Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 3 - Evidence - Meeting of May 7, 2012
OTTAWA, Monday, May 7, 2012
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, met this day at 1:30 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: This is the fifth meeting of the Special Senate Committee on Anti-terrorism in the first session of Canada's forty-first Parliament. Today we welcome Inspector Steve Irwin from the Toronto Police Service. He was seconded to the Integrated National Security Enforcement Team in Toronto and is appearing before us today via video conference.
As you know, we are studying Bill S-7, the Combating Terrorism Bill, which is a 30-clause bill that seeks to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act to better protect Canadians against terrorist activities and those who might travel abroad for the purpose of their pursuit.
Inspector Irwin, we are very appreciative of your making time to join us today out of your very busy and demanding schedule. I understand you have an opening statement, and we are delighted to hear that before we throw questions at you.
Steve Irwin, Inspector, Intelligence Division, Toronto Police: I apologize that I am not in Ottawa before you live. I had previous commitments that have caused me to have this teleconference. Again, I apologize.
Good afternoon chair and honourable members of the committee. My name is Stephen Irwin and I am an inspector with the Toronto Police Service. On behalf of Chief William Blair and the Toronto Police Service I would like to thank the committee for inviting me to speak and, importantly, for inviting me here today to discuss Bill S-7 from a municipal policing perspective.
I am a 32-year member of the Toronto Police Service currently seconded to the RCMP Integrated National Security Enforcement Team in Toronto. I have spent the past 19 years as a member of the Intelligence Division, security section, within the Toronto Police Service, where I was responsible for VIP protection; hate crime investigations; anti-terrorist investigations; international INTERPOL investigations; and threat investigations pertaining to public safety, politicians, participants in the justice system and communities at risk.
In relation to Bill S-7, the ongoing threat of terrorism to Canadians remains very real and is ever evolving. From the threat within Canada, the threat to Canadians abroad and to the participation of Canadians in terrorist activities abroad, Canadian law enforcement, CSIS and those other departments are responsible to ensure the national security of Canada. Those agencies are constantly challenged and often lacking necessary or appropriate tools to be effective at preventing terrorist acts and ensuring those who are involved in or who have committed terrorist offences are held accountable.
The reinstatement of the investigative hearings combined with the new offences — of leaving Canada to participate in activity with terrorist groups, leaving Canada to facilitate terrorist activity, leaving Canada to commit an offence that is a terrorist activity, and implementing a recognizance with conditions section within the Criminal Code — will provide very useful and necessary tools that will assist all police officers to contribute in the fight against terrorism and ensuring the safety of all Canadians.
As a front-line municipal police service, the Toronto Police Service relies heavily on the RCMP, CSIS and the national security infrastructure to look after the bigger and broader issues in relation to terrorism. However, being the largest and most diverse city in our country, and certainly one of the most diverse cities in this world, we are confronted on a daily basis with issues from many different countries, cultures and conflicts that result in front-line police officers having to deal with issues that may be related to terrorism or may support terrorism.
As such, the tools in the Criminal Code — and when first implemented post-9/11, as an officer who was responsible within Toronto Police, I was very pleased to see those sections of the Criminal Code and the Anti-terrorism Act come into place. I was engaged from a municipal police perspective, from a liaison between the RCMP national security program and the Toronto Police back in 2001-02, and also the liaison with Canadian Security Intelligence Service, to understand the implications and the usefulness of those new sections of the Criminal Code.
I was disappointed a few years ago when the sections, particularly in relation to the investigative hearings, were lost. I believe that those are an important tool as we look and go forward to try to prevent terrorist acts. I think they also provide a necessary tool in our country for us to advance and further our terrorist-related investigations.
I see the other part, with the recognizance sections that are proposed, as a very new, evolving and necessary tool to assist law enforcement in the national security realm. It creates a tool that bridges when we believe that someone has engaged in terrorist activities abroad and the evidence to actually prosecute them here is lacking. The ability to access the evidence from abroad is also lacking, if available at all. Certainly, the information often comes through intelligence, and based on the intelligence there is sufficient evidence, but certainly to use the recognizance sections proposed in this bill would be very useful.
Currently, on an ongoing basis we look at other sections of the Criminal Code, including section 810.01, which are recognizance provisions often used by municipal police. For our part, we use them in relation to public safety; for instance, when there is a convicted sex offender who is fully paroled, we often will either seek their consent to a section 810.01 recognizance, or we will look to have a hearing, summon them and present evidence that would then have a court order the person into a recognizance.
The sections and this recognizance offered in this particular bill are specific to the terrorist acts or issues and would certainly provide a very significant tool for law enforcement, both at the national, RCMP level and locally. It is something that could be looked at and used to ensure the public safety of all Canadians, certainly in our domestic environment within Canada.
These new sections of the Criminal Code lower to some degree the areas looking at preventing people from leaving Canada and the threshold that would be required before an arrest and successful prosecution could commence. They will ensure that not only Canadians in our country are safe but also ensure that Canadians are not departing to go engage in terrorist activity elsewhere that, if done here, would constitute a criminal offence. It is an important preventive tool that would be very helpful in the Canadian context.
I will compare these various provisions to something else. I have dealt with the issue of hate and hate propaganda in the Toronto context since 1993, when I first went to our newly formed hate crime unit. Although these sections seem to be useful to the police, I would say that the safeguard that is built in with them is the requirement of the Attorney General's consent. The hate propaganda sections of the Criminal Code have proven to be a useful tool. The fact that it is criminalized allows for us to use the full authority of the Criminal Code in accessing judges' authorizations, whether they be search warrants or production orders, and, although not in hate propaganda but in the terrorist offences, potentially it would allow us to look at wiretap investigations. I think that safeguard of needing the Attorney General's consent ensures that it is not abused and that the appropriate threshold is met before those tools are used. With it being the Attorney General who must decide or approve the use of those tools, that certainly ensures a great deal of protection for the citizens of Canada.
I will go a little bit forward on some of the other issues I would like to quickly address. From a Toronto Police perspective, we are the face of policing in our very diverse community. We and our front-line officers are the ones in the Toronto Police who are dealing with the affected communities, particularly on the issue of terrorism, whether it be the Muslim community, the Somali community, or the Tamil community, all of whom have a large presence here in Toronto.
I think the important part we do day in and day out is ensuring that those affected communities know us, that they are not feeling targeted and that they are not afraid to come forward and, one, engage in dialogue with us; two, participate in educating us as well us educating them; and three, that we can help them to understand where there are certain individuals within their communities who are on the side of the law that the police are now investigating and of concern to public safety as a whole. I think that engagement with the front-line officers is an important part of our efforts to keep Canada safer and to prevent terrorism.
The biggest issue we are seeing in the Toronto context is radicalization. There are those who are looking to leave our country because they have been radicalized towards terrorism and they are looking to go and engage in support of terrorist groups in other parts of the world. That is an ongoing challenge for us and one that we as Toronto Police are engaging in, independently but also in collaboration with the RCMP, the Ontario Provincial Police and the Canadian Security Intelligence Service. We engage with our various communities in many different ways to try to ensure they do not feel excluded and to assist us to keep our communities and our country safer.
The Chair: Thank you very much, inspector, for that fulsome and thoughtful statement. I have several senators who wish to pose some questions. I will call on our deputy chair, Senator Joyal, to pose the first question.
Senator Joyal: Inspector Irwin, I would like to come back to the new offences created by Bill S-7 — the ones that introduce in the Criminal Code the offence of intending to leave the country to participate in a training camp or committing terrorist activity abroad. If such a case were to happen in Toronto, say at the airport or at the border, who would be the police authority to arrest that person? Would it be the municipal police, the OPP, the RCMP, or the border agency? Which among the four bodies that could intervene there would be the one to arrest that person?
Mr. Irwin: I would say, sir, if it were a case of an ongoing investigation and that we knew that such an individual was going, it would be an investigation led by the RCMP and it would be the RCMP who would be the ones to affect the arrest.
It could be found that perhaps there is a reason the individual came to the attention of the Canada Border Services Agency or CATSA, the airline security. If it were something that happened in that moment, I would expect CBSA to be the people present; if they were there, they would take the person into custody and detain them. They would immediately notify both the Peel Regional Police, the police of jurisdiction, and the RCMP. The RCMP has a number of different sections that are present at the airport, but it would eventually come to INSET, the Integrated National Security Enforcement Team. The INSET investigators would attend. They would take responsibility for the investigation. They would certainly lay any charges in consultation with the Crown Attorney, and they would be responsible for bringing that case before the courts.
Senator Joyal: In other words, it is because you would have been tipped off yourself as a police agency that you would intervene. In other cases, it would be the RCMP, if I understand what you say.
Mr. Irwin: If it were known ahead of time that it was their plan and there was an ongoing investigation, the investigation would be within the Greater Toronto Area. Throughout Ontario, as a Toronto officer seconded to the national security program, it would be an investigation led by the RCMP in the Integrated National Security Enforcement Team.
Senator Joyal: Let us take the case that you have known — the Hersi case. Let us take the parameters of the cases I am alluding to: You receive a phone call from a employer who has been keeping an eye on his employee's Internet activities and noticed that the person was in contact with a jihad group or a terrorist group and that the person intends to leave. The employer has the information that the person is leaving. He phones you. What would you do with that kind of information?
Mr. Irwin: I have to be careful not to talk about a specific case that is before the court.
Senator Joyal: Forget the name I mentioned. It is Mr. Tremblay who is the case name.
Mr. Irwin: In that situation, if we had that phone call and knew that within a short period of time — such as within a few hours or a few days — someone were leaving, that is sufficient time. With the RCMP INSET, we have a unit at the airport; we would actually take charge of that investigation. It would be the RCMP who would conduct that intervention and arrest.
If we did not have RCMP officers available in that moment or if they were not readily accessible, we would then use the police of jurisdiction. In a case with the Toronto Pearson International Airport, we would use the Peel Regional Police as the police of jurisdiction. This section being within the Criminal Code gives all police officers the same arrest authority. They would make the arrest. They would wait for our investigators to arrive, who would then take responsibility for the investigations.
Senator Joyal: In other words, if I understand what you explained to us, you would not need to renegotiate an agreement with the RCMP or with any other agencies for the implementation of those sections of the Criminal Code. You would work within the parameters of the agreements or protocol of understanding that you have among the various police forces or agencies involved in security to implement those new sections of the code. Am I right by concluding that?
Mr. Irwin: Yes, sir, I think when you implement those changes to the Criminal Code, it will give all police officers in Canada the same authority. I have to qualify that it would be enforcement people, and CSIS does not have an enforcement authority. These sections would not benefit them to look to arrest anyone. They have no arrest authority.
Any police officer, if she or he has reasonable grounds to believe that someone has committed a criminal offence, has the authority to arrest that individual. The investigation will continue and then a determination made if, in fact, charges are laid at that time or if further investigation is required. However, there would not be a need to change or modify the protocols that are in place within Ontario.
Senator Joyal: Could you inform us generally from the basis of your experience, which has been many years, as I understood from your opening remarks, about the parameters of collaboration or cooperation or exchange of information among the various agencies today, after, say, 10 or 12 years of activities, in relation to terrorism, that led you to conclude that there is nothing more to fear that they are operating in silos or too independently from one another — CSIS keeping its investigation for its own purposes, RCMP doing their own investigations for their own purposes — and not having the level of cooperation that one could expect to ensure that we prevent terrorist activities from taking place as much as we can?
Mr. Irwin: I would say, sir, respectfully, there are still challenges, and the biggest challenge is taking intelligence and, certainly, intelligence from an agency like CSIS, which is national security, and being able to move that over for the RCMP or the police to do enforcement. There are challenges with legislation, certainly, with court cases and precedents that are set, that create concerns, the most recent one being a case in the Federal Court of Appeal where CSIS has sources in the community that are not protected in the same way that a police informant is. That creates a significant challenge, and going forward we will have to determine whether that decision is, in fact, appealed; we hope in the policing community that it is. It is fundamental for CSIS to be able to protect its sources of information, whether it is foreign government, whether it is through technical investigations they conduct or through human sources, and then for us as the police to be able to work with that information — intelligence — and build it into evidence. It is still a challenge.
I think that the potential of the decision that CSIS may not be able to protect the identity of their sources will certainly be a challenge for them to consider passing information to the RCMP or to police.
Senator Joyal: Would you say that until that appeal is completed we should not consider amending the legislation? In fact, we could have done it in this bill or the government could have decided to do it in this bill. As I understand the parameters of that case, if the RCMP had triggered the same investigation that you were talking about, the RCMP sources would be protected. However, if it is CSIS or the Canada Border Services Agency, for instance, that does some kind of information gathering — they have an intelligence branch, even though it has been cut by a government decision in the budget — they would not be protected. The only cases where the sources are protected are when the OPP, the RCMP or your organization, the municipal police of Toronto, does the investigation.
Mr. Irwin: I think there are many complex legal issues, and there are lawyers that will litigate this and lawyers that will look to policy and potential changes in policy or legislation, but I believe, based on that decision right now, it is strictly a privilege allowed only to police informants, and that is a big concern.
I believe we ought to be patient, let this go through the courts and the appeal process and wait until it ends. From my understanding, the Federal Court of Appeal decision is not a criminal process, which has its own implications, but I believe that is an important piece for us going forward. I appreciate to see that your mind is there as the lawmakers.
Senator Joyal: Of course, because the informant could find himself or herself in a court proceeding if that source is not protected in the same way the sources are with the police forces.
Mr. Irwin: The residual effect, sir, if I may, is that you will have fewer and fewer human sources, that is, people coming forward to provide us that information, because they will be at risk or their families will be at risk. With the greatest of respect, I believe the committee has probably heard this through others and others with greater expertise: Human sources — people — are the most important part of us in our fight by law enforcement and intelligence in preventing terrorism.
Senator Joyal: My next question will be on the second round because I would like to continue with that. It seems to me that maintaining security conditions in the community is a key factor in having the cooperation of the public and how we manage to get it.
The Chair: That is the preamble to the question for the second round.
Senator D. Smith: Inspector, I am from Toronto, live in Yorkville and 40 years ago did some pretty hot criminal cases, actually. I do not know whether you had any involvement in what is sometimes referred to as the "Mississauga 18" case. I am sure you followed it closely. I do not believe there are any outstanding appeals there, so I believe it is all completed.
Were there lessons learned from that case about behavioural patterns or things to look out for? There was one instance in one particular mosque where there was a school and there was someone that was definitely in the extremist category. I am wondering if there are any lessons learned from that case that are relevant to the issues before us.
Mr. Irwin: If I could, sir, there are still some ongoing appeals in that particular case.
Senator D. Smith: I will let you figure out what is appropriate to talk about in general terms.
Mr. Irwin: Certainly, I am familiar. There were Toronto police officers who were seconded to that investigation who reported to me.
Senator D. Smith: I know there were some, yes.
Mr. Irwin: I am very familiar with it, and I continue to keep track of it in my current role attached to the RCMP.
There are a number of lessons. In every case we do learn, we do look forward and we say, "What have we learned from the past, what tools," and the Toronto 18 is certainly a case of high profile, but there are other cases that I have dealt with in the last year as a member of the INSET team. The tools that may become available, should this legislation pass, would be very useful tools for us to actually be proactive sooner.
I will say this carefully, but I will say it. I think lowering the threshold the small amount that you are with this proposed legislation ensures we can be far more engaged in the prevention of terrorist acts, not waiting until someone has actually committed the offence, gone overseas and engaged with a terrorist organization. It allows us to be pre-emptive.
Before I came into intelligence, I spent a long period of time working in homicide and sexual assault, with sexual predators, sexually motivated murderers and serial rapists. I think some aspects of how our system deals with them are comparable. There are individuals that, if we in fact are able to intervene through the laws of Canada at an early enough age, there is some benefit in that they may end up going through a court process with some, whether it is a criminal record or an absolute discharge, but it also allows us to stream them into an area where they can in fact be educated away from continuing to be involved criminally, in whatever context, this context or the terrorist context.
As we look at some of the experiences and some of the individuals who were involved in the Toronto 18, it allows us to learn how these tools would benefit us to ensure the public safety but also perhaps to give more venues or avenues for a judicial process to maybe steer some of those more innocent, the sheep instead of the shepherds, away from further radicalization and deeper criminal involvement. That is one of the benefits of some of this legislation.
Senator D. Smith: Another aspect of the Toronto 18 and lessons learned — and, quite frankly, it does not really matter whether it is something that is going to happen outside of the country or blowing up the CN Tower or something like that — is the extent to which you can sort of identify places or activities that might be a bit of a magnet for these fanatic extremists, and in that particular case, clearly there was a deep throat. This is well known. If there had not been, the CN Tower may have been blown up; I just do not know.
How do you figure out where and how often is that sort of approach used? What are your thoughts on that? That was one instance where I think people in Toronto were fortunate that there was one because who knows what might have happened without it. I invite your response to that issue in broad terms.
Mr. Irwin: I certainly agree with you. In my role within the Toronto Police, from 1993 until about two years ago I worked closely with CSIS on some of the issues that impacted our public safety from a municipal perspective. They often provided me information that allowed us to be proactive and ensure that maybe extremist activities did not escalate into what would be criminal extremist activities or certainly terrorist-related activities.
As I look at the Toronto 18, it evolved from an intelligence-driven investigation that, when it came to a criminal threshold, was passed over to the RCMP. The struggle in Canada within our laws, our democracy and our Charter continues to be that while, there are locations that perhaps are honey pots for extremists of whatever ilk, whether they are anarchists or Islamic extremists who are looking to further that belief and perhaps be more entrenched in it, until it becomes criminal, it is very challenging for the police to use all the tools that are available to them.
In the realm of terrorism and national security, we rely heavily on CSIS to be the gatekeepers of that activity, to recognize when it starts to come to a criminal threshold and to pass that information over in order for it to become a criminal investigation.
Again, I found in my experience as a Toronto police officer that probably one of the best sources of information about extremist or radical activity behaviour is really from community members themselves. When they know and trust us, they will tell us about activities and work with us to perhaps intervene in the early stages. When it gets too far down the path and when you have certain leaders — and I often refer back to my early days in intelligence in 1993, the Heritage Front, the white supremacist movement was alive and well in this country and was focused out of Toronto, not dissimilar in how they were attracting people of extremist views and then escalating that to criminality. It was through intervention, probably not unlike a deep throat circumstance, that was effective in stopping the Heritage Front.
Senator D. Smith: I am thinking of lessons learned from the G20 in Toronto, where we had our own problems with our own police. I have known young people — I remember talking to someone one time who was heading to the Seattle thing. You will recall that. This was about 10 years ago. In part because to them it seemed exciting, they were kind of anti-American and they were going to participate. How far they went, I have no idea. Like any lessons learned, there are a few Canadians who go abroad to protest at things like that. Does that have any application there? What is the relevance of situations like that?
Mr. Irwin: Again, probably the greatest experience from a Toronto perspective, now working with the RCMP and at the federal level, there are ongoing discussions, often with legal minds, prosecutors, both provincial and federal, about some of those domestic activist groups and extremists and whether it in fact crosses into national security. You will hear the term frequently "criminal extremism," and I think we deal with that in the context of criminal extremism and not necessarily national security. However, we ensure the information comes into the national security realm, both to CSIS and the RCMP, for their ongoing and continued assessment.
As one of the primary investigators of the Queen's Park riot of 2000, I can tell you that that is another area that you look at and determine, by definition, whether that starts to walk down the path of national security. They are attacking the provincial legislature. Is that politically driven? What is the threshold that we are looking for when we are dealing with national security?
There are certainly domestic situations that we are looking at that may be more criminal extremist at this time. It is an ongoing assessment and collection of information to assess it further and determine if in fact it is starting to go down the path of national security.
Senator D. Smith: That is a tricky one. If they are just going down to be peaceful, that is fine, but if they are going down to get weapons or something, that is another category.
Mr. Irwin: I totally agree. Again, did they take weapons with them? Did they go to do this, or did they just get caught up?
The Chair: Inspector, you might want to put on your earphones so you can hear the translation as Senator Dagenais speaks. Is there an earphone present there for you for translation?
Mr. Irwin: No, there is not. I can certainly try to get someone who can translate for me.
The Chair: He will practise his English today on our behalf.
Senator Dagenais: Inspector, I am a police officer as well. With this bill, it is easier for you to do your investigations because you can relate to September 11, you can remember in London when they had problems in the Tube, and you repeated you had a lot of problems with summits in the past two years. With this bill, it is easier for you to do your investigations. You do not stop investigating, but you now have more information on terrorists.
Is it easier for you now with this bill to do your investigation and prove at the justice courts when you arrest these terrorists?
Mr. Irwin: Yes, sir. This bill and these proposed changes in fact give us very useful tools that would assist law enforcement.
First, I apologize that I do not speak French, sir.
Senator Dagenais: No problem.
Mr. Irwin: I always differentiate between a criminal investigation, criminal charges and arrest. Many times in our society individuals are arrested and do not end up charged criminally and go through the criminal process. As a police officer, I have been at every major demonstration in Toronto since about 1994, at all the different consulates where there are many communities very upset with the U.S. government or the Israeli government or the English, the British, the Italian. I have been at many demonstrations. I believe that our laws are fair, that they have effectively protected society as a whole. Sometimes the police are not happy with the outcome of our trials or our criminal processes; but in fact, it does reassure me, as a Canadian who could easily be on the other side of this — not that I am a criminal, sir — to know that we are challenged to work to a higher level constantly and that we do not get to become a police state.
Senator Dagenais: Thank you.
[Translation]
The Chair: I must apologize; you have every right to express yourself in French, but there is no interpretation available for our guest.
[English]
I appreciate very much your indulgence into this circumstance, but the policy of the Senate of Canada is that you get to ask your question in either one of our two official languages, and our guest has the right to hear it in his official language. I apologize to both of you for this technical glitch.
Senator Peterson: Thank you for your presentation.
Both CSIS and the RCMP are also involved in community outreach efforts. In your view, do they overlap or are they synergistic?
Mr. Irwin: They actually are synergistic. A number of years ago, I, as the Toronto representative, sat on panels with the Tamil community at the height of issues within the Tamil community, with the director general of Toronto region from CSIS, and with the superintendent from the RCMP INSET. The three of us met on a few occasions with the Tamil community.
I have also, going forward, met and been on a panel with the Ontario Provincial Police, CBSA, CSIS, the RCMP and Toronto Police, the major key partners that deal with the terrorist national security issues, and in fact that was with a broad and open representation of the various parts of the Muslim community across Toronto or the Greater Toronto Area. We are continuing, and the RCMP is enhancing their outreach program here within O Division. In fact, I started my day because the Toronto school board is creating a bit of a challenge to have the RCMP come in and provide a program that they have set up and have run in different communities and in private schools. Their challenge is to allow the RCMP in at this moment, and I will use my Toronto role to try to bridge that. I do not know that CSIS needs to come into public schools, but certainly into the high schools and other communities. It is an ongoing and evolving and greater collaborative effort, one that is absolutely synergistic and where there are not competing interests. There is not one that is trying to push their mandate further than the other. It is about the whole program.
Senator Andreychuk: Inspector, you have answered a lot of the broader questions. Do you think you will have one more tool in your tool box that will be more efficient and perhaps allow earlier detection and action; is that correct?
Mr. Irwin: Yes, I do.
Senator Andreychuk: A couple of practical issues. Having taught both in a police college and with the RCMP, we spend a lot of time trying to figure out what an omission is and when to charge. We are now extending any acts or omissions that likely will take effect outside of Canada.
How would you see that playing out? Some omission somewhere in the world and you are trying to figure out whether this fellow is leaving Canada and might commit something. Those sections are usually aiding and abetting and facilitating and accessories to the fact. How will it play out, because we are extending the law to any acts or omissions in a foreign country?
Mr. Irwin: I will walk carefully in my explanation because we have had some investigations recently where this legislation would certainly have been of benefit to us. There are a number of different investigative avenues that are used by the police to collect evidence and certainly to determine if someone may have committed a criminal offence. I think the unique part of terrorism is the majority still are part of groups, and those groups, whether small or bigger or being affiliated with a much bigger group, are a key component to their intent and their actions.
Therefore, it may involve the use of undercover operators; it may involve the use of informants, police informants within the community. In some instance, it may come from foreign governments, and clearly, depending on what government that is or if in fact there is a foreign nation but there may not be a government per se in place, that information would come to us; we would have to assess it and determine if, in fact, there is sufficient information and grounds to believe that a criminal charge is appropriate and then consult with the Crown attorney.
The large majority of investigations that we get are not you have 10 minutes before a bomb goes off or you have a day. Those absolutely challenge us in every way. However, many of our investigations are long and involved. In fact, we have the ability to take that time to properly collect and verify or validate the information or prove that it is not valid. That will assist us when we go forward with either using more invasive sections of the Criminal Code, search warrants, production orders, Part VI or wiretap investigations, or if we have been duped and need to step back and be able to close an investigation knowing that there is no substance to it.
Senator Andreychuk: Basically what you are saying is that informants are still the key, but you might move more quickly in identifying these situations. However, you would still be left vulnerable with the lone operator who may or may not be disclosing to anyone around him what he is doing, and it may be at the eleventh hour, so you leave that possibility open.
Mr. Irwin: Yes. Those lone operators are not unlike those from my days of working in sexual assaults and sexual predators. They are lone operators for the most part. It is extremely challenging to us in law enforcement.
Senator Andreychuk: In your experience, particularly this past year, would you say that the sophistication of those going abroad to get involved in terrorist activities has ratcheted up too?
Mr. Irwin: I would not say just those Canadians that I certainly have some knowledge of, but as you look more broadly at some of the other terrorist attacks, certainly in allied countries, and you see the education level of the attackers, that has caught my attention. It is pause for us to stop and think about why a doctor would do that. Why would someone who is so well educated engage in that?
I will refer back quickly to my experience with hate and hate propaganda and those notorious individuals who tried to become Canadians historically. It always intrigued me, and it certainly caught my attention when you see that some of the greatest hate-mongers, certainly in North America, are in fact very well-educated people. The terrorists are certainly following that same trend that we are seeing: highly educated, capable people supporting extreme and, in fact, terrorist acts.
Senator Andreychuk: I preoccupy myself with the issues of how to implement Criminal Code sections. How will they be interpreted out in the field, whether it is in a small town somewhere in Canada or in a large city?
I note that one of the changes in English is to accommodate what we have in French, and we will change that "Every person in Canada and every Canadian outside Canada shall disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service," and it goes on. The reason for the change from "forthwith" to "without delay" is to match it up with the French.
I spent hours explaining to policemen what "forthwith" meant. From your police experience, does "without delay" conjure up the same? There are few other sections where that has been done, but "forthwith" and "without delay," in English, how would you interpret those in the police?
Mr. Irwin: Certainly I would say there is probably more weight in the "forthwith" term than "without delay." I think with "forthwith," it is unquestionable. It means immediately. It means in that moment. "Without delay" now sort of offers that you can offer explanations for the delay.
Senator Andreychuk: Will this not lead to some explanatory note to police if we were to go ahead with this change, how to interpret "without delay," so that we get the immediacy? "Without delay" allows for some reasonableness and subjective content to each and every officer, whereas "forthwith" is forthwith. You have to do it right away; you do not have to think about it. "Without delay" leaves a little fudge factor. Would we not have to have some interpretive manual go out?
The Chair: A memorandum of enforcement, perhaps?
Mr. Irwin: Certainly what I would expect in the policing world is that it would be put down in policy, which means every police force and police service in this country would need to look at it, and perhaps it would be a good catalyst for some to create some terrorism-related policy in how they notify and what they do.
Yes, I believe there is a huge educational component, as there are with the other sections that are proposed in this bill. I think your point is well taken that, yes, we would need to try to find a way. Within Ontario, it means the minister would dictate it through the Police Services Act.
Senator Andreychuk: Everyone is saying this is to plug a loophole, and a serious loophole, should it happen. In your past experience, without Bill S-7, how often were there incidents? Is it something you would come across once a year and wished you had the tools you are getting in Bill S-7, or is it still something that you are conjuring for the future that might happen and therefore we should have it just in case, much as our anti-terrorism legislation is?
Mr. Irwin: Certainly it is interesting, and when the initial laws came out with the Anti-terrorism Act I certainly looked at it and believed that they had, potentially, great value to us, although never used.
In my last year, being attached to the RCMP Integrated National Security Enforcement Team, in fact there are sections here that, if they were in place, we would have used and that certainly would benefit, I think, overall the investigations that we have conducted or are conducting. Truthfully, in the circumstances I am currently familiar with, they in fact are a very balanced approach and I will say mitigate someone continuing down a path towards greater criminality. In fact, it may be an appropriate tool to get them back on the side of society that they contribute and move away from radicalization.
The frequency that we are learning of people who are travelling overseas and engaging in foreign conflicts that fit into the realm of terrorism, we are seeing that more frequently. Still, one of our challenges is that we are not very good at tracking Canadians leaving. We are good at when they are reported missing. We will start to try and find them, or if they come back or if they get in trouble somewhere else we learn about it. However, we do not know often until they have left and are engaged and when we start to knock on doors, maybe, because they are reported as missing people.
Again, more recently, these are young adults. They are not children. The obligation, when the family reports them missing, we have to be careful in what we report back to the family if we locate them somewhere or learn of where they are. The challenge that we face is not knowing that they have gone until they run afoul somehow.
Senator Marshall: Thank you, Inspector Irwin, for your remarks, which I found interesting. You were speaking about the various agencies that are involved. You talked about the RCMP, OPP, CBSA, CSIS and Toronto Police. In fact, you yourself said you have been seconded from the Toronto Police force to the RCMP. You have talked about the integration. There was some brief reference to probably some difficulty sometimes with integrating and getting everyone to work together as one unit.
Could you indicate to us who will oversee the implementation of Bill S-7 and who will take the lead role? Would it be the RCMP? It sounds like, through your remarks, they do take a lead role quite often. Who will oversee the implementation? How will it be implemented? I would also like any comment you wish to make on what you see as challenges with regard to the implementation of Bill S-7.
Mr. Irwin: If I may, the implementation, when it becomes sections in the Criminal Code that are not exclusive to the RCMP to enforce, then it becomes, I will say, driven by the federal level with what the law is and what the interpretation is. Then it will come certainly within Ontario through the provincial ministry that oversees all police outside of the RCMP. There are, and were, challenges back in 2002 with the initial legislation, both from a law enforcement perspective and also from the prosecutors at the provincial and federal level. We are much better at it. The RCMP, by definition, has the primary responsibility to conduct investigations into national security, not the sole responsibility.
That is important to differentiate. We have experienced this in Toronto, where we have a number of foreign missions in our city. Several years ago an individual burnt down the German consulate. The Toronto fire department responded and the Toronto Police local division responded. They apprehended the individual in the area, took him in and eventually charged and prosecuted him. By definition, that attack meets the national security threshold because it is an attack on the residence or place of an internationally protected person.
The RCMP were not in a position, and they are not certainly in Quebec and Ontario, to respond in the same way as they are in contract provinces. They do not police at the federal, provincial and municipal levels. The structure in place certainly in Ontario is that we have a joint management team with representatives from all the partners who are part of this INSET program, and so at a higher level those decisions are made. There are memorandums of understanding as to notifications, protocols and who will investigate. Quite often those smaller police services, including Toronto, are quite content to let the RCMP come in and take over that investigation that is a national security investigation.
It is through collaboration, partnerships and that we are all in this together that we have ironed out a lot of issues certainly over the past 10 years, since the initial act and the initial INSETs were instituted within the RCMP realm.
Going forward with this legislation, there would be a Department of Justice and public prosecutions who would look into what is the law and say, "Here is our interpretation and how we are to go forward." It could, because it is in the Criminal Code, certainly be initiated by a local or a non-RCMP police force or service, but I expect that we would negotiate and become very involved with the RCMP, or the INSET in this province, to be responsible and take that investigation over.
Senator Marshall: Regarding the training or the educational part, once the bill becomes law, does each organization train its own members, and then the RCMP at the top will make sure that it is all coordinated? Who puts in place the training programs or the education once the bill becomes law?
Mr. Irwin: Within the RCMP, their legal and training branch are the ones who would be responsible to train the RCMP across the country. Those of us who work under their umbrella, who are seconded, would also be given that training. Within the province of Ontario, it is through the provincial ministry that that would then be provided to all police services. Within Ontario, for those provincially regulated police forces services, it is through the Ontario Police College. The biggest forces' services all have their own training branches which again take it from training the trainers; it would watershed down.
The Chair: Senator Joyal on the second round. We are out of time, but we might give you a chance to ask your question.
Senator Joyal: Inspector, could you inform us if the cross-cultural round table that was established in 2005 is still active in Toronto per se, or do you have other means to reach the communities on a regular basis with the appropriate participation of local leaders or community leaders, whereby you would maintain that awareness that security is a shared responsibility with the communities and the police? How is it structured in practical terms in Toronto?
Mr. Irwin: Within Toronto, the chief has consultative committees, and at his level they are deputy chairs, and staff superintendents, one layer down and second layer down, are responsible for the different groups within Toronto. In each of our 17 police divisions we have consultative committees that are ongoing, and many committees overlap. Some are in the divisions — they are in the neighbourhood or geographical area — but there will be subcommittees within those communities. Probably equally challenging and somewhat comparable for us is the youth and street gang problem that goes on in Toronto and the outreach that we need to do and do to keep youth from getting into street gangs. Straight gangs, hate and terrorism are not unalike in that it is the youth who are vulnerable and exposed. We need to ensure that we reach out to them. We cannot go in and as the police simply dictate what should happen. We rely on those consultative committees. They are ongoing, both at the chief level and at the corporate level, and then down at the local level.
The community police liaison committees and the local divisions meet monthly. The chiefs' committees meet I think quarterly. For instance, there is a South Asian and Muslim chiefs' consultative committee. High-level community leaders are part of that and on those committees and they are ongoing.
Senator Joyal: How many initiatives do you really think can inform the public? As I mentioned earlier, and as some other senators have mentioned to you, for a large part we, you, the police forces, the agencies, and so on depend on information or on tips that might be received from people unknown to you. That information would be passed to you or to any other police forces and then you would act on those tips. How much is the general public aware that to a large extent their security depends upon the cooperation of the public with the police on any information they feel is of relevant opportunity for you to investigate? How much more can you do, in other words, not to scare the public but to inform the public?
It seems to me that we are in a situation whereby we are damned if we do, damned if we do not. Someone will tell us one day that you should have been more alert or we should have been more alert. However, we depend upon the chance that someone might make a phone call to you or might drop in and give you some information.
Mr. Irwin: I think your observations are very valid. Whether it is the issue of terrorism, which is at the extreme end of the criminal continuum, or whether it is local crime and disorder issues that happen in a community, the best way to combat that and put the appropriate resources at all levels is for them to tell us. They need the confidence and the courage to come forward and engage with us and tell us about it. Community-based policing is the model we have used; intelligence-led policing is another aspect of that. The community, whether it is on crime or on terrorism, initially I think believe they are isolated and they struggle. They come forward and it becomes a police problem. Well, it cannot go on forever that we will deal with this in anticipation of further criminal acts or criminality. We work very hard. In the centre of it, they are partners with us and equal partners. Eventually you want the communities to become the drivers behind it.
I agree wholeheartedly with you that in one moment they love us and in the next moment they are critical that we should have done more or we do too much. I think that is an ongoing conversation, ongoing dialogue and ongoing education.
I have the very same issue with front-line police officers. Regarding the Toronto 18 that we speak of, we had Toronto police officers paying special attention to all those locations in downtown Toronto that were targeted by the Toronto 18. They learned about those targets when the news story broke about the arrest. Those police officers all felt that they were being used — a term that we use in policing is "blue canaries"; they use canaries in the mine. Police officers are being sent to make sure everything is good and ticket and move the cube vans away from the front of the CSIS building in Toronto. Now they learn from the media that that building was being targeted by terrorists who were going to blow it up.
Of course, that is not the true story. I personally went and spoke to every shift, of which there are five, to educate them and explain that they were not blue canaries and were not at risk. This investigation was being conducted with our cooperation and we were informed that they would never be put at risk.
That is easy to say behind the closed door in the policing community, but hard to say to the community at large until it is through the court process. We have talked about some cases. You have asked about specific cases here. I cannot comment on those that are before the courts, but there is a point where we need to really try to have more conversation so the public has more confidence and more understanding about what we have done, why we have done it, and we get feedback because maybe our approach was not the best approach. Maybe we could have a better approach.
I greatly appreciate your role in our system. Maybe our laws need to be changed and we need to know the perceptions of the public. They might not always like what we decide, but we make informed decisions, and that is the most important part of anything we do.
The Chair: Inspector, on behalf of the committee I thank you for the time you have made available to us today, the time you have taken from your very important work, and we thank you for the frankness and street-level reality you were able to share with us. In the end, whatever the law says, whatever its provisions, it is people like yourself and those who report to you who are on the front lines. You will understand that our effort here is to make sure that the law is right so that you have the tools to protect both the security of our citizens and their fundamental freedoms, to which we are all committed. I thank you very much. I appreciate it very much.
Honourable senators, we are pleased to now welcome Kathy Vandergrift, Chair of the Board of Directors of the Canadian Coalition for the Rights of Children; and Shelly Whitman, Deputy Director, Centre for Foreign Policy Studies at Dalhousie University, and Director of the Child Soldiers Initiative. Dr. Whitman is appearing via teleconference from Halifax.
This afternoon we are continuing our study of Bill S-7, the Combating Terrorism Bill, which received second reading in the Senate of Canada, where it originated on March 8. Bill S-7 is a 30-clause bill that seeks to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act to better protect Canadians against terrorist activities.
As an administrative note, let me just say that should any of our colleagues decide to put their question in French, whether there is an earphone or not at the other end, Dr. Whitman, you should hear the English version of that automatically over the speaker. I apologize for not being clear about that in previous sessions.
Ms. Vandergrift, I understand you have a brief opening statement. We will begin with you and then move to Dr. Whitman.
Kathy Vandergrift, Chair of the Board of Directors, Canadian Coalition for the Rights of Children: I want to thank you for making time to consider the youth-related aspects of this bill. My testimony draws on a decade of international development work focused on preventing the involvement of children in armed conflict and improving the rehabilitation and reintegration of young people who become associated with fighting forces of various kinds.
I would like to suggest three ways to strengthen this legislation in relation to young persons under the age of 18. First, do a thorough child rights impact assessment before passing the bill.
Second, include specific provisions for application of the law to persons under 18, in compliance with the convention and accepted standards for youth justice, which use alternatives to judicial proceedings wherever possible and detention only as a very last resort.
Third, recommend the development of a prevention strategy that identifies and addresses the root causes of recruitment of young people in Canada.
This should be based on the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups and good practices from the field of children in armed conflict. Such strategies will emphasize positive engagement with young people and then developing alternatives to their association with armed groups.
Number one, a child rights impact assessment: In 2007 the Standing Senate Committee on Human Rights committed a three-year study of children's rights in Canada. They concluded that children's rights are "not solidly embedded in Canadian law, in policy, or in the national psyche." One recommendation was the use of child rights impact assessments of proposed policies to ensure they are consistent with the convention and contribute to fulfilling our obligations.
My first recommendation is that this committee undertake to have a thorough child rights impact assessment done and tabled with the committee so that you as legislators can be confident that you are acting in the best interests of all children and fulfilling your obligations under the Convention on the Rights of the Child.
On the second point, the specific provisions will outline why I think this is important.
In addition to the convention, Canada has ratified the Optional Protocol on the involvement of children in armed conflict and was a leader in the development of the Paris Commitments to protect children from unlawful recruitment or use by armed forces or armed groups, and the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups. This is a brief summary. Both of those were adopted in 2007.
These documents emphasize treating persons under the age of 18 differently from adults in age-appropriate ways. More specifically, the Paris Principles commit Canada to seek alternatives to judicial proceedings, wherever possible; to consider young persons who are unlawfully recruited as primarily victims of the recruiters; and to treat young people in accordance with international standards for youth justice. This requires a framework of restorative justice and social rehabilitation, with detention only as a last report.
I recognize, as has been stated before this committee, that the provisions of the Youth Criminal Justice Act would apply after conviction of a young person under the proposed Bill S-7. It is also important that age-appropriate measures be used before conviction. That means training security forces to deal with young people differently than adults; and that does not happen automatically. I inform you that when the use of tasers was reviewed, we learned that police forces did not receive specific training on the use of force with young persons and were using tasers on 13-year-olds under the same rules that apply for adults, even though the impact is significantly different. Law enforcement agencies involved in counterterrorism need to be trained in age-appropriate methods for engagement with young people. I submit to you that will happen only if the law clearly differentiates between adults and children and requires special attention to the best interests of children when the law is applied to them.
I would like to draw your attention to two specific provisions where I think this matters. The first one is the use of lengthy detention in response to evidence of plans to travel abroad for the purposes of engaging in a fairly wide range of associations with terrorist groups. The Paris Principles emphasize using detention only as a last resort, not as the primary response to evidence of unlawful recruitment activities. Recent research in Australia documents the negative impacts of even short times in detention for the healthy development of young people. Other forms of intervention in the field of child protection can serve the best interests of the young person as well as our security concerns, and that should be our focus.
The second one is children involved in an investigative hearing under Bill S-7: Any investigative hearing that involves young persons should be required by law to follow established guidelines and good practices for child witnesses in court proceedings. One essential component is the presence of someone dedicated to protect the best interests of the child involved. The Supreme Court ruling in the Omar Khadr case found that the Canadian government violated his rights and a fundamental principle of justice when they questioned Omar Khadr with no one present to protect the best interests of the child.
My recommendation is that the committee recommend amendments to Bill S-7 with specific provisions for applying the various mechanisms in this law to persons under the age of 18. This would make Bill S-7 consistent with the Convention on the Rights of the Child and the other international justice documents that Canada has signed.
My third point is about effective prevention. If the goal of this initiative is preventing recruitment, I suggest that the committee recommend the development of a comprehensive strategy based on good practices in the field. As the Paris Principles state, effective prevention must identify and address the factors that lead to young people becoming vulnerable to recruitment by armed forces. I noted that the previous speaker identified that ultimately it has to be the community — the real prevention will happen in the community.
There is little evidence to show that criminalizing activities leading up to recruitment and subjecting young people to intensive police surveillance to gather the evidence for laying charges will be effective to convince radicalized young people to turn away from what attracts them to engagement with armed groups. On the other hand, there is a growing body of evidence that programming based on sound principles of child and youth development can divert young people from such engagement.
One element is engaging with young people to make them aware of their rights and responsibilities; strengthening healthy community ties, not isolating them through the kind of questioning that we know goes on when they are under suspicion; and presenting alternatives. We know that young people whose rights have been violated in some way are more likely to become involved with armed groups. We know that fear and distrust of police authorities is another factor that leads young people to seek alliances. Proactive measures to address those factors and to build a rights-respecting culture, paying particular attention to the groups vulnerable to recruitment, have been shown to be effective. They are also less costly than the expensive investigative policing and judicial processes that will be required to enforce Bill S-7.
My recommendation is that the committee recommend the development of a comprehensive strategy to prevent the recruitment and involvement of young people with armed groups, based on the good practices that come from international efforts to implement these provisions.
The Chair: Ms. Whitman, do you have an opening statement?
Shelly Whitman, Director, Child Soldiers Initiative, Dalhousie University: Thank you very much for this opportunity. One of my roles is Director of the Child Soldiers Initiative, a global project aimed at ending the recruitment and use of children in armed groups. It is with this experience and perspective in mind that I wish to focus my statement before the Senate committee.
My clear problem with Bill S-7 is that it does not discuss sufficiently the impact that the amendment will have upon Canadian youth. When many think of child soldiers or children associated with armed groups, they think of them as people in far-off lands, impoverished communities that are ravaged by armed conflict and chaos. We need to understand that this is a global problem that affects our own country.
Canada operates a global resettlement program in which, in 2009 alone, we resettled refugees from over 70 different nationalities. However, we failed to discuss or address adequately the fact that refugees are often the result of armed conflict and political instability — situations that often produce the very conditions in which children are used in armed groups.
We need to understand that many of the refugees that come to our country may have the experience of being what we would classify as a former child soldier and that the children of the refugees may also have ties to countries that recruit and use children in armed groups.
As Ms. Vandergrift pointed out, the Paris Principles of 2007 are explicit about the fact that a child associated with an armed force or armed group refers to any person below 18 years of age who is or has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not refer only to a child who has taken a direct part in hostilities. With this definition in mind, it is critical to understand that children undertake many roles that may support directly or indirectly an armed group.
I want to make it very clear that the responsibility to protect children from such use lies with adults, both abroad and in our own country. Adults start wars — children do not — and they bear the responsibility for the illegal use and recruitment of children. This responsibility is upheld through several international legal obligations that Canada is a signatory to, such as the Optional Protocol on the involvement of children in armed conflict.
Children are viewed as desirable by many armed groups and criminal gangs around the world because they are vulnerable, easily manipulated, often fearless and do not understand the long-term consequences of their actions. They are viewed as cheap or expendable, plentiful and obedient. Bill S-7 specifically uses the term "terrorism offences," and the Anti-Terrorism Act of 2007 defines a "terrorist act" as one committed for a political, religious or ideological purpose, objective or cause. It also makes criminal the act of knowingly participating in, contributing to or facilitating the activities of a terrorist group.
The participation or contribution itself does not have to be a criminal offence and would include knowingly recruiting into the group new individuals for the purpose of enhancing the ability of the terrorist group to aid, abet or commit indictable offences. However, it is not clear when or how an armed group may be classified as a terrorist group, as the objectives for both are often the acts committed for political, religious or ideological purposes.
In Canada, we have reports and information that Canadian youth, youth born in this country who have familial linkages to Somalia, are being actively recruited into Al Shabaab, a well-known armed group in Somalia. As one former Al Shabaab fighter who resides in Toronto stated, "Radicals are whispering in their ears, 'You will never get a job in this country. You are not wanted. You are the enemy, so be a man and step up to the plate and join the jihad."'
It is also interesting to note that over 80 per cent of the Somali-Canadian community, one of Canada's largest African minority groups, is under 30 years of age. A number of Somali youth are experiencing difficulty in integrating into Canadian society. I refer to a recent project conducted by the Metropolis Conversation Series of 2012 entitled "Integrating Young Canadians of Minority Backgrounds into Mainstream Canadian Society: The Case of Somali Youth."
Somali youth have a complex migration experience in Canada due to both actual and perceived effects of dual strikes against them that stem from their racial and religious composition. Canada's failure to provide first-generation Somalis adequate services, which include things such as mental health support, during their initial phases of arrival has played a detrimental role in their integration. The point here is that our failure to address the inadequacies of our social integration for refugees has the ability to manifest itself into a problem that can result in the recruitment and use of our Canadian-born youth into armed groups and terrorist activity abroad.
If public perception of Somali youth, and potentially other ethnic groups, is already tainted, is there not the possibility that the new powers given to the security apparatus through Bill S-7 in this country could be misconstrued to further entrench such negative perceptions and hence help to perpetuate the cycle of disenfranchisement and alienation and even assist terrorist groups in their recruitment processes?
We also know that in Somalia we have a dire situation when it comes to marine piracy. In recent studies that we are conducting here at Dalhousie University on global marine piracy, we have found that the use of children and youth in this way is of grave concern. The world has failed to look at this. How are our world's navies addressing the use and detainment of children in marine piracy?
One need only look at the effect that Guantanamo Bay has had on rallying potentially marginalized groups towards radicalism. Canada must understand that the potential for social inclusion is far more powerful than the securitization and alienation of already marginalized and vulnerable groups. Bill S-7 is meant to prevent terrorist attacks, but this cannot be done in isolation from the root causes of disenfranchisement, particularly when we are dealing with youth engagement. We have to create a positive identity through inclusion and opportunity.
While I have focused specifically on Somali youth in the previous statement, they are not the only group for which the potential for radicalization, recruitment and use by armed or terrorist groups exists within Canada. The case of Omar Khadr has created multiple problems for our government and for Omar Khadr. The public debate between his role as a terrorist versus a child soldier continues to haunt him.
Would Bill S-7 protect the next young Canadian man or woman who is recruited by their own parent to participate in an armed conflict in what they are told is the ultimate sacrifice for their belief system? My fear is that it will not, that by failing to include specific provisions related to children and youth and the specific obligations Canada has under the Convention on the Rights of the Child and the Optional Protocol, we will encounter even less clarity in the future and instead of holding the adults responsible for their recruitment and use of children we will hold children responsible for wars that serve adult greed.
I agree that we need to look at Bill S-7 with a child rights focus and to include specific provisions related to children. We need to rethink the aim of this bill. Will it prevent the use of children and protect Canadians, or will it have a detrimental effect on both of those elements?
Thank you for your time.
The Chair: Thank you, Dr. Whitman. I will ask both our senators and our guests to be as precise as possible in their questions and answers so that we are able to afford everyone a chance to participate.
Senator Joyal: Welcome. My first question will be in relation to your second point on investigative hearings. Page 6 the bill elaborates on the context and conditions under which investigate hearings should take place. Subsection (11) reads:
A person has the right to retain and instruct counsel at any stage of the proceedings.
Did I understand you correctly to say that it is not enough to protect a child but that the child must be assisted by a lawyer or someone else who can assist him or her at any stage of the proceedings? Are you saying that there should be no step in the proceeding when the youth would be alone before the judge and the person leading the investigation?
Ms. Vandergrift: As I understand that, it would be if a young person asks to have legal counsel. They have the right to it. I would want to ensure that those hearings are conducted in accordance with international guidelines for children in court proceedings. In that way, the onus is not so much on the young person. Rather, the court itself takes appropriate measures.
I have engaged with young persons who have not always insisted on their rights, and the police do not always tell them about their rights until they well into something. I believe that for persons under 18 the onus should be on the adults to ensure that that happens. I know a number of young people who were interrogated without demanding to have a lawyer present. They do not think about that. I argue that, particularly for this kind of a questioning, we must build in stronger protections.
Senator Joyal: In a case in 2005, the Supreme Court concluded that the principles established and very well stated throughout three pages of the Youth Criminal Justice Act, which reflect the international convention, are applicable to any youth who comes before the justice system, especially in a criminal proceeding. Although the Supreme Court has already pronounced on that and it is the law of the land, you still believe that it is not enough protection for youth who come before the court?
Ms. Vandergrift: Look what happened to Omar Khadr.
Senator Joyal: That was before 2005.
Ms. Vandergrift: I am not sure about the questioning. Our Canadian officials were there when this happened. He was interrogated with no one there whose job it was to protect his best interests.
Senator Joyal: You feel that the system is not sufficiently aware of the rights of a young person, even though the act would spell out clearly in subsection (11) that police officers or anyone else within the justice system dealing with investigative hearings will have to ensure that the principles enshrined in the Youth Criminal Justice Act are observed and respected, and also in view of the decision of the Supreme Court?
Ms. Vandergrift: I would feel much more comfortable if it were outlined right in this bill that when it is a person under the age of 18 international guidelines must be followed before the courts. That speaks to more than only having a lawyer present and how the young person is treated.
There are a variety of guidelines. I do not know that our Youth Criminal Justice Act is as specific on that as it needs to be. I am also primarily concerned — before you ever get into the court — in terms of the kind of training that police officers get and that they have a clear direction that when dealing with young people, it is a different question than when dealing with adults. Our experience is that is not the case in all police forces now. They do not necessarily get that kind of training, and particularly — when they are dealing with anti-terrorism, reinforcing that — that there is a difference.
Senator Joyal: I would like to be more specific. I do not want to ask my question in a way to embarrass you, but could you outline which principles that are included in the Paris Principles are not part of the principles recognized and enshrined in the opening sections of the Youth Criminal Justice Act? In other words, what are we missing in the Youth Criminal Justice Act in terms of principles that are already part of the criminal justice system in Canada?
Ms. Vandergrift: In the interest of time, I am wondering if I can get back to you on that. One of my concerns, frankly, is what Bill C-10 has done to Part 4. I can tell you that the UN Committee on the Rights of the Child is also asking to see an assessment of Bill C-10. Members of that committee are concerned that it changes the Youth Criminal Justice Act to no longer be in compliance with the convention.
Senator Joyal: In other words, it is in that regard. However, those amendments were enacted very recently; less than a month ago or so. They have not yet been tested by the Canadian court so far.
Ms. Vandergrift: No.
Senator Joyal: I can understand your reaction in relation to those amendments, but for the rest of the act in relation to the Paris Principles, in your opinion are there other elements that are still missing?
The Chair: The witness has undertaken to share in greater detail with us, and we will look to receive that before we do clause by clause.
Ms. Vandergrift: The Paris Principles speak to before the person comes in contact. It suggests that when you are dealing with young persons who might be recruited that you do not put them into the judicial system. When we work with this internationally, we work with it through civil society and not through the judicial system, for the most part.
[Translation]
Senator Dagenais: I would like to thank our two witnesses. My question is addressed to Ms. Vandergrift.
You mentioned earlier that police officers should receive more training because there are as many adults as there are children involved in terrorist activity. When either children or adults are involved in terrorist activity, the lives of certain people are clearly in danger and the police must intervene. You also mentioned that child soldiers may be involved in this kind of activity.
I believe that, first and foremost, we have to protect the victims. I understand that there are terrorist groups out there who, for strategic reasons, use children to further their own ends. I would like to know what kind of training police officers need to receive, in your opinion? A terrorist activity, whether or not the perpetrator is 12 or 15 years old, is still a terrorist activity.
[English]
Ms. Vandergrift: Perhaps this would be a matter of learning from what we do internationally in bringing it back home. I think we have learned quite a bit over the last 10 or 15 years about how to prevent the recruitment of young people into armed groups internationally. I think we need to bring some of that back home, whether it is with our security or our community groups. I engaged with the Somali community here in Ottawa to discuss with community leaders what they could do to try to prevent what already started some years ago in terms of young people here being recruited to return to Somalia. It is that kind of engagement that we did in Northern Uganda — I was involved there — and in other places. It is learning how to engage with young people to address the reasons they feel alienated from a community and in that way, work to prevent the recruitment. It is a different kind of training.
We had one conference in Winnipeg where there were RCMP officials who were going abroad. Those of us who work with young people engaged with them in how we could better work together across security forces and non-governmental organizations to address that concern internationally. Maybe we need to do that in Canada as well. I think civil society is going to have to play a much bigger role if you are really going to address the reasons why young people become attracted to armed groups. It is a different kind of training that I think we need.
[Translation]
Senator Dagenais: What you are saying is that civil society should work closely with the police to prevent people from being recruited by well-structured organizations. Is that correct?
[English]
Ms. Vandergrift: Yes. The speaker before me from the Toronto Police talked about working with the community. He talked about the community's informing them. That is one aspect, and that is what police use the community for, but it has to be more than that. At the end, he said that it is the community that will have to play a role. That is where I think we need to put much greater effort.
Senator Peterson: Thank you for your presentation. Senator Dallaire, who has a keen interest in these matters, could not be with us today, so I will pose some questions on his behalf.
Ms. Vandergrift, in your experience with child soldiers, how clear would you say the lines are between terrorist and child soldier activities?
Ms. Vandergrift: As the police officer mentioned, there are fuzzy lines from criminal behaviour, from young people who get involved in guns and drugs issues in these countries over into involvement in armed groups. When those armed groups become labelled terrorists, they become labelled terrorists, but their activity is no different. For example, I worked extensively with young people who became involved in the conflicts in northern Uganda and Colombia. We then turned around and called those groups terrorist groups and suddenly they were called terrorists.
The activity was no different before those groups were labelled terrorists than after, actually. It is very much a fuzzy line. I do not think it is necessarily helpful to label young persons terrorists because it has meant they tend to be treated with less respect for the fact that they are young people. They were almost always forced or recruited into this. We lose that. When we label them terrorists, it seems to justify doing anything. That is why many of us wanted to insist that Omar Khadr was a child soldier. He was taken from Toronto at age 11. He was not a terrorist at age 11.
Senator Peterson: Ms. Whitman, do you feel that Bill S-7 sufficiently accounts for the Optional Protocol on children in armed conflict?
Ms. Whitman: No, I do not. I think that I echo many of the same sentiments that Ms. Vandergrift has pointed out. I do not believe that it sufficiently accounts for the Optional Protocol. What is very important is that we have to look at the fact that the Optional Protocol is not holding children criminally responsible for their use within armed groups because of their responsibility or vulnerability in terms of being used by armed groups, and — whether you want to classify it as a non-state armed actor, terrorist group or armed conflict — at the end of it, their youth is not something that is to be their responsibility.
My fear, as we have been discussing, is that if we are looking at this from a prevention angle, then we are not addressing this adequately in terms of how we look at this from that particular angle sufficiently.
Senator Peterson: I have a final question. Senator Dallaire is concerned about the intersection between terrorism and child soldiers. We do not want to see another case like Omar Khadr's. First, how do we guarantee that the Youth Criminal Justice Act will, in effect, take precedence in cases of terrorism? Second, will adult sentences for youth offenders permit sufficient rehabilitation? Third, is it fair in the case of youth to say "once a terrorist, always a terrorist"?
The Chair: Is that addressed to both our witnesses?
Senator Peterson: It is.
Ms. Vandergrift: How would we prevent another Omar Khadr? I wish someone had done something when he did not come back to school at age 11, and on that side of things. He was a Canadian child, and in this case his parents were not protecting his rights. Had it been possible to do something about his going missing from school as a Canadian child, I am not sure what could have happened, but that is in the first case where things went wrong.
"Once a terrorist, always a terrorist" — I am not sure about the intent of that question. From my work with children who become involved with armed groups, I can tell you that if you can turn things around in their lives, they often become the strongest youth leaders in their community. I took one young girl to the UN committee when we were looking at the Special Session on Children, and the delegates there could not believe that she had actually been with the armed group. If you can turn things around for these young people, the very things that made them useful to armed groups sometimes also makes them good community leaders.
However, that takes intensive engagement with them. I submit to you, however, that it does not take putting them in detention in a prison where they are likely treated much like they were treated. It takes dealing with them with respect for their dignity and their rights, and with love, concern and the desire to integrate them into a community. That is my concern.
This bill provides that if a young person is even voicing that he might go to travel somewhere, the first thing we will do is put him in jail for a year. I do not know any youth detention centres we have now that provide the kind of programming that we do when we get children who will potentially be involved with armed groups and what we do with them. I do not know a detention centre in Canada that will do that. I am not sure sitting up to a year in a jail will help that young person. Frankly, it might radicalize him further. Did that answer your question?
The Chair: Dr. Whitman, did you want to add to that?
Ms. Whitman: Yes, please. I would just like to add that a key thing here in terms of the Omar Khadr case is that we have one set of standards that we use for helping to reintegrate and prevent children from being members of armed groups in other areas of the world. Then, in this particular case, we took a different stance. We labelled him as a terrorist and that is one of the issues that has been put out there as one of the reasons why we would treat him differently than a child soldier or former child soldier living in our country who is from Northern Uganda, Sierra Leone or Colombia or wherever else it may be. The labelling is very damaging to the children.
Second, I think it is very true that it is absolutely possible to find means to rehabilitate and assist former child soldiers or children who are used in terrorist acts. It is very important how we try to address the long-term issues such as the integration. We work with a group called the Network of Young People Affected by War, which is a group of former child soldiers who have come together. They are remarkable young men and women who have been used in this particular way around the world, whether you want to classify it as a terrorist or as a child soldier.
The key thing here is that they have been given support and they have had opportunity to be able to integrate into different societies. That is not to say that they do not face their challenges every day; they certainly do. However, it is very important for us to address this issue.
I think this is why it is really key for Bill S-7 to have a good going-over by a group of people who do have a child rights focus. This is not something that would be out of the ordinary. I know that we have been doing this with the International Criminal Court in the recent cases that they have also conducted related to the conviction of Thomas Lubanga, who was convicted of using child soldiers in the Democratic Republic of the Congo. At minimum, Canada should ensure that.
Lastly, I want to point back to the questions related to this. In terms of the training of police on this particular issue, it is not enough just to have a particular law and then not have the mechanisms for training or preparing our police and justice system for these particular issues. We have seen that all around the world. Part of the work we do is help train police and military around the world, and our own RCMP officers as well. As well trained as they are, they have absolutely no clue about the numerous things they may encounter when it comes to children in armed conflict around the world. I would not suggest they would have any clue about many of the particular issues related to children who are living here on our own soil when it comes to their use in these particular armed groups.
When I say "no clue," I do not mean they are not aware that this exists. I am speaking about what would be unique, special or from a child rights perspective to look at; it is important for us to look at that. I think if we did address some of those issues, we would go a long way to preventing the next Omar Khadr, if this were an issue that was raised and flagged, and if people were understanding of the multiple dimensions that contribute to it.
Senator Day: I thank both of you for your comments. You have given us a lot to think about. I know Senator Peterson mentioned Senator Dallaire, and he has done a tremendous amount of work in this particular area of child soldiers. He has spoken on it many times. Unfortunately, one of his other areas is operational stress injuries and he has been asked to speak before the American Psychiatric Association in the United States. Otherwise I know he would be here asking some penetrating questions that Senator Peterson asked a few of.
I am interested in knowing about the age of 18. I think it was Dr. Whitman who mentioned the definition of child soldier who had been recruited but not necessarily participating. Is that part of international protocol of which Canada is a signatory?
Ms. Whitman: The definition I gave you comes from the Paris Principles of 2007, which is a set of international guidelines that Canada is indeed a part of. I want to clarify that the Optional Protocol on the use of children in armed conflict, which accompanies the Convention on the Rights of the Child, indicates that children cannot be used on the front lines until they have reached the age of 18. They can, between the ages of 16 and 18, voluntarily — and that is with the written consent of their guardian — be a member of an armed group, but they cannot be used on the front lines to fight.
There is a bit of a lacuna in the international law when it comes to this, because there are those calling for a straight age 18 in that we should not even have the association between 16 and 18. However, that is where we stand right now on this particular issue, globally.
Ms. Vandergrift: Under the Optional Protocol, there is a prohibition for everyone under the age of 18 to be engaged in armed conflict, and Canada has acceded to that. Each state makes its own determination about voluntary enlistment in armed forces, and Canada chose to allow young people — ages 16 and 17 — to voluntarily enlist with their parents' permission. The bill, however, does not allow anyone to join armed groups before age 18. We are not entirely consistent there, and many of us wish it had been 18 for everything.
Senator Day: There are many individuals — I am thinking of the Royal Military College — who have joined the military on a full-time regular basis who are under the age of 18, and I do not recall them getting their parents' permission, but perhaps they do now under this protocol.
Ms. Vandergrift: We monitor implementation of the Optional Protocol, and we have some questions about what constitutes informed consent of 16- and 17-year-olds in Canada, but they are pretty firm that they must have their parents' signature. If they are 16 or 17 and they have parental consent, they usually just engage in education until they are 18 and are not deployed before they are 18.
Senator Day: My other question, Mr. Chair, is in relation to the role that we have to play with respect to this particular legislation.
We can look at the legislation from the point of view of what has been done while it was being drafted by the Department of Justice in our oversight role, and we often ask questions about whether legislation has been reviewed by Justice in its drafting stages for Charter proofing to make sure it is not contrary to the Charter of Rights and Freedoms. We have another senator who regularly asks questions about gender impact analysis and what has been done from that point of view. That is one aspect.
I would like you to talk about that, Ms. Vandergrift, because you mentioned the child rights impact assessment. Is there a protocol we can easily follow as overseers of the legislation to make sure that certain steps have been taken regarding child rights impact assessments?
Ms. Vandergrift: My recommendation is that you ask for a thorough child rights impact assessment, and the reason "thorough" is there is because in the case of Bill C-10 I understand that the Justice Minister said they did a check and it complied with the convention. My sense is that is a simple check-off in Justice that it does not directly violate provisions. That is different than saying how it contributes to Canada's obligations under the convention.
I would hope also that there would be some transparency and that the assessment would be tabled if it has been made. In the case of Bill C-10, the UN Committee on the Rights of the Child is asking for it because they have questions on how it complies.
When I talk about an impact assessment, it is a thorough look at that bill and how it matches with the various obligations Canada has taken. They would look at the Optional Protocol and the Paris Principles and ask how this contributes to our fulfilling these commitments we have internationally.
Senator Day: Do you know whether there is this protocol, this check-off list that is being followed now in relation to this particular legislation?
Ms. Vandergrift: No, I do not know what is done. That is a subject of conversation between the coalition and the government; and, in fact, we hope to sponsor a two-day workshop on child rights impact assessments next spring so we can engage with officials on what constitutes a good impact assessment.
Senator Day: Anything from Dalhousie University on that point, Dr. Whitman?
Ms. Whitman: No, I just wanted to agree with her very much on that. It is important to have a thorough impact assessment on this. If a coalition of people with this experience were able to give some input, it would certainly improve the bill immensely.
Senator Day: Dr. Whitman, is it your view that this has not been done with respect to this legislation by the draftspersons?
Ms. Whitman: It certainly does not appear so. I say that because looking at this issue of children, when you take a read through it, anyone who clearly does work on children and youth looks at this and can see immediately that there is no reference here to many of the child rights aspects that those of us who work on this issue would see immediately. If that has been done, then I very much doubt it has been done thoroughly, as Ms. Vandergrift has just stated.
Senator Day: Thank you.
Senator D. Smith: This is primarily directed at Ms. Whitman, but I also invite Ms. Vandergrift's input if she would like, mainly because of your focus on Somalia, not so much to do with age, but the extent to which this bill can be used where there is a difference between whether whatever is being done is being done for terrorism or religious fanaticism or ideological reasons versus pure criminality. I raised this topic a couple of meetings ago, and this gets into legal opinions, and I gave two examples.
I asked if you could use it to stop someone in Windsor from going to Detroit to rob a bank and lock them up. I doubt that you could. There might be other ways. The other example I gave was if someone was going to Somalia, not to get into the ideological camps that are fighting and shooting and jihad around Mogadishu, but more over to the Somaliland area where most of the piracy is occurring, which is not for religion but rather for money and pure criminality, and some people think they can make money doing this.
You seem to have focused a bit on young people in Somalia. I am curious, to the extent you are aware, and we are not asking for names of course, of instances where young Canadians have gone back there: Would you have any idea what the percentage might be as between those who are just going over for piracy to make money as opposed to those who are going over for religious fanaticism and maybe jihad and shooting between different fighting groups around Mogadishu or wherever? Do you have any thoughts on that?
Ms. Whitman: Yes, I do.
Senator D. Smith: That is not really black and white. It is grey, shades of grey, as opposed to black and white.
Ms. Whitman: There are lots of shades of grey on this particular trend. One of the key problems is I wish I could give you exact numbers but, just as in many conflicts around the world, having an accurate number of the number of youth that are used in armed groups, whether it is terrorist groups or criminal gangs, is extremely difficult. People do not keep accurate records of those things for good reasons, right? You do not want the paper trail of that. Also, if you admit to it, it is also realizing that you know that you are committing an international violation.
I cannot give you numbers, but I can tell you that the line between the criminality and the piracy versus terrorism, for example in groups like Al Shabaab, is becoming more and more blurred. We are starting to see that there are tactics being employed by the piracy groups that are clearly tactics that have been learned from Al Shabaab.
We know there are young people within the prisons in that part of the world, particularly in places like Puntland area and Somaliland, and they have indicated to the UN SRSG for Children and Armed Conflict that some of them have left Al Shabaab to go work for the piracy groups, and the information that we have is that it is very difficult to know exactly the separation. A lot of the information we have would suggest that there are not as strong links as we might think, but we also know that when there is armed conflict there are money trails, so whether or not you are part of Al Shabaab or whether or not you are part of this particular piracy gang, increasingly the potential to have those two interfaces come together is going to rear its head at some point because there is a lot of money being gained by those who are involved in piracy.
I would like to point out that in addition to young people being used in these particular matters, we also know that there are financiers here in this country and in the United States who are financing piracy activity. How does that factor into this? A question that I would want to pursue further is whether there is a potential that this could benefit the issue of the international approaches to ending piracy attacks that we could look at from this particular bill as well.
Ms. Vandergrift: I would reinforce the blurred lines in these things. It really moves back, and there are often mixed motives, and then it moves back and forth, which is partly why I think you need to come at these questions from a different angle than trying to put someone in jail.
Senator D. Smith: I think it has a great bearing on the extent to which this bill can be used to lock someone up if you do not know or have some pretty good evidence that falls into the category.
The Chair: If there are no further questions, I want to thank both our expert witnesses for the time they have made available to the committee, the clarity and precision of their opening statements and their very robust and constructive responses to the detailed questions from our colleagues on the committee. Their testimony will be of great value to us as we consider this bill going forward.
As both our witnesses will know, whatever is decided in this chamber, the bill then goes on to the House of Commons for further discussion and debate. Hopefully, matters that have been raised here will be reflected upon not only by this committee in some detail but also by our colleagues in the other place.
Thank you both very much.
(The committee adjourned.)