Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence for April 9, 2008
OTTAWA, Wednesday, April 9, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-210, An Act to amend the Criminal Code (suicide bombings), met this day at 4:15 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs which is examining Bill S-210, An Act to amend the Criminal Code (suicide bombings). This private bill has been brought by Senator Grafstein. We are pleased to welcome him this afternoon as a witness to speak about his bill.
Senator Grafstein, please give us a brief opening statement that will be followed by a question period.
Hon. Jerahmiel S. Grafstein, sponsor of the bill: Honourable senators, there was a bit of humour in the Senate today when I said I would be brief. There was a guffaw from a far corner of the Senate. In my own defence, I will say that I have more private members' bills on the Order Paper now than all other senators combined. It is not that I am talking a lot; it is that I am talking a little bit about a lot of bills.
I want you to understand, Senator Stratton, I did not generate this bill. This bill came from a meeting I had with a former Judge Bromstein and Senator Eggleton. They urged me to support them in a resolution dealing with this matter before the Senate, hoping to combine it with a resolution in the other place.
I told them, based on my experience overseas and at home, that such a resolution is a snapshot in time. We pass it on and a resolution is rarely remembered and has no binding effect. I said I would be interested in supporting this position if we could work on a piece of legislation that could be incorporated and implemented as part of Canadian law. We would do it in such a way that would meet all the parameters of the criminal law, and Judge Bromstein thought it was a good idea.
That is how I embarked upon this bill. It came from Judge Bromstein and a host of Canadians who have supported this position. Some of them are here today as well in their legal capacity. I want to say that by way of background.
Thank you, honourable senators, for the opportunity to review the evidence and opposition to this bill from the Department of Justice. As you know, the government, despite protestations of support for the objects of the bill, opposed the detail of the bill when they turned to their bureaucrats.
I will give the arguments as best as I can sum them up from the transcripts, which I think are capacious and clear. First, the Department of Justice argues that this legislation is redundant and is already covered by the code.
Second, the department argues that the Senate has already considered changes to terrorist legislation and has not seen fit to include this amendment. They use that argument to say the Senate has already opined and therefore, why opine again. They went on to say that the Senate did not see fit to include this amendment in its recent study.
Third, they argue that this amendment would be confusing for prosecutions. It would affect prosecutions and make them more difficult.
Finally, it would criminalize conduct not meant to be criminalized, for example, if someone blew themselves up with a bomb in the middle of a field.
Those arguments are the general ones. When you review each of these contentions, I think, based on the astute cross-examination by all senators — particularly Senator Joyal, Senator Milne, Senator Baker, Senator Stratton and others — it is clear that the government's position here does not stand its own test. It falls because it cannot stand up to the scrutiny of careful examination.
I will deal with the arguments generally since we have distinguished witnesses who will cover the same ground.
Yes, it is already included in the code. It is clear that the department, however, refuses to accept that the purpose of the criminal law is to educate, prevent and act as a deterrent by adopting expressions from common parlance.
The evidence clearly demonstrates that words such as "hijacking'' and "rape'' have been used in common parlance — along with, as Senator Milne indicated for clear understanding, the word "biker.'' The bikers legislation was a clear example of why Parliament has used common parlance to adopt it into the Criminal Code to prevent and to bring to the public's attention the abhorrence of such conduct.
The elements of the bikers legislation essentially were covered by the Criminal Code. However, Parliament saw fit, because of the public outcry, to deal with this matter in words the public would understand.
Again, senators, for those of you who are not lawyers, the first thing we learn at law school is that ignorance of the criminal law is no defence. One cannot say that they did not know the law. That is the reason why, historically, the common law has evolved from common law cases to specific cases of legislation to codify those words — words like murder, rape, hijacking and now hopefully, the question of suicide bombing.
Let me turn to the evidence. The evidence is on page 7, 8 and 9 of the Department of Justice's evidence on April 2 to the Standing Senate Committee on Legal and Constitutional Affairs. I will refer to it briefly. I will quote one of the lead witnesses for the Department of Justice.
At this point, we wish to respectfully submit that this proposal, if enacted, could have negative impacts on the current legislation. If, for example, it could send a message to our courts that, for greater clarity in the definition of terrorist activity was needed to catch suicide bombing, the rest of the definition of terrorist activity may become unclear and would undermine the court's interpretation of what constitutes the definition of terrorist activity.
Then he goes on to say:
Here is another issue: It could also open the door to others wishing to add other types of terrorist activity to the current definition, all for what may be intended to be "for greater certainty'' yet which would end up creating lesser clarity.
In Senator Baker's cross-examination, he clearly was able to show that "for greater certainty'' has been a technique that Parliament has used over and over again to expand, modify or clarify existing legislation, particularly in the Criminal Code. If anyone wants to Google it, you can. Senator Baker sent me a thick document of dozens of examples where the technique was used for greater clarity or for greater certainty.
He went further than that; he referred to the Supreme Court of Canada case — the citation is in the material — where it said that the Supreme Court of Canada encourages parliamentarians to add to definitions by using this technique, because it is important that the public understand that Parliament speaks with a voice that sets out abhorrent or egregious conduct. Rather than the Supreme Court of Canada suggesting to parliamentarians that they should limit or contain themselves, the court says that parliamentarians should take an expansive role and do it, as we did in the common law, one at a time, as experience suggests — which is the way the Criminal Code evolved from the common law to the statutory.
On analysis of all the evidence — and the response and cross-examination by Senator Baker, Senator Joyal, Senator Milne, Senator Stratton and others who are not here — it is clear that the underpinnings of their case did not stand the test of support.
Again, I think the most condemning piece of evidence is the government's evidence itself. I will not refer in detail to the Commissioner of the RCMP, but he was asked in clear and unequivocal terms whether this bill would be helpful rather than harmful in terrorist prosecutions. The Department of Justice position was that this bill would be unclear to the courts and it would be, in effect, harmful to successful prosecutions.
The RCMP took exactly the opposite position. On the contrary, they agreed that taking words out of common parlance would be useful. In effect, they said it would be helpful.
You will recall, Madam Chair, that when you cross-examined the witness, he said —
The Chair: Questioned.
Senator Grafstein: Forgive me, I am still a lawyer. When you questioned the witness, you asked him what effect this bill would have — which group would be deterred? He said that the mastermind who is ideologically bent in this extreme conduct would not be deterred, and the bomber himself or herself would not be deterred, but everyone in between might be deterred.
I agree with that, with one exception. The exception is that I believe — based on the anecdotal information that I have read about suicide bombing, and I have read a lot of books and cases on this subject — that this legislation would provide deterrence to the family and friends of the proposed suicide bomber.
Why; because I think a suicide bomber lives in his or her milieu. There is family, friends and conduct. If the family or friends of the suicide bomber understood clearly that suicide bombing was not an act of martyrdom or religious rejoicing, but on the contrary, in this country was condemned as egregious conduct that criminalized the bomber and possibly the family of the bomber and anyone who assisted the bomber, that condemnation would send a clear message of deterrence that would be effective in some cases.
Obviously, it would not be effective in all cases, but that is not the test of the Criminal Code. The Criminal Code is not meant to stop conduct, period, but to do its best, to use the words of Parliament, to deter egregious acts of criminal conduct.
As to the question of whether Parliament has already considered this terrorist definition and chose not to adopt this definition as an addition, I think the department was unfair to this committee when they said they used the example of the recent work done by members of this committee — you, chair, Senator Joyal and others who have been on the terrorist various committees. It was clear to me — and certainly in the mandate of those committees — that the mandate of the Senate in the most recent study on terrorist legislation was not to consider expansion of the definitions, but to see whether the existing definitions overreached themselves.
That was the reason why, when it was suggested to me that I make representations to the terrorist committee that I said no. I did that because I felt that this amendment was beyond the mandate of the committee. It might have been helpful to the committee; but the committee had its own time frame and difficulties in meeting it. Therefore, I felt that this amendment would better be done as a stand-alone piece of legislation.
It is clear from the mandate of the committee, if one reviews it. If the Department of Justice had reviewed that mandate, they would have understood it is not fair to use that argument against this bill. Parliament and this committee have not considered that, nor have senators. I have been part and parcel of all those discussions from the original legislation, as you know, chair, so I think it is not fair to put that down as an argument against this legislation.
On careful review of the Department of Justice and their opposition contained in committee transcripts, I believe it is clear the arguments they made are misplaced, misinformed and inconsistent with the clear-cut evidence of the RCMP.
Finally, in my view, Senator Milne gave the best example of legislation, which is the bikers legislation I referred to earlier. Most of those elements are covered by the code. Essentially, that piece of legislation was created for greater certainty or clarity, to send a message — particularly to bikers who become directly involved in criminal conduct — that their aggregation and their purposes in meeting together raise the question of criminal conduct.
That was a clear message and I think it was salutary in allowing the government and the prosecutors to go forward to break up some of those gangs. That work, by the way, still goes on. There is recent television about exactly what has gone on there.
I think that this analysis applies to other legislation and commends itself to this committee. However, let us me make the international argument. Chair, as you know, I have been deeply engaged in this topic overseas at the Organization for Security and Co-operation in Europe, OSCE, whose resolutions have persuaded the United Nations that they should move on this particular front.
Indeed, there has been a studious avoidance of the words "suicide bombing,'' not in the description of the conduct that should be prohibited, but in the usage of those words. The reason for that avoidance, in my experience, is that in order to carry the legislation, they did not want to end up with an ideological debate among some member states who believe that suicide bombing is an act of religious opposition and not a criminal act. That is the reason, in my view, we see it in the preparatory words but I do not believe we will see it in the words themselves.
This is an opportunity, senators, for us to make a made-in-Canada amendment to our code. I believe that, if adopted, this amendment would influence international bodies and other national parliaments to consider adopting the same technique as it applies to their legislation. As Canada led in the creation of the International Court of Justice, and as Canada led in condemning and outlawing land mines, this amendment would be a concrete way for us to lead once again in this never-ending war against terror.
I hope that the other witnesses will cover more thoroughly the specific critical and legislative opposition raised by the department. I have read some of their briefs, and I think they will amply cover it, so I will not steal their time. I am ready for any questions, but I may defer, chair, because we have a broad range of witnesses here who can deal with your questions in a much more professional way than I. I have not practised criminal law for 46 years, but I was a criminal lawyer when I started, and, for a while, not a bad one. I do not want that to be held against me because I like criminal lawyers. I am ready for questions.
The Chair: Thank you, Senator Grafstein. Before I go to Senator Stratton for the first question, you referred to a Supreme Court of Canada decision referring to "for greater certainty'' clauses or, in any case, to the need for clarity. Can you give the committee clerk the reference to that decision?
Senator Grafstein: It is in the testimony. I think it was referred to. I received that reference from Senator Baker, and I will ensure the committee has that case.
Senator Stratton: Your presentation is interesting, Senator Grafstein. While I sympathize with the position, I have concerns. You have brought a bill forward. Suicide bombing, as you call it, is reprehensible, and it should be pointed out as something that should be identified in the code. However, while suicide bombing kills a great number of people, other acts of terrorism, of which suicide bombing is one, are far worse. For example, the Air India crash is another example. Why do we not then identify that act in this legislation? For example, if someone decides to take a rocket launcher and stand down at the end of the runway and shoot an aircraft down, why would we not identify that act? My concern is exactly those things. In my view, they are far more reprehensible, although it is hard to imagine anything more reprehensible than to send two autistic women into a crowd and blow them up. However, once you look at this subject, would you not want to consider these other things as well? I find it surprising that you would not.
Senator Grafstein: First, there are two examples. The Air India attack was reprehensible, and we still have not reached the bottom of it. It essentially was not a suicide bombing attack, as we know. The Air India attack was a terrorist attack.
Senator Stratton: So is suicide bombing.
Senator Grafstein: It was different because it did not involve a suicide. Someone was not the vehicle of the bomb. There is a difference between a suicide attack and a suicide bombing. In my view, all terrorist attacks against innocents are reprehensible, but I think the most reprehensible is this cult of death that suggests that people should sacrifice their life to explode and therefore cause that explosion to cause the death of others. That goes to the heart of the Christian, Judaic and even Muslim tradition of the importance of life. There are levels of evil or degradation, but I think that is one of the worst. This is not to say that terrorist attacks are not reprehensible, but that is a different level of reprehension. The runway attack is a terrorist attack.
Now, why did I decide not to do a comprehensive review of the Criminal Code?
Senator Stratton: I do not suggest that.
Senator Grafstein: I will explain why. There are other questions about enforcement. If you look at the evolution of the Criminal Code, it started one reprehensible, clear-cut case at a time, and then we added to it. It does not prevent you or anyone else that is interested in this topic from expanding. I am saying that this legislation stands on its own feet. It has not been in any way, shape or form violated by any objections by the Department of Justice. On top of that point, it has been encouraged by the RCMP, who are directly responsible for prosecutions, as being a salutary and helpful element in their tool box, and that is the reason I decided to stick to my knitting.
Senator Stratton: How would you define the 9/11 attack? Was that a suicide attack or suicide bombing?
Senator Grafstein: That was both. It was a suicide bombing, and it was a suicide attack as well.
Senator Stratton: That is my concern. How do you differentiate?
Senator Grafstein: As I say, this amendment was not to be a comprehensive review of the terrorist legislation. It was to deal with what I considered to be egregious acts that are growing in number and, more important than that, as I pointed out and as was confirmed by the RCMP witness, they are now being taught on the web. Based on the evidence, hundreds or even thousands of websites now teach children who have access to the web how to make a suicide bombing vest. You can punch in the website from all across the world and figure out how to do it with homemade elements. I think that is egregious.
Senator Stratton: My last concern is, why did the legislation on anti-terrorism not define this act as a specific rather than under the generality? Why did the two committees in the both Houses not define this term?
Senator Grafstein: I thought I gave the example of why this particular definition was not given. As I read the terms of reference of the most recent committee, and Senator Joyal was involved in that committee, as were Senator Milne and the chair, their mandate was not to expand the definitions but to see if the existing definitions were egregious, which is different. The terms of reference were not to do a complete review of terrorist legislation; it was to take a look at the existing legislation and see if, in some instances, it went too far.
As I understand it, one recommendation was made, and one recommendation was then picked up in the Khawaja case by the Supreme Court of Ontario. I disagree with the Department of Justice. In my view, it is now binding law in Ontario. That was a recommendation made by the committee. I am not sure about the timing, but that case is the law of Ontario, and the Department of Justice does not accept this. You can ask our legal experts here whether it has more binding effect. I think it will have persuasive effect until it is overturned, if ever, by a Court of Appeal or the Supreme Court of Canada.
Senator Milne: I have two short questions. Why did you choose not to define "suicide bombing'' in your bill?
Senator Grafstein: There is an internal contradiction in the Department of Justice's position. On the one hand, they say, for greater clarity, it is confusing, and, on the other hand, they say you have not defined suicide bombing because it is already defined.
The elements of suicide bombing are indeed already defined. For me, then, to provide a definition that would go beyond the existing elements in the code, to my mind, would take me into a deeper and more complicated field. That is already accepted. That is why I limited myself. It is not that it is not defined; it is defined in section 83.
Why then would I try to expand on that definition for greater clarity? I think there is an inconsistency in the government's opposition to this bill.
Senator Milne: When the RCMP gentleman was before us last week, he suggested expanding your bill to call it suicide attacks rather than suicide bombings. Do you agree with that suggestion? If not, why not?
Senator Grafstein: Here is the problem with that recommendation. I agree with his conclusion; I am not sure I agree with his recommendation.
I am sure you will hear this from the other witnesses as well. When people think about these things, they think about suicide bombings. They do not think about a new piece of legislation in the United States now calling it homicide attacks. Others now suggest suicide attacks. In common parlance, which is the purpose of what I am trying to establish here, the term "suicide bombing'' is used by the general public. They talk about suicide bombings. The odd time they will talk about a terrorist attack or a homicide bomber.
However, essentially, the words, suicide bombing, are in common parlance in French, English and the other 56 languages of the OSCE. If we are trying to use this amendment as an educative tool, let us stick to the one term that is acceptable as a means of communicating to the wider public that this conduct is egregious and unacceptable. That is the reason I chose not to expand it.
If the committee, in its wisdom, chose the words, suicide attack, as something that would be useful, I would give that suggestion careful consideration.
Senator Joyal: Senator Grafstein, you referred in your presentation to the OSCE resolution. Do you have the text of that resolution?
Senator Grafstein: No, I do not, but I will make that available to you.
Senator Joyal: It is important to see that text.
Senator Grafstein: There was a reference to it, but I will find that.
The Chair: You do not need to do that. We already have it in a paper provided to us by the Library of Parliament. We will provide you with a copy.
Senator Joyal: It is important to be aware of the language or the wording used in that resolution. Can you remind us of the date it was adopted?
Senator Grafstein: I have made so many resolutions at the OSCE, I cannot remember. I am sure it is on the record.
The Chair: It is July 5, 2005.
Senator Grafstein: That was in what city?
The Chair: It was in Washington.
Senator Grafstein: That was the Washington resolution.
The Chair: I now have the text of the resolution in front of me. Is there a specific passage you want to consult, Senator Joyal?
Senator Joyal: Yes, my specific question is, can we have the passage in the resolution that uses suicide bombing, suicide attack or whatever vocabulary so we may have an idea if the terms used and included in the bill refer exactly to the text of that resolution? I realize the resolution is a long one.
Senator Grafstein: If I recall correctly, you will find the words, suicide bombing, in the description, but that is different than in implementation in actual legislation. The legislation is implemented either in a formal treaty or by each parliament.
By the way, there is an additional resolution at the OSCE for follow-up. People now are being mandated to follow up with individual parliaments to determine whether they have fulfilled the resolutions at the OSCE. I am part of that process.
Senator Joyal: Is the substance of that resolution asking the member state to adopt legislation that would specifically prohibit suicide bombing?
Senator Grafstein: Whether it says that precisely, I believe that is the intent of the drafting. I would have to go through it myself and point that out. However, I believe that is the intent.
Senator Joyal: My third question is whether you are aware of any member countries of the OSCE that have acted in the way you have suggested the Parliament of Canada act?
Senator Grafstein: Not yet.
Senator Stratton: Australia is trying.
Senator Joyal: To your knowledge, do any countries already have a similar provision in their criminal legislation?
Senator Grafstein: Not of which I am aware.
Senator Joyal: Not in Britain, the United States or Australia?
Senator Grafstein: No.
Senator Joyal: Do any of the other European countries?
Senator Grafstein: Someone recently sent me a reference to legislation being considered in the United States where they refer to suicide bombing in their preamble. Senator Joyal, you and I agree that we do not like preambles much.
I will try to find that reference for you. However, in the legislation itself, it is referred to generally, but not in the definition directly.
Senator Joyal: Let me be specific because I do not understand your answer.
Paragraph five of the resolution refers to the attacks of September 11, Madrid and the heinous attacks in the countries of Israel, Russia, the Philippines, India, Pakistan, Afghanistan, Iraq and the specific locales of Bali, Casablanca, Istanbul and Jakarta.
None of the countries where there have been suicide bombings in the past have felt it appropriate, at this stage, to legislate the way that you are asking the Parliament of Canada to legislate?
Senator Grafstein: That is my best understanding to date.
There is agitation. There is a political movement afoot to rectify that situation and to be more precise. However, I cannot say I am aware which parliaments have accepted that change yet. That is why I say, this bill would be a first and Canada could lead the way.
Senator Joyal: Let us put that in a complementary way. If those countries have not yet acted, are there other means to educate the public to realize the deterrence benefit that you expect from this legislation?
What other means is available to deter the public generally from being attracted to suicide bombing, in the way that you have described it, via the Internet or other modern means of communication that would reach the same objective or a comparable objective?
Senator Grafstein: Let me deal with the Internet. The Internet essentially has been untouched for many different reasons. First, the servers are in different countries. The reach of criminal law is limited and pertains only to servers located within the boundaries of Canada or maybe be incorporated, somehow, into material that comes here. The law is difficult to enforce.
In my view, this legislation would have a chilling effect on the people that provide server support to those sites promoting suicide bombing or providing information on how to make a suicide bomb. They would be able to tell their customer: "Wait a second. This information incites clear-cut criminal conduct. There is no question about it. A suicide jacket is a suicide jacket.''
When the Department of Justice said, "What is the intent?'' — what is the intent of a suicide jacket except for a suicide bomber or for the purposes of inciting fear? This amendment, in my view, would have a salutary effect in arming the RCMP with tools to chill out the Internet as it applies to Canada. I think including the provision in Canada would be a means of moving it to the United States and into Europe, where the major servers are located.
I have looked at this question. There are more complicated ways of addressing it, but this amendment would be a facile way of trying to address this issue immediately, which is proliferating. As the RCMP commissioner said, it is not five or ten sites; there are thousands of sites. They are growing by leaps and bounds, and nothing is being done about it.
This bill would have some sort of chilling effect, at least in Canada. It might be a way for others to adopt the provision, even for that particular purpose if no other. To my mind, the amendment would reach the roots of this horrendous technique of terrorism.
I think other countries are trying to formulate the perfect definition, to be all-encapsulating. That has not been our experience in Canada. We have never gone that way, nor have they in England. They have created it a step at a time.
They take this step, then they take the next step and the next one to ensure every step is careful and thoughtful. That has been the evolution of the common law as it applies to the Criminal Code. I think this amendment would be a salutary first step.
If we hear it from the RCMP, which is responsible for these prosecutions, I think the weight of that evidence outweighs the evidence of the bureaucrats who are trying to defend drafting situations within Canada.
This situation is not an easy one, senator. I have been involved in this issue at the international level. I have not been involved in the drafting of specific legislation but I have been involved in drafting resolutions. We try to make them as tight as possible so the direction to the drafters is clear-cut; but still, the words have not come up. They are all wrestling with the same problem we are wrestling with, and I think this amendment is a way to address it.
I do not want the perfect to drive out the good. That is my answer to Senator Stratton. There is no perfect solution here.
Senator Cowan: I want to follow up on Senator Joyal's comments. I read the briefing document, although I was not here when the RCMP witness appeared. The notes indicate that the witness or witnesses indicated that this bill would have no deterrent effect on the suicide bombers because they are fanatics, to use one term. However, it would have a chilling effect on those who aid and abet. Is there anything more you want to say on that subject, other than what you said in response to Senator Joyal?
Senator Grafstein: You were not here earlier when I responded to it, but that is one part of the RCMP evidence with which I do not agree. I say that because if we take a careful look at the education and processing of suicide bombers — there are a number of books on this subject — we will find that there is a tipping point in the life of every suicide bomber.
I do not want to deal with the horrible situation that Senator Stratton alluded to, where they use children with Down's syndrome as bombers. That act is as egregious an act against civilization as we will come across, where they used two people with Down's syndrome as suicide bombers.
Senator Cowan: To make that clear, are you saying you believe this bill will have a deterrent effect on the bombers themselves?
Senator Grafstein: Yes: Let me explain.
Senator Cowan: The reason for my question is that when we looked at the omnibus crime bill a short while ago, there was a lot of talk about mandatory minimums and whether they had a deterrent effect.
There was a lot of evidence that the severity or the existence of a penalty is not the deterrent. The deterrent is whether they think they will be caught. Maybe it is not the same with suicide bombing. That was the background of my question.
Senator Grafstein: We are singing from the same hymn book. The question is whether they will be caught.
If you take a look at some of these sociological cases, you will find there is a certain tipping point that a putative suicide bomber reaches. They start off by being interested in pursuing a particular religious or political objective and then, they are drawn into it.
They are carefully trained or spotted to see whether they are more susceptible to what I call The Manchurian Candidate program. They reach a certain tipping point where they move from "I will not do this'' to "this is what I will do.''
I am talking about on or before the tipping point, where the family, the friends, the girlfriend or the boyfriend all have a role to play in whether this particular person decides to sacrifice his or her life. I believe that this bill will have a deterrent effect with those restrictions.
Other than that, I agree with the RCMP that if we are talking about the mastermind who is the head of all these cells of instruction, we will not change that individual; that person is gone. However, there is a whole raft of people below that individual that this bill might help to deter.
Senator Cowan: Including the suppliers?
Senator Grafstein: Yes, let us use a Canadian example, which is anecdotal. There is some concern that, in Canada, certain schools are teaching children that this is salutary conduct, for whatever reason — I will not go into the specific reasons. There is some concern by the RCMP and the Canadian Security Intelligence Service, CSIS, that this is happening in Canada. The Americans believe that we are a hotbed of this activity. Part of our legislation on terrorism related to trying to change American minds about that perception. I have worked on this issue for the last 10 years to convince them that is not the case.
Having said that, an argument can be made that this conduct is continuing in Canada. I use the Internet only as an example because that is third-party affirmative information. We do not know what goes on in some of these areas.
However, I think that these immigrants who come to Canada, who believe in Canada and enjoy the benefits of Canada, who think that the Charter is an important element and use it, understand that Canada is a country of the rule of law. I believe that this legislation, if included and properly promoted — as the RCMP said it would, to help in their prosecutions — would be a salutary deterrent against that type of activity.
It would not be acceptable. The good people in that particular community would say, "You have to stop that, buddy. That is criminal conduct. You cannot teach that. You cannot promote that. You cannot advocate that.'' That situation, to my mind, would be a deterrent.
Senator Joyal: I read through the text of the resolution of the OSCE, senator, and two wordings are used. Paragraph 14 talks about "terrorist acts committed by suicide bombers''; and paragraph 12 says "it must be agreed that suicide attacks of a terrorist nature.'' Paragraph 7 says "to recognize that terrorist suicide attacks,'' while paragraph 4 mentions "the mysticism of suicidal terrorism.''
It seems that the two concepts live side by side in the text of the resolution. I think it is important that we be more aware of that.
The Chair: There is also reference in paragraph 21 to "suicide terrorism.'' It is obvious that this resolution tries to cover the whole range and not only bombs.
Senator Joyal: Exactly.
The Chair: However, the title refers to suicide bombers.
Senator Grafstein: That is my point, senator. When you read this resolution, it starts with suicide bombing, and then, when you go into the text, all of a sudden they start saying other things, and they have used four variations of the theme — not one, but four. It is politicians trying to make a point in four different ways.
Senator Milne: This comes right back, Senator Grafstein, to the example you used before the department officials and the RCMP of a person standing across the street from a synagogue and blowing themselves up. According to my reading of the resolution, clearly that would be suicidal terrorism. All the witnesses before us said that act would not be a suicide bombing, even though the intent of it was clearly to terrorize the members of that synagogue.
Senator Grafstein: The Department of Justice said two things about that example. On the one hand, they said that unless they can determine what the intention is on the facts of the case, and so on, and then they gave us the good legal analysis to say that they cannot opine on that example. However, in the example that they gave earlier, if someone created a suicide bomb in the middle of a field, that would not be an offence under the Criminal Code because it would not damage another person, cause damage to public facilities or whatever. Take that example and then move it to a roadway in front of a synagogue, church or mosque. You can ask the legal experts about this situation. According to the Department of Justice, there is no intent. My argument is that when they strap on a suicide vest and commit this act, that, in effect, demonstrates an intent. It is certiorari intent. Again, the legal experts may disagree. However, listening to the Department of Justice, their attitude would be that this act would not be encapsulated by criminal conduct. It is only someone blowing themselves up.
Senator Milne: That also was the reading of the RCMP.
Senator Grafstein: That is one reason the RCMP like the idea of using the phase "suicide bombing and/or suicide attack.'' Remember, the witness was positive about both. He would have preferred the larger one, but he was happy with the narrower definition of "suicide bombing.''
The Chair: Thank you very much, Senator Grafstein. That was instructive, helpful and interesting.
Our next group of witnesses includes Mark Sandler, Cooper & Sandler Barristers & Solicitors; Leo Adler, Adler Bytensky Prutschi Barristers; Ed Morgan, Professor, Faculty of Law, University of Toronto; and Patrick Monahan, Dean, Osgoode Hall Law School, York University, who is a frequent witness before this committee. We are glad to have you with us, gentlemen, and thank you for agreeing to appear.
Mark Sandler, Cooper & Sandler Barristers & Solicitors, as an individual: Good afternoon. Let me say at the outset that I support the proposed legislation and intend to provide you briefly with the reasons.
In my view, this proposed legislation adds significant value to the existing provisions of the Criminal Code and does not detract in any way from the ability to investigate and prosecute terrorism generally.
The phrase "for greater certainty'' is found in over 30 separate subsections of the Criminal Code. I have examined each and every one of them before coming here today. The phrase is generally not used to augment the existing Criminal Code or even to fill gaps in the reach of the Criminal Code, but instead to make explicit that which is previously assumed or even that which is already reflected in the jurisprudence. There are good policy reasons, and I will discuss them in a moment, why that process takes place.
Two things follow from those observations. First, the value of this legislation, in my view, need not depend on some demonstration that it necessarily expands the breadth of terrorist activities — in other words, that it covers territory that is not already covered. Its value does not depend, in this instance, on whether suicide bombings are covered presently by the existing legislation. In that respect, and in that respect only, I agree with the presentation to the committee by the Department of Justice.
Second, I reject the notion that the inclusion of suicide bombing for greater certainty renders the scope of other conduct captured by terrorist activities less certain. Indeed, in my view, the phrase "for greater certainty'' belies such a suggestion. Can it be said reasonably that the example given by Senator Stratton of the Air India terrorist activity is somehow less certainly covered as terrorist activity as a result of the inclusion of suicide bombing?
There is often value in expressly articulating conduct that is captured by the Criminal Code even where that conduct is already covered by general language. To provide an example, we now have sentencing principles that are codified in the Criminal Code. They include, for example, provision that hate motivation is an aggravating feature on sentence. Senators, I can tell you that the jurisprudence was crystal clear before that codification took place and that motivation based upon hate was an aggravating feature on sentence, but the express inclusion of that provision as an aggravating feature in the Criminal Code sent a powerful message. It contributed to the legal discourse, it served an educative function, and it set a normative standard by which our citizens must abide.
Here, in this instance, the value of including "suicide bombing'' is profound. Terrorists seek to avoid the characterization of their activities as terrorism; hence, the desire to be called "fighters'' or "freedom fighters'' rather than "terrorists.'' Nowhere is this avoidance more pronounced than for suicide bombing. There is a qualitative difference between suicide bombing and other terrorist activities in that regard, not in the level of heinousness associated with these activities but in that regard.
"Suicide bombing'' is dependent upon the notion of martyrdom for a higher cause, whether it be political, religious or other. The articulation of suicide bombing serves an educative function, in my view. It labels suicide bombing as the terrorist activity that it is. It sets a normative standard against which we judge conduct. It signals to the international community — that with great respect, often shows ambivalence when suicide bombing takes place — that there is no such ambivalence about this activity in Canada.
I conclude by noting that I heard the exchange between Senator Stratton and Senator Grafstein. In my respectful view, the issue is not whether a suicide bombing is more or less heinous than other terrorist activities that can be described. The difference is simple: Suicide bombing, uncharacteristic of all the other terrorist activities, is condoned, applauded, lauded and, as you heard from Senator Grafstein, taught. In my respectful view, the express inclusion of suicide bombing sends a powerful and important educative message to the members of the public.
Ed Morgan, Professor, Faculty of Law, University of Toronto, as an individual: I confess at the outset that my field is not criminal law. I do not teach criminal law; I teach international law and Canadian constitutional law.
I submitted a written brief that I think the members have. I will not read from the brief. I will refer you to one or two exhibits in the brief so we may see what is happening in the international organizations to which we so often look.
In Canada, we are internationalists by inclination. That is true of our foreign policy and in that, we are important members of multilateral institutions. However, more than that, we have become internationalists in the legal system. We often find our courts looking for guiding principles and interpretations to international law. Obviously, we look to our own legislation first, but there are many contexts where we will find our courts looking for interpretation and application to international legal instruments, international custom, international treaties — both bilateral and multilateral — and the multilateral organizations that interpret and implement those international sources.
I can think off the top of my head of half a dozen Supreme Court or Court of Appeal cases in different contexts, where we have looked to international organizations or international legal principles for interpretive guide. There are: the Libman case with respect to extra-territorial criminal jurisdiction; the Cotroni case with respect to extradition; the Baker case with respect to deportation; the Mugesera and Finta cases with respect to war crimes and crimes against humanity; the well known Singh case with respect to the rights of refugees; and the Busari case with respect to sovereign immunity. In all these cases, we look to international custom or treaties and to the multilateral institutions that interpret and apply them.
That is true when it comes to defining terrorism. In the Supreme Court's judgment in the Suresh case, the court had to fill in the blank definition of terrorism for the purposes of the Immigration Act. The court looked at a series of multilateral conventions, most prominently the International Convention for the Suppression of the Financing of Terrorism, from which they borrowed much of the definition.
In the recent Khawaja case, the Ontario Superior Court case Senator Grafstein referred to, the court assessed the constitutionality of the political or religious motivation provision in the statutory definition of terrorism. To quote one sentence to show how the analysis went, the court said: "The United Nations has never, it appears, endorsed a definition of terrorism that includes as an element that the acts are motivated by political, religious or ideological purpose.''
I do not raise that point to criticize the judgment. I raise it to show where we tend to look for our interpretive and legal guidance in these matters. My submission, in a nutshell, is that when it comes to our particular question of suicide bombing, the international institutions to which we are most prone to look are on unstable legal and political terrain.
It is good that we now have a statutory definition of terrorism. It is good that the international community, after so many treaties, has come to a generally recognized idea of what terrorism is. However, the Supreme Court of Canada said clearly in the Suresh case, and I think accurately, that everyone may mean the same thing with terrorism now. What changes is not the meaning of the word as much as the groups and activities that everyone would include or exclude from the list. They hit the nail on the head.
I want to take you to one prominent example to show you what is going on in the international community and what we must be aware of. We tend to look to the United Nations as you have seen in our judgments, and we tend to look to the human rights bodies in the United Nations in particular.
On page 9 of my brief, there is a draft resolution of the UN Commission on Human Rights. This was the session of the UN Human Rights Commission that followed on the notorious March 27, 2002 bombing of the Passover Seder in the Israeli town of Netanya.
I will not go through the history of that difficult year. However, 2001-02 was a difficult year for terrorism all over the world including 9/11 in New York, but in particular with respect to the Middle East conflict. I think it is obvious I am not making any foreign policy point when we talk about these issues. I am here only to make a legal interpretation point.
This session was convened several days after the Passover bombing in Netanya that was a culmination of a long series of suicide bombings against Israelis and Israeli military retaliation against Palestinians. It was a difficult and violent year in the Middle East conflict. The operative clause in this April 9, 2002 draft is found on page 10, clause 1, the commission "Affirms the legitimate right of the Palestinian people to resist the Israeli occupation by all available means in order to free its land and be able to exercise its right of self-determination; . . . .''
The phrase "by all available means'' provoked a controversy. Spain, Ireland and several other European Union states threatened to withdraw support from the resolution if those words were not eliminated. You have the draft that appeared in the commission's record. It was then redrafted and the final resolution appears on pages 11 and 12. You will see on page 12, clause 1 is revised and the four impugned words are missing.
This time in the final draft the commission "Affirms the legitimate right of the Palestinian people to resist the Israeli occupation in order to free its land and be able to exercise its right of self-determination. . . ." It no longer says "by all available means.''
If you go to the record of debate, that redraft prompted Syria, Saudi Arabia and several other Arab League states to threaten to withdraw their support. This is the final draft of the resolution. The compromise was found by inserting a clause in the preamble that is at the bottom of page 11. This is an important preamble. It says: "Recalling particularly General Assembly resolution 37/43 of 3 December 1982 reaffirming the legitimacy of the struggle of peoples against foreign occupation, . . ." This was a 20-year-old resolution.
That preamble saved the resolution and the resolution passed in this form. There was criticism of this preamble too. Some said this was a linguistic manipulation, a trick in effect, that authorizes the very suicide bombing that had taken place that week.
On page 13 is the General Assembly resolution from 1982. It is not quoted in the 2002 resolution of the Human Rights Commission, but simply referenced by number. The operative clause is number 2 where the General Assembly "Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle."
This clause, in effect, is the response by the international human rights community to the Passover suicide bombing in 2002. I do not want to be taken to exaggerate this point. I will simply confirm that the Americans and Israelis criticized this clause saying it authorizes carnage against civilians. The supporters of the resolution said, do not accuse us of manipulating the language.
Several months later, in October and November 2002, there was another bad series of tit-for-tat violence in the Middle East with suicide bombings against Israelis and Israeli military retaliation against Palestinians. Again, I do not go into the politics of that conflict. The culmination of that series of attacks in October-November was on November 15, 2002. If you flip over to page 14 of my brief, you will see it was commented on by the High Commissioner for Human Rights of the United Nations.
This time, they did not convene a meeting or an urgent session. There was a new high commissioner who had a slightly different attitude toward these things. He simply issued a press release, a statement of his office. Tragically, almost ironically, that new high commissioner was Sergio de Mello, who was killed in a suicide bombing a year later in Baghdad, Iraq, in August 2003.
The Chair: We will run out of time.
Mr. Morgan: I will wrap it up. As you can see here, Mr. de Mello condemned the attack of November 2002, saying the attack was made all the more terrible as it was carried out against victims returning from worship on the Sabbath. It is clearly identified as a non-military target.
That was replied to by the Palestinian representative, the permanent observer to the United Nations, at page 15, who writes back to the high commissioner saying, I examined your statement on November 16, 2002 — and then the operative clause, number 4 on page 16 — "The incident took place in the occupied Palestinian city of Hebron'' and "comes within the framework of the legitimate Palestinian resistance, based on the right of the Palestinian people to resist Israeli occupation with all the means at their disposal, including armed struggle, in accordance with General Assembly resolution 37/43 of 3 December 1982. . . .''
That is the very resolution that the UN Human Rights Commission had recently endorsed.
I do not raise this point to show who is right and wrong in the Middle East conflict, but to show that in the international community, silence on these issues can be interpreted in several ways. If one is not specific, if one looks to international sources and is not specific as to what is prohibited, there will be people out there in credible positions, like United Nations representatives and ambassadors, who will argue that suicide bombing is a legitimate act of resistance, even against civilian targets.
It is my submission that is contrary to Canadian legal values and we must address it specifically in Canadian legislation.
The Chair: I hate cutting people off in the middle of interesting discussions but it is all interesting, which is the problem.
Leo Adler, Adler Bytensky Prutschi Barristers, as an individual: Some of you may recall a few months ago there were headlines about a young man here in Toronto who, on the Internet, called for the suicide-bombing death of Canadian soldiers in Afghanistan. What is of interest is that he could not be prosecuted. What is also of interest is the particular form of death that he chose for Canadian soldiers in Afghanistan, which was suicide bombing.
That point goes back to the remarks that Mr. Sandler made about what differentiates suicide bombing. It is an ideology. It is something that is taught, and that the world has not seen since the days, perhaps, of kamikaze pilots in the Second World War. However, when kamikaze pilots attacked Pearl Harbour, they did not dive their planes into office buildings; they dove them onto the naval ships and military installations. They did not attack the civilians; and at the end of the Second World War, that was the end of that.
When suicide bombings began in Sri Lanka, they began as a tactic. Suicide bombing did not have the ideological underpinnings and the glorification that it subsequently acquired once it moved into the Middle East; and from the Middle East, it has spread around the world.
That is exactly why "suicide bombing'' needs to be mentioned. In my respectful submission, as a criminal defence lawyer who has worked for 33 years, I can tell you that we know when someone has committed a horrific crime. The judges know it. However, it does not come across on a criminal record.
For that reason, why differentiate, as an example, "assault with a weapon'' and "use of a firearm''? Why differentiate? Why name a firearm? It is because Parliament and the Canadian people have said this act is something that requires a special abhorrence. It needs to be mentioned and needs to be on the criminal record. We must identify what specifically has been done, and that is what this particular bill proposes.
The other problem is that when one looks at the international convention — and I do not pretend to be an international lawyer — one interesting thing is that it talks about a person committing an offence within the meaning of the convention if they detonate "an explosive . . . into or against a place of public use, . . . or government facility, a public transportation system or an infrastructure facility.'' "Place of public use'' is defined as locations "that are accessible or open to members of the public;'' but what happens if we go into a private place? We need a specification to be able to do that.
The United Kingdom, a couple of years ago, passed a glorification of terrorism law. Why? Because it has become necessary to deal with precisely the type of problem that Senator Grafstein has pointed out, which is there on the Internet. I can tell you that the organization that I also do part-time work with, the Simon Wiesenthal Centre, monitors this — and supplies materials and annual reports to the RCMP and to the Canadian Security Intelligence Service, CSIS. We monitor hate and, in particular, terror sites on the Internet.
We can see the manufacturing and the glorification of suicide bombing. We can hear the cheers in one particular video, which went around the world, in which a truck driver drove his truck as a suicide weapon into a hotel in Baghdad.
There is something that is different, and it is different in many ways, about suicide bombing — or suicide terror, as it has sometimes been called. It is for that reason, among the materials that I forwarded, that even the Secretary-General of the United Nations has agreed that there must be an initiative in the General Assembly to deal with the issue — and why, in Australia, there was a motion dealing with suicide terrorism.
As was pointed out, motions and arguments are not enough. We need legislation and someone has to start. I cannot think of a better country than Canada, which is a target and has been used as a staging area. Do not forget the Millennium Bomber came from Canada. That was planned as a suicide bombing attack as well.
For those various reasons, as a citizen and as a criminal lawyer, I think this particular amendment is absolutely necessary. Parliament has often emphasized various aspects, which I set out in some of the material — child pornography versus the general pornography laws and so on.
Patrick Monahan, Dean, Osgoode Hall Law School, York University, as an individual: I will speak only for five minutes, but I will make six points. Before I do, however, I want to say I am here in my personal capacity. My views should not in any way to be attributed to my employer.
First, Parliament, in my view, should adopt Bill S-210 because it would signal Canada's unequivocal condemnation of suicide bombing as the most virulent and horrifying form of terrorism in the world today.
I have reviewed the testimony on Bill S-210 last week, particularly the evidence from the Department of Justice. I found it to be highly technical and legalistic, and it completely ignored the context and the real debate surrounding suicide bombing. I believe it is all the more pressing, having reviewed that evidence, that this bill be enacted.
My second point is that the phenomenon of suicide bombing has risen dramatically since the suicide attack on the World Trade Center in September 2001 and the subsequent enactment of the Anti-terrorism Act. The spread of this scourge has been particularly pronounced since 2004. Various authoritative studies suggest there have been as many suicide attacks in the past three years as in the previous 25 years combined. Thousands have been killed, and tens of thousands have been wounded in these attacks. Suicide terror, which a decade ago was a relatively rare phenomenon, is fast today becoming a global one.
My third point is that there is an ongoing debate over the motivations and the psychology of suicide bombers. However, the evidence that has reviewed suicide bombings since 2001 suggests that suicide bombings regard martyrdom for the sake of global jihad as life's noblest cause. For example, a study by Professor Scott Atran in a recent edition of The Washington Quarterly suggested that today's suicide bombers are increasingly as willing and eager to die as they are to kill.
My fourth point, coming to the testimony that you heard last week, is that in my view there is no significant debate or confusion over the meaning of "suicide bombing,'' nor would its inclusion within the Criminal Code definition of terrorism lead to any confusion or ambiguity. Indeed, the examples given, in my view, were unpersuasive. It is common to include enumerations or specific examples of offences that might otherwise be caught within more general categories. Indeed, the offence of terrorism itself illustrates the point because the acts that are encompassed within the definition of terrorism would themselves be included within other offences within the Criminal Code. Indeed, that was one of the arguments made by the critics of the Anti-terrorism Act, Bill C-36, when introduced in 2001. The government at that time proceeded with the legislation because it believed it was necessary to express Canada's denunciation of terrorism as well as to deal with certain other matters.
My fifth point is that it is wrong to claim that suicide bombers have no morality or that they are nihilists who simply embody evil, which is sometimes the claim of the U.S. administration. Suicide bombers, and those who direct them, earnestly seek moral justification for their actions through martyrdom, through interpretations of various religious canons or texts and through protests against military occupation. Internationally, there is significant support for the legitimacy of suicide bombings. Professor Morgan referred to debates over the conventions he describes. Opinion research conducted particularly by the Pugh Center indicates that in numerous jurisdictions around the world there is significant support and, indeed in some cases, majority support for the legitimacy of suicide bombing in certain circumstances.
My final point is the justification or the reason it is, in my view, essential that Canada and the Parliament of Canada adopt this bill. It is not to clarify or to expand the definitions of terrorist offences.
I do not believe that this bill would change the conduct that was caught by the terrorist offence in section 83.01 of the Criminal Code. I do not wish therefore to enter into the debates, and I think they are spurious in any event, about whether someone blowing themselves up in a field is caught within the existing definition and would this change the conduct. I do not believe it would change the conduct that would be caught within the definition. That is not the point. That is why the evidence, with all due respect, and I am sure others will take a view who are in this room, was devoid of any analysis of the actual debate on this subject, and the reason this bill is being put forward. It is being put forward to signal to the international community that Canada absolutely and categorically rejects suicide bombing in all circumstances. I believe that this signal would add significant weight and impetus to a global campaign to condemn suicide bombing as a criminal act that can never be justified.
Senator Joyal: On a point of order, I apologize to the expert witnesses this afternoon. I must leave, unfortunately, and will not be able to continue to attend. I thank the witnesses for their support for the proposal, and I will, of course, read the transcript.
The Chair: That is not a point of order but a point of courtesy. We also regret you must leave, Senator Joyal. I think Senator Stratton will have a similar point of courtesy before too long, but he has the lead question.
Senator Stratton: Thank you. I must leave at six o'clock.
Thank you for coming. It was interesting to hear from you and to hear that you are unanimous about this issue. My question is whether this bill is necessarily required. If we start this process, do we, as Senator Grafstein has said, open the door to a shopping cart that we keep adding to? That point is fundamental to my question. I go to the example put forward by Assistant Commissioner Mike McDonell, who said that instead of using "suicide bombing,'' it should be "suicide attack.'' As examples, I give the 9/11 attack, which was suicidal. I asked Senator Grafstein about that distinction, and he said 9/11 was both a bombing and an attack, so the question becomes, which is it? Do we add something else to the shopping cart in this instance to ensure that situation is covered? To me, that was as reprehensible and as doctrinal as you would want to get, with the exception — they are inventive, if nothing else — of the two women with Down's syndrome, and I thank Senator Grafstein for correcting me, who were put into a crowd and remotely triggered and blown up. What definition is that act under? It is not suicide. It is not a suicide bombing. These women were not aware that they were to die. It was plain murder. Where does that act fit in this definition of a suicide bombing or suicide attack? Can each of you respond briefly, please?
Mr. Sandler: If I may, I do not see a concern about even incrementalism occurring. This bill does not create a new offence that relates to suicide bombing. It is not as if one must worry about covering the territory in this instance by suicide bombing, and tomorrow they need to cover some suicide attack that might extend beyond the meaning of suicide bombing. This is messaging. It is simply articulating a message for an educative purpose. All the kinds of activities that you have described are still contained within the more global definition of terrorist activity. If a prosecutor is to proceed on a case where someone has facilitated, counselled or been an accessory after the fact to this kind of activity, that prosecutor need not specify in the indictment that this activity is a suicide bombing as opposed to a suicide attack, as opposed to some other activity that you have described. The prosecutor need merely proceed under the sections as currently constituted, knowing that the educative message has also been communicated that suicide bombing falls within the framework. In my view, there is not a concern that if we do this today, we must do something else tomorrow.
With respect to the position taken by the RCMP, I would take their point if we were concerned about covering the field or if we were concerned about gaps or lacunae in the legislation that we were trying to fill, but that is not the purpose, in my respectful view.
Senator Stratton: Why would you not use the word "attack'' rather than "bombing?''
The Assistant Commissioner's point was that it would include other areas such as the two Down's syndrome women. It is an attack. They committed suicide without knowing it. In other words, do not be specific as to whether it was a bombing rather than an attack. A suicide attack could come in some other form than only a bombing. That is the real question I have that will not leave.
Mr. Monahan: To me, the word "bombing'' or "attack'' is not the essential point. I think the objective of the bill can be accomplished by using the term "attack'' or "bombing,'' as long as the word "suicide'' is there, because it is suicide that is the essence of the action, the martyrdom of the attacker, and therefore, the legitimacy that they and those who act with them claim. It is that unequivocal denunciation of the action that is the essence of the bill.
Whether it is "bombings'' or "attack'' does not trouble me. Those individuals with Down's syndrome that were used did not have the intent to know what they are doing. The conduct of those who planned the attack would be encompassed whether the attack was a bombing or whether it was by means of other instruments.
Again, that discussion engages in a technical analysis of the word "attack'' versus "bombing,'' missing the essence of the point that there is a live debate existing today on the legitimacy of suicide bombings or attacks. It is for that reason, I believe, that Canada should speak clearly on this issue.
Senator Cowan: I want to pursue the point that I raised with Senator Grafstein in regard to deterrence. I think you heard, as I did not, his explanation in his introductory remarks. He disagreed, in part, with the RCMP testimony in that he believes prior to the tipping point he described, this provision would have some deterrent effect on suicide bombers. I think we all agree it would have some deterrent effect on those aiding and abetting those individuals.
Have you any views on the issue of deterrence?
Mr. Monahan: I do not agree with Senator Grafstein on this point. I do not think the point is to deter individuals who are thinking about bombing. It is part of a global struggle for legitimacy. It is the claim of moral justification that is at issue. It is to influence the global debate that this legislation will lead to others picking up on this provision.
As Senator Grafstein commented in response to questions from Senator Joyal, it is interesting that other countries have not acted, precisely because there is a political issue around this. At issue is a claim for legitimacy. It is that broader issue, I think, that this provision addresses and not whether this particular individual will be deterred. It is not that they do not know it is illegal; it already is illegal. The issue here is a broader debate. That is my only view.
Mr. Sandler: Dean Monahan disagrees with Senator Grafstein; I agree with both of them.
Senator Stratton: Are you a professor?
Mr. Sandler: That is what you get from a lawyer.
In essence, I agree with Dean Monahan that the prime purpose of the legislation is not to deter the suicide bombers themselves. However, I am also of the view that the existence of the legislation, coupled with education, will serve an important salutary effect and may have deterrent value for all those who may engage in the process. I say coupled with the educative process, because it is not enough to enact the legislation. That legislation must be part of an education model talking about all the things that we have discussed today.
Senator Milne: It is not often that we have four such fine legal brains in front of us so I want to pick them.
The Chair: Is it not fun?
Senator Milne: No, it is intimidating.
Mr. Sandler, I enjoyed the brief you gave us, and the historic overview from the Fenian raids right up to the anti- terrorism arrests in Toronto.
Mr. Sandler: If you like, I will take credit for it, but it was Mr. Adler's.
Senator Milne: You point out that in the town of Sderot in Israel close to the Gaza Strip, 75 per cent of the citizens show symptoms of post-traumatic stress disorder. Secretary-General Ban Ki-moon used this study to understand Israel's right to defend herself against the missile barrages that come through on a daily basis from Gaza.
This point runs counter to some of the other things that Professor Morgan read from, namely, the different resolutions from his submission. Page 13 dealt with the watered down, sanitized version of the General Assembly resolution.
Mr. Morgan: Page 13 is the draft with the early language in it. The sanitized draft is the previous page.
The Chair: Page 13 is the 1982 resolution; page 11 is the final resolution in 2002; and page 9 is the draft version from 2002.
Senator Milne: When I read these pages, I am horrified at what the United Nations was doing. It came after the bombings of innocent civilians celebrating a religious festival. All the way through, every single point in it is anti- Israeli. I despair more and more about the United Nations although this is not on the subject of what we are talking about today.
Mr. Adler, you believe that the U.K. passed a glorification of terrorism. Please tell me what that is because it sounds counter to what I hope it would mean. They are not glorifying terrorism, surely; they are passing a law or a resolution against it.
Mr. Adler: It is interesting. I also sit on the Cross-Cultural Roundtable on Security. Glen Gilmour, who was your witness, is the liaison from the Department of Justice Canada. I was looking at my notes from the meeting last month in Vancouver in which he raised the issue of how, in 2005, the U.K. passed laws dealing with the glorification and encouragement, directly or indirectly, of terrorism. In fact, there have been convictions, within the past six months, in the United Kingdom of people doing the same thing.
That is why I started with the young reporter in the newspaper here in Canada, who encouraged the suicide bombing of Canadian soldiers. This was a reaction to what occurred in the London subway and transit system bombings, where it was realized that within the United Kingdom, there are homegrown groups.
They become homegrown and they receive the nurturing, watering and sunshine from religious institutions, educational institutions and community organizations that put up a facade. Some of them do not even bother with a facade. They made it clear that what we see as values of a secularized, liberal, democratic society are to be tossed aside. Therefore, they felt it necessary to pass that legislation.
Senator Milne: Do they call it the glorification?
Mr. Adler: Yes, the glorification of terrorism.
Senator Milne: They do not call it anti-glorification of terrorism?
The Chair: Mr. Adler, in your initial testimony, you said the U.K. had passed glorification of terrorism legislation. I think they made it an offence to glorify terrorism.
Mr. Adler: That is correct. It is an offence to glorify terrorism. I apologize.
Senator Milne: It did not sound correct. That is why I want to put on the record precisely what you meant.
My last question is to all four of you. Senator Grafstein referred to the example that I brought out at our last committee meeting, namely, that this bill is exactly the same sort of law as the anti-street racing bill. The bill specifies a particular kind of crime without narrowing the broader application of the law. That is exactly what this bill does.
Are there any other recent examples of this type of legislation?
Mr. Adler: Other examples are child pornography, within the overall ambit of pornography; the different types of fraud — identity theft was recently introduced, again, within the ambit of fraud; and video piracy within the ambit of copyright.
Senator Milne: You are doing fine.
Mr. Adler: We can go into theft unders and theft overs and mischiefs. There is a mischief crime that deals with a form of hatred. Then you have the hate laws that are more specific. We do this all the time.
I gave the example of possession of a weapon dangerous to the public peace. That is one thing, but why do we need possession of a firearm? It is because we want to say something about firearms within the general ambit of weapons. Sometimes, we also punish them separately. You have now the minimum laws dealing with firearms.
That point was raised by the RCMP witness. He wanted to see greater punishment for acts of terrorism and, in particular, for suicide bombing. That is a different issue.
Senator Milne: That is a different issue from this bill.
Mr. Adler: That is exactly the aspect. As my colleagues have pointed out, we want to say something not only about Canada, but also to the world, namely, that it is time to face this issue. As Senator Grafstein said, it is time to call a spade a spade. This act is not only a crime within Canada, but also a crime around the world, and it is spreading quickly.
Senator Milne: This bill takes us back, as Senator Grafstein has also said, to the origins of the common law — where it was built up, case by case, example by example.
Mr. Adler: Or as I said, you might as well go back to the Ten Commandments.
Senator Milne: I believe you talked about a communicative message, Mr. Sandler.
The Chair: Mr. Sandler or Mr. Morgan?
Mr. Morgan: One can find examples of this in the international legal community as well. The one that occurs to me is that both ad hoc tribunals for Yugoslavia and Rwanda have specified that rape is a crime against humanity. On any proper reading of the Nuremberg charter, mass rape as perpetrated in those conflicts, was already covered as a crime against humanity under the Nuremberg Principles. However, because it was a specific context where that was used as a specific and vile weapon, those tribunals felt it necessary to identify that as a subset of crime against humanity in much the same way we identify suicide bombing here.
Mr. Sandler: Mr. Adler made passing reference to the offence of desecrating a religious institution. Prior to the enactment of that provision in the Criminal Code, those instances — and we had a number of instances of vandalism against religious institutions — were prosecuted under the mischief section of the Criminal Code.
The view at the time was that "mischief'' failed to recognize the seriousness and the gravity of this conduct. Although criminally it was covered, it was important to label it in a different way.
Here, we are doing something a little different because what is proposed is not creating a new offence; nonetheless, the labelling principle is the same.
Mr. Monahan: I wish to make an additional comment to reference the Khawaja case, which was discussed in your testimony last week. The decision of Justice Rutherford struck down a portion of the definition dealing with religious or political motivation as inconsistent with the Charter.
I reference that decision because I think it suggests that there is some potential legitimacy or claim of legitimacy by those who might act as martyrs for religious purposes. We can see the shadow of an argument of legitimacy that would be raised in the context of a potential prosecution for suicide bombing.
I do not think the courts would accept the legitimacy of that claim, but the fact that the shadow of an argument can be raised is, in itself, troubling. Another reason for this bill is that I think it will foreclose that possibility clearly as an argument that could be entertained.
The Chair: I have a couple of questions, first to Mr. Adler, although all contributions are gratefully received.
You have all impressed upon us the importance of sending a message to the world that this is the Canadian Criminal Code that we are talking about. I like the phrase, the debate internationally. It is hard for us to believe that there is a debate but there is; you are right.
Is that debate flourishing in Canada? In other words, to your knowledge, are there a significant number of people in Canada who believe, or are heading in the direction of believing, that suicide attacks are good, justifiable, laudable activities? You mentioned one case.
Mr. Adler: The answer, Madam Chair, is yes. If I can go back a few years, this is my second time around dealing with the issue of suicide bombing. The last time was at a House of Commons justice committee before or just after 2001.
Some committee members indicated that this was an Israeli problem and what else do we expect these people to do except use their bodies to overcome occupation? That argument — the legitimacy and the morality — as Dean Monahan pointed out, is still being played out. It is being played out through the Internet. We see examples every once in a while in the newspaper of people having gone to schools and picked up materials that maybe should not have been left there, where it turns out that the students were being taught the glorification of martyrdom.
The Chair: In this country?
Mr. Adler: In this country, in Ottawa, only a few years ago. Yes, it is there.
We need to recapture what this country is all about. I included the history of terrorism in Canada because we are not simply a country that was born in naivety. The first act of terrorism was the assassination of D'Arcy McGee in this city and the public hanging of the assassin just down the street.
I graduated from McGill University and came to Osgoode Hall in 1970. Irwin Cotler was my professor. Few people know he taught in Toronto before he taught at McGill. There were maybe three of us from Montreal when the War Measures Act came out to counter the Front de liberation du Québec, FLQ, and everything taking place there. All the students at Osgoode were protesting, and I remember Mr. Cotler, myself and one other individual saying, "No, you do not understand.''
I was in Montreal all through 1965 to 1970 with the bombings, the marches and the violence. It was a form of terrorism. Few voices were prepared to speak out, not against legitimate dissent — we have gone through the evolution of the Quebec issue, if you want to call it that — but against violence and terrorism. It took the War Measures Act to finally put an end to it.
We need to recapture that statement of a value of what this country stands for. If we are to have a separation, we will have it not through bombs but through referendum, debate, court challenge or whatever. That is the way we will deal with things, and I think that must be made clear to everyone who comes to this country. I was not born in this country. I am an immigrant, too. What I cherish about this country is the value of being able to have a debate and to disagree, to form a political party and say this is what I want, but not through violence.
Mr. Morgan: Mr. Adler is more articulate on this subject than I could be, so I will not repeat what he said. I will only point out a combination of what you asked and what Senator Milne referred to previously in the United Nations resolutions. What you do here, you hear it in Canada and you hear it worldwide, are political justifications for these acts. You would have to ask police forces what they know about particular incitements, but what we know as readers of world politics and world newspapers is that there is justification on political grounds of these acts.
If you read the Supreme Court of Canada's Suresh decision, you will see them saying that Canadian criminal law cannot depend on who is right and who is wrong as between India and Pakistan over the Kashmir. Canadian criminal law cannot depend on who is right or wrong as between the Sinhalese and the Tamils in Sri Lanka, or as between the Arabs and the Israelis in the Middle East. You could believe there is oppression on all sides, but Canadian criminal law has to define "crime'' as crimes against humanity, like suicide bombing is. We cannot depend on foreign political justifications. That is the kind of discourse you do here in Canada and elsewhere.
The Chair: My last question, which may be excessively theoretical, relates to suicide bombers who are operating out of a religious motive. I realize that politics is usually a big part of the motive, but sometimes the principle motivation appears to be religious, or at least a principle motivation appears to be religious. Someone would say, "If someone believes it is a noble thing, according to the tenets of their faith, to stand in a field and blow themselves up, if they do not damage anyone else, that is their religion.''
Are there other examples that you can think of in Canadian law where, outside the Anti-Terrorism Act, this country says, in essence "We are sorry, but even if this is your religious faith, we take this particular act so seriously that we make it illegal anyway?'' The only one I can come up with is polygamy, which is of a completely different order. Can you think of anything else?
Mr. Adler: We all remember in Vietnam the self-immolation of the monks. Going back to the example of blowing themselves up in a field, self-immolation did not involve a blowing up with even the partial chance that shrapnel will hit some kid playing further down the field. I do not know of any example where a religion would say, yes, it is noble to blow themselves up in a field just for the sake of blowing themselves up. A perversion occurs here. The attempt is always to blow themselves up or, I suppose in the case of the women with Down's syndrome, to blow them up, but always in a crowd.
There is a game on the Internet called Kaboom in which someone is wrapped with a suicide belt and they are walking. The object is to explode in the biggest crowd. They push the button, they see heads roll, they see blood, and there is a score card of how many are killed and how many are wounded. They then put themselves back together and, if they killed 10, their partner will then try to kill 12.
I do not know of any religion, frankly, that in modern-day form propagates that message. That does not mean that there are not individuals who claim that is what their religion stands for.
The Chair: They may even believe it.
Mr. Adler: They may very well believe it and, frankly, they ought to be prosecuted. That point brings us back to the U.K. law of anti-glorification.
The Chair: That is sui generis. I am looking for a semi-parallel.
Mr. Monahan: This act is designed to intimidate others and not simply to blow oneself up in a field for no reason other than they want to blow themselves up in a field. Unless there is an element of intimidation, I would not regard the other elements in section 83.01(01) as being covered by this bill.
The essence of suicide bombing is intimidation. As the RCMP witness testified, the horrific nature of the act is that the bomber is able to adjust and, therefore, cause maximum damage. A remote device may go off at a time when it does not cause much damage. The fact that the bomber can calibrate their actions to cause maximum damage increases the intimidation at issue, and it cannot be countenanced or accepted that it is legitimate to argue, by some twisted interpretation, that this is an element of their religion.
These examples of blowing oneself up in a field have a complete lack of reality and are spurious, with all due respect, and distracting from the essence of what this bill is trying to do.
Senator Milne: My question was on the submission of Professor Morgan. In the documents he provided, he included a letter from the Permanent Observer for Palestine to the United Nations Office in Geneva. The Permanent Observer points out that Hebron is a Palestinian city occupied by the Israeli armed forces during the 1967 war, et cetera. He goes on to say:
The Israeli occupation of the Palestinian territory . . . is the main reason for denying the Palestinian people the possibility to exercise their holy right to self-determination. . . .
People believe that they have a religious right to this. When we combine religion and politics, we have a volatile and abhorrent mixture.
Mr. Morgan: That is correct. We see that internationally. A combination of religious and political motives energizes these terrible crimes.
We have some Canadian cases where religion is used as a justification, not so much for self-harm but for harming others. I am thinking, in particular, of female genital mutilation, which we have outlawed as a criminal offence. That often comes with religious justification, but religion is no justification for harming a child that way. I also think of the Jehovah's Witness child blood transfusion cases. Religion is not a justification for withholding necessary, life-saving medical treatment from a child. Religion is protected under their charter of rights, but religious protection only goes so far; it does not go so far as to allow harm to others. Where religion crosses that line, we do not protect the religion; we protect the innocent victim.
Mr. Sandler: When you asked the question, I, too, was thinking about genital mutilation. It is not directly relevant to what we are talking about here, but you will find it interesting that aggravated assault is an offence under section 268 of the Criminal Code, and for greater certainty the Criminal Code provides what wounding or maiming includes under that section, and then it sets out what sometimes would be used as religious justification for genital mutilation. There is, in that section, an example of exactly what is trying to be accomplished here.
Senator Grafstein: I want to agree and disagree with two of our witnesses, and I will do it quickly.
I direct this comment to Dean Monahan and Mr. Sandler. I want to stick to suicide bombing not as an issue of proprietary interest or credit, but because it is well known in common usage. Suicide attacks and terrorist attacks are of a generic nature. Even the addition of the word "suicide'' somehow militates against suicide bombing, which creates a different aura in language. To have the most educative effect, we should stick to the thing that people talk about the most. That is why I have stuck carefully with suicide bombing as opposed to expanding the wording.
Dean Monahan, I will use your example of intimidation. Assume that a person's intention is merely to intimidate and sow fear, and not to attack and this person goes to an area in front of a church, mosque or synagogue. As Senator Baker asked the department officials, if the intention is to intimidate and sow fear in innocent people, what better way to do that than to wear a suicide wrapper on a Saturday or Sunday in front of a religious institution? That would not be a suicide attack but purely a suicide bombing. Self-immolation is suicide bombing.
Do you not agree that there is real merit in sticking with suicide bombing rather than using "suicide bombing or suicide attack''?
Mr. Sandler: Would you be satisfied if I said "yes''?
Senator Grafstein: Yes.
Mr. Sandler: At this point in my thoughts on that issue, I prefer the language "suicide bombing,'' because it is easily understood. If I am right that the most important value of this bill is educative, serving as a deterrent and messaging both here and in the international community, it sends a powerful and unequivocal message. That having been said, I would not be fussed terribly if it were expanded to include suicide attacks, but my preference would be to leave it as is.
Mr. Monahan: I have no trouble with the bill. I support it. I think the bill should be enacted as it has been submitted. However, in response to Senator Grafstein, I would have no trouble if the wording were "suicide attack.'' I am perfectly happy with "suicide bombing,'' but the question was whether it could be "suicide attack.'' That is fine. I have no difficulty with "suicide attack,'' because it would serve the same denunciation of the act of martyrdom and eliminate that justification. I have no trouble with the bill as currently drafted, and I support it.
Mr. Adler: I will add a touch of realism. I know of no instances of anyone who has committed suicide bombing in the sense of pulling the plug on themselves in front of a school or church for the purpose of intimidating.
Second, when suicide vests are put together, they are not made only of dynamite. They use thousands of ball bearings, and that goes back again to what suicide bombing is all about. The purpose is not only to kill oneself and whoever happens to be in the immediate vicinity; the purpose is also to cause pain, disfigurement and horrific wounds in a greater radius than the range of the explosive.
The Chair: Thank you all. As Senator Milne said, it is a treat to have the benefit of such deeply experienced people. We are grateful to you all.
The committee adjourned.