Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 10 - Evidence - Meeting of November 3, 2014
OTTAWA, Monday, November 3, 2014
The Standing Senate Committee on National Security and Defence met this day at 1:02 p.m. to study and report on security threats facing Canada.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: This afternoon the committee will be meeting for two hours as we look at the threats to Canada, specifically terrorism. We will then meet in camera to discuss future business.
Before we begin our study, I wish to remind all Canadians that Remembrance Day services will be held in all our communities across Canada to commemorate the lives of those who fell in conflict. This year's services will be especially poignant because it is the centenary of the start of World War I. I urge all Canadians to attend services in their local community this weekend and on November 11 at 11 a.m. We shall remember and honour those who proudly served our country.
Colleagues, on June 19, 2014, the Senate agreed to the following:
That the Senate Standing Committee on National Security and Defence be authorized to study and report on security threats facing Canada, including but not limited to:
(a) Cyber espionage;
(b) Threats to critical infrastructure;
(c) Terrorist recruitment and financing;
(d) Terrorist operations and prosecutions; and
That the Committee report to the Senate no later than December 31, 2015, and that it retain all powers necessary to publicize its findings until 90 days after the tabling of the final report.
The Senate commenced this study because Canadians are concerned about the threats to our safety and security. We wish to get to the core of the issue in a reasoned and well-informed manner.
One of the foundational documents that the committee has been considering is an interim report from the Special Senate Committee on Anti-Terrorism chaired by our former colleagues Senator Hugh Segal and Senator Serge Joyal. The report, titled Security, Freedom and the Complex Terrorist Threat: Positive Steps Ahead, was tabled in March 2011.
Joining us today to discuss the report and provide an update is Senator Serge Joyal, the deputy chairman for that particular committee. Senator Joyal was appointed to the Senate in 1997 from Quebec. Previously he served as a member of Parliament from 1979 to 1984. He founded the Joint Committee of the Senate and the House of Commons on Official Languages in 1980, was Co-chair of the Joint Committee of the Senate and the House of Commons on Repatriation of the Canadian Constitution in 1980-81, was Minister of State in 1981, was Secretary of State of Canada for 1983-84 and was appointed to the Senate in 1997.
Senator Joyal holds a degree in law from the University of Montreal and was called to the bar in 1969. He completed a master's in administrative law and a master's of philosophy in constitutional law in 1971 from the London School of Economics and a postgraduate degree in comparative law from the Faculté internationale de droit comparé, in Strasbourg, France.
Senator, we're pleased to have you here today to talk about your previous report. We understand you have an opening statement.
Hon. Serge Joyal, P.C., Former Deputy Chair of the Senate Special Committee on Anti-terrorism, as an individual: Thank you very much for your welcome, Mr. Chair. I appreciate being able to share my reflections and thoughts with the honourable members of the committee this afternoon. I have had the privilege of sitting, for the last 13 years, on all three special committees that were charged to review anti-terrorism legislation.
I sat on the post-September 11 committee that studied the new measures that the government introduced following the September 11 catastrophe. I sat also with distinguished members of the Senate in 2007 studying the changes to those terrorism acts. In 2010 and 2011 I sat on the third special committee devoted to reviewing anti-terrorism legislation and anti-terrorism issues in Canada.
I have had that experience in the Senate. I have not had the pleasure to sit on your committee that is now charged to follow up on those three previous committees following the situation that we have to address now.
When we sat in 2010 to review legislation, Senator Segal and I were very much concerned with the new faces of terrorism. Of course, I have lived, as much as any of you, the evidence that we have known in the last two weeks in Saint-Jean-sur-Richelieu and here in Ottawa. When you invited me to appear today and exchange views with you, our preoccupation in those years was essentially to try and realize how much the face of terrorism has changed from an al Qaeda with Osama bin Laden as the leader. We had the impression that there was some kind of an international force spread in many different countries under the leadership of bin Laden. It was more or less the traditional pattern of any kind of military force, but we had realized through those years, especially after the death of Osama bin Laden, that it was not the end of terrorism.
In fact, it was the beginning of a new kind of terrorism maybe more difficult to identify and more difficult to fight. Because as long as you have one leader and various supporters or various troops spread in different countries under different leadership, it's much easier to identify the person.
When you have to face unknown terrorists who are hidden in their basement or in their office and nobody knows they are around, and they are interconnected through the Internet with other people who seem to share the same kind of ideology and the same kind of objective, which is essentially to attack the structure of a democratic government or state, you are in a total different context and a much more difficult challenge to address.
In our 2011 report, the first chapter was titled ''The Changing Threat Environment.'' We first wanted to understand that new environment. What were the factors that were contributing to create that kind of new threat? That was our first focus.
We were able to identify four years ago — not last week, but four years ago — through 32 witnesses that we heard during 11 different meetings, and among those witnesses, of course, were police forces, investigators, scholars and people involved in the determination of the capacity to react, and so forth. We had 32 different witnesses. The list is appended in our report. We were able to identify that the new threat was radicalization, what everybody seems to have discovered two weeks ago. Four years ago we said, ''Listen, this is the new threat.''
Then the second aspect that we wanted to identify was, and I used the words in the report, ''homegrown terrorism'' — homegrown, not imported, not an Islamist somewhere trying to penetrate Canada through borders with a fake passport or a fake identity. ''Homegrown'' means somebody you live with, one of your own. As we saw last week with Mr. Zehaf-Bibeau, born from Canadian parents and educated in a small town outside Montreal, not somebody who has grown up in an urban neighbourhood only, but somebody anywhere in Canada, in the most remote place of the country. Why? It is because that person is connected through the Internet, and that was our third preoccupation.
We were very concerned and wanted to ring the bells four years ago about that new threat. We thought that for the government — and by ''government'' I mean us as a society, as a Canadian whole — there should be a new approach to try to understand that kind of phenomenon. That was our first recommendation. We made 16 recommendations in the report, and seven were dedicated to addressing that specific situation of radicalization and homegrown terrorism.
I will quickly go through those recommendations. I reread them over the weekend, and I feel that they are as current, as much actualité, as we say in French, as they were four years ago when we drafted them, we being Senator Segal and the nine honourable members of the committee, including the chair and the vice chair. Some of the senators who sat on the committee are here today. I see Senator Day here. I think, Senator Stewart Olsen, you might have come for maybe one meeting.
Senator Stewart Olsen: Maybe one meeting.
Senator Joyal: Maybe it was one meeting to replace another senator.
We were concerned about the first recommendation, which was to take the initiative to conduct specific research to understand the transition from radicalization to violence, because you can entertain radical ideas. That's freedom of thought, but as for the step from those radical ideas to implementing them in a violent initiative, what drives somebody who entertains radical ideas, be it on religious or political grounds, to go to the next step of resorting to violence?
That, in our opinion, in those days, was the thing we had to understand better. In other words, how are the psychological mechanics triggered in someone's mind?
Of course, we realized at that time that the Internet was a totally different world because the Internet is the triggering factor. Last week, a French journalist in France took on a fake identity and tried to penetrate the terrorist networks. I'm not trying to give the recipe here to our listeners, but what was discovered is that just by entering the name of a person who is identified with terrorism will immediately let you penetrate into a whole network of violent activities, and those activities, of course, are magnified in the way that they are presented to enrol the people.
In other words, it's very easy when you entertain radical ideas to penetrate into a terrorist network and to be educated, without your knowing it, to the reality of how wonderful it is to fight for those ideas and how wonderful those people are.
That is accessible now to almost anyone, and we thought four years ago that it needed to be understood and needed to be fought. As to how to do that, we recommended studying the same kind of Internet tools that the police are using to identify juvenile pornography. As you know, in the case of somebody using the Internet to try to link with a network exploiting children, the police have Internet tools to penetrate those networks. Given the examples that the police had put in effect to try to face that kind of criminal activity, we thought, ''Is there a path to try to understand how we can penetrate those networks and how contra-messages can be introduced in those networks?''
We thought that was needed. We had to really invest in that, and we had to make sure that we were able to fight the new threat in the context in which it was taking place. So it is very important, in our understanding, that research activities be conducted and financed by governments because we thought that those investments were essentially linked to the efficiency of the results of the investigation.
If you come ex post facto and try to penetrate those networks once the person has been radicalized and is ready to step into violent activities, the police investigation and the surveillance have to have the tools to be able to prevent that kind of activity. Otherwise, you are just there to pick up the damage. We thought it was very important to be active on the forefront instead of only when the person is already violent, as we've seen in the last two weeks.
We also thought that the technology to counter Internet and radicalization was an essential element to develop. New programs had to be developed that would be adapted to that reality, and we thought that was an essential initiative that should be taken and that we should support the research that is needed, in conjunction, of course, with police forces, those responsible for investigation, to develop that kind of program.
Looking at what happened in the last two weeks, I'm sure there is no doubt that with respect to the situation that happened in Saint-Jean-sur-Richelieu, the police knew already of the danger that that person represented. They knew because the parents of that ''terrorist'' had already warned the police forces. However, suppose that person was not in touch with his or her parents, like the one in Ottawa who was not in touch with his mother for the last five years or so. How can you identify that that person may represent a risk to Canada's security?
We were very concerned, and that's why it is in the first chapter of our report that that kind of new technology be redefined in the context of the radicalization that we now understand better in Canada than anywhere else is homegrown. It is imported through the Internet — there is no doubt about it — but it appeals to old-stock Canadians, which is the surprising thing.
When I saw the TV news two weeks ago, I said, ''French Canadian shooting French Canadian.'' I mean, to me, this is the end of the world. Why were those two persons drawn from Quebec shooting two soldiers, one from Quebec and the other from Ontario, who is posing no threat to him at all? He was defenceless; he had no gun.
How can you shoot somebody who is waiting at a bus station for the bus? How can you get into a car and shoot the person driving it? It has no basis. As I said, you could entertain radical ideas, that we should be living under another economic system, but democracy doesn't allow you to take a gun and shoot people who don't hold the same beliefs, shooting that person thinking that you're going to go to heaven for doing so.
With this ideology, we can't remain passive when we know that modern technology exists to try to convert people who might at a point in their life be psychologically fragile for all kinds of reasons, such as looking for meaning in their lives or they've had failures with some professional ambition or they are not well integrated into the community and so forth. There are thousands of reasons that might lead somebody to be open to that kind of message and to that kind of indoctrination.
So the third recommendation we made was for the Justice Department to publish the prosecutions of terrorists in Canada and explain why they were sentenced and what the story was behind it. In other words, we wanted to educate Canadians that this is dangerous and it's not just a heroic adventure that you think you're going to live through without any consequences.
There have been in the past years many decisions, many sentences that have been pronounced by Canadian courts, but they don't stay in the profile of public opinion. It sometimes makes it to page 2, 3 or 10 of a newspaper one day. It might not even be reported on the news or only once, and then it disappears from the radar. But it is important that Canadians be made aware that there are people who are sentenced because of their terrorist activities, and that should be kept ahead of public policy opinion. We think that the education factor is an important element to maintain the consciousness of the public in relation to terrorist activity.
We were also concerned about the sentencing of terrorist activities. We recommended that there be a review of section 83.26 of the Criminal Code on sentencing and consecutive sentencing. My friend Senator Baker, with whom I sit on the Legal and Constitutional Affairs Committee, knows section 83 of the Criminal Code very well, and we thought that on the basis of past decisions, past sentencing, there should be a review of that section of the Criminal Code.
We also recommended that there should be better coordination with federal, provincial, territorial and municipal police forces. We were concerned with what we saw on Parliament Hill — and I know Senator Dagenais will certainly know about this better than I — that when there are too many authorities under one objective, which is to address homegrown terrorism, you need very narrow and tight coordination among the police forces that are active on Canada's soil. We thought that those kinds of practices on intelligence and policies should be reviewed in sync by all of those police forces. We felt there was a need to develop a joint approach, a shared approach that would make it much more effective to address the new context, the new situation.
We also felt there should be better dynamism on the cross-cultural round table. That round table was established in 2001 after September 11, and it has drifted along during the years. In other words, when you don't feel there is an urgency to address something, you let it go; you don't replace a member on the round table, or you are not really tempted to appoint somebody who is well connected in the community you have to address. In other words, it becomes business as usual, with really no deadlines. We thought that if we were to address the education aspects of that new threat, the cross-cultural round table needed to be revamped and re-strengthened.
It had given some positive results during the first years of its establishment, but as you saw in the last two weeks, we seem to have a lack of communication with the community leaders that are concerned with the indoctrination of people in relation to those ideologies, people who advocate violence to achieve their means.
So we thought that the cross-cultural round table needed to be revamped and re-strengthened and be much more active and more well connected with the community that it is supposed to be the spokesperson of or the link to.
Finally, we also thought that on the whole there should be a greater diversity of spokespeople. And I am speaking now for myself, not for the report. I think generally that the spokespersons of some communities are much more — I should say that they sit on the fence. They are not proactive. They don't take initiative. They react when something happens. They react when somebody puts a mic under their nose, more or less. I think there has to be much better involvement of community leaders than we have had in the past. I think it is in their best interest because if you don't want to have racial profiling in a society and if you don't want to entertain bias in a society, it would be because the responsibility is shared equally by all people and not only when there is a catastrophe or a tragedy, but equally as a normal way of life. I think it is one aspect that we certainly saw in action last week, and it should be included in those initiatives that we have to take to address the new situation.
As you understand, Mr. Chair and honourable senators, that is only the first part of the report. There were two other parts in the report that I won't address today but will mention in passing, if you authorize me.
The second part was essentially about investigation and prosecution, and the third one was about parliamentary oversight. What you do is essentially that, parliamentary oversight, and I want to advocate that on behalf of this committee because I think we as parliamentarians cannot be indifferent to what's going on in relation to terrorism in Canada. We have a singular role to assume and responsibility to take in relation to that, and I commend your committee to pursue that reflection, the responsibility to come forward with workable recommendations in order to face the kind of emerging threat that we addressed four years ago. I'm not here to judge. I'm just here to report the substance of the report and recommendations that we included four years ago, but I still think that in a way they should have been acted upon in due time. We would have a better conscience knowing that we controlled the tools to face what the reality is today.
That is it in a nutshell, Mr. Chair. I know that honourable senators will want to exchange views on that. I thank you again for your invitation.
The Chair: Senator Joyal, I think you've given a very good encapsulation of the report dated March 2011, and it really is being utilized by our committee as a foundation from the point of view of going forward and looking at the situation as Canadians face this question of terrorism here in Canada.
Senator Mitchell: Thank you very much, Senator Joyal. I, too, want to express my appreciation and admiration for this report. It's just outstanding.
[Translation]
It is an excellent report that is very important to our work here. Thank you very much. It is an excellent foundation.
[English]
I wish we could have you here for five or six hours, maybe even have you come back, but I want to get to some specifics. The report itself speaks so well and you've covered many things.
One of the issues that you've alluded to in the report and that has come up now is this question of the impact of the Internet. As an illustration of what I'm trying to say, there is this idea that we should outlaw statements on the Internet that aggrandize, encourage or support terrorist activities or terrorist initiatives. Would you subscribe to that initiative, and is it possible to do that within the bounds of protecting freedom of speech? It seems obvious that it should be, but I'm not a lawyer.
Senator Joyal: You know what a terrorist act is. Essentially a terrorist act, if you read the Criminal Code — and I want to be sure I use the right terms and don't paraphrase the code — first of all, it's an act of violence. It's an act that is perpetrated on behalf of an ideology, be it religious or political. And it's an act to compel a government or state to do or not do something or refrain from doing something. There is no doubt that, as I said earlier on, the Internet offers a free flow of the best and the worst, the worst being the promotion of terrorism activities.
I mention also that I made a distinction between what is a radical idea and the use of those to go beyond to the next step, which is the violent act to promote those radical ideas.
For instance, in the 1970s you could be Marxist, Leninist, Trotskyist or whatever, and think that the world would be better if the system were redrawn on the basis of that ideology. As long as you think like that, you are in the realm of freedom of expression. The moment you say, ''We have to take a gun and shoot all those who do not share those ideas,'' because they are enemies of the freedom of the person in the context of the Trotskyist, Leninist or Marxist ideology, then you have gone beyond the border of what is acceptable.
To promote terrorism in the way that I think one would invite anyone to commit a violent act in the performance of that ideology, I think it's a criminal activity. If I say to someone, ''Take a gun and shoot that person,'' it's against the Criminal Code. I cannot incite a person to commit a criminal act.
The challenge would be to determine what the promotion of terrorism activities is. I don't want to define the scale, but if, to promote your ideology, you glue posters on the bus stop calling for people to revolt or to vote against a government or to do whatever you think might be proper, you still remain within the confines of the law. However, gluing a poster on a bus station is against municipal regulation because you should not destroy public property. We are not in the context of saying you have to take arms or take any opportunity to shoot down a Canadian soldier, a policeman, a politician or anyone in the public in general in order to create terror, which is to create fear.
Terror is essentially fear. It's the fear that if you don't behave in one way you will incur some bodily harm to yourself or harm to your society in which you yourself have a living, an ambition, a profession, a family and so forth.
The determination would be to define where the promotion of terrorism would be similar to a hate crime, to hate that group of people. The Criminal Code has provisions to fight that, and we know it. We have expanded it over the years to include more minorities in hate speech.
It would have to be redefined on the basis of principles that we have already in the Criminal Code, how it is defined and how it is applicable. That's where I think the challenge lies. I don't mean that it's not possible. It's certainly within the confines of freedom of expression, but I would say also within the parameters already contained in the Criminal Code in relation to hate crimes. That could be a similar kind of criminal activity that is prohibited.
Senator Mitchell: Thank you for that answer, Senator Joyal.
There are two approaches. One is that we need stronger laws such as what you've been talking about, promoting terrorism on the Internet and so on. The other one is what Commissioner Paulson alluded to, which is the police community work. I met with the police chief of Edmonton on Friday, and he specifically mentioned that as well. Municipal police forces are often on the front line.
In the balance between the two, your committee put emphasis on the need for community work, did it not? Perhaps you've emphasized that again. It's not just police work, but community leaders being more outspoken. How do we encourage and structure that? It's like having a royal commission going across the country.
Senator Joyal: Last week we all understood what I call a practical case. In Saint-Jean-sur-Richelieu — and again I'm looking at Senator Dagenais, who has been a member of the Sûreté du Québec — who came forward to speak? The Mayor of Saint-Jean-sur-Richelieu came forward, and the local imam came forward and testified that that person was not often seen in the mosque. You had the parents of the person who complained to the police. You had the working milieu of the person who saw that the person was drifting. The person was more or less leaving his family milieu and working group and was really on a drifting island, to the point where the person jumped the step to violence.
The RCMP, as you know, prevented the person from having a passport, which is a serious decision. It's against section 6 of the Charter of Rights, mobility rights, because when you are deprived of a passport you can't leave the country. I am looking at Senator Baker who knows well the implication if you deprive someone of having a passport. It's impeachment under section 6. You can't leave the country to go wherever you want with a passport.
But there seem to be reasons that are acceptable under section 1 of the Charter, reasonable limits in a free and democratic society. So the police have some tools to intervene. But, as I said, to have a concerted effort needs somebody with the responsibility to implement that.
As I said, there has to be follow-up on this also. There is a natural tendency of men and women — I'm trying not to be sexist — that when everything goes by and nothing is happening, why invest that much effort and money on those initiatives? Nothing happens anyway. We're a peaceful country and we like to represent ourselves as being jolly good fellows and, for Quebecers, la joie de vivre and so forth. Everything goes well in Canada.
We have realized that we are not immune to that. On the contrary, we are under threat from our own people. I would not say even in the most remote communities — Saint-Jean-sur-Richelieu is not that remote — but in a small community that has been peaceful for centuries. Suddenly there is someone there who just jumped the fence.
The objective of maintaining that kind of cohesion of those who have to intervene needs a comprehensive approach and needs, as I said, territorial, provincial, municipal and federal forces.
There is no doubt that it's the federal government that can trigger that for the whole of Canada. We have to review our approach as a country in relation to the coordination of the plan to fight now what is not an emerging threat. It's already there. Four years ago we saw it as emerging, but now it's there. There is nothing that is more telling than a bad example.
A bad example is easy to follow. A bad example, seeing what happened after the last two weeks, can trigger someone to say, ''If I want to create damage, that's the way to go.'' If we want to put the country under turmoil, this is the way to go, not maybe to kill somebody anonymous but to kill somebody who is representative of the government order, of public order. Because you know that if you attack that person, the symbolism that person represents spills over onto the whole system. This is, in my opinion, a very bad example. We have to be able to show to Canadians that the lesson we have learned is that we understand today what it is all about and that our initiative to address that is up to date with what it is now.
I'm sure, Senator White, at the time you were Chief of Police of Ottawa Police Service, you were feeling that that was coming. But as long as we have not seen it and we are not living through it, we are busy with so many other things at the same time that to invest effort and money to rally the partners around that needs political will. You know what it is, politic will — it comes from government.
Senator Stewart Olsen: Thank you very much for your presentation. I found very interesting your feeling that more reports had to be public and the public had to be more engaged in what was happening. How do you think we should go about doing that? I think that's essential. People I was speaking with on the weekend, academics from a university where I live, felt that really the latest happenings were more aberrant than they were real. It seems that they have no idea of the prosecutions that have happened, no idea of the people who have left Canada and gone to fight. How do you manage that? How do you get that out?
Senator Joyal: The government representative — and I'm not shifting the responsibility only to one government. This goes beyond the government of the day. We are talking here about the system, how the system works.
There is no question that the Minister of Public Safety has a very important responsibility. He's the one, on behalf of the government, to coordinate the initiative that the government takes or comes to a conclusion it should take to maintain the security of Canadians. There is a minister with that hat. It's the Minister of Public Safety.
That minister, of course, is the head of a certain number of agencies that he has the mandate to coordinate, and those agencies work with provincial police forces or the RCMP in the provinces where the RCMP act as provincial police, and the municipalities. There is no question, in my opinion, that the Minister of Public Safety is the spearhead of what should be the government approach to that. He should be much more communicative to the people, and not only when a tragedy happens and we are all there in common to deplore what has happened.
I think that new approach has to be taken under the responsibility of one person who, as we say in French, can call the shots, the person who can bring the agencies together. I'm sure that Senator White will corroborate that.
Naturally, the investigative agencies, the intelligence agencies and the police forces act in their own domains, and some are reluctant to share, in the most general terms. We need to break that kind of silo mentality, and this is not easy to do.
Senator Stewart Olsen: That's what I was going to ask. That's what I was wondering. You make it clear in your report that reporting is essential, and clear reports on a timely basis.
Senator Joyal: Absolutely.
Senator Stewart Olsen: I think that's very good. This is just more of a comment, but it's a fine line for any government or any members of the government not to be alarmist but to inform the public. That's an understandably fine line.
Thank you, senator. I think that's a very important point.
Senator Day: Let me ask about the Kanishka Project, which is referred to by the federal government as an answer to the first recommendation of your committee. Have you had a chance to follow up on this? Can you tell us a little about this?
I think, Mr. Chairman, we may want to follow up as well, but this would be helpful.
Senator Joyal: What is important, as you know, is that the police forces and the intelligence agents are cut into a lot of immediate deadline. They have situations to address. To try to better understand the intricacies of how that new situation exists and all its ramifications, it is important to go beyond, in the scholar world, where that kind of expertise exists. In the list of witnesses that we heard in 2010 and the early winter of 2011, there are scholars and specialists, or experts, who have the capacity to have a much broader view and know of the best practices.
For instance, the New York police forces, you might know, have a four-pronged approach to this issue of radicalization. It is important to review that, how they have been conducting that. Great Britain, the U.K., also has a preventive program. It is important to look into that also because they have a very diversified population. The composition of Britain now, in some cities, is as diversified as Toronto. They have learned to address large groups of people with different ideologies and different beliefs, how those people can live together without seeing one another as a threat to their own identity and their own existence.
That project was devised in the context of trying to better understand the capacity of how the new emerging threat could present itself and evolve. We are not there again on something that is fixed. As I said, the flow of information is so quick that something can happen somewhere whereby you don't need to read the paper and wait for somebody to come there as a witness. The next day it's on the Internet, and in your basement you have it in front of you.
It is very important that we develop the capacity to monitor that, and that project was linked with that objective. I think there should be more of those projects. Our first recommendation, as I said, was to invest that kind of money for being able to identify and being able to counter. That has to be done by experts, scholars and specialists. You have a list of people we heard at that time. In my opinion, some of them were very up to date with where we were going.
If you expect that the police are going to do that, they don't have the time to take three agents and put them on a leave to be able to reflect upon those and analyze that and come back and share that with the other agents. It has to be done at another level, and that level cannot be but the national level, as I said, supported by national money.
Senator Beyak: Thank you, Senator Joyal, very much. It's an excellent report and the recommendations are more than worthy.
I was encouraged last week when we were able to give consecutive sentences to the man who killed three RCMP officers — 75 years without parole. Could you elaborate on the recommendation in your report to pass that along to consecutive sentences for terrorist offences? Mr. Alizadeh in Ottawa, two months ago, had 24 years reduced to 9 years for spreading jihadist terrorist messages on how to create bombs and smuggling in the boards to do that.
Senator Joyal: Section 83.26 of the Criminal Code is a section that allows the court to impose consecutive sentences. No specific criteria are linked to that capacity of the court. What we wanted to reflect upon, and that's the recommendation, as I said, number 4 of our first set of recommendations, we thought that terrorism is so important to the freedom of citizens that a court has to take into account the impact that decision will have on deterrence.
I have not studied in detail all the sentencing decisions given by the courts since September 11. The perception I have, and again it is a perception — maybe I should not venture into that territory, and I stand to be corrected — the courts have not been too lenient. They have been rather strong. That's the perception I have. I would have to have the list of all the decisions. It might have happened in the case you quoted that there was a review of the sentence that was in the down rather than in the up. But I think that section 83.26 could be a review to define or determine the specific circumstances into which consecutive sentences could be pronounced. That's what we call upon in our report.
Before you change a section of the Criminal Code, I always say you have to have the factual information on which you base your decision. Are you under a perception or are you under real conclusions? I think in relation to section 83.26 we should be on safe ground. In other words, we should know exactly how the courts have reacted, and, as Senator Stewart Olsen stated, the educational aspect is as important for the court as for any prosecutor or any citizen who watches that and says, ''This is the price to pay if you jump that fence to violence.''
I think your question is still very much on point with the substance of the report.
[Translation]
Senator Dagenais: Thank you for your presentation, Senator Joyal. It shows how important it is that police forces work together on investigations. However, I would like to point out that there are already RCMP officers working at the Sûreté du Québec headquarters in Montreal.
I would like to come back to the case of Alizadeh. In that case, the judge was more or less certain that he had become radicalized in Canada or that he had developed his terrorist ideology while he was in prison. You spoke about radicalization in your report. Is it possible for a person who is in prison, who is getting care and counselling, to be de- radicalized? We know that, in about nine years, that person will almost certainly be let out on parole.
Senator Joyal: I do not know whether you have heard of Gilles Chamberland. He is a psychiatrist who is affiliated with the maximum-security penitentiary in Montreal, Institut Pinel.
Senator Dagenais: Yes, he is very popular these days.
Senator Joyal: If you have been sent to Pinel, then it means you have committed an extremely serious crime.
Senator Dagenais: Absolutely.
Senator Joyal: Your question requires the opinion of an expert in the field. I do not profess to be an expert on de- radicalization. However, obviously, as you mentioned, if a 30-year-old is incarcerated for 15 or 20 years, for example, his lifespan dictates that he will not spend the rest of his life in prison, as in the Moncton case we spoke about earlier. That person will one day reintegrate into civil society. Will he reintegrate into civil society feeling pacified toward the society in which he will live or will he completely rebel against that society and again seek to destroy it?
Clearly de-radicalization is a therapeutic approach — if I may use that expression — that cannot be undertaken unless an assessment can be done by experts such as Dr. Chamberland or other pyschologists who can determine the degree of rage or conviction that a person has. As long as a person holds the conviction that they will go to heaven by taking down police officers or soldiers, they will continue to believe it, but in practice how can we lead such individuals to change their reasoning and convince them that salvation does not come from committing murder or other acts of violence that are completely unacceptable in our society?
That is a question that your committee should ask experts such as those I just mentioned. They will be able to provide you with answers. How do other countries deal with this issue?
[English]
In the U.K., how do they do that? We share some common principles with the British system in relation to criminal law.
I would be tempted to go in that direction, to try to seek advice.
[Translation]
One thing I would suggest to the members of this committee is that, if you are concerned enough about that aspect to make a recommendation, then you should seek answers from experts.
Senator Dagenais: Thank you, Senator Joyal. I will have another question at some point.
[English]
Senator White: I apologize for being late, senator. I do appreciate the work of the report. I think it is excellent and a great opportunity for us to use as a foundation. My question will focus on your discussion around the number of agencies in Canada sharing information, et cetera. We have over 190 police agencies in this country. The RCMP is not the police service of jurisdiction in our two largest provinces or in any of our major cities, yet we do have an expectation that they, when receiving information from CSIS and other partners, will share in those communities.
Do you believe there is a necessity for our Minister of Public Safety, for example, to set in place standards of sharing that would be actually audited so that police agencies of 5 or 500 or 5,000 would receive information in a timely manner so they can actually react, rather than, as some would argue, they don't receive it today?
Senator Joyal: First, there is what I call a systemic culture that has been in place for a long time, long before you were active in the police forces and long before I was active myself in Parliament.
There is a kind of reaction within the system to protect your own territory, your own jurisdiction. As you said and as Senator Dagenais has been saying, there have been breakthroughs; there have been openings in the fences. However, if you want to really address that issue, very serious questions will have to be answered, especially the one regarding the protection of informants, as you know. This is an issue on which the court has made important decisions. In other words, a police force will not share information if they have the impression that the disclosure of their source of information will be debated in court. They would prefer not to say anything or even sometimes not to launch an allegation.
So there are very important criminal consequences when the system does not share the same kinds of protection. You know the debate between the intelligence agencies and the police forces, for instance. There are limits today to what can be shared on the basis of the protection of the initiative and responsibilities of police forces. I am sure you know them probably much better than I do.
But from what I have seen in previous court decisions where police refrain from laying charges because they don't want to disclose the source of their information or they don't want to run the risk of having to disclose it, you can expect that there will be limits to the cooperation among the various police forces. It's a very serious one, but it is but one example.
If we want to unite the capacity that we have in Canada to face terrorism, I think that the role of the public safety minister in relation to the commissioner, Mr. Paulson, and with the municipal police forces, with the provincial police forces, it's very important to address those issues front and centre. As I say, if there are changes to make to our laws, it is up to parliamentarians to decide. At least we will know what the obstacles are to some kind of a better integration of the joint effort. That's how I see this situation.
The Chair: We certainly appreciate your observations and obviously the knowledge that you bring of the studies of the past. You talk about the Internet in connection to the indoctrination and the source for the ideology, whether religious or otherwise, being spread around the world, not just in Canada. We haven't spoken about the individuals who may be doing that in the classroom or in certain other settings in our general day-to-day communities in Canada.
I would like to hear your comments on promoting political, ideological and religious extremism. Do you feel we should be looking at the question of the hate crime thresholds in respect to those individuals who would promote that type of ideology, which is eventually going to end in violence in our community?
Senator Joyal: A crime scale generally is a good measure of an evolving society. Before the Second World War, before the Shoah, hate crime was not something, for instance, against the Jewish community. Before that time, anti- Semitism was not something that public authorities felt they should fight.
You know the history of Canada as well as I do. Canada prevented Jewish immigration during the Second World War, not that long ago. I mean, not 100 years ago, but 60, 70 years ago. However, today we can't accept that. We have come to the same with other minority groups — gays, lesbians and Indians. I remember when I was a kid, I was collecting Indian artifacts, and my mother didn't want me to bring them home. She said, ''Oh my God, it's contaminated. We all will have disease if you bring that home,'' because the perception was that Indians were carrying disease. Today, of course, we would fight that.
There is no doubt that in relation to promoting terrorism through the Internet, whoever promotes it — a teenager, because when you are a teenager sometimes you do foolish things — you have to realize what you are doing in relation to that, as much as when you promote bias against the minority groups I just described. It seems to me that hate crimes evolve with the perception of what a society maintains as being the code of respect of freedom and the way to have different opinions.
It is not, in my conviction, the element of reference that we would have to look into carefully, in depth on the basis of previous decisions of the courts in the context in which those allegations were made, how it has evolved in Canada in the last 70 years, and see how promoting terrorism is not only against a minority, it targets sometimes military or police or other public figures. It's all Canadians who will have to bear the cost of what happened in the last two weeks, not only you and me in Parliament, but all those who will come after us, and all those who are exposed to that kind of retaliation.
It seems to me that it is probably one very fertile ground of reflection and research. If you want to come forward with a recommendation in relation to that, that would be defensible. It would need some kind of study by a legal expert who could do that job for the committee, and that would allow you to come forward with a very substantial recommendation with foundations that would stand the test of public debate.
The Chair: Well, senator, I would like to thank you for taking the time to appear before the committee to answer our questions fully. We know where you reside, so if we do need your expertise, we can call upon it again. Thank you very much.
As we continue our look at terrorist threats to Canada, we are pleased to have with us Mr. Brian Saunders, Director of Public Prostitutions; Mr. George Dolhai, Senior General Counsel, Deputy Director of Public Prosecutions; and Ms. Ursula Hendel, Senior Counsel, Headquarter Counsel, Drug, National Security and Northern Prosecutions Branch.
Before we begin, I would like to make two points clear to all senators and to those watching at home. One, specifics of any given ongoing investigations are not being sought; and two, the committee recently heard from RCMP Commissioner Bob Paulson and CSIS Assistant Director of Intelligence Michael Peirce, who described the situation from their perspectives.
Now the committee wishes to have the Public Prosecution Service of Canada's view on the same question. With that, I understand that Mr. Saunders has an opening statement. Would you please begin?
Brian Saunders, Director of Public Prosecutions, Public Prosecution Service of Canada: Thank you, Mr. Chair. Honourable senators, on behalf of the Public Prosecution Service of Canada, I am pleased to have the opportunity to address this committee in its examination of security threats facing Canada. Joining me today are George Dolhai and Ursula Hendel. Mr. Dolhai is the Deputy Director of Public Prosecutions and is in charge of the Drug, National Security and Northern Prosecutions Branch of the PPSC. He is responsible for oversight of all terrorism prosecutions. Ms. Hendel is Senior Counsel and is the National Security Prosecutions Coordinator. Her responsibilities include advising on issues relating to national security and terrorism prosecutions.
I'd like to begin by providing you with background on the role of the PPSC in prosecuting terrorism offences and in dealing with measures in the Criminal Code that seek to prevent terrorism offences from occurring.
The PPSC was created in 2006 with the coming into force of the Director of Public Prosecutions Act. Our mandate under the act includes providing advice to law enforcement agencies during investigations and prosecuting offences within federal jurisdiction.
Our role as legal adviser to law enforcement agencies is distinct from the investigative role they perform. We do not initiate or direct police investigations. At their request, we provide the police with legal advice during an investigation. This helps ensure that the techniques and procedures they use are consistent with the law, including evolving rules of evidence and the Charter of Rights and Freedoms.
For most criminal offences, once an investigation is complete, the police can simply lay charges if they have reasonable grounds to believe that an offence has been committed. Prosecutors then conduct an independent review of the case and decide whether a prosecution should proceed.
This procedure is altered slightly in the case of prosecutions for certain criminal offences, including anti-terrorism offences.
[Translation]
Before they can lay charges under these provisions, the police must obtain the consent of the Attorney General. Such consent can be granted by the Attorney General of Canada or by one of the provincial attorneys general since such prosecutions fall under federal and provincial jurisdiction.
[English]
To date, the consent for the prosecution of terrorism offences has been given at the federal level. The decision whether to consent at the federal level is delegated to the Director of Public Prosecutions. I, in turn, have authorized the Deputy Directors of Public Prosecutions to also provide consent.
In deciding whether to consent on behalf of the Attorney General to charges being laid or to proceed with a prosecution where charges have been laid, we apply the same test. The test that we apply has two parts: an evidentiary part and a public interest one. We examine the evidence gathered by the police to determine whether there is a reasonable prospect of conviction, not whether a conviction is certain or even probable. If we are satisfied that the evidence meets this standard, we then decide whether the public interest requires a prosecution to be pursued.
I should point out that the public interest normally requires a prosecution where serious offences such as terrorism are involved. Accordingly, we have not declined to prosecute a terrorism case on this basis.
[Translation]
I would like to point out that this criterion or a very similar one is also applied by provincial prosecution services across the country when determining whether they will proceed with prosecution or agree to lay criminal charges.
[English]
The prosecutor must be satisfied that this test is met throughout the proceedings. If at any time during the proceedings the prosecutor concludes that it is not met, he or she should end them by withdrawing or staying the charges.
Once a prosecution has been commenced, the prosecutor is in charge of the proceedings. He or she continues to work closely with the police to ensure that the required evidence is presented in court.
It is significant that we apply the same assessment process for terrorism prosecutions as we do in any other criminal prosecution. Parliament has chosen to include terrorism offences as part of Canada's criminal law. This means, as well, that the admissibility and weight of evidence in a terrorism prosecution is assessed in the same way as in any other criminal prosecution.
Let me now turn to three Criminal Code provisions that are particular to the terrorism context and that are preventative in nature. I refer to the recognizance with conditions, investigative hearings and peace bonds provisions.
In each instance, the prior consent of the Attorney General is required before they can be used. Our role in respect of each of these tools is, where requested, to advise the police on their use and, where appropriate, to consent to their use on behalf of the Attorney General.
In these cases, we assess whether the evidence presented could satisfy a judge that the legal requirements for the measure have been met. I say ''could'' rather than ''will'' deliberately. Whether a judge ultimately will agree with our request is not our test.
Honourable senators, I hope this brief summary has helped you better understand our role in the handling of terrorism offences, both before and after charges are laid by the police.
As in all serious criminal cases, we work in close collaboration with the police during the investigative stage while respecting their independent role. They work closely with us once charges are laid or proposed, and we exercise our independent prosecutorial role. This close collaboration and mutual respect helps ensure cases are dealt with fairly and justly.
Thank you for the opportunity to address the committee. We are pleased to answer your questions.
The Chair: Thank you, Mr. Saunders.
Senator Mitchell: Thanks, Mr. Saunders. The last time I saw you, I wasn't calling you ''mister.'' We were both about 14 years old going to school together. We haven't seen each other — full disclosure, we haven't seen each other for about 49 years, I think. In any event, very informative and helpful presentation. Thank you.
I just want to go back to this idea that there is a difference, and it's not slight, between the police power to charge somebody for a criminal offence and the police power to charge somebody for a terrorism offence, the latter requiring your office's approval. Why is that? What's the significance of that? Is that some kind of safeguard?
Mr. Saunders: There are a number of offences within the Criminal Code that require the prior consent of the Attorney General before the charge can be laid. There are nine or ten offences in addition to the terrorism offences. There are offences under other federal statutes that have that same requirement, for example the Crimes Against Humanity and War Crimes Act. And in certain jurisdictions — British Columbia, New Brunswick and Quebec — there is a practice whereby the prosecutors approve all charges before they are laid.
Now, if you ask me why the consent is put in the Criminal Code, the Law Reform Commission did a study on this in 1990 and found no rhyme or reason as to why it is in there, but typically it is seen as a safeguard. You will see it in conjunction with defences that have international limits on them sometimes. For example, it's in the code with respect to public nudity. There it's seen as a way of, I guess, protecting the community interest as to what is acceptable or not. So there are various reasons as to why it is or is not in relation to certain offences.
Senator Mitchell: Okay. Thank you. There is this discussion, and part of the debate is this concern that perhaps police and intelligence authorities don't have all the legal power at their disposal they might need to confront the kind of homegrown terrorist threat or whatever threat it is that we're facing today. There are several, if not many.
Could you give us some idea of your impression of the state and status of the legal powers that the police forces, CSIS and CSEC have and so on, or is that too big a job in 15 minutes?
Mr. Saunders: That is too big a question. We don't deal with or provide advice to CSIS. Our mandate limits us to providing advice to law enforcement agencies. CSIS is an intelligence agency, so we don't typically deal directly with them. They have their own legal service unit, and that's their responsibility.
In terms of intelligence being used as evidence, which I think is encompassed within your question, we aren't responsible for the gathering of evidence. We aren't responsible for assessing whether a certain piece of intelligence would be useful as evidence or for transforming intelligence evidence. That is the role of the police, and that is the investigative role that they perform independently.
Senator Mitchell: Do you feel, then, to the extent that you're focused on the police — and I get that — that there are areas where their powers are more limited than they should be? Are there powers that they could be given, that would be consistent with civil liberties and so on, that are lacking at this point?
Mr. Saunders: I think the police are better placed than we are to suggest what investigative measures or techniques they might use in addition to what is already available. Our role is to advise the police on the techniques that exist and to ensure they use them in a way that conforms to the law.
The Chair: Could I follow up on that? I think it's a question of the threshold of the current laws that Senator Mitchell was referring to. Are the thresholds too high in respect of giving advice to proceed with a successful prosecution, or are you satisfied that the thresholds are where they should be?
Mr. Saunders: The threshold that we use in determining whether consent should be given is the same threshold we use in all cases in deciding whether the prosecution should continue. It is the threshold, as I mentioned, that is used by all provincial prosecution services as well, and a similar test is used in other Commonwealth countries. It expresses the gatekeeper role that prosecutors are there to play.
We aren't there to substitute ourselves for the trier of fact. That's the court. We're there to make sure that the case is one that is sufficient: There's sufficient evidence and the public interest element is there to place someone in jeopardy in the criminal justice system.
Senator Stewart Olsen: I just need a little bit of help with how the investigation actually proceeds. You would be involved from day one of an investigative process? Supposing terrorism were being investigated, a certain group or whatever, would someone from your office be within some of the national task forces that would be pulled to work together as a team to proceed forward with that? Do you have someone — and I hesitate to use the word ''embedded,'' but that kind of thing?
Mr. Saunders: I'll ask Mr. Dolhai to answer that question because he's in charge of the oversight of terrorism prosecutions.
Senator Stewart Olsen: Thank you.
George Dolhai, Deputy Director of Public Prosecutions, Public Prosecution Service of Canada: Senator, we have counsel who are assigned to each one of the Integrated National Security Enforcement Teams, the joint RCMP and municipal and provincial police forces. They're there to provide ongoing advice, both on matters that have reached a point where they're a project file — they've crystallized to that point — and also as they're going along with their various investigations that may not have reached that point, but where they would need advice about search warrants or any other investigative tools they might have occasion to need to use.
In addition, in those provinces where there are no INSET units, we have senior counsel. Counsel who work on terrorism files are all our most senior counsel who are, again, designated to deal with those inquiries on an ongoing basis.
Once something has reached a level of what I call a project file, so it's crystallized more and potential accused are identified and steps are being taken in a much more structured way to deal with it, we will generally assign counsel to be the pre-charge advice counsel. They will then basically follow that through to the point at which a recommendation needs to be made as to whether or not it's ready to proceed to charges.
They'll usually play a role after that as well, and we will generally have another senior counsel come on board as the lead at that point. That way we have some continuity, but we also have fresh eyes coming to it as it's proceeding forward.
Senator Stewart Olsen: You're satisfied you have enough resources to cover off all of these ongoing investigations and be a valuable member of the team?
Mr. Dolhai: We're not here today to ask for resources.
Senator Stewart Olsen: No, no, I know.
Mr. Dolhai: But we have counsel that we are able to put on these cases. As I said, we put our most senior counsel on them, and it may be a matter of prioritization at times. These cases are very significant and important, and we want to put experienced counsel on them, but we have those resources.
Senator Stewart Olsen: Thank you.
Senator Beyak: You mentioned that you have the prosecution role. With the 90 high-risk people that Canadians are so concerned about, do you have the ability to use the Anti-terrorism Act provisions for investigative hearings? Have we ever done investigative hearings in Canada and come to a prosecution or conviction from that?
Mr. Saunders: One application to use the investigative hearings was made in the context of the Air India case, but the hearing did not take place. The order was obtained and that's it. Apart from that, it has not been used.
Senator Beyak: Do you have enough tools under the Anti-terrorism Act to grant an investigative hearing if you were asked for one?
Mr. Saunders: The provision is there, and it could be used. We would typically rely upon the police to come forward and say they want to use this technique. During the course of the investigation, we would make sure that the test that the legislation sets out is met. Once a consensus is reached on that, as you know, under the provision the consent of the Attorney General is required, so we would consider whether the consent should be given.
Senator Beyak: Have they asked you, in any of these 90 cases, to do that?
Mr. Saunders: In the 93?
Senator Beyak: The 90 or 93 — we've heard both figures in the last week.
Mr. Saunders: We've never refused a request.
The Chair: There's never been a request, then?
Mr. Saunders: You will probably hear this as your questioning continues, that the advice we give the police during investigations is protected by solicitor-client privilege, so we're always reluctant to get into areas where we could disclose that privilege. That explains our reluctance to answer the question as straightforwardly as you might wish.
The Chair: Just to get the record clear here, what we're trying to determine is whether the laws presently in force are adequate to deal with the various situations that our law enforcement agencies have to deal with. If we've got a law on the books and it's not being utilized, we should be told why, because it's not of much value.
I'm just using this as an example. This is one of the reasons we've asked you to come before us, so we'd like to get your comments on the record. If you're unable to use some of these laws, why is that? What would have to be changed so that we could then meet that question of the public interest?
Senator White: Thank you to each of you for coming today.
My question is in relation to a response given by the commissioner when he appeared before us on Attorney General approval for peace bond applications.
I appreciate and understand the need for Attorney General approval for prosecutions. Are you as strongly entrenched in Attorney General approval for peace bond applications under the legislation?
Mr. Saunders: By ''strongly entrenched,'' we've used peace bonds on six occasions in conjunction with the Toronto 18 case, but they were obtained in a slightly different manner than you are thinking of here. Five of them were obtained as part of a plea resolution. We assessed that there wasn't sufficient evidence to continue with the prosecution, but there was sufficient evidence to meet the threshold for getting a peace bond against the five individuals. One was obtained against an individual who was convicted, and at the end of his sentence a two-year terrorist peace bond was obtained against this individual because it was thought that he still met the criteria for obtaining a peace bond.
Senator White: If I may, the discussion was actually around a terrorist peace bond while under investigation, for example, on the 83 or 90 individuals, whatever number we use until Monday. The suggestion was that the extra step needed to get Attorney General approval was certainly a delay in some way to the police being able to fulfill the expectations we have of them.
Mr. Saunders: Yes, it's an extra step, but we do our best to move as quickly as possible on this. I will ask Mr. Dolhai to give you some background of how we can move quickly. Within the space of a few hours we can provide the consent, if required.
Mr. Dolhai: As Brian indicated, it is an extra step, but we have endeavoured to ensure that by having people on the ground who are involved with the police as they are doing the investigation, they are in a good position to know what the nature of the file is and what evidence does or does not exist, so that if there is a request, they can respond.
In addition to the Toronto 18, the six — the five for whom the charges were stayed and the one post-conviction — I have signed consents for two others during the course of investigation, and those were obtained relatively rapidly. But again, it's because of the fact that they're involved on the ground.
We have had instances, senator, where even in the context of a laying of a charge, because of the way the investigation arose, really out of the blue, we have been called upon to consent. One of them, for example, was the terrorist financing case in British Columbia involving Mr. Thambithurai. Mr. Thambithurai was arrested. When we were notified and requested for a consent, which needs to occur before his first appearance, that consent was granted within a number of hours.
In the instance of Mr. Nuttall and Ms. Korody in British Columbia as well, that request was responded to in a number of hours. That was in a charge context, but certainly in the peace bond context we have responded.
Senator White: So you don't see a need for any change at this point?
Mr. Dolhai: It's a question of the wisdom.
Senator White: If I may follow up on this, because I think it's the only case in the Criminal Code — and correct me if I'm wrong, and I'm sure you will, Brian — where we require Attorney General approval on a peace bond. Is it the only case?
Mr. Saunders: No. As you know, there are a number of peace bonds that build onto the code. So if you want to get a peace bond in relation to a criminal organization, it is the same provision as for terrorism. Also, for serious physical harm, there is a requirement for Attorney General consent as well.
Recall as well that under the terrorism provisions of the Criminal Code, there is a provision for recognizance with conditions, which is similar to a peace bond. It requires the Attorney General consent as well. In that case, however, the police could arrest someone without the Attorney General consent, as long as they have the consent before the information is laid. If there are exigent circumstances, they could arrest someone, then obtain the consent and then lay the information for the recognizance with conditions.
[Translation]
Senator Dagenais: I would like to thank our three witnesses for being here with us today. Mr. Saunders, I would like to come back to the law that allows preventive arrests. We spoke about it quite a bit last week. Under this law, we could neutralize the 230 radical Islamists who have been identified in Canada, including the 90 who are on the list of high-risk individuals. I would like to know why this law has practically not been used in Canada as compared to England or Australia.
Mr. Saunders: I am not in a position to comment on the situation in Australia or England. However, I can say that we have worked on a few files here. Mr. Dolhai just mentioned two cases where the necessary consent was given to obtain a peace bond. We are working toward that, not necessarily in every case that you mentioned, but we are working with the RCMP on a number of cases. We are part of INSETs, of course, but we need proof under the Criminal Code to operate.
Senator Dagenais: I have another question to ask later, Mr. Chair. Thank you, Mr. Saunders.
[English]
Senator Baker: Welcome to the witnesses. All three of you are experienced litigators. That's a good quality, and I think you've been doing a great job, looking at your performance.
Mr. Saunders, when you say that you make the decision, it's actually the deputy who makes the decision whether or not to proceed with a proceeding with a charge. There is a form which he signs, giving the authority under the act of the Attorney General. You explained there were other sections of the Criminal Code in federal law that have the same provision whereby you make the decision as to whether or not charges are going to be laid.
Would you not agree with me that those other situations are distinguishable in that they involve such things as war crimes, the commission of an act by a non-Canadian in a foreign country, corruption of the judiciary, Canadian Human Rights Act violations and so on, and that's quite distinguishable from a criminal act that you are investigating involving terrorism?
Mr. Saunders: The provisions I mentioned that require the consent of Attorney General are found in the Criminal Code. You mentioned a few.
Senator Baker: There are three more.
Mr. Saunders: For example, public incitement of hatred and things of that nature. Are they different? They are all Criminal Code offences. They are all under the criminal law of Canada. As I mentioned, Parliament made the choice to place the terrorism offences in the Criminal Code and have them treated in the same manner as other code offences in terms of procedure, the weight of evidence and admissibility of evidence. Parliament decided as well to put the consent provision in respect of terrorism offences, as it's done with certain other offences.
In terms of the consent required, you indicated that it was given by the deputy.
Senator Baker: He signs the form.
Mr. Saunders: Well, no.
Senator Baker: I'm sorry. I've got the form here.
Mr. Saunders: Yes, okay. The deputy director signs the form.
Senator Baker: Yes.
Mr. Saunders: Yes, okay.
Senator Baker: Now, there is a quite a difference between, as you pointed out, you deciding to lay a charge. You said — I heard you correctly — that you follow the normal procedure whereby your instructions are in your desk book, I think you call it, to your prosecutors. I've read your desk book. The instructions are that to proceed with a prosecution, the prosecutor must be assured that they have more than a prima facie case, more than just the bare elements of the offence that would be made out. There has to be something beyond that. Those are the exact words that are there.
Now, if you are making a decision under the terrorism act on those bases, that's quite different than a decision that would be made under the terrorism act by the police. We have two experts of the police here on this committee. They were both active for years and years and years. To decide whether or not to continue a prosecution is quite different than to decide whether or not to arrest and lay a charge. If we had the same standard with the Controlled Drugs and Substances Act, I would suggest we would not have very many prosecutions.
I know you're following what's in the Criminal Code. This is what we've laid down in the law, but what we're looking for is an answer to the question of why there is a different standard under the law for terrorism acts in the laying of the charge than there is for the laying of a charge under the CDSA.
Mr. Saunders: There isn't a different standard. There is the same standard. I apologize if my opening comments weren't clear enough on this. We apply the same standard regardless of whether we are considering whether to consent to charges being laid or whether we're dealing with a case where charges have been laid by the police and we're deciding whether to continue with the prosecution. We apply the same standard in both situations, and in those three jurisdictions I mentioned — B.C., Quebec and New Brunswick — where every charge has to get approved by the prosecutor before charges can be laid, they apply a similar test to the one we apply.
Senator Baker: That's in those three provinces. Those were decisions of the provincial governments in those three provinces to go about it that way. At common law in this country, there is a great distinction between the police activity of investigating and laying a charge and your responsibility to continue a prosecution. When the police investigate and lay a charge, that's when they find a lot of evidence. When they storm into a home that's producing drugs and they get that evidence, then the prosecutor looks at what? The prosecutor looks at the grounds for making the arrest and the raid, but also the results of the raid and so on.
I guess you don't agree with me that there is a quite a difference between the standard used to continue a prosecution and that used to initiate a prosecution, and a lot of people can't understand why we just don't let the police investigate and lay charges under the terrorism act.
Mr. Saunders: The police can lay charges under the Criminal Code for those cases where consent is not required so long as there are reasonable grounds to believe an offence has been committed. In all of those cases, we apply the test we've been discussing, the two-pronged test I mentioned. The test is not a balance of probabilities; it's lower than a balance of probabilities. It's a screening test. It's in fulfillment of our gatekeeper role that prosecutors in Commonwealth countries have to fulfill. In cases where consent is required, we apply, as I mentioned before, the same test. There isn't a different test being applied by us depending on whether charges are laid directly by the police or whether consent has to be required.
Senator Baker: That's a very good answer. Thank you.
The Chair: I would like to follow up in respect to Bill S-7. Since last spring it has been a terrorism offence to attempt to travel abroad to engage in or participate in or facilitate a terrorist activity.
I don't know if you have the numbers here, but could you inform us how many charges with this offence have been undertaken since the passage of that bill?
Mr. Saunders: I'll ask Mr. Dolhai to assist me on this one.
Mr. Dolhai: Prior to the coming into force of the bill, we did have a prosecution in the Hersi matter where that was exactly what Mr. Hersi was up to. He was heading toward going overseas in order to become involved in terrorist activity; in fact, he counselled someone else, an undercover police officer, to do so, and he was then convicted in relation to that.
Since that time, in Project Supervision, we have had Mr. Yusufzai charged with the new offence, the section 83.181 offence of going over to commit the terrorist activity. I think that's the only one to date.
The Chair: Because I think this is very important, I want to follow up on what Senator Baker was leading to.
We have been told and the public has been told that there are approximately 135, maybe more, Canadians or dual citizens who have left Canada and who are involved in terrorism organizations, primarily in the Middle East. We have also been told there were 80 a week and half ago, and then it went to 90 and then we got to 93 individuals who have been identified and/or are under surveillance for the question of possible terrorism involvement.
It seems to me this is a section we should be utilizing if, as we've been told, a number of those 93 individuals have been involved overseas and have come back; this particular section would be utilized for the purposes of charges. How come this particular piece of legislation isn't being utilized more often, in view of the threat that Canadians are facing with the numbers that we're talking about?
Mr. Dolhai: Senator, that relates again to the question of what the evidence is that relates to the individuals who have been identified. There are persons the police quite legitimately would identify as being worthy of an investigation, of gathering evidence in order to find out if there is sufficient evidence to lay the charge. The additional question then is this: At the point at which the investigation is concluded, is there sufficient evidence for there to be a reasonable prospect of conviction? The legitimate investigation by the police of those individuals does not necessarily coincide at this moment in time to there being that many cases that are ready to go for charges.
The Chair: I'm going to pursue this a little further. I am from the country here, so bear with me, but I think I'm perhaps expressing the thoughts of many Canadians in respect to this very real issue we face. If we are not utilizing this section for those individuals who obviously have been identified, who obviously have been involved — now, one can argue to what degree — with terrorism in one manner or another, why aren't we using the peace bond then more often? I don't understand this. Are we going to wait until another situation develops and then we're going to wish we had? What do we have to put in place to diminish the threat that Canadians are facing on a day-to-day basis in our country if we're not utilizing these various sections that are already in place, or is there another law we have to pass?
Mr. Dolhai: When we are presented with the evidence, we are prepared to assess it and, if appropriate, consent to the laying of those charges, including those new charges, and we have done so. The case I mentioned in British Columbia was one where that very charge was laid, and there will be instances no doubt where the level has not reached that of a charge but the peace bond provision is triggered.
I mentioned that I've consented to two such instances where the issue was that very sort of conduct.
The Chair: I could pursue this all day. I know Senator Mitchell would like to ask questions.
Senator Mitchell: I will pursue it a little further. Not being a lawyer, it all comes down to evidence, it seems, and its quality. Two things on the CSIS side, and I know you don't deal directly with CSIS, but at some point it reaches a threshold for CSIS and then goes to the RCMP. CSIS can activate its investigation on a lower threshold, which is suspicion, than what the police have to establish. Second, CSIS has a concern that it can't protect the anonymity of its informants once the information is rolled over to the police side, and that is correctable, apparently, in legislation and obviously in legislation.
Is part of the problem that interface that you deal with? Is it that much of this starts with CSIS, lower thresholds of suspicion rather than the higher thresholds required of police investigations, then this question of their reluctance perhaps of not wanting to have their sources revealed? Does that become an impediment to establishing sufficient evidence to do more of what you've done a limited amount of?
Mr. Saunders: I'll start the answer to that question.
The transformation of intelligence into evidence, as I mentioned before, is the responsibility of the police. It's a difficult responsibility, but they have to gather evidence that is admissible in a court of law. That's the evidence that we can rely upon when we do an assessment of a case in order to give consent and when we subsequently prosecute.
Equally for a peace bond, it is a lower standard than obtaining a prosecution because it is a preventive measure, not punitive. The standard is lower, but credibly based evidence has to be presented to a judge to convince the judge that restrictive measures should be placed on an individual for up to two years, depending on prior conviction.
That's the problem the police face. It's not an easy task to gather evidence as to what someone did in a foreign jurisdiction. They know the people have gone over there. They have strong suspicions about what people have done while over there, but to get evidence as to what they have actually done that would be admissible and convincing in a court of law is, at times, a difficult task.
Senator Mitchell: My next question is about resources, although you are not here to ask for them. It sounds to me like the issue as you're depicting it, and I'm not arguing with it, is the question of how the police collect the evidence, and you seem to have the resources to be able to assess that clearly enough.
I just notice, for argument's sake, that Ms. Hendel is responsible for headquarters counsel, drug, national security and northern prosecutions. That's quite a range of responsibilities, and when you are talking about drug prosecutions, northern prosecutions and national security, is there any chance that — and this sounds more aggressive than I want it to be — one of those is slipping through the cracks? Or how do you make sure it isn't?
Ursula Hendel, Senior Counsel, Drug, National Security and Northern Prosecutions Branch, Public Prosecution Service of Canada: I work in the department of drugs and northern prosecutions, but I am almost entirely and almost exclusively dedicated to the coordination of terrorism prosecutions. That is 95 per cent of the function of the position that I occupy. It's just that I'm under the umbrella of that branch of the public prosecution, but I'm the national terrorism prosecutions coordinator, and that's almost all I do.
Senator Mitchell: How many people do you have reporting to you in that capacity on that issue?
Ms. Hendel: I am a coordinator, not a supervisor, but we have dedicated counsel in every office across the region who are either terrorism coordinators, have experience prosecuting terrorism cases or have been identified as the go-to people for terrorism prosecutions. We all have a good, close coordination; we all have each other's BlackBerry numbers; we provide 24-7 coverage; and it's given a high priority within the public prosecution service.
Senator Mitchell: How many offices do you have across the country, and how many of these particular types of people would be in each office?
Mr. Saunders: We have 11 regional offices. They are in every province with the exception of Prince Edward Island and New Brunswick. We have the local office in New Brunswick and in St. John's, Newfoundland. They report through Halifax. We have offices in every province with the exception of Prince Edward Island.
Senator Mitchell: How many people specifically work on terrorism?
Mr. Saunders: At any one time, between 15 and 20 senior prosecutors work in the area. They wouldn't be working full-time, necessarily. They would be working full-time during the course of a prosecution, or, if they are assigned to an INSET, they might be assigned in the area.
Senator Mitchell: Has there been an increase in the incidence of prosecutions or of investigations of terrorism?
Mr. Saunders: For prosecutions it varies. We just completed two prosecutions, one here in Ottawa and one in Toronto. We have two prosecutions ongoing, one in Vancouver. Mr. Dolhai referred to the Nuttall case. There is one in Toronto, Esseghaier and Jaser. We have three cases outstanding where there are warrants outstanding for five individuals who have left the country.
The Chair: Who have left the country, but are outstanding?
Mr. Dolhai: That's right. Two left from Manitoba, one from British Columbia, and two are from outside of Ontario.
If I can add to the response, senator, I guess I'm the umbrella that Ms. Hendel was referring to. The three areas report to me, and our structure is one where we have chief federal prosecutors in each regional office. My fellow deputy director and I divide up the country in terms of where the reporting obligations are, and we also divide up the subject matter areas.
At any one time, we'll have the equivalent of 15 to 20 senior counsel working on terrorism-related issues. That might mean that a particular senior counsel is spending half of his or her time on it at that particular moment. The sum total of the time that they are spending is the equivalent of 15 to 20 very senior people. Those are the people who are involved in an ongoing basis.
Then we have surge capacity. If we have a case that comes up like the Toronto 18 case, we had five counsel on that case as well as paralegal and support staff. In relation to the Samossa prosecution here in Ottawa, we had at any one time four counsel and support staff on it and drew upon, for example, our senior general counsel from British Columbia as the lead counsel on that file. That's something we've done consistently, where we try to ensure the lead counsel on a file, wherever it's located, has our most senior litigators who are senior general counsel overseeing the prosecution.
The Chair: You mentioned five individuals who had left the country. Obviously, they must be Canadians. Have charges been laid against them? I didn't understand what you were saying about those particular files.
Ms. Hendel: Just by way of clarification, in relation to the five individuals, two are foreigners; they were never in the country. It's in relation to an act of terrorism that occurred overseas where Canadians were victims. So we have three Canadians for whom there are warrants outstanding for their arrest.
The Chair: Thank you.
Ms. Hendel: All have warrants for their arrest, but three are Canadian.
Senator Day: Mr. Chair, I will go back to the same question of assessing the evidence that's involved.
As I understand the information that you gave us, Mr. Saunders, the test the police provide for whether to lay a charge or not is if they have reasonable grounds to believe that an offence has been committed, and then you made an important distinction not talking about terrorism offences but normal situations. So that's the police test. Then the prosecutor's test to determine whether the prosecution should continue is whether there is a reasonable prospect of conviction. Have I got that right?
Mr. Saunders: Yes.
Senator Day: Then your comment here in relation to terrorism offences — and never mind the public interest aspect, but the evidentiary part is what I'm interested in — where consent is necessary from the prosecution as opposed to others where the police can go ahead on their own and lay the charge. You say in deciding whether to consent on behalf of the Attorney General to a charge being laid or to proceed with a prosecution where charges have been laid, you will apply the same test.
But there are two tests, and they are different. So with respect to consent you're saying you are applying the same test. Are you applying the test that the police would apply, or are you applying the test that the prosecutor would apply?
Mr. Saunders: In all cases, the police would apply the test of reasonable grounds to believe. If they have reasonable grounds to believe, in most cases, they can lay charges. When it comes to terrorism, they'll come to us and seek our consent.
Senator Day: What is the threshold?
Mr. Saunders: The test that we apply in all cases would be for cases where charges have been laid and the case has come to us. We have a screening test we apply. That screening test is also applied to cases where consent is required, and that is the test of whether, on the evidence, there is a reasonable prospect of conviction. If we are satisfied that is the case, we then ask ourselves, is the public interest required in the prosecution?
Senator Day: Yes. So in this area of terrorism cases, the test to get consent is a higher level than it would be for the police in a non-terrorist case. I think that's the point that Senator Baker was trying to make that I was following him up on, and then I couldn't understand from reading what you had said how it's different.
Mr. Saunders: The test that we apply is the same, regardless of whether it's a case of where the police have already laid the charges —
Senator Day: They haven't. This is an offence of terrorism.
Mr. Saunders: What I'm trying to say is that we apply the same test, regardless of whether it's a case where the police have laid charges and we are deciding whether to continue with the prosecution or they're coming to us for consent. The same test is applied by us.
Senator Day: By you. Therefore, in terrorism offences, there cannot be consent, and therefore, there cannot be a charge laid, unless there's a reasonable prospect of conviction; correct?
Mr. Saunders: Let me approach it in a different way. Say that you were to remove the requirement of consent —
Senator Day: Yes.
Mr. Saunders: — so the police could lay a charge directly. The charge would come to a prosecution service; usually it would come to us.
Senator Day: Then you would apply your test.
Mr. Saunders: But it could go to any province equally. The prosecutor would then apply the test of whether there is a reasonable prospect of conviction and whether there is public interest. If so, does the public interest require a prosecution?
Senator Day: So you can't answer my question. In order to get consent, the threshold for a charge to be laid in a terrorism offence is higher because it's the prosecutor's test that initially determines whether a charge should be laid?
Mr. Saunders: I'm sorry I'm not being very clear. We apply that test even in cases where the police have laid charges. So in a typical case, someone gets charged with possession of cocaine for the purpose of trafficking. The charges have been laid. The file comes to us. The prosecutors review it, and they apply the decision-to-prosecute test, as we call it. They ask themselves, is there a reasonable prospect of conviction on the basis of the evidence the police have put forward in their brief? If there is, does the public interest require a prosecution?
So that test is applied in that circumstance as well. We're applying the same test to every case, regardless of whether it's one where the charges are laid already before the file comes to us or it's a case where our consent is required. In order to give our consent, in effect, we apply our decision-to-prosecute test.
Senator Day: Yes. Exactly. So in the terrorism situation, because consent is necessary from the prosecutor, a charge may not be laid until the prosecutor's threshold in relation to the evidence is there.
Mr. Saunders: That's right.
Senator Day: Excellent. We're there.
Mr. Saunders: But if you remove that requirement of consent and the police just laid a terrorism charge directly, we would then get the file and we would apply that test.
Senator Day: Exactly. I understand. But the charge would have been laid. We had the Commissioner of the RCMP, and he wants the threshold reduced, but it looks like, to me, from a terrorism point of view, from the point of view of laying the charge, the threshold is higher and the commissioner would like it lower.
Mr. Saunders: No, no. In his testimony he didn't say anything about the test being applied for prosecutions. He was talking about peace bonds.
Senator Day: Okay. I extrapolated his evidence to other things.
Mr. Dolhai: If I could just add, senator, there is a different test that the police apply — which is reasonable and probable grounds — and the one that we apply. In the pre-charge jurisdictions, that happens before the charge is laid; and in the post-charge jurisdictions, putting aside terrorism for a moment, that happens after the charge is laid.
But in a complex case, which a terrorism case would be, it should not occur, just as it shouldn't occur in a complex drug case or a complex criminal organization case, that there hasn't been such cooperation moving along through the investigation that when the moment comes that there is enough evidence to proceed and the arrest to be made, knowing a charge has to be filed within 24 hours, that the police and the prosecutors aren't on the same page with respect to there being sufficient evidence.
The whole point of our being involved early on is so there are no surprises at the point at which the police determine they want to move and go ahead. We've given our assessments, and they're in a position to more or less know the state of the file at that point and how it's going to be prosecuted and managed.
Senator Day: Thank you. That was helpful. I was thinking that you weren't quite as close together.
Mr. Dolhai: We are very close together.
Senator Day: Thank you.
The Chair: Senator Baker would maybe like to join this discussion.
Senator Baker: Yes. Of course, if the police were conducting a raid on an establishment looking for drugs, they would have the result of the raid to establish whether or not there would be reasonable grounds to continue with the prosecution.
Let me read from your booklet, assistant deputy director, which places this definition of a reasonable prospect of conviction. This is the standard used prior to a charge being laid under the terrorism act. It says:
A reasonable prospect of conviction requires that there be more than a bare prima facie case, or in other words, it requires more than evidence that is capable of making out each of the necessary elements of the alleged offence against an accused.
We all know that a judge, in determining whether somebody is guilty, looks at the constituent elements of the offence, if they're made out, and the person is deemed to be guilty. So I'm wondering what is meant by ''. . . it requires more than evidence that is capable of making out each of the necessary elements of the alleged offence against an accused.'' More than prima facie evidence. What do you mean by that before charges can be laid?
Mr. Saunders: You have to read the entire paragraph. It goes on to state that the test we apply is not a balance of probabilities; it's lower than a balance of probabilities. It also goes on to state that we do not usurp the role of the trier of fact. It's a screening test that we apply. We satisfy ourselves, yes, that there's evidence on each of the constituent elements of the offence, and we also look to see whether there's credible evidence. We look to see whether there have been any Charter violations. We look to see whether there is an alibi that the police might have missed. Those are examples given.
But we are very clear that we do not impose a test that is set so high that the case can't proceed. We are there to perform, as I mentioned earlier, our gatekeeper role. We screen out the cases that aren't going to succeed at trial.
Ms. Hendel: If I might be so bold as to add, Senator Baker, you've referred to a scenario where an arrest is made and then evidence is gathered in —
Senator Baker: That's normally what happens in drug cases.
Ms. Hendel: That is what happens in a terrorism case as well because the police do not need our consent to arrest a suspect. They need our consent to lay charges.
So in the normal process whereby a person can be arrested, warrants can be executed, statements may be obtained from the suspect who's under arrest, if they choose to provide a statement to the police, that all follows the normal course. The requirement to consent doesn't operate as a function to prevent the police from conducting an investigation or from carrying out an arrest. It's engaged prior to the charges being laid.
As Mr. Saunders said, that test, in a non-consensual situation, would be engaged perhaps slightly later because you could lay the charge and then send the file over to the prosecution, and in the gap between the time that the police lay their charge and it makes it to the prosecutor's desk, the test might not be applied. But it doesn't claw back insofar as to prevent the police from carrying out an arrest or from conducting the sorts of activities that I think you would conceive of as a raid. It would be following in that sort of category.
Senator Baker: Are you talking about an investigative detention?
Ms. Hendel: No, I'm not. I'm not talking about an investigative detention. I'm just talking about a normal — so in a number of —
Senator Baker: So 10(a) of the Charter says what, 10(a) of the Charter, your reason for arrest.
Ms. Hendel: Yes.
Senator Baker: Is what?
Ms. Hendel: That they're being arrested for a terrorism offence. Charges have not been laid at that juncture.
Senator Baker: So anybody who, where there are reasonable grounds to suspect or believe?
Ms. Hendel: ''Reasonable grounds to believe'' would be the police standard for effecting an arrest.
Senator Baker: So the police can arrest all of these people without laying charges?
Ms. Hendel: They could. You can arrest somebody, but after they're arrested you can't detain them indefinitely. A person is arrested by the police and then they must be brought before the court on charges or they must be released unconditionally.
Senator Baker: How can the police search then?
Ms. Hendel: With a search warrant.
Senator Baker: They have to get a search warrant after that.
Ms. Hendel: Right.
Senator Baker: And the person hasn't been charged.
Ms. Hendel: Yes. They could get a search warrant before or after a person was charged.
Senator Baker: I'm really glad to have you here.
[Translation]
Senator Dagenais: Mr. Saunders, I would like to come back to section 810 of the Criminal Code. Correct me if I am wrong, but this section seeks to impose restrictions on people suspected of terrorism. These restrictions include, for example, being prohibited from leaving the country or from having access to the Internet or a cell phone.
Have you ever used this legal prerogative? If so, did it prevent interconnections or serve as any sort of deterrent to terrorist movements?
Mr. Saunders: As my colleague Mr. Dolhai mentioned, we used peace bonds on six occasions, five of them in conjunction with the Toronto 18 case. In the end, the charges against them were dropped because of insufficient evidence, but we did get peace bonds against the five accused. Another individual was convicted of a terrorist offence, and at the end of his sentence, a two-year peace bond was obtained against him. Mr. Dolhai also mentioned that they recently signed two other peace bonds.
[English]
Senator Beyak: Thank you, gentlemen. We've heard from groups over the last weeks, before the attack occurred last week, and I think Canadians watching this broadcast are very respectful of everybody's positions and limitations. No matter what Canadians' education — and a third have university, a third have trade school or college and a third have grade 12 or less — they don't want to hear us talk. They don't want a thousand reasons why we can't solve this problem. They want us to put our collective heads together and find a way to protect the rights of 35 million Canadians instead of the rights of 90, 93 or 130 individuals.
How do you propose we do that together as parliamentarians, bureaucrats and governments? There has to be a better way for Canadians than to just listen to us talk as the problem gets worse.
Mr. Saunders: I can talk about what we do in order to achieve that goal. As mentioned, we work in close collaboration with the police during the course of their investigations. Because of the independence of the investigative function from the prosecutorial function, we have to respect that, and they respect our independence. Nevertheless, we do work in close collaboration. Our respective independence doesn't prevent us from doing so.
We provide them with advice on the use of these tools. We provide them advice on whether the evidence they have gathered to date is sufficient to meet the requirements in the Criminal Code for obtaining preventative measures or for charging someone.
We provide them advice on the gathering of evidence. The law, as I mentioned in my opening, is evolving. At times it's complicated, as you heard from us today. To expect a police officer who is gathering evidence and working all-out to gather that evidence to know all the intricacies of Supreme Court of Canada decisions is expecting too much. That's our role, to assist them in understanding the law to make sure that evidence is gathered in the appropriate way.
That's what we're doing in order to achieve the goal that you have mentioned.
Mr. Dolhai: Senator, if I could just add, again, coming back to the nature of these files and the way we work together with the police — at all levels, because these are usually integrated files — our role is to provide them with advice. In providing advice, it's not a matter where a police officer will come up and say, ''I want to do X,'' and the Crown will say, ''You can't do X.'' ''Well, I want to do Y.'' ''Well, you can't do Y.''
The relationship is one where the Crown is very well-versed in the nature of the investigation and what is trying to be sought, and as part of that is going to be saying, ''You can't do Y because of this impediment,'' but is there another way to do it?
There are other things that are allowed within the criminal law that are constitutional that might be the same sort of thing. You, as an investigator, decide whether that works for you or not. It's ultimately a relationship where it's not simply a situation where an envelope gets moved over and the Crown opens it and says ''no'' and moves it back. It's much more collaborative and working closely together in terms of trying to get to the point where there is sufficient evidence to be able to go forward.
That's the way that relationship is supposed to work, both in terrorism and in other complex criminal investigations. We don't use the term ''embedded'' very much anymore either, but we certainly use the concept of counsel who are dedicated to certain types of functions. Our expectation of them is that they're going to be working to provide advice, but also to do it in a way that moves towards problem solving within the law.
We do that as well by having a good relationship with the provincial attorneys general. We've had that relationship for a long time, and some of the prosecutions are joint prosecutions. The Toronto 18, for example, was a joint prosecution and it worked really well.
We now are, again, reinforcing those relationships and acting as a means to assist in the cooperation of the Crowns and of the police because, at the end of the day, we're all one big group of persons who have distinct roles but are working towards a similar sort of end.
Senator White: Thank you very much. Having been involved in two different investigations that resulted in prosecutions, I want to say that I thought the relationship between the police and the Crown was spectacular on both cases.
I remember one of those cases when the Crown made a specific point to the police about the number of resources we could actually afford to put on an investigation. Over the past number of weeks people have used the terminology you did around prioritization. I have to say, a week and a half ago changed a lot of our perspectives around whether or not we're prioritizing appropriately.
Do you think the police have the resources they need to do what has to be done to protect this country right now? They're talking about prioritization, and you don't want to talk about whether or not you need more resources. I'd like to hear whether you think they do.
Mr. Saunders: That's a difficult question for us to answer.
Senator White: You're not on the stand.
Mr. Saunders: No. We work closely with the police. We see the resources they allocate to certain areas, and we respond to that. Commissioner Paulson should have taken the opportunity when he was here if he required additional resources, because it's difficult for us to know just how he wishes to prioritize and manage his organization.
Senator White: You play hockey and skate. Thank you very much.
Senator Stewart Olsen: I think my question was answered, but it's all about the charging and arresting. I think for people watching it was a little confusing.
Is it across the board that police can arrest without charging, but then you would have to be involved in any case at all as to whether charges would be laid? Is that correct?
Mr. Dolhai: No.
Senator Stewart Olsen: It's just terrorism. That's what I wanted to clarify.
Do you think that's reasonable? Why is it one way for one group and not the same across the board for everyone? I think that's what Senator Day was maybe going towards, too.
Mr. Saunders: Senator, there are a number of provisions in the Criminal Code that have this requirement that the consent of the Attorney General be obtained before charges can be laid by the police.
Senator Stewart Olsen: Isn't that a higher standard or a higher threshold, then, for criminal activity within the country?
Mr. Saunders: No. What it is is an extra step that must be taken before the charges can be laid. As I have mentioned, the test that we apply in deciding whether to give consent is the same test we apply in deciding whether to continue with the prosecution. There's no difference on that front. What it is is an additional step.
Senator Stewart Olsen: Okay, but you see where I'm going and what I'm thinking. I'm not a lawyer, and I'm not a prosecutor or anything, so I'm just wondering why there is a difference, and why is the threshold seemingly higher —
Mr. Saunders: No, there is a difference, but the threshold is not higher.
Senator Stewart Olsen: All right. Thank you.
Senator Mitchell: Part of the answer or part of the difference, it seems to me, in the way that, say, a criminal offence and a terrorist offence are treated might well relate to the complexity. In turn, part of the complexity might well relate to where some of this evidence or this lead starts: CSIS, which has a lower threshold. It also has another problem, and this is my specific question, and that is that CSIS has a concern that it can't protect the identity of its informants once they give up their information.
Do you believe that Bill C-44, which addresses that issue, will have a specific operational impact in a way that it will facilitate CSIS's support of RCMP investigations and elevate the quality of evidence that you can then determine to proceed with?
Mr. Saunders: I'll start with the answer and then ask Mr. Dolhai to jump in.
As I mentioned, we are concerned with the evidence that can be admissible in court. If there is a confidential informant, whether that confidential informant be one of CSIS or one that the RCMP have, because the RCMP could very well have confidential informants working on a file, we can't use that evidence. We are duty bound to protect the identity of informants. Evidence that might disclose the identity of an informant is not evidence we can adduce in court.
Your question is whether adding protection to the confidential informants of CSIS would assist, ultimately, in prosecution. That's a more difficult question. That's why I'll ask Mr. Dolhai to answer that one.
Mr. Dolhai: Well, certainly just as in the police world, informants are a critical part of any investigation. The current state of the law is such that in relation to CSIS informants, there is the ability to protect them through a privilege, but it's not a case privilege. It's a one-at-a-time analysis, and I think the service has made the point that this introduces a certain amount of uncertainty in the process for them.
The question of the protection of their sources as it relates to an ongoing investigation really relates to the extent to which they can have an effective investigation, that they can then provide some information to the RCMP to give an indication to the RCMP as to where they should be going in their investigation, because typically in the cases we've had to date, the assistance that comes from the cooperation between CSIS and the RCMP comes at the stage at which CSIS is able to provide information to the RCMP that allows the RCMP to then go to another level like obtaining a search warrant or a wiretap.
After that point, the criminal investigation really goes on on its own in the sense that it's generating its own evidence. The assistance that comes from CSIS is usually at that early stage to provide that information, along with some other information the police may have, that allows for entry into the use of that police power.
Senator Mitchell: Okay. If I could pursue that further.
In the report — I'll call it the Segal-Joyal report on terrorism, March 2011 — they address this idea in another way, and that is to the extent that confidentiality related to national security might become an impediment, it seems, in this relationship or in this transition from CSIS to RCMP and other police investigation. They propose, for example, the possibility of a special advocate who could be put into that process to evaluate the value of that information against its national security implications.
Is that a problem? Does that become an impediment, where CSIS is saying, ''Well, we're not going to go down this route because there are national security issues that we don't want to have revealed,'' despite the fact that they might help the RCMP in this particular investigation?
Mr. Dolhai: Well, I can indicate that to date there have been cases. Samossa is an example of a case — the people in Ottawa, the two that were convicted and the one that was acquitted — where one of the issues was the extent to which there could be review of the CSIS information that was the basis for the search warrants and wiretap that the police obtained. That was done in the Federal Court through section 38, the Canada Evidence Act, and that involved a circumstance where there was, in fact, a special advocate who was there within the closed confines of that hearing in order to argue with and identify the fair trial right interests of persons, just as it would have been done in open court but can't be done in open court because of the nature of the information.
Out of that process, then, was a determination by the Federal Court judge as to what could be disclosed in the criminal trial and about the search warrant, for example, and the information to obtain the search warrant, and what couldn't be; and then that goes into the criminal trial. So we have been able to do that sort of process whereby you have the Canada Evidence Act process do the determination as to what can come out of the national security realm, the classified realm, that is then litigated in the traditional criminal realm.
Senator Mitchell: I'm not going to call it a conflict of interest, because both CSIS and RCMP clearly have the same interests in these issues, but let me call it a potential conflict of objective. Let's say CSIS has a human intelligence source, or they have a suspect, somebody they're suspicious of, but they want to follow that person's workings around to see if they can find more leads. On the other hand, the RCMP might be inclined to arrest and then charge that person right now because they have got enough on them. Is that ever an impediment in that relationship or a conflict in that relationship?
Mr. Saunders: It's not an impediment in our relationship, because if the RCMP charge, then we have to do —
Senator Mitchell: No, but have you observed that as potentially an impediment in the relationship of getting from CSIS to RCMP to charges, because CSIS can't charge? And is it worth the risk?
Mr. Saunders: I think we're thinking that the word ''impediment'' is too strong. It's intention that has to be worked out, but it's not an impediment.
Senator Mitchell: Thank you.
Mr. Dolhai: It's something that we become involved in when we have a request for the approval of charges, for example.
We need to determine what the evidence is, and part of that equation is going to be a determination of what part of that evidence can in fact be disclosed without adversely affecting national security interests, whether it's police information or CSIS information, et cetera, whatever has come into the possession of the police; and then depending on how that works out, the Federal Court may then be involved in determining what goes into the criminal process. But part of our role early on is to try to assess in consultation with all the various stakeholders what the evidentiary package will look like because we need to know not just that this binder has all the material in it, but we also need to know how much of this binder is going to be available to present in the criminal process.
Senator Mitchell: When you're in this relationship with the RCMP, do you ever talk to CSIS? Do they come into this advisory process that you have, or do you strictly relate to the RCMP?
Mr. Saunders: Typically, we go through the RCMP. We let them deal with CSIS.
The Chair: I would like to move to two other areas before we adjourn.
The first is terrorist financing. We've had witnesses here who have indicated that it is a concern in Canada, that we have gone from 50 known terrorist organizations operating in Canada in 2010 and now we're up to 53, at least identified in one manner or other.
In the last 10 years, how many prosecutions have we taken in respect to the financing of terrorist organizations or individuals, and how many have we been successful in?
Mr. Saunders: We've had two convictions against individuals for terrorism financing out the terrorism financing provisions of the Criminal Code. We've had a number of charges laid under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, but most of those do not relate to terrorism financing. Most of them relate to leaving the country with more than $10,000 and failing to declare it. Mr. Dolhai has the figures. He can provide them to you.
Mr. Dolhai: With respect to terrorism financing, I can tell you that, as Brian indicated, we've had some specific terrorism financing prosecutions where that's the charge. Mr. Khawaja, who was convicted here in Ottawa, ultimately received a life sentence, and some of the charges related to terrorist financing. He made monies available through a woman in the area to the Khyam group that he was dealing with, and that money was destined for the purchase of explosives. So he was charged and convicted in relation to that.
He also made property available, his parents' house in Rawalpindi in Pakistan, and that similarly is terrorist financing, but it is through making a house available for their activity. He was convicted with respect to that conduct as well.
Mr. Thambithurai in British Columbia was collecting for the LTTE, the Liberation Tigers of Tamil Eelam, and he was convicted for that activity. He was on the lower end of that sort of activity.
Then we also have cases where the person isn't charged with the terrorist financing separately, but it's part of the charges that they face, participating and contributing to a terrorist organization or facilitating a terrorist activity, and in the case of Mr. Ahmed, who was recently sentenced here in Ottawa, he contributed $1,000. He was found to have contributed $1,000 of his own money and solicited at least another $1,000 for the purpose of shipping that overseas so that they could purchase shoulder-mounted weapons such as rocket propelled grenades. When he was charged and when he was found guilty, that activity formed part of what he was charged with and part of the sentence he received for that activity of raising those terrorist funds. Mr. Alizadeh, a co-accused, was also involved in similar conduct.
We have brought a forfeiture application, and that was independent of a charge because you can have terrorist property seized or restrained and then forfeited even if there is no charge, and that was done in relation to property that was owned by the World Tamil Movement in Montreal and Toronto. In Montreal it was a building that was seized, forfeit, and a TD Bank account that was seized, while in Toronto it was a number of bank accounts, a TD Bank and CIBC bank accounts that were seized with approximately $25,000 in those bank accounts.
You may look at that and think that's not a heck of a lot of money, $25,000, but given the way that the fundraising mechanism was set up for the LTTE and World Tamil Movement, a lot of those bank accounts were used just as funnels. The money would go in.
The Chair: What is LTTE?
Mr. Dolhai: The Tamil Tigers, and the World Tamil Movement is the front organization. One of their systems for collecting is to try to intimidate individuals into agreeing to monthly deductions from their bank account into a central bank account. So by having those bank accounts seized, even though the one had $25,000 in it only, it's a significant step in disrupting that sort of terrorist financing because the organization then has to go back and try to re-establish those contributions in relation to a different account, which obviously, I'm told, provides the police with opportunity to see what those activities are and to gather information that might give rise to an investigation.
Those are good examples of the sorts of steps taken with terrorist financing.
The Chair: I would like to pursue the financing if I could. It goes back to the witness of last week, who referred to humanitarian organizations that are fronts for the purpose of raising money for terrorist activities. He went so far as to say that they were in the six figures. That's a substantial amount of money. Obviously you cannot operate unless you have money if you are an organization.
One of the reasons we've asked the representatives of your department to be here is to tell us, or at least let us know if the laws are sufficient to be able to follow up on this, to be able to identify it obviously through investigation, that would be the RCMP, but also to prosecute so that we can act against this type of laundering of money. The question I would ask you is, with your experience, do we have to look at the legal framework to see whether or not some changes have to be made so that we can proceed toward prosecutions on this kind of terrorist financing? Are you satisfied that the laws are fine and we're doing fine?
Mr. Dolhai: Again, the question as to whether you should have different laws or additional laws is a parliamentary question. It's a policy question. But in the case of the Tamil Tigers, for example, we were able to use the Federal Court process quite successfully to freeze and seize and forfeit those assets as required, bearing in mind that there are multiple aspects to the tool chest. There is the seizing, freezing, forfeiting, like in the Tamil Tigers. There are situations where a charge and then a forfeiture is appropriate, a specific terrorism financing charge, one which is part of a larger charge, like I mentioned with respect to Ahmed, and there are also other tools available.
You mentioned, senator, charitable organizations, humanitarian organizations. There are tools available for dealing with registration or deregistration of charities.
There are multiple areas, and I can tell you that in this area, as in other areas of sophisticated criminality, one of the aims is to follow the money.
The Chair: I have just one other area, and that goes over to the question of the glorification of terrorism. We had a witness earlier — Senator Joyal — who spoke about the Internet and the realities that we're facing on a day-to-day basis and the indoctrination of individuals and organizations that are promoting it, plus we also have the question of the glorification or the promotion of glorification of terrorism alleged in various institutions and religious organizations here in Canada.
My question is, just for the record, are there any laws on the books here that prohibit the glorification of terrorism specifically?
Mr. Saunders: There are offences within the code which cover activities associated with, for example, attempting to radicalize someone. We have, I believe, on two occasions prosecuted individuals for those activities. One was a case in Trois-Rivières, a decision called Namouh, in which the accused received a life sentence not only for this but for conspiring with two other individuals in Austria to bomb a public place. One of the charges against him was in relation to putting material up on the Internet which could be seen as glorifying and could be seen as recruiting other individuals to terrorist activities.
Mr. Dolhai: In the Namouh case, a very significant element of his conduct was in relation to the Internet. There was a plot to do a bombing overseas, and he did receive a life sentence for that. With respect to the Internet-based activity, participating in a terrorist activity and facilitating a terrorist activity, he received 10 years and 14 years. It's interesting because the Internet activity he was participating in was essentially in relation to an Internet terrorist group — the Global Islamic Media Front. How much more modern can that sound in terms the nature of how they conduct their terrorism?
They are a terrorist group whose goal is to intimidate governments. In this case they were trying to intimidate the Government of Austria and the Government of Germany in relation to their conduct in Iraq, to try to obtain further assistance and recruits, and that's how they were doing their terrorism. They weren't the ones doing the bombing; they were the ones using the Internet to do the things that gets the bombs to where they need to get to and gets the bodies to deal with the bombs.
Mr. Namouh's role in all of this was that he was someone who was a little bit of a whiz on the Internet and he would prepare materials that he would do himself that would be glorification. I would call them glorification materials. I remember one in particular where it was focused on activities in Iraq, and you could see over and over again improvised explosive devices blowing up tanks and killing soldiers. Others would have soldiers lined up or kneeling down on the ground, 10, 12 along, and the video was there to humiliate them. At the end, they were all shot in the head on the video, again, as a part of a glorification activity that was meant to recruit and radicalize people into their fold, as well as developing material for them that could be disseminated.
A word would come out and 50 sites would all of a sudden have the material that had been prepared out there at the same time. It would send out its message either of threats or recruiting or this sort of glorification. It is quite a sophisticated thing, frankly, right down to an instruction video that he was involved in that dealt with how to encode and then decode messages that you would send on the Internet to people.
As I said, he received 10 years and 14 years for that activity, as well as a life sentence for the conspiracy for the bombing.
Senator Day: Just flowing from your line of questions, Mr. Chair, I think those watching might be interested in hearing Mr. Dolhai talk about terrorist financing and the ability to seize property and to seize bank accounts without a conviction.
I think that's what you said.
Mr. Dolhai: Yes.
Senator Day: What has to be there in order for the police to be able to go in and seize?
Mr. Dolhai: In order to be able to seize, the police do it pursuant to the Criminal Code, sections 83.13 and 83.14.
Senator Day: Section 83 must be a book in itself.
Mr. Dolhai: It is, unfortunately, a book. I like to think back to when I started as a lawyer and it was thinner.
Senator Day: The Criminal Code; Martin's Criminal Code.
Mr. Dolhai: It was much thinner.
The ability exists to seize and restrain property, so seize things like cars, et cetera, or restrain property like a building or a bank account, if the property is property that the officer believes on reasonable grounds will be forfeit and it's situated in Canada, and an order should be made prohibiting persons from dealing with it. It then becomes forfeit if it was property owned or controlled by or on behalf of a terrorist group or property that has been or will be used in whole or in part to facilitate or carry out a terrorist activity.
Senator Day: Is the terrorist group defined by a cabinet decision as opposed to a court decision?
Mr. Dolhai: It can be defined by either one. The terrorist group can be a group that's listed, or the terrorist group can be one that hasn't yet been listed but where the evidence is called to indicate that the group is a group that has as one of its activities the facilitation or commission of terrorist activity. That's done in Federal Court. All the provisions of the Criminal Code dealing with forfeiture of offence-related property and proceeds of crime occur in the ordinary criminal court. The orders for their restraint and seizure are obtained in advance, like they would be in the Federal Court, but then the forfeiture itself results after the person has been found guilty and that property that they were dealing with can be forfeited. If there's additional property there has to be established beyond a reasonable doubt that that was that sort of property offence, related property or proceeds.
Here it's on a balance of probability throughout. It's a civil standard. So for terrorism property and forfeiting it, the standard is lower than for ordinary proceeds of crime and offences related to property.
The Chair: Thank you.
I would like to excuse our guests. I want to thank you for being here this afternoon. You have certainly given us a lot of information for review as we proceed forward. As I said, we're looking forward to coming up with a report with some well-informed and well-thought-out recommendations in respect to what perhaps could be changed to deal with the threats that Canadians are facing.
Colleagues, we will take a two-minute break and then go in camera for a few minutes to discuss the question of our report and various other activities in the coming weeks.
(The committee continued in camera.)