Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 18 - Evidence - Meeting of May 28, 2015
OTTAWA, Thursday, May 28, 2015
The Standing Senate Committee on National Security and Defence met this day at 2:31 p.m. to examine the subject matter of those elements contained in Divisions 2 and 17 of Part 3 of Bill C-59, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015, and other measures (topic: Division 2 of Part 3 of Bill C-59).
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on National Security and Defence for Thursday, May 28, 2015. I would like to introduce the people around the table. My name is Dan Lang, Senator for Yukon. On my immediate left, is the Clerk of the Committee, Adam Thompson. I would invite each senator to introduce themselves and state the region they represent, starting with our deputy chair.
Senator Mitchell: Grant Mitchell, Alberta.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Ngo: Thanh Hai Ngo, Ontario.
Senator Moore: Wilfred Moore, Nova Scotia.
Senator White: Vernon White, Ontario via Cape Breton.
Senator Beyak: Lynn Beyak, Ontario.
The Chair: The Senate has referred to this committee Divisions 2 and 17 of Part 3 of Bill C-59, the budget implementation bill, for study. We are to report back to the Senate no later than June 4.
On Monday, we referred Division 17 to the Veterans Affairs Subcommittee. Under the very able leadership of Senator Day, the subcommittee has commenced its review. Today, we will commence our review of Division 2, dealing with the proposed prevention of terrorist travel act.
Appearing from the Department of Public Safety and Emergency Preparedness are Mr. John Davies, Director General, National Security Policy, National and Cyber Security Branch; and Ms. Ritu Banerjee, Director, Operational Policy and Review. From the Department of Justice, we have Ms. Sophie Beecher, Counsel, Public Safety Canada. And from the Department of Citizenship and Immigration, we have with us Mr. Lu Fernandes, Director General, Passport Program Integrity; and Ms. Heather Richardson, Director, Passport Program Policy, Admissibility Branch.
Welcome to the committee. I understand that each department has an opening statement. I invite Mr. John Davies to begin.
[Translation]
John Davies, Director General, National Security Policy, National and Cyber Security Branch, Public Safety Canada: Thank you, Mr. Chair. It is my pleasure to provide an overview of the Prevention of Terrorist Travel Act, as well as the proposed changes to the Canadian Passport Order.
Let me first summarize the legislative changes you see before you today.
[English]
For passport decisions, the minister may often rely on information from law enforcement and national security agencies that may contain source, investigative and potentially allied information. Protecting this information from disclosure is critical. Our security agencies' ability to attract sensitive sources depends completely on our ability to protect their identities and personal safety. Human sources often take extraordinary risks to provide sensitive information to national security agencies. Disclosing that information could reveal the identity of the source and his or her family. This could threaten their lives. It is important in these cases that the government has the means to prevent the disclosure of such information to the public but still allow a judge to consider this information in adjudicating a case.
As well, sensitive information from our allies is entrusted to our law enforcement and intelligence agencies. If information from our allies were to be disclosed, it's possible that further national security information would cease to be available to Canada.
The government must also balance the requirement to protect sensitive information with a person's right to reasonably know the case against him or her. As such, the proposed changes enhance how individuals can challenge passport decisions before the courts. The proposed act creates an appeal mechanism for passport cancellation decisions and sets out the rules for the protection of information for such an appeal or a judicial review of a refusal or revocation of a person's passport.
With respect to the appeal process for cancellations, once the person becomes aware that their passport has been cancelled, they have the right to make a request to the minister for reconsideration of that decision within 30 days.
[Translation]
During the reconsideration process, the individual whose passport has been cancelled will have an opportunity to see a summary of the case against them and to provide new information for consideration. If the minister upholds his original decision, the individual has an opportunity to appeal the decision to the Federal Court.
[English]
For refusal or revocation decisions, the individual may apply to the Federal Court for a judicial review of the reasonableness of that decision. The proposed amendments will enable a Federal Court judge ruling over passport decisions to protect the sensitive information that is vital to national security cases. Overall, this approach will result in more timely decisions and will streamline the process, which is in the interest of all parties. These measures are also consistent with the ability of the courts to review other ministerial decisions, such as the Passenger Protect Program as part of Bill C-51 and the listing of terrorist entities under the Criminal Code.
Finally, these safeguards strike a good balance between the right to protect Canadians against the threat of terrorism and the right of affected individuals to fair treatment.
[Translation]
Supporting these legislative amendments are the proposed changes to the Canadian Passport Order. On May 7, the government announced changes to the Canadian Passport Order.
[English]
The Minister of Public Safety and Emergency Preparedness will have the authority to make passport decisions so as to prevent the commission of a terrorism offence or for national security purposes. The Minister of Citizenship and Immigration will retain the authority to make all other passport decisions.
Providing the Minister of Public Safety with these new authorities will provide a more coherent and coordinated approach to national security-related cases, given the minister's overall lead role with respect to national security. These changes also include changes to the thresholds for cancellation, refusal and revocation.
Specifically, the minister will now have the authority to cancel a passport when there are reasonable grounds to suspect it will prevent the commission of a terrorism offence or for the national security of Canada. Cancellation is a temporary measure used until an investigation is completed. If at the conclusion of an investigation there are insufficient grounds to revoke the passport, the passport will be reissued to the individual.
In some circumstances, a passport may be cancelled by the minister without prior notice to the individual. In these cases, the individual will be notified as soon as possible. When an individual wishes to challenge the minister's decision to cancel a passport, as stated before, the order also provides an administrative reconsideration mechanism to do so.
The minister can also refuse or revoke a passport when there are reasonable grounds to believe it will prevent the commission of a terrorism offence or for national security purposes. In these instances, an individual will be notified of the minister's intent to refuse or revoke a passport. Following an administrative investigation, a decision will be made whether to revoke the passport.
Finally, the order provides the Minister of Public Safety with the authority to refuse passport services for up to 10 years, during which an individual may not apply for a passport. During this period, should a person have a requirement to travel, there is an opportunity to make a request for travel for urgent, compelling or compassionate reasons. This mechanism currently exists and is administered by Passport Canada. In these situations an individual may submit an application for a temporary passport for travel and provide the documents necessary to support the justification.
In summary, these changes are necessary to support the government's ability to cancel or revoke passports for national security reasons. They are consistent with and complement other changes made to broaden and improve the government's tool kit to address terrorist-related travel, such as Bill S-7, the Combating Terrorism Act; C-44, the Protection of Canada from Terrorists Act; and the proposed secure air travel act C-51, the proposed secure air travel act.
[Translation]
Thank you. I am happy to take any questions the committee might have on the measures being proposed.
[English]
The Chair: Thank you.
I'd like to ask a general question. I think you've outlined very well why some information should not be disclosed and the principles of the effect if it were. Tell us briefly: What's the procedure right now compared to what you're proposing?
Mr. Davies: I'll ask my colleagues from Citizenship and Immigration to talk about the existing procedures.
Lu Fernandes, Director General, Passport Program Integrity, Citizenship and Immigration Canada: The current process for invalidating a passport is whether there is sufficient reason to believe that the balance of probability threshold is more likely true than not true. That's the standard we have in the current Canadian Passport Order. We will then take action and inform the individual that his or her passport will be invalidated. We will provide the reasons why that would be under the passport order. Generally speaking, we give them the opportunity to return their passport to us within a defined period of time. If the passport is not returned to us, we will invalidate the passport electronically within our system and share that information with border agencies as well as INTERPOL.
That's the invalidation process. That's basically the cancellation piece in the current amendments to the order.
We subsequently do our administrative investigation. We are not a police body, but we do conduct administrative investigations under the passport order. We are an investigative body for purposes of the Privacy Act, so we can access a lot of information.
We conduct the investigation under those authorities. We seek to get as much information as we can from our own intelligence and from our partners as well. We get a lot of intelligence information from our partners as it pertains to an individual. Subsequently, we make an administrative decision internally within Passport Canada, and the individual will then be informed. Throughout the process, the person will be allowed to provide additional information as we share information with them in terms of what we have regarding their situation. That's the process.
At the end of the day, a decision is made regarding whether or not that passport should be revoked and/or, in the case of somebody who is applying for a passport, should be refused a period of service, which can be five years under the current order.
Subsequent to the decision, the individual under investigation can take that decision to Federal Court and have it reviewed there. That's the current process.
Mr. Davies: To emphasize some of the main points of what will change, the main thing is that the Minister of Public Safety will be making the decisions for national security or terrorism-related refusals, revocations or cancellations. That's the big change. The passport order has also lowered the threshold for revocation and refusal for national security and terrorism reasons and clarified for cancellation that it is "reasonable grounds to suspect." Also in the bill is clarity around the right of recourse, appeal and judicial review and better protections for sensitive information.
From a more operational perspective, given your study of Bill C-5, you're familiar with the proposed secure air travel act and the Passenger Protect Program, and a similar kind of system will be set up for the minister, meaning that security agencies will bring forward information in a kind of table approach. There will be a discussion and a recommendation to the minister or his or her delegate to move forward with cancelling, revoking or refusing — enough information that it clearly meets the threshold spelled out in the Canadian Passport Order.
The Chair: I want to summarize this. The purpose of the bill is to put a system in place for those particular identified terrorism possibilities. This will be a lot more efficient and decisions can be made immediately if require; is that correct?
Mr. Davies: We explained two things in my remarks: what's in the bill, which is more around the appeal and the judicial review process on passport revocation for national security purposes; and the changes announced earlier this month on the Canadian Passport Order, which deal with the thresholds and the responsible or accountable minister for national security decisions. We wanted to make sure that both of those changes were outlined for the committee today.
Senator Mitchell: Thanks, Mr. Davies and others, for being here with us. I have two sets of questions. One will be quite technical. I'm not a lawyer, which will become painfully obvious the moment I ask my first question.
I don't get the distinction between an appeal and a judicial review. All judicial reviews certainly are not appeals, but all appeals, it seems to me, would be judicial reviews. When I look at the clarifications on how information will be used, they're almost exactly the same under the appeals part as under the judicial reviews part. What is the difference? Why do we need to have these in separate sections?
Mr. Davies: I'll let my colleague from the Department of Justice answer that.
Sophie Beecher, Counsel, Public Safety Canada, Department of Justice: In general, the difference between the two is that we're creating a new right of appeal in the bill, not a new right of judicial review. Anyone could always apply for judicial review of a government action. That would be done under the regular Federal Court rules. We're just specifying certain rules for the protection of information in the context of judicial review, but we're creating a right to appeal a cancellation decision.
The details under both are very similar in many respects, but there are some additional possibilities under the appeal. For one, proposed subsection 4(4) states:
(e) the judge may receive into evidence anything that, in the judge's opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base his or her decision on that evidence;
That's a fairly important point because it explicitly invites both parties to submit additional information.
There are all sorts of rules around evidence in a court, but even if it hearsay evidence, for example, it can still be admitted because of the specific rule. The point here is for a judge to be able to make up his or her own mind as to whether a passport should be cancelled or not based on all information available.
In the context of a judicial review, it would be more about a decision on the reasonableness of the government's decision based only on the information that was available to the government at the time of the decision. There is usually less opportunity to present new information and new evidence.
The rationale behind this is that for the appeal, we wanted a more fulsome presentation of information, and we wanted the judge to be able to substitute his decision to that of the minister because of the nature of the cancellation of a passport, which is quick and may not involve prior notification to the individual. Therefore, we wanted to ensure that the individual had all the opportunities to present additional information to the court.
In the context of a judicial review, it would take place after a more lengthy investigation, after the individual had been contacted, invited to present more information and had a chance to see a summary of the information used by the minister. Therefore, we didn't feel the need to have a full appeal at that stage, simply a decision by the judge as to whether the government had decided reasonably.
Senator Mitchell: At the judicial review stage?
Ms. Beecher: At the judicial review, yes.
Senator Mitchell: In one sense, the appeals process is being layered on top. It gives an appellant or somebody who's lost their passport more access to rectification of that and more quickly than before this proposed change. That's the good news. Is that true?
Ms. Beecher: For the cancellation, yes.
Senator Mitchell: Is there a difference between cancellation and revocation? Why are we making a distinction between how we treat a cancellation, how we treat a revocation and how we treat a decision not to renew two years after the thing has expired? Why is that?
Ms. Beecher: The cancellation is meant to be a first step, an interim measure. It is meant to be a tool that can be used quickly by the government. For example, if an individual comes to the attention of the government, they would want to act quickly to ensure that the person may not use their passport to travel the next day, for example. It's very much a temporary or interim measure until the government can conduct a more fulsome investigation and move on to the more definitive step of revocation.
Senator Mitchell: I can't appeal a revocation.
Ms. Beecher: No, but you can go to court to ask a judge to determine whether the government's decision was reasonable. The court could return the decision to the government to say, "We don't think your decision was reasonable. Here are the things you should take into account when re-determining the case."
Senator Mitchell: That's not covered in this appeals section. This appeals section just covers cancellations. If it's a revocation, you would go through the normal court process?
Ms. Beecher: You would go through a normal judicial review, but section 6 of the proposed legislation deals with the rules to protect information in the judicial review context for passports.
Senator Mitchell: I have a question about the rules. It's interesting to me that proposed paragraph 4(4)(c) states, "throughout the proceeding, the judge must ensure that the appellant is provided with a summary of evidence . . . " and when I go to judicial reviews and the counterpart provision, it doesn't say "throughout the proceeding"; it just says "the judge must ensure." Why the difference? Is that just an oversight or is that a trick?
Ms. Beecher: Well, in the context of the appeal, there may be new information presented throughout the proceeding by either the affected individual or the government. In a JR context, the information upon which the government would have relied would be in one package and presented to the court together at the start of the proceedings, so you would only need one summary at that point. The judge always has the discretion to issue additional summaries if he deems it necessary.
Senator Stewart Olsen: How many passports have been revoked on terrorism or national security grounds in the past five years?
Mr. Fernandes: I don't have that information, largely because we're still in the process of looking at these particular cases under the national security provisions. A provision that currently exists in the Canadian Passport Order will be changed. Section 10.1 of the CPO allows for revocation for national security reasons. We have not used that provision in the past five years.
Senator Stewart Olsen: I guess, then, there wouldn't have been any appeals to the court.
Mr. Fernandes: That's correct. I was starting to say that we have a number of cases we're looking at now, but we haven't yet rendered decisions under that 10.1 national security provision.
Senator Stewart Olsen: I see. Thank you.
The Chair: How many cases have you got pending under that section? Can you give us an idea of what we're dealing with?
Mr. Fernandes: We don't have the particular numbers. As you know, the numbers can change on a daily basis given the types of situations that come up.
When we look at individuals, it is not just under national security. We also look at them under provisions of sections 9 and 10 of the CPO. For example: Are you using the passport to commit a crime? Was your application fraudulent in the first place? Was misinformation provided in the application? That would then lead the entitlement to be questioned.
We're looking at a variety of things when we're looking at an individual who might be considered for national security.
The Chair: I want to pursue this. With the proposed legislation, obviously these sections will not apply with respect to individuals either directly or indirectly involved in terrorist activity; is that correct?
In other words, Mr. Davies, you will be able, within a year, to tell us that perhaps 15 passports were cancelled. I don't quite understand why somebody can't tell us these things. It's almost like cloak and dagger here.
Mr. Davies: I can't speak to the past. In going forward, there's always a hesitancy to talk about specific numbers, whether that's for privacy reasons or other reasons around national security and what's public and what's not.
Senator Moore: That's parliamentary oversight.
The Chair: At any rate, we'll probably have this conversation again, and you'll have an idea of what probably will be asked.
Senator White: I was wondering which one was cloak and which one was dagger.
We've heard a lot about appeal processes — a special advocate in particular. In this case, though, the appeal process doesn't use a special advocate but an amicus curiae. Can you explain the difference? Why was the amicus curiae pursued instead of the special advocate?
Ms. Beecher: A special advocate is a mechanism that was specifically adopted in Division 9 of the Immigration and Refugee Protection Act in the context of security certificates and similar cases. Because the consequences to the individuals were potentially extremely severe, in context of security certificates you're talking about denial of liberty and possible deportation.
In other national security contexts, often the consequences are significant but not as severe as what I've just outlined. It's not deemed necessary to have a special advocate specifically that represents the interests of the individual in ex parte hearings.
However, as you've mentioned, the court always has the option of appointing an amicus curiae, a friend of the court. The amicus would perform a lot of the same functions as the special advocate. The main difference is that he or she does not necessarily directly represent the interests of the affected individual. Rather, they work for the judge and the court to the benefit of justice. Their role is to ensure, when looking at all of the information, that justice is being served.
Senator White: In the case of those areas where a special advocate is available, it's automatic that they would have access. In this case, it is not automatic, so it really comes down to the judge looking at the case and determining whether it's serious enough and they're concerned enough to have an amicus brought in as well.
Ms. Beecher: It could also be the volume of information and the judge needing assistance. It's at the discretion of the judge.
Senator Moore: Thank you, witnesses, for being here.
I just want to follow up on Senator White's question. A special advocate is not permitted in this process under the proposed prevention of terrorist travel act; is that right?
Ms. Beecher: Yes.
Senator Moore: You mentioned, Mr. Davies, in your remarks on page 6 about the reconsideration process, that the individual can have an opportunity to see a summary. Can the individual have a lawyer with him or her?
Mr. Davies: In the reconsideration process, absolutely.
Senator Moore: Can they see the documents?
Mr. Davies: They will be able to see a reasonable summary of the case against the individual.
Senator Moore: Who decides what's reasonable?
Mr. Davies: The department with the security agencies that provided the information. It's a process of the most we can give without jeopardizing national security.
Senator Moore: Do you mean that somebody will vet the evidence before it's given to the lawyer for the accused? What kind of system is that?
Mr. Davies: I think we need to separate the administrative process from the legal process. For cancellation, you have an administrative process. You can go back to the minister and ask the minister to reconsider his or her decision. It's between the department and the individual, making sure that the individual has been provided all the information. Maybe there's new information that we were not aware of, and the minister can then reconsider that decision. If the minister, after that back and forth, still wants to go forth and keep the passport cancelled, then he can go to the Federal Court and appeal that decision.
Senator Moore: The citizen can?
Mr. Davies: Yes.
Senator Moore: At that time, will all of the evidence the minister looked at — not just the summary, but everything — be made available to that person?
Mr. Davies: Not the person but likely the judge.
Ritu Banerjee, Director, Operational Policy and Review, Public Safety Canada: All provided to the judge. So the judge will see everything and the judge will provide a summary of that information to the individual.
Senator Moore: I don't like the idea of evidence being cleansed.
So what about the lawyer who is acting for that person in the Federal Court? Are you telling me that lawyer won't have access to all the evidence the Crown is going to present against his or her client? You can't do that.
Ms. Banerjee: No, he won't, but that's how the system works. Even with the use of a special advocate —
Senator Moore: What do you mean it's how the system works? You can't do that.
The Chair: Senator Moore, we're not here to debate. We're here to ask questions.
Senator Moore: This is very fundamental, chair.
The Chair: Senator Moore, I'm not disagreeing that it's fundamental, but as the chair, I would ask that you not debate with the witnesses. They're not here to debate. They are here to ask questions.
Senator Moore: I'm asking the question. I don't think it's right.
If you were representing that person, do you think it's right that they wouldn't have access to all the information? Do you think that's right?
Ms. Banerjee: I can only comment on the legislation and explain how the legislation functions. The way the legislation has been designed is to balance the national security interests of the state, which holds very sensitive information.
Senator Moore: I know that.
Ms. Banerjee: And there would be jeopardy if that is disclosed in a public forum, versus the individual's right to be reasonably informed of the case. We've made attempts, through both the appeal and the judicial review process, to balance those interests.
Senator Moore: You're determining the balance.
Senator Ngo: I don't know who is going to answer this next question, Mr. Davies or Mr. Fernandes.
If there is a reasonable ground that a terrorist act is to be committed and therefore the passport is revoked, according to section 4(1), is it not reasonable to assume for the RCMP and the Attorney General to have sufficient evidence to lay a charge and then proceed to court?
Mr. Davies: It very well may be the case, yes. It depends on the case. It depends on the circumstances.
For revocation and refusal, the threshold is "reasonable grounds to believe." For the police to have enough evidence to lay charges, likely they'll want a higher threshold to be met and with certainty of conviction. But many times you may be talking about many different tools, administrative, criminal actions as well taken against the same individual.
We're just talking about one tool here, one more option for the security and law enforcement agencies to consider in terms of the best way to deal with a high-risk traveller, extremist individual.
Senator Ngo: Let's take the case of the 10 individuals in Montreal and the passport has been confiscated or revoked, and then no charges have been laid. Why?
Mr. Davies: I think you would have to direct that question to the RCMP on what's going on with those cases or not. I'm not familiar with the details there.
I think, in general, if someone is travelling with a passport and it's known by law enforcement that they're going to participate in terrorist activities overseas, the police have a right to confiscate that passport, as that represents a tool for them getting to where they want to go. That is separate, though, from the administrative action we're talking about here today.
Senator Ngo: Do you know any other countries that have established a similar legal appeal mechanism when the passport is revoked?
Ms. Banerjee: It's our understanding that Australia has a very similar process in place, and they also have closed hearings to deal with and manage sensitive information for national security cases.
Senator Ngo: So far there is only one country, Australia?
Ms. Banerjee: That's my understanding. We would have to get back to you.
Senator Beyak: What do we do in a case where a parent's passport is revoked, a Canadian citizen, while they're overseas, and the children are left stranded and have not committed a crime? Is there a remedy for that?
Mr. Fernandes: In those cases, wherever there is a Canadian abroad, they do have a mobility right, under section 6 of the Charter, to return to Canada. We can facilitate those individuals returning to Canada through the issuance of an emergency travel document if they don't have their own passports readily available to them.
Senator Mitchell: You are saying that if a Canadian were overseas, the minister could revoke a passport. Could that Canadian then not return to Canada? Would that Canadian be left stateless, or are we obliged under section 6 to allow that Canadian to return?
Mr. Fernandes: Under section 6 of the Charter, the mobility right to return to Canada, a passport — or a travel document, really — would be issued to that individual in order that they can return to the country.
Senator Mitchell: I wanted to clarify that because there was the question of the family. But that would be the person, themselves, who lost their passport? We wouldn't have proof they were a terrorist or not, but we might have concern that they were. But they would still get to come back under the Charter?
Mr. Fernandes: That's right. That individual who has had their passport revoked while they're abroad, or subsequent to their being abroad, they could be returned to Canada on an emergency travel document.
Mr. Davies: It would be a managed return in most cases, RCMP officers on board.
Senator Mitchell: They would meet them at the border and so on. Thank you.
I'm very interested in the special advocacy idea. The special advocate is different from the amicus curiae. As you said, the amicus curiae doesn't represent the person and doesn't even get to talk to the person. The special advocate talks to the person at length, gets the details about the case and then is entitled to secret information, which they wouldn't pass on back.
This is really a continuation of what we saw happening with respect to certain features of Bill C-51, where there is no provision for a special advocate and where there is also, although not directly related to the special advocate, the ability for the minister to filter information that even the judge, the decision maker in this process, would get.
How could that possibly be due process? I can have something as important as my passport taken away, and I have nobody representing me in that process. It's almost incomprehensible.
Mr. Davies: Again, as Ms. Beecher said, the judge sees everything. The judge will see everything in this case.
Senator Mitchell: That the minister wants them to see.
Mr. Davies: Yes, and it's the judge's discretion to appoint an amicus if the judge feels it's important for the case and due process in the case. There's a big distinction in the immigration setting between the rights and needs of someone who faces detention, deportation and potentially further mistreatment, versus the access to a passport or, in a similar case, the ability to board a plane under the Passenger Protect Program. There's a different series of rights invoked here.
Senator Mitchell: Unless you have a job to go to in Britain and that's how you feed your family, or you have a university to go to in the United States and that's how you're going to proceed in the future, it's not inconsequential.
Mr. Davies: If the government is going to move forward on cancelling or revoking, it has got to be convinced that there's a reasonable case that will hold up in court, not taking any of these lightly from any kind of a risk perspective. It's understood, especially in this area, that the risk of litigation has to be balanced against national security risks.
Senator Beyak: Would a judge be able to overrule the minister and reinstate a passport?
Ms. Beecher: Yes. In the context of the appeal for the cancellation, the judge may quash the minister's decision, which essentially says your decision to cancel this passport is invalid. This results in the government having to issue a passport unless it has access to new information and starts the decision process over again.
In the context of a judicial review for a revocation, the court would declare the decision of the minister unreasonable and would return a decision to the minister. It is often accompanied by a series of recommendations of things they must take into account, how to fix the due process errors, if there are any.
Senator Mitchell: Proposed subparagraph (4)(4)(f) states:
(f) the judge may base his or her decision on evidence or other information even if a summary of that evidence or other information has not been provided to the appellant during the proceeding;
Not only is nobody provided to represent the appellant in the proceeding, but that appellant may not even have the information as to what it is or why it is that their passport has been revoked. Again, not to be repetitive, but it is almost incomprehensible in a Western, industrialized, modern democracy that that could be allowed to happen. Yes or no?
Ms. Banerjee: The appellant will always have counsel or can have counsel present throughout all the proceedings, including the administrative reconsideration process.
Senator Mitchell: Right up until it gets secret.
Ms. Banerjee: The issue is any of the information that is sensitive or classified for national security reasons will be provided to the judge, and it will be up to the judge to determine what can be made public. That's what we're trying to create. There's a different authority, not the minister, but a judge who is making the distinction of what should be made public or not. We need a mechanism to protect national security information.
Senator Mitchell: But there are two inhibitors to that process. One is that the minister can filter the information the judge gets, and two, there is no special advocate in that secret process that is making a determination about something very significant in the life of the appellant.
Ms. Banerjee: The minister has an obligation to provide all the information. That's part of procedural fairness and natural justice obligations.
On the second point, the judge can always seek an amicus curiae instead of a special advocate.
Senator White: As a follow-up, not everybody listening will know how far back we've had security certificates. Mr. Davies, could you walk us back to when we had our first security certificates, from a timing perspective? It wasn't yesterday or the day before. This isn't new. I don't need the exact date but within a decade would be nice.
Ms. Banerjee: Security certificates have been around since the late 1970s. It's an immigration tool to address the use of sensitive information. It has predominantly been used in a lot of espionage cases. However, in more recent years, it has focused more on terrorism cases.
The certificate itself is a means to provide the court with sensitive information. Over the years, it has changed. As my colleague from Justice has explained, because of the rights implications, the use of special advocates has been put in. It was a legislative change that was adopted to balance the Charter rights as well as the government's ability to use and protect national security information.
The Chair: Just to clarify for the record the process you're recommending here, is it not of importance for the purpose of national security that the government have the ability to able ensure that certain information maintains secrecy from the perspective of our allies in respect to intelligence that's provided from them that could play a part in some of this decision making?
Mr. Davies: Yes, absolutely. The first few pages of my remarks focused on that. We're talking about the most sensitive information of government, the most sensitive sources and the risks to their lives, and the most sensitive ways information is transferred to Canada in trust. We're not talking about large volumes of information. We're talking about very precise redactions that are necessary to maintain the confidence of our allies and to maintain the confidence of the identities of trusted sources.
The Chair: Perhaps I could follow up. It looks like we're coming to our final questions here.
Could lay out for us what the impact would be if we did not adopt Division 2 of Bill C-59.
Mr. Davies: It's hard to talk without a counterfactual, but as Mr. Fernandes said, I think there are reasons why national security provisions have not been used as much as they probably could have in the past to revoke, cancel or refuse passports. That is because of — I'm sure what this committee has heard before — the intelligence-to-evidence problem. This is the concern that the intelligence will not be protected in open proceedings; therefore, the incentives are not there for security and law enforcement agencies to bring information forward to allow administrative actions to go on.
This is very much about improving the incentives in the regime for passport cancellations, revocations and refusals to allow this tool to be useful. Right now it's not a very useful tool because of concerns around disclosure. As we talked about in the secure air travel act for improving the Passenger Protect Program, these changes are very important.
Senator Mitchell: This is a technical question with two parts, really. At proposed subsection 4(1), the person will have 30 days within which to commence an appeal after receiving the notice of the minister's decision. I thought that the appeal would be on the judicial review. A minister would make a decision, then you would have a judicial review and then you would have an appeal, but that's not the case.
Mr. Davies: This is for cancellations. There are 30 days to ask for reconsideration. That can be extended. There's a back and forth with administrative investigation, then the decision, then 30 days to apply to the Federal Court for appeal, which can be extended as well.
Senator Mitchell: Of course. That's the other court that can be used.
Is 30 days common? Is that a standard period of time for an appeal? Is it quick? Does it put real pressure —
Ms. Beecher: It's not unheard of. It's fairly quick. The purpose is we wanted to make these mechanisms efficient. It's commensurate with the cancellation, which is a quick interim measure to prevent travel, and it's meant to have things move along. Of course, the individual has a much broader period of time when it comes to the final decision, which is the revocation of the passport. There's no specific limit in this statute until they can apply for judicial review to the courts.
The Chair: Colleagues, I'd like to thank our witnesses. I will excuse our guests and say thank you very much for attending.
Joining us on our panel are two legal experts and designated special advocates, Mr. Anil Kapoor and Mr. Gordon Cameron. Also joining the panel is Professor Salim Mansur from the University of Western Ontario.
Gentlemen, welcome. I understand that you each have an opening statement. I invite Mr. Kapoor to begin, followed by Mr. Cameron and then Dr. Mansur.
Anil Kapoor, Barrister, Kapoor Barristers, as an individual: First of all, I want to thank you for inviting me to address you on the proposed prevention of terrorist travel act. I want to say at the outset that this statute represents an important aspect of our government's ongoing effort to manage the ongoing terrorist threats. It represents an effort by the government to prevent the use of Canadian passports to facilitate the commission of terrorist activities. As a result, I say it's part of the mosaic of the legislation that has been enacted for that purpose.
The bill should provide — I'm sure you've heard earlier today — some comfort to our intelligence agencies, when they're dealing with their ministers to protect intelligence, while deciding whether to revoke, cancel or not issue a passport.
The essential feature of this bill, of course, is to keep secret the national security privileged information that may inform the decision of the minister. Yet, the decision-makers in this process, that is the ministers and then ultimately either on appeal or judicial review, the courts, are entitled to take into account this national security intelligence information, and they are to evaluate whether or not the passport was properly revoked. But the person whose passport was revoked doesn't get to see that information, and that's where I say, for your consideration, that there is a problem with this legislation both legally and morally.
There has to be a mechanism in our system where we can challenge a government's assertion. I wasn't here for the whole day, but I did hear some of the questioning a minute ago. We've been down this road before with IRPA, the Immigration and Refugee Protection Act, where, in that context, the Supreme Court of Canada made it perfectly clear that you have to allow for the person who is in the crosshairs, so to speak, to be able to get access to information and be able to properly put their case forward. The result of that was that the government wisely created a special advocate regime, which allows for special advocates to see the security intelligence information, to evaluate it and to check the government's position and, if the government's position is overstated or incorrect, to make those submissions to the designated judge.
In this context, the passport context, that mechanism is missing entirely. There will be no one there for any of you to say that the government's intelligence is wrong or that the government's intelligence is being misinterpreted by counsel for the government.
I want to underscore three important things that somebody in that position can do, that is to say a special advocate or an amicus or however you style it. First, is the privilege properly claimed? I can tell you from my work as commission counsel on Air India and my work as a special advocate that the government routinely overclaims privilege. You know that from Justice O'Connor's report in Arar, and you can see it as well from Justice Iacobucci's report. The reason for that is very simple: No one ever gets fired for redacting. People get fired for not redacting. So the default position must be, in the intelligence culture, to protect. So that's the first thing: Is the privilege overclaimed? A judge will decide if it is or isn't. A judge's ability to make that determination is only enhanced by having someone advance a contrary position. That is the cornerstone of our legal system.
Think of it this way: There are ten facts, and seven facts are claimed privilege. After the litigation enclosed of those seven facts, three are released and properly claimed are four facts. Well, that's a just, sound and properly calibrated result. I'm not suggesting for one moment that everything should be released or that state secrets should not be protected. I'm saying that they ought to be properly protected, properly calibrated. That ensures that the person whose interests are at stake gets all of the non-privileged information.
Finally, if there is a remnant sitting enclosed or that has not been released that the government relies upon to revoke, someone will be there to argue whether revocation follows. Does it meet the test in the statute? I'm not meaning this in any way to undermine the role of our Federal Court judges or their competency in any way, but you can see from the ark of the jurisprudence since the introduction of the special advocate regime how those courts have benefited from the work of special advocates.
So this regime that's now being proposed, this passport revocation regime, is important. It's part of the mosaic of tools that our intelligence community must have. I don't deny that, but it must be done in a fair and just way. Certainly I'm not suggesting that you can't revoke the passport of someone who's going to commit a terrorist offence on the basis of sound intelligence, but I am saying that the process has to be fair.
A simple solution to this would be to vest discretion in the designated judge who's hearing these applications or these judicial reviews or appeals, to vest discretion in that judge to appoint a special advocate along the lines of Division 9 of IRPA. It's discretionary, and I say it's discretionary for this reason: Not every single case will require a special advocate. My sense, from having done some of this work, is probably a small number of cases. Most of them will be straightforward and pretty simple, but the tough ones are where our commitment to the rule of law and our commitment to protecting our citizens from excess government action comes into play.
To conclude briefly, it seems that, in my respectful submission, this is a valuable tool. It needs to be done properly. There's no point in leaving it for folks like me — although if I'm getting well-paid, maybe there is — to trundle up to the Supreme Court of Canada and argue that this is unconstitutional when you can see that there's a problem here. Without debating the Constitution, it's not correct morally, in my respectful submission.
That's what I leave for you, then, for your consideration. I'm happy to answer any questions you have, and I want to remind you of some of the debates you had during the suspension of senators and remind you all of the speeches that were made on your floor about due process and the importance of knowing allegations. If you recall those speeches, you will put into context the significance of what's absent in this legislation.
The Chair: Thank you, Mr. Kapoor.
Mr. Cameron.
Gord Cameron, Partner, Blake, Cassels & Graydon LLP, as an individual: Mr. Kapoor and I are here as a pair who sit in almost identical positions in our practices. We're both special advocates and sometimes appointed as an amicus curiae to the court or acting for commissions of inquiry. Mr. Kapoor has said pretty much everything I would say, and rather than take up your time by repeating it, I will adopt it and take your questions.
I would make this point of emphasis because I've heard it said by those who defend the silence of this proposed legislation on the adversarial voice, they say that the judge can always decide to appoint an amicus if that's what he or she wants. That wasn't good enough for the Supreme Court of Canada in the Charkaoui case. The legislative regime had to ensure that the absent person would have a voice in the proceeding to test the government's case. At a minimum, as Mr. Kapoor says, you can do what IRPA does in its non-security certificate proceedings, and at least say in the legislation that the judge may appoint a special advocate with all of the duties and obligations that apply in the IRPA scheme.
The rules are already there. People thought long and hard in response to the Supreme Court's ruling in Charkaoui. Draftsmen created the IRPA regime for special advocates about who gets what material and what limitations are on the special advocate's ability to disclose that information. The machine has already been built. You don't need to rebuild it for these purposes. You would just say that the same applies in this situation as would apply in an IRPA proceeding when confidential information is used. The judge may appoint a special advocate, and then the whole regime falls into place.
I say this because we are getting resistance from the Attorney General when judges want to appoint amici. The government doesn't like it. They don't want a countervailing voice in closed proceedings. If there's going to be an amicus, you get argument over what the amicus can do, with predictably the government trying to reign the amicus into the smallest role as possible and the judge saying that he would really like more out of that amicus, or the amicus, if he or she has an opportunity to speak, saying, "I think I can do more."
You don't need to do that. We've been there. We've invented the role of the special advocate. All you need to do in this legislation is put in one line like exists in IRPA, saying that the judge may appoint a special advocate.
The Chair: Thank you.
Dr. Mansur.
Salim Mansur, Associate Professor, Department of Political Science, Western University, as an individual: Thank you, Mr. Chairman. I want to begin by thanking you and the committee for inviting me to this hearing. Unlike my two panellists, I'm not a lawyer. I'm an academic, a scholar, a writer and a student of politics and history and culture, so I'll speak in the broader sense on the subject at hand.
I want to put on record that what we have been discussing is taking place in the context of a post-9/11 world and the situation within the Muslim world, so let me address this.
I come from not only the Canadian Muslim community, but literally my family and I come from within the wreckage of the Muslim world. We are the fortunate ones, those of us who have found a home and all that it denotes in Canada.
The Muslim community in Canada is not insulated from the troubles raging in the world of Islam, just as Canada is not insulated from those troubles. The Canadian Muslim community is faced with immense challenges as its members seek to adapt to the politics and culture of a liberal democratic society that their history never prepared them for. The Muslim community is deeply troubled, even bewildered, as it is stormed by demands of faith and loyalty of the world they left behind and of the country they now call home.
The Muslim community, especially those who are spoken of as moderate Muslims, needs help, but they're losing the struggle against those within the same community who engage in apologetics, and I will not condemn by name — for instance, Hamas, the Taliban, or the politics of the Muslim Brotherhood, or those who preach the virtues of jihad as a holy war incumbent on Muslims, a part of the religious belief, instead of demanding its end.
Muslims are not in any danger in Canada. Speaking here —
Senator Mitchell: I thought this was about Canadians.
The Chair: Just proceed. You have about three or four minutes left for your presentation, if you would refer to the basis of the legislation on passports.
Mr. Mansur: I was just laying the context for this. I will come directly to that.
The act as proposed allows individuals the constitutional right to challenge the decision of the court, and the judge will have the discretion to appoint a friend of the court to act on their behalf if the judge believes it is necessary. My colleagues on the panel have served in such capacity, I believe, and I defer to their legal expertise.
The state has a right to protect the integrity of its citizenship. Some may argue that having a passport is a Charter right, but there is no Charter right to be participating in acts which are reasonably believed, by the minister and the courts, preparatory to committing a terrorism offence. Those with such intent, if it can be confirmed, should not only lose their passports, but more effort should be made to charge them under section 83 of our Criminal Code.
While reasonable grounds to believe someone is about to commit a terrorist offence is not the same as proof beyond a reasonable doubt, it is still sufficient, in my view, to see to it that these individuals are charged and brought before the court to be prosecuted, and if the evidence stands, then convict them for violating the laws of Canada. I believe charges are a deterrent.
We need to see the laws which have been passed by Parliament fully enforced by the RCMP. So far they have been soft on jihadists and those who want to be jihadists. It is dismaying, sir, to ask of some 19 individuals who are seeking to join ISIS how many were charged under our Criminal Code. Similarly, of the 18 individuals have returned from supporting terrorism abroad materially or as a party to a crime, how many have been charged, prosecuted and convicted? Of the 145 individuals known to be abroad, how many of them have been charged in absentia?
In a post 9/11 world when we as Canadians refuse to come to grips with radicalization within our schools, mosques and the Muslim community— and I would have gone at some length to describe the situation which for the sake of time I've done away with here — is it too much to demand of our government that if there are reasonable grounds which will be examined in court to believe that someone is about to commit a terrorist offence, that "someone" should be indicted for terrorism under the provisions of the Criminal Code?
Our secular, liberal, modern democratic politics and culture are under siege. In such circumstances, to indulge political correctness and deny there is a dark side within the Muslim community means denying the sort of assistance the Muslim community needs to help it embrace, without reservation, Canada as their home. Such assistance will only be forthcoming when it is made amply clear to that community that there is no preferential treatment of any community of people in Canada, and that the rule of law in Canada means those who break the law will face prosecution and if found guilty will be duly sentenced.
There is something to be said in praise of tough love when we are — as I do — educating our children to be responsible citizens. The Muslim community in Canada needs tough love to save it from itself or from its own demons in these dark times for Muslims globally. This bill is one more step in the direction of putting together the right mix of tough love in dealing with those individuals who view being Canadian as a matter of convenience.
Thank you.
Senator Mitchell: Mr. Cameron and Mr. Kapoor, thank you very much for your presentations. I appreciate them. I'm interested in pursuing the notion that Mr. Kapoor raised in particular, but I know it was dittoed by Mr. Cameron in the sense of wanting to preserve time. Could the government simply now refer this to the Supreme Court, because it's going to go there anyway, and avoid delays in the future? Would it not be something that's perfectly within their purview to do right now?
Mr. Kapoor: Well, the public reference provisions could apply, and they could refer any piece of legislation to the Supreme Court if they were so minded.
From my perspective, a better solution is to have Parliament enact a provision which is constitutionally sound rather than requiring a reference and submissions and have the court deal with it. I think that this is pretty similar, straightforward, and consistent with our long British tradition, the Anglo-American tradition of litigation and determining people's rights. It's not exactly what people would want. Some folks would say, no, there should never be anything secret, but I'm not advancing that before you. I think there are some things that have to be kept secret, but it can be done in a way that is respectful peoples' rights.
Senator Mitchell: Thank you. The point I'm driving at is it's extremely likely, if not inevitable, that these provisions will end up in front of the Supreme Court based on a Charter challenge.
Mr. Kapoor: Yes, I would imagine so. Certainly.
Senator Mitchell: And it seems to me that it is very inordinate that you can actually have somebody being subjected to a review process, a judicial process, that has serious consequences — losing your right to go somewhere where you might be making your living or any other number of implications — and that that person will have no representation directly of any kind, or indirectly of any kind, in that process, and that the information upon which that process is deliberating could actually be filtered by the other side of the process, the minister, who will have an interest in defending the decision that they first made in an arbitrary context.
The Chair: Did I hear a question?
Senator Mitchell: That's my question.
Mr. Kapoor: Yes. Where do I sign?
Senator Mitchell: Mr. Mansur, I'm quite concerned that you would jump from the idea that there are 80 people who have returned, take news reports and a police person's statement — he's credible — but without any proof that suggests those people should be charged. You have no proof upon which to base that idea and you're suggesting without any proof. I mean, this is not a police state. You said you come from the ruins of a police state, essentially, coming here. Do you want a place where people are just charged because we read about it in the newspaper?
The Chair: If I could just intervene here, as the chairman, the issue we're dealing with is the question of passport revocation. Just for the record, this committee has been asking questions for the last six months about why charges haven't been laid, at least in some of the cases we have heard, and the public is asking some of those questions.
Deputy chair, I don't think it's fair, in all fairness, to question the right of the witness to be able to present that point of view, especially when we've been expressing it.
I'd like to move on to Senator Stewart Olsen and Senator Beyak.
Senator Stewart Olsen: I have a question for the special advocates. I'm not a lawyer and I have limited experience with all of this, but it seems to me it was said that there is an appeals process and that this can be appealed. Then when the department people were here, they said this is a very quick process and has to be so. So why would you want to put yourself to a position before the actual decision has been made? They were saying it's an administrative process. For my own edification, I don't understand why we would try to make this process longer and more cumbersome when, in fact, we may need to have this decision made rather quickly and that it can be appealed after.
Mr. Cameron: If I can offer a view on that, you're talking about a situation in which a passport has been cancelled or revoked, so the person who has an interest in expedition is the person whose passport has been revoked. When this goes on appeal, if you ask him or her if they want it to take 30 days with nobody there to speak for them, or 60 days with somebody there to speak for them, I think every time they'll say, "Take 60 days, but have someone in that room speaking for me."
Senator Stewart Olsen: You're saying in the appeal process.
Mr. Cameron: That's what I'm talking about. The administrative process is going to happen in the minister's office. It's when it goes to appeal and the judge is looking at it by himself or herself with only a government lawyer presenting the case. I think your question is why slow that down by inserting a special advocate. I would say that every time you ask somebody whose interests are affected by that, they'll say, "Slow it down a bit, if at least my interests are represented."
Let me say this, and I think Mr. Kapoor would agree with this. In the seven years of the special advocate regime, I have never slowed down the process. It has always been the government lawyers and the government bureaucrats who are the ones who are taking time to make the process work. We are always waiting for them to take the next step. So I don't think inserting special advocates into this process will slow it down at all.
Mr. Kapoor: If I could add something to your point, the minister's interest is satisfied. The notion that we want this to be a quick process is a bit of a false argument coming from the government, because the minister has revoked the passport. All the due process, rights and protections rest upon the person whose passport has been revoked. It's not as if the minister needs to go to court to revoke the passport. It has already been done.
The 30-day-let's-move-quickly, it's really about the person whose passport has been revoked. Because the minister does it. It gets done, and if you want to equate the minister's interest with the public's interest, it's satisfied: The passport is revoked.
Senator Stewart Olsen: And you're not confident that the judge would ask for an amicus in most cases where there was any question at all?
Mr. Kapoor: What it does is, if you were to accede to what Mr. Cameron and I are saying —
Senator Stewart Olsen: Mind you, this is for our viewers and me. I'm not —
Mr. Kapoor: Sorry, I didn't mean to personalize. Forgive me.
Senator Stewart Olsen: That's okay. You can for sure. It's just that it's a complicated issue.
Mr. Kapoor: Here's the thing. You might say the judge has the jurisdiction anyway to do it, but the argument is two steps away from appointment when it's not in the statute. When it's in the statute, the judge can say, "Parliament says I've got the authority to do it, and I think this is complicated, and I'm going to appoint somebody." If you reference it to Division 9, all that the special advocate can do in Division 9 lugs along, and that provides robust protection.
If you don't have it in the statute, the first argument from the government is going to be: "Parliament never put it in the statute. They did in other statutes, so really, I'm not so sure you should be doing it." Or they may start the first argument: "You don't have jurisdiction," and then they'll lose that argument, but they'll say, "But still, Parliament never put it in. That should give you a signal on how to exercise your discretion."
Mr. Cameron: And then the judge will have an argument with the government lawyers about the scope of the duties of the amicus because that's not defined, whereas special advocates' duties are all laid out in the statute. And that, to take your point earlier, takes time and, I regret to say, will be used as a way that the government can delay the whole process. There's another month or two arguing over whether to appoint an amicus and, if so, what duties that amicus should have.
Senator Stewart Olsen: Thank you.
Professor Mansur, in Australia, they're actually going further than revoking passports. They're seeking the removal of citizenship for dual nationals. What do you think about that kind of process?
Mr. Mansur: I will say that's part of our tough love. One of the concerns — and we don't have the time to get into it, and this raises all sorts of hassles. One of the issues in the immigrant community, particularly the Muslim community, is that there is a tremendous regard for citizenship and the passport, given the background from where people are coming. Then there is the problem they see or live with, the blame and the suspicion, and all of that is happening because of relatively few in the proportionality of the number who have abused the system. As they come from cultures that are not fully aware of the understanding of our level of democratic culture, they wonder why these people have not been dealt with severely, because they besmirch the entire community.
If the Australians are doing tough love, that would be something that ironically the community would support.
Senator Stewart Olsen: I know I went further than passport revocation, but I was interested in it. Thank you for a more fulsome explanation.
The Chair: Could I ask a question on special advocates? I think the viewers know as much about special advocates as I do, which means now we're starting at zero. Let's move from that point.
I understand that you have been appointed as a special advocate. You've had to take meet certain security requirements in order to be able to take on these responsibilities. I'd like to know a couple of things.
First, how many cases in a year do you hear as a special advocate, on average, approximately?
Second, from the point of view of vetting for a special advocate, of course you go through your security system. Then, after a period of time, do you once again go through a security system to ensure he or she is meeting the bar that's required? Are you at any time required to take a polygraph test from the point of view of security?
Mr. Kapoor: There aren't a lot of security certificate cases, in terms of pure volume. I think there were eight certificates. That's from 2008 onwards. There are not a lot of security certificate cases under IRPA. The narrow special advocate work under Division 9 IRPA covers about eight cases. Those cases have taken some time, but that's how many cases there have been under Division 9.
On work as a special advocate in other contexts, say section 21 of the CSIS Act, where the service is looking to get a warrant and the judge is of the view that he or she should have an amicus, that's like a special advocate, but it's not governed by Division 9 of IRPA. There are many more of those kinds of cases than there are Division 9 cases.
The Chair: As a special advocate, you're not called in for that particular type of work?
Mr. Kapoor: Not unless the judge wants one.
The Chair: A special advocate?
Mr. Kapoor: It would be styled as an amicus, but the judge will set what your powers are and what he or she wants you to do.
Senator Mitchell: The difference between an amicus and the special advocate is the amicus doesn't talk to the client?
Mr. Kapoor: That's right. In the section 21 warrant context, you could never talk to the person anyway. It's all secret.
The Chair: Does the system work, then?
Mr. Kapoor: Yes.
The Chair: Why wouldn't the system work here?
Mr. Kapoor: I say the system would work here, if it's exactly what I'm suggesting. I'm suggesting that the judge have the discretion. I'm saying that it should be a special advocate because unlike a warrant situation, which is section 21, that's part of an investigation. It's like the police get a warrant on somebody and they get the wires up and are listening to people. Similarly, the service can do that. That's part of their investigation, part of their mandate to acquire information.
On the other hand, when the government takes a formal step against somebody and either issues process — that is, charges them — moves under Division 9 to deport them and revokes their passport, the rights between the government and the citizen are engaged in a way that requires the citizen to have the opportunity to respond.
In a warrant context, we don't want the citizen to respond, right? We don't want the citizen to know that we're getting a warrant. It must always be without the citizen's knowledge. But once you move against them and you revoke their passport, then the citizen has a right to get up and say, "Wait a minute. Don't take my passport." It flows from that that there's a difference between this regime and, say, the warrant regime.
The Chair: The other question was how often are you vetted?
Mr. Cameron: The process was this. When, in 2008, the government had to set up a regime of special advocates to deal with the Supreme Court's rulings, they ran a process where people applied and their credentials were reviewed. There were certain requirements such as 20 years as an active senior litigator, then there was training, security clearance screening, and then you were on a roster. There were 25 or 30 special advocates and the counsel for the person who was being deported, or whatever, would select one. It turned out there were invariably two special advocates per case.
Any security clearance comes up for renewal in the top secret case every five years. I don't know if you're familiar with it, but it's a great long form of everywhere you ever travelled and every family, relative, their addresses and whatnot. That happens every five years.
In terms of polygraphs, that is at the discretion of the people who do the security clearance. It's becoming much more common in security clearances now — as a matter of fact, it might be de rigueur to have a polygraph in top secret security clearances.
The Chair: How often does that happen?
Mr. Cameron: Five years.
The Chair: You've had one.
Mr. Cameron: I haven't had a polygraph, but I've had a lot of security clearances because I've had a clearance since the 1990s.
The Chair: Now you'll be required to have one?
Mr. Cameron: I believe they're introducing them more commonly. I've just heard from other people who have had their security clearances renewed that the polygraph is becoming a regular part of the process.
Senator Beyak: Mr. Mansur, I think you started to address it during your comments, but in the essence of time the chair referred it to the question period. Southwestern Ontario has normally been a safe, secure neighbourhood. However, in the media there have been reports of radicalization and that it's a hotbed for terrorist events. Could you elaborate on the community, the schools, the education system and what we should be wary of before we have to revoke even more passports?
Mr. Mansur: Quickly, senator, the community is a young community, particularly where I come from in southwest Ontario, London. The community has grown while I have been there over the past two and a half decades at the university, from roughly 10,000 Muslims of various backgrounds in terms of ethnicity, to now something like 30,000 plus. There has been almost a doubling or tripling of the Muslim population in the greater London area, and similarly in Windsor and in between.
This is a young community, in a sense. I say that the community has arrived, but they do not fully comprehend the nature of the country in which they now make their home. This is a learning process.
In this learning process, one of the ironies — and this is one of the issues that I've been writing about — is that Canada has constructed a political culture that encourages, suggests and instructs the new young community to be themselves and take pride in who they are, what they are and where they're coming from. Apparently that leads to contradictions and conflict, because to be themselves means they reach back to those within the community who are the elders and who speak in language that creates a tension between loyalty and nostalgia and cultural affinity of the world that they feel they left behind and the country they've adopted. Those tensions are played out every day in schools, in universities, in colleges and in the workplace.
I'll give you one quick anecdote. I walked in recently to my bookstore. I swiveled around to talk to the person I was talking with in the university. I've been in the university for over a quarter century now, and I was confronted with this apparition of a lady in complete niqab. I was stunned. It happened all of a sudden. I think it will take a lot of work on the part of a lot of people to adapt. People are very cautious of what they can and cannot say, and run into trouble and they would not say anything, but I know how I was taken aback.
As I speak within the Muslim community, there's immensely divided opinion on this, particularly from the women. They ask: "Why would she do that?" That's what I'm talking about, that the actions of a few in the larger context of the war we are engaged in have profound impact on the perception of the larger community, who certainly do not support it but who are trapped themselves in the tensions that the community is going through.
The Chair: Colleagues, no more questions?
I think you've clearly outlined some observations on the bill. It's obvious that, in the principle of the bill itself — at least those that we've heard from — there's a need for some changes. What they are, obviously, is of some debate.
At any rate, I'd like to thank our witnesses for coming and I would like to excuse them.
Before I adjourn the meeting, I want to inform members that we'll be meeting on Monday at 1 p.m., and we should have observations in respect to the hearings that we've had to deal with the legislation before us.
Once again, thank you for coming. Thank you, colleagues.
(The committee adjourned.)