada resisted for some years before eventually having one under certain conditions. Now it has spread to the European Economic Community, the European Union, that is. It seems to be a practice that we will have to get used to while still trying to limit the abuses to which it can lead. It seems to me that some measures can be taken to shape the practice, to which several members of the committee were completely opposed at the outset. But that does not mean that the list does not exist. We must see how, on an international scale, we can limit the abuses at the same time as we advocate or crusade for restrictions that more appropriately reflect the fundamental values we stand for.
[English]
My last question is about the glorification of terrorism. One of the most damaging images that can be placed in front of Canadians on the television news is of young Muslims being arrested who have attended a mosque where there was some advocacy of terrorism. This image immediately creates the impression that mosques are nests for terrorism. This is the straw that breaks the camel's back.
What do you suggest we can do to signal to Canadians that this impression is not an approach that we support or endorse, as we do not support passivity? Silence equates with acceptance. This image is serious. We all share the responsibility of avoiding it.
Imam Delic: As pointed out earlier, our Criminal Code or Charter of Rights and Freedoms performs excellent work. As we say in Canada, if something is not broken, do not try to fix it; you may then break it.
I work with Muslims at the grassroots level, and I do not want them to feel that they are not welcome in this society. I believe there are ways around this problem. We must look into the notion of leadership in the Muslim community from a reasonable and wise perspective. Of course, there are individuals who are radical, but I have more problems with them than do ordinary Canadians. If we look at the situation through a wise perspective, we can make the point.
Let us look at the case of Austria. Austria has an institute that deals with the training of imams that is independent from government. Why do we not have that approach in Canada? For me, prevention is much better than treatment. It costs little money and it maintains integrity. If we had something like that institute to work with the Muslim community or to work with our youth or our leaders, I think there is an opportunity for Muslims to come forward and contribute to this great country. There are people out there who are ready to do so.
Mr. Boudjenane: To add to this point, usually when we talk about terrorism and that kind of thing, I always like to repeat this sentence and I think it is interesting. It is important for the security services to have access to intelligent intelligence, not just intelligence, and if you want intelligent intelligence you need us at the table, and that is not happening. We have never been invited to the table. If you want to design a strategy to develop an intelligent approach to security, you need Arabs and Muslims at the table. Imam mentioned the Austria example. I will give you the Spanish example.
I was in Barcelona last summer for a meeting on human rights, anti-Semitism, Islamophobia and so on and so forth. The Spanish government has a contract with the two main Muslim organizations in Spain to help the penal system in jails. The organizations visit prisoners, make sure they have access to Halal food and so forth. Apparently, it is creating a huge impact where in certain prisons, some of the inmates were perceived as becoming more radicalized, and being potentially recruited for a terrorist act. Now people are more engaged in society. They have access to jobs, it is more open-minded, they have access to their prayer hours and so forth. However, to do that, you have to engage the Arab and Muslim community. It has to be back and forth.
I also want to make comments about this glorification of terrorism. When the London bombing happened, 150 imams from across the country gathered in Toronto to condemn those terrorist acts, but what did we see in the evening on CBC, CTV and Global television? We saw someone from somewhere, saying yes, it is good for those people to go and do those acts in the name of Allah. The media look for sensational things. They do not look for someone who is moderate and intelligent to talk about Islam. They look for someone who hates the religion and is Muslim. They make the best mouthpiece because they are used indeed to show that image of Islam, which is barbaric, extremist and so on. They call us, and when they call me I say frankly, I do not know why I have to comment. I am a Canadian citizen. I do not remember seeing people from the Irish community interrogated every time the IRA set off a bomb in London when the IRA was blowing up London left and right. I do not remember people questioned in the Irish church to come out and talk about that incident. Arabs and Muslims are always called upon to answer why they have not denounced that incident and why they did not talk about it. That is not my role. I am a Canadian citizen. I have nothing to do with criminals, and that is what I said.
Senator Andreychuk: I want to go back to the legal argument. I have a lot of problems with the definition of terrorism. It is a shame that Senator Baker was not here when we first introduced this bill, Bill C-36, that contained the definition, because the committee had a lot of concerns with the definition and echoed it in their report to the government. If my memory serves me correctly, the previous minister said — and I am not sure whether the present minister has said — they are looking at that definition. It is one of the troublesome things in the legislation but it is not the subject of the bill before us — Bill S-3.
You make the point, I believe, that the criminal law can take care of any difficulty and that we do not need these provisions. I put that point forward to the previous government and it was rejected. Terrorism is such an unknown, it changes every day, and you are right; the terrorism we know today might be completely different later, and as many tools as is necessary should be given cautiously so that we are in a preventive situation, not in a curative situation. Of course, victims came from Air India who poignantly made this point: Had we taken the steps before, they would not be the victims they are today, and they described how it has marked them.
I took that point, but there was a legal point. I put this question to Mr. Kafieh: If our criminal law was sufficient, that is still not a full answer because international responses are necessary. There are terrorists, international documents through the United Nations, so we live not only in a Canadian context but in a world context. Therefore, unique tools are necessary for terrorism because that has been the international response. It was not a Canadian decision. The need for a collective international response leads us to look at terrorism differently from any other horrific criminal situation. Terrorism is something beyond that.
Do you agree with that kind of assessment or some variation of that assessment: A terrorist response is necessary in Canada because that is how the world approaches it through the United Nations and elsewhere?
Mr. Kafieh: I suggest that Canada's approach to terrorism is a politically driven process. I will give one example. Hezbollah is in Lebanon. Only three countries in the world regard Hezbollah in its entirety as a terrorist organization; Canada, the United States and Israel. That approach reflects on the government's wish to be aligned as completely as possible with American foreign policy. I know this situation goes back a few years, but internationally there does not seem to be any standard on which it could be based. This is a concern we should all have: To be credible in our efforts against terrorism, they must be based not on politics but on some objective standards we can apply.
The concern I have with what was thrown at you and what you have relayed to me is that this legislation is a licence to engage in all kinds of abuses, large and small. We see them maybe in their most obvious context at Guantanamo, where people are locked up in solitary confinement forever on the basis of suspicion, no trial, no conviction and no specific charge. Even evidence seems to be lacking.
Senator Andreychuk: I do not think you are answering me directly. We can talk about the terrorist list and it being political, and about Guantanamo, which is not Canada. My comment was that when we passed Bill C-36, as it was called then, the underpinning of that legislation was that it be preventive, not curative or a treatment; and that we needed to meet some international obligations. Do you believe we could have dealt with our international obligations through the Criminal Code or did we need to take extra steps; that is, Bill C-36, from which Bill S-3 derives?
Mr. Kafieh: I do not believe it was necessary at the time. I believe that the legislation was pushed through to satisfy American demands on Canadian legislators. We were not serving Canadian interests at the time we passed that legislation and the best thing we can do for Canada now is to take the opportunity to let the sunset clauses take effect and to have legislation stricken down as quickly as we can have it eliminated from the books.
The system we had in place was adequate and this legislation is Orwellian. The argument put to you that you have relayed to me is Orwellian: that because of some vague threat — even the question that you were confronted with is completely ill-defined — that could change into something else tomorrow, we must give more and more power to our security forces, and without having proper checks in place. The checks we have had were put in carefully. What we are doing now is something that is reckless.
I am stating to you very clearly that we do not need this legislation and that it is harming us instead of helping us in the war on terror.
Senator Andreychuk: If I could sum up, you are saying we do not need Bill S-3, the bill before us, but we did not need Bill C-36. That is still your position today.
Mr. Kafieh: Yes, we did not need it in the first place.
The Chair: Senators, we are a half hour behind. I want to be fair to the next panel. All of us probably have another question or two. We have had excellent input from this panel. We thank you. We will try to give our next panel a full hour, like the others.
We now have representatives from the Canadian Bar Association: Greg DelBigio, Chair, National Criminal Justice Section, and Tamra Thomson, Director, Legislation and Law Reform. From the Canadian Muslim Lawyers Association, we have Yusra Siddiquee. These groups are totally separate. We will ask the Canadian Bar Association to go first, and then Ms. Siddiquee.
Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Thank you, Mr. Chair, and honourable senators.
The Canadian Bar Association is pleased to come before this committee again. We are a frequent visitor in the deliberations of this committee, having appeared twice when you originally dealt with the Anti-terrorism Act, and then twice again when you undertook the statutory review of that legislation. Here we are again with Bill S-3, which deals with the investigative hearings and preventive arrest provisions of what was originally the Anti-terrorism Act.
The Canadian Bar Association is a national association that represents some 37,000 lawyers across Canada, and the remarks today are on behalf of the National Criminal Justice section. That section is unique amongst criminal lawyer associations in Canada in that it represents both defence counsel and prosecutors amongst its membership.
You have received our letter relating to the provisions of Bill S-3, and I will now ask Mr. DelBigio to address the substance of those remarks.
Greg DelBigio, Chair, National Criminal Justice Section, Canadian Bar Association: In addition to having had the pleasure of appearing before this committee, the CBA also participated in the Supreme Court of Canada as an intervener in the section 83.28 case that considered the investigative hearing provisions, so we have had ongoing involvement.
Our submission today is narrow, compared to some of the discussion that I listened to carefully. I want to emphasize, though, that we have made submissions previously upon a broader range of issues that are associated with these laws generally, including definitions.
In 2001, in our submission, we referred extensively to the importance of the rule of law and the importance of minimal impairment of rights and liberties. We took the position that where there is an infringement or intrusion upon rights or liberties that governments must demonstrate that infringements on rights are necessary and that the infringements are appropriately tailored to a legitimate public policy objective. The government must show a pressing and substantial need, and the laws must be connected rationally to the objectives and minimally impair rights or freedoms. I make that reference in light of some of the interesting discussion I heard previous to our session.
Our submission today is technical in some ways, as compared to some of the discussion that occurred previously. I will address it, and later on I will answer any questions.
First, I will address the issue of the investigative hearing. Again, we have previously addressed what I will call some of the policy issues surrounding that issue. Our position is that the investigative hearing provision and the detention provisions within the Criminal Code are a marked departure. Particularly, the investigative hearing provision represents a marked departure from the powers traditionally available to investigators within the Criminal Code. I need to emphasize "within the Criminal Code" because that section is the one within which the power is contained. It is a criminal law justification that therefore must exist, rather than an emergency type of power.
Our position is that the power requires careful oversight and monitoring, but also particular care must be taken to ensure that if the power is to exist, that it be carefully tailored to ensure that it complies with the constitutional requirements.
One of the first issues that we address in our submission is the issue of sealing orders. Again, this submission is fairly technical, but I do wish to make this point.
Presently, within the Criminal Code, when an application is made for a search warrant or wiretap authorization, there is provision which would enable the applicant — the peace officer — to seal the materials that form the basis of the application. A variety of public interest issues might justify the sealing, and it is our position that sealing orders should not be used in each and every case. Sealing orders must be used carefully and only in appropriate circumstances.
Nonetheless, our position is that there is no provision for a sealing order within this law, and there might be good reason to have this provision. The reasons that justify sealing orders in other similar types of applications probably apply equally here.
Where there is a provision for sealing, there is also a provision to apply to unseal. Our position is that the person who is subject to an investigative hearing order should have access to the materials that were used to obtain the order.
Our next point is also a fairly technical one, but an important one from a constitutional perspective. I again draw the reference or analogy to search warrants and wiretap authorizations; investigative provisions.
Within the existing law, both under the statute and as a matter of constitutional requirement, those applications are made by materials that are under oath. An affidavit is used to support those applications. No similar requirement is contained within this provision for an investigative hearing.
In the absence of a specific requirement under oath, there is least opportunity for somebody to argue that there is no need for the application materials to be under oath.
In 1984, the Supreme Court of Canada released the leading decision of Hunter v. Southam. In that case, the Supreme Court of Canada addressed constitutional requirements for searches. The court cautioned against fishing trips, and addressed the need to protect against fishing trips undertaken by the state.
The court said that the way to balance the interests of the state in conducting certain investigations against the interests of the individual whose rights will be intruded upon by investigation is to ensure that the applications are determined by a judge — an independent judicial officer — who receives materials under oath. We say that requirement is a constitutional one, and a requirement that should be contained specifically within these laws.
Next, I will address the issue of the right to counsel.
The presence of counsel is critical for the proper determination of issues, such as whether a question is relevant and whether an answer to a question would intrude upon issues such as privilege.
Given that this power is an extraordinary one, it is imperative that questions and compelled answers do not go beyond the mandate of a particular hearing. It is essential that a hearing be narrowly tailored to the task at hand. For that reason, it is essential that the person who is the target of the hearing be represented by counsel at all times. To ensure that representation takes place, we recommend that the presiding judge have the power to appoint counsel.
The difficulty at present is that, without that kind of power, a person who is subject to one of these hearings either will need to retain counsel privately or attempt to avail themselves of a legal aid plan.
If a person is unable to retain counsel, then the person is subject to the limitations of legal aid plans. A legal aid plan in a province might or might not cover this type of a hearing.
If nothing else, it is at least easily contemplated that these hearings should take place in an expedited fashion. If a person is required to go to a legal aid plan, apply for legal aid and demonstrate eligibility, all of those requirements could have the potential to delay these hearings.
Our position is therefore that the judge who presides over these hearings should be given the statutory power to appoint counsel. That power will ensure that for the individual who is compelled to answer questions, that person's rights are protected. Similarly, that requirement will ensure that these hearings, if they are to take place at all, can take place in an expedited fashion.
I now turn to the issue of the property that may be seized under these laws. As you are aware, the provisions permit a compulsion for a person to bring with him or her any property that might be relevant to the hearing. The judge shall order that the thing be given into the custody of a peace officer, if satisfied that the thing produced likely will be relevant to the investigation of a terrorism offence.
The test there is one of likely relevance. The language is mandatory rather than permissive. It is that the judge "shall" order. The judge would not have a residual discretion as to whether the thing should be delivered into the custody of the peace officer.
These provisions would shortcut the laws that presently exist, with respect to the seizure of property. When I say that, what I mean is a search warrant. Presently, if an investigating agency wishes to seize property, the agency is required to apply to an appropriate judicial officer for a warrant to search. That warrant to search, if granted, would permit certain property to be seized and dealt with.
The bill also contains no restriction or control over whether the thing, once in the custody of the officer, may be inspected, copied, transferred to other agencies in Canada or even transferred to agencies outside of Canada.
It is well recognized that the investigation of terrorism-related offences often crosses borders. It is well recognized that information gathered in Canada might be of interest to investigating agencies outside of Canada. It is recognized that information is often shared as between different countries. It is recognized that information sharing between countries often gives rise to at least the potential for problems.
Our position is that the bill contains no apparent restriction on whether compelled answers or seized property may be disseminated to foreign jurisdictions. One of the difficulties is that though the bill contains protection for the way in which compelled answers or seized property may be used within Canada in criminal proceedings, that protection does not exist specifically for other proceedings within Canada. For example, it does not specifically protect against the use of that information in an extradition or deportation proceeding in Canada. That protection should exist specifically.
More problematically, however, Canadian law is not able to restrict the manner in which information may be used in a foreign jurisdiction.
It is entirely possible that a person might be compelled by Canadian law to provide an answer to a question or produce a computer, for example. If an answer to a question or the content of a computer is disseminated to a foreign jurisdiction, Canadian law is unable to dictate to that foreign jurisdiction the manner in which that information may be used.
For example, that compelled information may be used as the basis upon which to charge the person in a foreign jurisdiction, and Canadian law would have no say upon that use. That possibility is a deficiency, in our view.
I will make a final remark with respect to the recognizance provisions. The CBA has previously taken the position that the recognizance provisions need to be used with caution. I am aware that in previous proceedings there were some questions and answers with respect to the applicability of the concerns expressed by the Supreme Court of Canada in the decision of Hall to the bill in question. In the decision of Hall, the Supreme Court of Canada addressed the bail provisions within the Criminal Code, and held that certain language was unconstitutional, as being an overly broad basis on which to restrict liberty.
This information is not set out in our submission, but now being aware that those questions and answers took place in these proceedings and having looked at Hall, our position is that the language of the bill, with respect to the recognizance provisions, would likely be unconstitutional, having regard to the decision in Hall.
Yusra Siddiquee, Canadian Muslim Lawyers Association: Good afternoon, Mr. Chair, and honourable senators. I know it has been a long afternoon, but I am pleased that you have invited the Canadian Muslim Lawyers Association to speak today. This association is a national organization of lawyers, articling students and law students.
We have spoken here before. We have prepared written submissions previously on the Anti-terrorism Act, the Public Safety Act and, most recently, an act to amend the Immigration and Refugee Protection Act for legislative committees reviewing these pieces of legislation.
In May 2005, in our submission before the Special Senate Committee on the Anti-terrorism Act, we expressed concern about both the actual use of national security powers and the soft use of those powers.
[Translation]
In French, this concept can be translated as follows: l'application des pouvoirs de sécurité nationale et l'invocation subtile de ces pouvoirs.
[English]
The concerns of the Canadian Muslim Lawyers Association about these powers have not abated. We are here today to say that we do not see any reason for Bill S-3.
We reject violence. We also reject the assault on the rule of law. Bill S-3 gives a false sense of security, and it also erodes the rule of law and of accountable government.
If Parliament curtails the rights of Canadians, then it is incumbent on Parliament to prove why it is justified. It is not for citizens to defend why our civil liberties should not be encroached upon. We submit that Parliament has not executed this fundamental duty. It was not discharged in 2001, and we submit that it is not discharged today.
In light of the conclusions of the O'Connor report in 2006 regarding Maher Arar, we are not comforted when we are told that these powers are necessary and that they will not be used abusively.
We must keep in mind that the chapter on illegal detentions is not over, since there is currently a commission chaired by Justice Iacobucci, a former Supreme Court judge, on the role of Canadian officials in the detention of three individuals, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, in Egypt or Syria, and it is instructive to focus on Mr. Arar's case.
Recall that the RCMP provided erroneous information to American authorities who then deported Mr. Arar to Syria where he was imprisoned and tortured. The erroneous information used by the RCMP was obtained through ordinary police powers. With enhanced police powers, like the investigative hearings and preventative arrests, the possibility for abuse and miscarriage of justice increases. Even the Supreme Court of Canada has expressed concern about the lack of procedural protections.
In the 2004 case known as Re Bagri, the Supreme Court noted that section 83.28(10) does not provide safeguards in relation to non-criminal hearings such as deportation, extradition hearings or proceedings in foreign jurisdictions, as my colleagues from the Canadian Bar Association pointed out.
In fact, the Supreme Court said that the procedural safeguards that currently exist in section 83.28(10) must necessarily be extended to extradition and deportation proceedings to meet the requirements of section 7 of the Charter. Yet the government has chosen to introduce Bill S-3 without even respecting this pronouncement of the Supreme Court of Canada. This omission is troubling, to say the least.
What of foreign proceedings, an issue that was recently raised? The current provision allows Canadian police officers to obtain compelled testimony from individuals and then hand over the testimony to foreign authorities for prosecution against those individuals in foreign jurisdictions, including jurisdictions where torture is practiced.
Does Canada really want to send the message that it approves of compelled testimony being used against the accused in foreign prosecutions while formally prohibiting it for Canadian criminal prosecutions?
One can easily imagine a scenario — as was recounted earlier — of compelled testimony from an individual, then the individual is either expelled from the country under some kind of immigration violation or is prevented from re- entering Canada, as in Mr. Arar's case. Then the compelled testimony is used against that individual in a criminal prosecution by a foreign government that supports the use of torture.
In the Bagri case, while the majority of the Supreme Court found section 83.28 to be constitutional, subject to extending the procedural safeguards as I described earlier, it nonetheless went out of its way to say:
. . . we intend to decide only what is necessary to resolve the specific dispute in issue.
It also said:
. . . context in the law is of vital importance and that it is certainly the case with respect to terrorism. What we say in these reasons is influenced by the adjudicative facts we have before us.
It ended the point by saying:
. . . we wish to emphasize how important it is to examine the particular factual setting of each case prior to determining the legally required result.
Therefore, we submit the book is not closed on the constitutionality of section 83.28, and it may very well be held by the Supreme Court to be unconstitutional, based on a different set of facts in the future.
As for section 83.3, the provisions on preventative arrests, the courts have not commented on the constitutionality of these provisions with respect to extraordinary measures or with respect to the fact that it is a departure from the traditional criminal law. Clearly these provisions have been created to cover those situations where the Crown cannot obtain a conviction for an existing criminal offence based on the ordinary rules of proof beyond a reasonable doubt.
We submit there are enough safeguards in the existing Criminal Code provisions to protect the interests of national security in Canada. Under these provisions, the court does not find the suspect guilty of an actual crime, but rather guilty of arousing the suspicion of a peace officer under section 83.3(8)(a).
I want to discuss now the soft use of the two powers in question.
[Translation]
What we have called in French "l'invocation subtile de ces pouvoirs."
[English]
This is where the CMLA is acutely aware of the impact of the law on vulnerable populations. The soft use of national security powers has been thriving, with many hundreds of informal interviews and investigations taking place without formal charges being laid. These interviews and investigations are more than likely intended to co-opt people into spying on their communities. The prevalence of this soft use of authority contributes to a climate of suspicion between and within communities, while at the same time breeding a culture of impunity within the security and the law enforcement bureaucracies because most of this activity takes place outside the purview of statistical officialdom. Hence, there is plausible deniability.
In fact, as personal narratives are recounted increasingly in the Muslim and Arab communities, a pattern of soft abuse appears to be emerging. As the Canadian Muslim Lawyers Association is active in doing pro bono work, each and every member of our organization has been witness to individuals coming to us and recounting these incidents. I, as an immigration lawyer, have been witness to this abuse on a frequent and unfortunate basis.
We have heard from various sources that some agents and law enforcement officials misrepresent themselves and their authority under the generic label of "the new terrorism laws," suggesting they have much more authority than they do in reality. In many cases, people in the community who are not familiar with the limited authority of national security agencies, the intricacies of national security legislation or their own legal rights have unwittingly cooperated in investigations without being fully apprised of their own rights.
Most victims of the soft abuse do not speak about their terrible experiences for fear of state reprisals and the social stigma of being associated with terrorism. Non-citizens, permanent residents and refugees especially harbour the greater fear in this regard.
As for official complaints, many people in the Muslim and Arab communities do not have much confidence in the complaint system and its ability to offer them justice and redress. The Maher Arar case aptly illustrates this point. Canadian officials were complicit in facilitating Mr. Arar's ordeal. Even while he was being tortured in a Syrian prison, there was nothing but denial, buck-passing and general stonewalling from the Canadian government and its national security agencies. The RCMP complaint process offered nothing of substance in the search for truth.
All this is to say that the mere existence of legal provisions, especially those that are invasive and highly restrictive of physical liberty, can have an intimidating effect on those who are not familiar with the legal system. This is why we think training, education, cultural awareness and cultural sensitivity are key. This factor is only one that must be weighed in determining the salutary effect of this legislation before us.
I also highlight the incisive words of Justice Binnie of the Supreme Court. While he was in dissent in the Bagri case, his words are worth pondering:
Every legal system has its not-so-proud moments when in times of national upheaval or wartime emergency, civil rights have been curtailed in ways which were afterwards regretted. One need look no further than to mention the wartime treatment of Canadians of Japanese descent upheld in Reference Re: Persons of Japanese Race.
This point should be emphasized: The Supreme Court and the Privy Council in the U.K. actually upheld the detention of Japanese at that time, and Japanese-Canadians are but one example. Wartime detentions have included Ukrainian, Italian and German-Canadians, yet we now look upon that period with shame.
[Translation]
Likewise, the suspension of fundamental rights during the 1970 October Crisis in Quebec is now considered as an extreme and useless reaction.
[English]
We must end this pattern of undermining our cherished traditions of freedom and human rights, only to regret it later once the damage is already done.
Finally, the following words of Justice Binnie make us pause to reflect on the damage we are doing to ourselves when we pass laws that are not consistent with our traditions of freedom and human rights:
The danger in the "war on terrorism" lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.
Those are our submissions.
Senator Baker: I congratulate the witnesses for their excellent presentations. My two questions are for Mr. DelBigio. First, I wish to congratulate him on winning the CBA President's Award for his great service over the years for pro bono work in Canada, and his great performances before the Supreme Court of Canada as an intervener on behalf of his organization.
Sir, you do not have to apologize here for bringing specificity or detail to the question under discussion, because most of us on the committee are interested in which the minute detail of what is in the legislation.
I have to restrict myself to two questions. First, I have an observation. You mentioned R. v. Hall and the provision in which it struck down the words "for any other just cause without limiting the generality of the foregoing." Mr. Chair has received assurance from the Minister of Justice, since this committee has demanded that wording be taken out, that he will introduce an amendment before this committee ends its deliberations, a government amendment to remove it. I have a former judge of the Superior Court to my left here who will probably introduce the amendment. That is what the minister assured us.
That is number one, one of your concerns taken care of. My two questions are: You have introduced an interesting suggestion that all the problems that arise from this legislation as far as the sworn information to obtain is concerned in this jurisdiction we are talking about, are actually in law in other provisions of federal law dealing with sealing orders. You suggest, I presume, that the problem with the legislation would be cleared up to a great degree by having the procedure whereby an agent for the Attorney General and the police go to a judge with a sworn information if it be, for example, as you used, to tap someone's telephone, 487 of the code or 492 for a number recorder warrant. They swear out the information, it is put in a sealed packet, and if charges are laid, a motion is made to unseal it and then the Crown blackens out the portions they do not want disclosed. The judge then makes a determination on whether the warrant stands on its own, because if it does not then the stay is entered, so that everyone is satisfied in that procedure in that they get to know what is in the sworn information that caused the order of the court to be made.
You suggest something should be inserted, something of this likely example, in the legislation to give some access to the information that is sworn before the judge. That is my first question. Is that what you suggest?
The second question is: On compelled testimony, that section of this bill that says, and you quoted it, that no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than in a prosecution under section 132 to 136, which is the perjury and obstruction of justice sections of the code.
We had testimony before this committee that brought up the same point. However, they did not make the suggestion that you made, which perhaps fills in the gaps because what else could you use the information for except in a criminal proceeding? Of course, you asked about extradition; what about for deportation? All these other possibilities come into play.
Our former witnesses on this point said it is strange that this provision should be implemented in this bill in this way — only in a criminal proceeding. In other places, such as in the law society act of British Columbia, it says "in any future proceeding." It does not say "criminal proceeding." No matter where you see that statement, it is relatively generic to all sorts of legislation. Do you suggest we make an amendment and strike out the word "criminal"?
My last question is about the appointment of a lawyer. You suggest here a concern that members of this committee have raised. You suggest we put in the legislation that the judge shall, in appropriate circumstances, in the name of justice, be able to appoint counsel, perhaps at Attorney General rates or rates to be taxed.
Mr. DelBigio: Thank you for your generous compliments.
With respect to the oath and the sealing of information, they are, in a way, distinct issues in the sense that the sealing of the materials would harmonize this provision with other similar types of provisions in the Criminal Code. When I say similar types, I mean search warrant provisions and the provisions for wiretap or intercepted communications. The sealing of orders sometimes serves a public interest that could probably be addressed in this type of provision as well.
The requirement that the materials be under oath would also harmonize with other investigative types of provisions within the Criminal Code, but we also say it is simply a constitutional requirement and has been recognized as such since 1984 in the decision of Hunter v. Southam.
Frequently, an application now to unseal the materials in support of a search warrant will occur within the context of a criminal charge. That happens to be where that frequently occurs, but not every search warrant results in criminal charges. If materials in support of an investigative hearing were sealed, we would contemplate that the person who is subject to the order should have an opportunity to apply to unseal those materials. The importance of that opportunity is so that the person potentially may apply to the presiding judge to challenge the order itself or to challenge the foundation for the order that the person be compelled to provide answers. Just as there is provision in law now to challenge a search warrant authorization or a wiretap authorization, to ensure the full protection of rights, there must be opportunity to challenge the foundation of the order. That is our position with respect to the oath and sealed packets.
With respect to the criminal proceedings, striking the word "criminal" and leaving the protection in other proceedings would probably address the protections within Canada. It would not address the potential difficulties that might arise outside of Canada, but for protections within Canada, striking that word is something we would support.
With respect to the appointment of a lawyer, yes, currently within the criminal law that deals with adults, the Criminal Code does not provide a power to appoint a lawyer to an adult charged with a criminal offence. There is power to appoint a lawyer under the Youth Criminal Justice Act, YCJA, and I believe the provisions addressing appeals under the Criminal Code also provide a power to appoint a lawyer. However, we say that it is essential that the person who is subject to one of these orders have counsel, and the most expeditious way of dealing with that requirement is to allow the judge to appoint counsel.
Senator Baker: Of course you are right, under normal circumstances. However, under section 10(b), immediately when someone is subjected to a detention, two things come into play — first, the person's right to immediate legal free advice, and second, if they qualify, it must be read from a card that the legal aid provisions apply. All this information is read from a card upon detention. What is protected is providing immediate free legal advice if one wishes, and then providing an opportunity to have that advice at the first opportunity, which would be if a telephone were available, so that they could make a call in private. Under the law and the interpretation of section 10(b), that opportunity must be provided. What you are referring to is the provision of counsel to represent them all during these proceedings.
Mr. DelBigio: That is right, yes.
Senator Day: I echo the words of Senator Baker to each of you. Thank you for your detailed presentation.
I am looking for clarification of Mr. DelBigio's submissions at the bottom of page 2. You are talking about section 83.28(11). The section in Bill C-3 "would give the person subject to an investigative hearing the right to retain counsel." Then you go on to say, "We recommend that section 83.28(11) be amended to specifically permit the individual to be represented by counsel during an investigative hearing." The section is the investigative hearing. You acknowledge there is a right to counsel, so I am not sure what your recommendation is there, sir. Can you help me with that?
Mr. DelBigio: As in a criminal proceeding, and sometimes it is easy to use that proceeding as a touchstone, a person can avail themselves of counsel at the time of arrest or detention. A person can avail themselves of counsel at some point leading up to a trial, for example, or during the trial process. Our position is that access to counsel is throughout. If it is not clear at present that a person is entitled to counsel throughout, it should be made specific. A person, throughout the process, from beginning to end, has entitlement to counsel.
Senator Day: But the section says, at any stage of the proceeding.
Mr. DelBigio: Yes.
Senator Day: Are you not convinced that wording means, at any stage of the proceeding?
Mr. DelBigio: The right to counsel is essential. I recognize that language, but it is essential that we do our best to emphasize the point. The corresponding point is what is meant by "right" in the sense that "right" might mean that if a person happens to have a lawyer, the person is permitted to bring the lawyer into the hearing room, but for the right to be meaningful, there must be proper access to counsel, and that would come through the appointment.
Senator Day: I take your point, which is good. I am not convinced that I could make a good argument for changing this wording, unless you convince me that this wording does not achieve what we are trying to achieve here.
Mr. DelBigio: If it is recognized that the current language means that a person, from beginning to end, has the right to a lawyer, then we have no issue with respect to the wording.
Senator Day: It has been suggested by some that, prior to the proceeding, it would be nice to have a lawyer, and this wording says "at any stage of the proceeding." Maybe that is the point you are making.
Mr. DelBigio: If "proceeding" means from the time that papers are served to compel the person to attend at the stage in which a person might want to challenge the order, to the types of questions that a person might be required to answer or the type of property the person might be required to produce — if that is what is meant by "the proceedings" from beginning to end — then we are content.
Senator Day: My second question relates to your next recommendation in relation to section 83.28(12) where you point out that Bill C-3 uses the word "shall" in "the judge shall" pass on information that comes from an investigation. Then the term "likely" is used, if it is likely relevant. You seem to want to tighten that wording up to say that it must be "directly" relevant, and I get that point as well.
However, you make the point that the judge would have no residual discretion as to whether the information, et cetera, should be delivered into the custody of a peace officer. Do you suggest we should not use the word "shall" but that we should use the word "may" here to give the judge some residual authority?
Mr. DelBigio: Yes: What is in mind in that distinction between "shall" and "may" is that some years ago, the Supreme Court of Canada, in a decision called Baron, addressed the issue of the residual discretion of a judge. The court found that it was essential for the protection of rights and essential to ensure that it is a judicial decision that is determinative of whether or not a search is conducted or, in this case, whether property shall be handed over into the custody of a peace officer.
To ensure that the proper balancing of interests occurs, that proper balancing is best achieved through discretionary language rather than mandatory language.
Senator Day: Thank you again for your recommendations. We will take them into consideration.
Senator Jaffer: I am interested about the issue of the appointment of the lawyer. You have stated it as fully as you can.
This area of law is new, and I am wondering if the Canadian Bar Association is starting to develop expertise in it. Has a subsection been created? Are you also extending a helping hand to Muslim lawyers? I know they have many cases in this matter. How are you working with them to help this issue?
Mr. DelBigio: I will allow Ms. Thomson to answer the second question.
With respect to the development of expertise, to my knowledge, these specific provisions have not been used. Therefore, the expertise that has been developed is in the surrounding considerations of whether it is constitutional, how to make it constitutional, whether it is good policy and that sort of thing.
Within the CBA, because we have been working on this area for so long, I believe we have developed a broad expertise with respect to these issues, but I am not aware of anyone having a specific expertise with respect to the conduct of one of these hearings, for example.
Perhaps Ms. Thomson can answer your second question about work with other groups.
Ms. Thomson: The CBA is involved in a number of umbrella organizations, either as a member or an observer. I believe that the Canadian Muslim Lawyers Association is involved in some of those organizations as well.
In terms of specific areas where the two groups work together, it would be through those umbrella organizations.
Senator Jaffer: My second question is to Ms. Siddiquee. Your colleagues have talked about the spirit of the law, and we know that there has been that one Air India case, so there have not been many cases before the court.
However, I know there are many soft cases in the sense that there have been many interviews of Muslims and Arabs conducted. It would be useful for this committee to hear from you — and you alluded to this matter — with respect to some of the cases you and your colleagues come across as Muslim lawyers.
Ms. Siddiquee: What I have to premise this answer with is that the Canadian Muslim community is a proudly Canadian community, and when Canadian citizens are attacked for their Canadianness, it erodes their fundamental faith in the country, its institutions and their desire to work within existing institutions to improve them and make them more facilitative and responsive.
We hear regularly about individuals who are born and raised in Canada, who consider themselves as Canadian as anyone else walking on the street, being interviewed because of the mosques they may visit, the people they may associate with, the organizations in which they may participate or charities they may support, charities that are not on any lists anywhere.
They are interviewed. They are asked their whereabouts, the whereabouts of colleagues and friends and then they are not charged. The majority of these people do not say anything to anyone because they consider the situation embarrassing.
The few that do speak out tell us about their experiences, but they say it in an awkward, intimidated and embarrassed way, that somehow now they have been proved to be less Canadian. We find that distressful and repugnant because, as we cannot emphasize enough, the Muslim community in Canada is a strongly established Canadian community.
That treatment undermines the ability to reform the system. It undermines our ability to improve the system so that you do receive intelligent intelligence, as was quoted earlier. The Muslim or Arab communities will not participate effectively if they are ostracized at every turn, as they feel they experience.
Senator Joyal: Welcome to Mr. DelBigio and Ms. Thomson. I am always impressed hearing Ms. Siddiquee at this committee, as well as others at the Standing Senate Committee on Legal and Constitutional Affairs.
You have identified a certain number of weaknesses in the bill, as well as some potential traps in the bill. Another weakness I feel you might be of help in understanding the implications appears on page 2 of the bill in relation to subparagraph 83.28(4)(b)(iii). It is in the middle of the page after line 20. They are the words underlined in the bill. I will quote this section so my question will be clear to people listening but do not have a copy of the bill before them.
It says that in order to grant an authorization by the judge for an application for an investigative hearing for an offence that will be committed,
reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.
To me, this is an open expression — I am trying to put it in neutral terms — "by other means." It does not say "by all other means." It does not say "by reasonable means." It says "by other means."
In other words, suppose the police have been following you in your travels for a period of a week.
They have tried by other means to obtain the information; they did not obtain the information. To me, it is an easy test to meet.
For a judge to be satisfied that reasonable attempts have been made "by other means," what test does the expression "by other means" imply?
Mr. DelBigio: I assume that the drafters contemplated including something similar to what is contained within one of the laws governing the authorization of wiretaps. Not all, but some, wiretap authorizations may be granted as what is commonly referred to as a "last resort" when other investigative means have been tried but failed. The purpose of that test is to ensure that the wiretap — having regard to its intrusive nature — is used only as a last resort.
Within the jurisprudence surrounding wiretap provisions, there is an understanding of what that wording means. It requires that the applicant, the person applying for a wiretap authorization — or in this case a person applying for an investigative hearing order — demonstrate to the judge that is hearing or receiving the application that the police have turned their minds to other ways of uncovering or discovering the information, and they have not been able to do so.
Therefore, in wiretap cases, typically an affidavit of a police officer addresses certain investigative steps that they have tried but that have not brought about the desired result. It becomes a statutory requirement, which is addressed within the affidavit in support of the application.
What does that wording mean? I cannot put my hand on the section within the Criminal Code. I might be able to do so in a moment, but I assume that is what is contemplated.
Is it specific enough? I am not sure. I would have to turn my mind to whether that language could be tweaked to enhance or to ensure the protection.
Senator Joyal: It seems to me that in the substance of subparagraph 83.28(b), three sets of conditions must be met to prove to a judge that the investigative hearings are essential; in other words, to grant an investigative hearing.
The first test is that there are reasonable grounds to believe that a terrorism offence will be committed. They are close to proof there. As I said to a previous witness today, it is not "might" be committed, or "could" be committed; it is at the point of being committed. It will be committed. There is a certainty there on the first elements that lifts the bar high.
For the third condition, the certainty is low.
reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.
In other words, the fact that the expression "by other means" is not qualified, as you said, might exist somewhere else in the Criminal Code in relation to a wiretap.
Here, we are not talking in terms of wiretapping at all. We are in the context of somebody who has been the object of an investigation for a while. If officers have concluded that the person will commit a terrorism offence, it means they have a lot of other elements in the proof they have amassed and will table in front of the judge.
It seems to me that this last section is too wide as a test to satisfy judges. Normally, they should have exceptional circumstances in front of them. As you stated clearly in your opening brief — and I cannot agree with you more — this provision is absolutely contrary to our national criminal policy.
It seems to me that we are opening the door wide to the lowest level of proof that the police must meet as a standard to obtain the authorization they want.
In other words, to restrict investigative hearings to exceptional circumstances, to meet the test of what should be presented in front of a judge, the bar should be high enough for a judge to be convinced before the judge grants the authorization.
Mr. DelBigio: I understand your point. It is important. I hesitate only for this reason: I think the language within that subparagraph should be clear, and should be clear in a sense that it sets a high standard of last resort. I hesitate only to craft better language at this particular moment. It is certainly an issue.
The purpose of the subparagraph, though, should be clear in the sense that this standard should not be met or achieved easily, and it should be used, if at all, truly as a last resort.
I would be happy to give further contemplation to what might be better language, but I hesitate to do so off the top of my head.
Senator Joyal: No, I am not asking you to give me the qualification that we should use today.
I am only trying to reflect upon what you stated. This measure is an exceptional one that runs contrary to our criminal policy in Canada, to common law, and to all the principles we have tried to implement in our Criminal Code. In fact, we manage the way to that decision with all kinds of parameters to be sure that it is not abused too easily.
As one witness said, we are restricting this investigative hearing to a terrorism offence, but one day somebody will come to us with another argument and say, this kind of criminal offence is so odious and terrible that we should have an investigative hearing. Normally, that offence deals with sexual offences involving children. That is normally the next horrendous situation that people are furious about, or react to strongly.
In other words, if we are to make sure that we do not open the door in the Criminal Code to something that could develop into a different kind of use, we have to be sure that the threshold to meet is high.
Mr. DelBigio: In other contexts, we have expressed concern about the way in which the criminal powers expand and never seem to contract.
An example, perhaps, is the National DNA Data Bank. The list of offences which might attract a DNA order simply grows.
There is always concern about expansion of powers, and whether terrorism is the justification for an extraordinary power. Once these powers become part of the fabric of the Criminal Code, it is easy enough to contemplate somebody appearing and saying, there are other matters of extraordinary concern such that the investigative hearing provision should be expanded in use.
The CBA is always concerned about the ongoing expansion of powers.
Senator Joyal: I would say it has some legal and political substance to it, but I want to ask Ms. Siddiquee a question.
On page 5 of your brief and I will quote it in French because it is in French in your brief.
[Translation]
In your third point, at the bottom of the page, you say:
Également, la suspension des droits fondamentaux pendant la crise d'Octobre 1970 au Québec est maintenant considérée comme une réaction extrême et inutile.
[English]
Would it not have been more proper to mention that when the suspension of fundamental rights happened in Quebec in the October crisis, it was in the context of the War Measures Act, and that act was already 40 years old? It has been replaced by the Emergency Measures Act and there is a Canadian Charter of Rights and Freedoms today.
I am not sure the judgment you express in your brief is shared by everyone; that the decision taken by the Canadian government at that time was useless. I am not sure. The point is debatable, and inasmuch as it is important to restrict the legal nature of a situation or an argument, if you draw a political conclusion, of course, you are open to different views being expressed politely to you.
On that point, I wonder if when you draw conclusions like that you should not refer to the law of the land at the time that they were adopted. There have been many examples in Canadian history whereby the law of the land at that time provided something that today, of course, the law of the land would prohibit totally. I make that qualification in the context of what you stated there.
Ms. Siddiquee: I appreciate your point. Your point is indeed well taken.
I believe that the perspective in which I made the statement was from the 20/20 hindsight that we have, decades after the incident. I fully appreciate that at the time of the incident, there was the incredible insecurity and uncertainty, and there was the fear of the unknown. At the time, it may have been reasonable as an encroachment on civil liberties because we did not know what would happen.
Now, 48 years later, we are able to see it in the context of the grander scheme and what subsequently happened, or what did not subsequently happen. I know the debate well because being from Quebec, I grew up with a lot of debate on that issue. I see both points. I think that now, decades later, in the framework of our Charter, perhaps more people today would take this view, but I completely appreciate that, at the time, yes, there were reasons why the position was taken. At the time, it certainly was not something necessarily extreme or useless.
Senator Baker: In the two sections of this bill, one involving the investigative hearings and the other one involving recognizance with conditions, as far as the investigative hearing is concerned it is a swearing of an information before a judge. Does the witness know the reason why a judge is defined as a provincial court judge or a judge of a superior court of criminal jurisdiction in the investigative hearings section, whereas in the recognizance with conditions it is restricted to only the provincial court judge, and only a provincial court judge can vary. Is there any reason for that difference?
Mr. DelBigio: It is an interesting issue that exists within criminal law because now, depending upon the investigative provision, in some instances, some applications are made to a justice of the peace for —
Senator Baker: A search warrant.
Mr. DelBigio: Yes, and sometimes they are made to a provincial court judge. Sometimes it is a judge of the superior court judge. A wiretap application is made only to a judge of the superior court.
Sometimes, concern is expressed that justices of the peace might not have the benefit of legal training and therefore should not grant authorizations at all. Sometimes, it is suggested that there is no sound basis upon which to recognize any sort of distinction between judges of the provincial or superior courts, with respect to these types of applications.
I cannot say that we have turned our mind specifically to the issue, but I cannot offer immediate explanation either.
Chair, I earlier alluded to a section in the Criminal Code that deals with the last resort, and it is section 185(1)(h), which is the governing section in relation to the use of wiretaps.
The application "shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer deposing to the following matters. . . ." Then, I take you to subsection (h):
whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
An exigent circumstance type of aversion is built into it.
Senator Joyal: You and I, and many others around this table, will conclude that this threshold is pretty high, whereas the one in this bill is much lower.
It does not say reasonable attempts have been made to obtain the information. It does not say it has been unsuccessful, and it did not qualify any of those attempts. In the section you read, there are different levels of attempts that must be checked before the judge can be seized with such a request.
Mr. DelBigio: The benefit of including similar language is that it is language that has already been interpreted within the criminal law. As soon as you use new language, you invite contrast and potential problems of interpretation.
Senator Baker: My last question is a general one, and of course you would admit that wording forms the basis for appeals at times of why the authorization was granted. All those reasons must be in the affidavit of the affiant or sub- affiant, or whoever did the authorization. You are absolutely right, Senator Joyal, and the witness.
On the matter of provincial court judge versus the superior court judge, the only thing I can think of is the superior court judge has inherent jurisdiction, and therefore can go beyond what is simply written in the law because, as you know, a provincial court judge can do only what is written in the law and that is it.
My final question involves Senator Day's question a few moments ago. If I understood you correctly, Senator Day talked about the right to counsel, but you talked about not only right to counsel but right to a court-appointed counsel if need be, by the judge. They are two different things, because right to counsel is on a card, as we understand it. It is on a card. They have a right to counsel: Here is the phone book and there is the booth; in private you can pick your counsel. That is right to counsel. What you talked about was right to counsel appointed by the judge in this extraordinary circumstance to guarantee or assure someone of proper representation. Is that correct?
Mr. DelBigio: That is correct.
The Chair: Thank you, witnesses and panellists, and thank you, colleagues. We have had a long afternoon.
I might say in closing, I have already chatted with committee members who are still here that there is a strong possibility that next Monday's meeting may deal with Bill C-3 because of the deadline. I spoke with Senator Andreychuk, and she was comfortable with that philosophy, and she will review that approach with her leadership and get back to me tomorrow. If there is consensus, we will designate the steering committee to make that judgment call. I understand they will vote on it tomorrow.
Senator Baker: Yes, Mr. Chairman, on a point of order —
Senator Joyal: Maybe you should release the witnesses.
The Chair: Yes, I was hoping we would be finished. Witnesses, if you want to listen to this —
Senator Baker: It is simply a point of clarification on the bill that is before the House of Commons. Can you clarify the law surrounding what we are asked to do here? If we do not pass the bill within the week or week and a half of which the time is called, the only ramification would be that the existing certificates would come to an end. It would not have any further ramifications as far as the law is concerned. Is that correct, Mr. Chair?
The Chair: Our researcher has been looking up that point to try and keep it as clear of a response as possible. I will refer it to her.
Jennifer Bird, Analyst, Library of Parliament: My understanding with respect to that point is that, after one year, the certificates of the individuals that put the case forward, Mr. Charkaoui, Mr. Harkat and Mr. Almrei, but any individuals to whom certificates apply, and we are dealing with about six people, will no longer be considered to be reasonable. At that point, they will be able to apply to court to have their certificates quashed. It is not that the certificates are automatically terminated. They would have to apply to have them quashed. I imagine it would be a fairly simple thing for them to do in light of what the court said in their decision.
Senator Baker: This is my point, Chair. Perhaps we are not under such a timeline as the one suggested by the government in that there is a procedure that happens as it applies to the persons' certificates whose time will be called.
The Chair: I understand that, but some people might argue it is a grey area. Out of an abundance of caution, I think we should try to have a witness from the government that can answer the question. Under Bill S-3, there is no time limit that is relative. These bills are like Siamese twins.
Senator Joyal: If the government feels that it cannot meet the target of the Supreme Court, the Attorney General of Canada can file a petition to extend the decision of the court for another six months or so. There is always a possibility to address the court when there is a D date on a decision. It is up to the court to decide. It is not an absolute expiration of the condition under which a valid certificate could be granted.
The Chair: I understand. Thank you very much, and we will see you next week.
The committee adjourned.