Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 2 - Evidence - Meeting of February 21, 2005, Morning meeting
OTTAWA, Monday, February 21, 2005
The Special Senate Committee on Anti-terrorism Act met this day at 10:34 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is the third session, with witnesses, of the Special Senate Committee on the review of Canada's Anti-terrorism Act. I will explain briefly the purpose of our work. In October 2001, as a direct response to the terrorist attacks in New York City, in Washington, D.C., and a field in Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act.
Given the urgency of the situation, Parliament was asked to expedite our study of the legislation, and we agreed. The deadline for passage of that bill was mid-December of 2001; however, concerns were expressed that it was difficult to thoroughly assess the potential of this legislation in such a short period of time. For that reason, it was agreed that Parliament should be asked three years later to examine the provisions of this act and its impact on Canadians with the benefit of hindsight and a less emotionally charged public environment. The establishment of this special committee begins the Senate's efforts to fulfill that obligation.
When we have accomplished this study, we will report to the Senate any issue that we believe should be addressed, and we will allow the results of our work to be available to the government and to the Canadian public. I should note that the House of Commons is undergoing a similar process at the same time.
Today we are delighted to be joined by Justice Minister Irwin Cotler, who is the lead minister responsible for this legislation and was very much involved in the debates surrounding Bill C-36 in 2001. He will be with us for the next two hours. His officials will remain to continue the discussion into the afternoon. Honourable senators, I would ask that questions and answers be as concise as possible, and I will remind you of that from time to time. We will have a first and second round of questions.
Thank you for attending today, minister. The floor is yours.
[Translation]
The Honorable Irwin Cotler, P.C., M.P., Minister of Justice and Attorney General of Canada, Department of Justice Canada: Honorable senators, I am pleased to appear before you this morning and participate, as you said in your introduction, in this examination of the Anti-terrorism Act, which in Section 145 has mandated a comprehensive review of the provisions and operations of the act.
I am also delighted to see that many committee members now conducting this review were also members of the Special Senate Committee on Bill C-36.
[English]
I am sure that your previous experience with, and knowledge of, the legislation will be of great benefit to the government, as it will be to all Canadians.
Having reviewed the discussions surrounding this legislation over the past three years, and your own exchanges with my colleague, the Deputy Prime Minister, the Honourable Anne McLellan, I propose to share with you some of the foundational principles and related values and policies that underpin the Anti-terrorism Act and my approach to it.
I say this because in the years since 9/11, I have participated in a series of conferences where the organizing theme — as in some of your own exchanges with my colleague last week — often finds an expression in the question, a legitimate question: How much of our freedoms should we give up?
The problem is that such questions — or focusing only on such questions — may, however inadvertently, invite an inquiry into the freedoms to be surrendered. These freedoms need to be addressed as distinct from the rights to be secured, which need also to be addressed. We need discourse on the dangers to our democratic way of life from counterterrorism law rather than the safeguarding of democracy itself from the terrorist threat as well as a characterization of the Anti-terrorism Act in terms of national security versus civil liberties — a kind of zero sum analysis — when what is involved here is human security legislation that purports to protect both security and human rights.
In that context, may I turn to the foundational principles that underpin our anti-terrorism law and the values that flow from it. The first principle:
[Translation]
The relationship between security and rights: The underlying principle here is that there is no contradiction in the protection of security and the protection of human rights. That counter-terrorism itself is anchored in a twofold human rights perspective. First, that transnational terrorism constitutes an assault of the security of a democracy and the most fundamental rights of its inhabitants — the right to life, liberty, and security of the person.
Accordingly, counter-terrorism is the promotion and protection of the security of a democracy and fundamental human rights in the face of this injustice — the protection, indeed, of human security in the most profound sense.
A very important point is that at the same time, and this is the second and related human rights perspective imbedded in the relationship between counter-terrorism and human rights, the enforcement and application of counter-terrorism law and policy must always comport with the rule of law. Minorities must never be singled out for differential and discriminatory treatment. That torture must always and everywhere be prohibited. That counter- terrorism must not undermine the very human security we seek to promote and protect by that counter-terrorism.
[English]
There is no contradiction between the protection of security and protection of human rights if we see anti-terrorism law as being organized around this twofold human rights perspective. The very nature of counterterrorism law is to protect human rights from its assaults. At the same time the enforcement and application of that counterterrorism law must never undermine the very values that we seek to protect by invoking that anti-terrorism law to begin with.
Principle two is jettisoning ``false moral equivalencies'' and is toward a ``zero tolerance'' principle regarding transnational terrorism. One of the most important — yet I believe oft ignored — dynamics inhibiting the dynamics of a principled counterterrorism law — and that is the nature of my remarks to you this morning: articulating what constitutes a principled approach to counterterrorism law — has been the blurring of the moral and juridical divides occasioned by the mantra that ``one person's terrorist is another person's freedom fighter.'' I have often felt — and this was long before I became a member of Parliament, let alone a minister — that the repeated invocation of this moral and legal shibboleth has not only undermined intellectual inquiry, but its moral relativism — or false moral equivalence — has blunted the just basis for a clear and principled counterterrorism law, which is our shared objective.
Simply put, the idea that one person's terrorist is another person's ``freedom fighter'' cannot underpin any principled approach to anti-terrorism law. Freedom fighters do not set out to capture and slaughter schoolchildren; terrorist murderers do. Freedom fighters do not blow up trains or buses containing non-combatants; terrorist murderers do. Democracies cannot allow the word ``freedom'' to be associated with acts of terrorism.
Accordingly, UN Security Council Resolution 1377 reaffirmed ``...its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms or manifestations, wherever and by whomever committed...''
The underlying principle here, be it for the Canadian government or for the United Nations or for any state party in the international community that seeks a principled approach to counterterrorism law, must be that terrorism from whatever quarter, for whatever purpose, is unacceptable. There must be a zero tolerance principle for transnational terrorism just as there must be a zero tolerance principle for racism.
[Translation]
The third principle is what might be called the contextual principle. By the contextual principle, I am referring to the approach that was taken by the Supreme Court of Canada, which in its jurisprudence noted that Charter rights, and any limits imposed on them, must be analyzed not in the abstract, but in the factual context that gives rise to them.
[English]
It is clear, as Professor Paul Wilkinson stated in his testimony before the Parliamentary Standing Committee on Justice and Human Rights, that we passed a strategic watershed on September 11. I would like to suggest to you that we also passed a juridical watershed, both domestically and internationally. Accordingly, any anti-terrorism law, in accordance with this contextual principle, must factor into it the nature and dimensions of transnational threat. This would include: The increasingly lethal face of terrorism as in the deliberate mass murder of civilians in public places; the growth and threat of destructive economic and cyber terrorism, which seeks to paralyze a civilian infrastructure; the sophistication of transnational communication transportation and financial networks; the increasing incidence of suicide bomber terrorism — and, this weekend we were, yet again, witness to another tragic manifestation of that in Iraq — underpinned by radical extremism or fanaticism; and the potential access to, if not prospective use of weapons of mass destruction. Of particular relevance to this contextual approach for us here in Canada is the increased vulnerability of open and technologically advanced societies like Canada to this transnational terror.
That brings me to the fourth principle — what I call the ``international criminal justice model'' in matters of anti- terrorism law. In brief, we are not dealing here with your ordinary or domestic criminal but with the transnational super terrorist. We are not dealing with ordinary criminality, but with what have been called ``crimes against humanity'' — not with your conventional threat of criminal violence, but with a potential existential threat, albeit, I hope, never to be realized by the whole human family.
We are dealing with what might be called ``Nuremberg crimes'' and ``Nuremberg criminals.'' That is, with what has been termed hostis humani generis: The enemies of humankind. In that sense, the domestic criminal law due process model, standing alone, is not sufficient, for the juridical war on terrorism cannot be fought by one country alone.
Accordingly, the international criminal justice model finds expression in Bill C-36, in our anti-terrorism law, not only in the domestic implementation by Canada of the 12 anti-terrorism issues specific conventions but also in the implementation of the undertakings mandated by the United Nations Security Council Resolutions.
[Translation]
In sum, the Anti-terrorism Act is intended not only to mobilize the domestic legal arsenal against international terrorism, but to help build and strengthen the international mechanisms to confront the new supernational terrorism.
[English]
That brings me to principle five, the prevention principle. A core concept of our anti-terrorism law — and of United Nations Security Council Resolutions 1373 and 1377, which are anchored in that anti-terrorism law — proceeds from a culture of prevention and pre-emption, as distinct from reactive, after-the-fact law enforcement. This includes the range of international terrorist offences, which have been domesticated into Bill C-36, that seek to disable and dismantle the terrorist network itself, as well as the investigative and procedural mechanisms such as preventive arrest and investigative inquiry that seek to detect and deter rather than just prosecute and punish.
Principle number six is the Charter of Rights and the proportionality principle. As is well-known, the enactment of Bill C-36 proceeded from an analysis of the legislation as comporting with the Charter in its various expressions. This does not necessarily make the legislation Charter-proof.
All it suggests to you is that it is part of our responsibility as a government to ensure that any prospective law such as Bill C-36 conforms to the Charter.
As the Supreme Court of Canada instructed in R. v. Oakes, if there is to be a limitation, ``...there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right and the objective which has been identified as of sufficient importance,'' because in section 1 of the Charter, there is authorization for a limits principle.
[Translation]
It is the proportionality principle — that the juridical response to terrorism must be proportional to the threat.
[English]
That is, the juridical response, in terms of our anti-terrorism law, must be proportional to the nature of the threat.
[Translation]
The principle requires that we factor into our assessment of our anti-terrorism law the dangers of the contemporary transnational terrorist threat so that we can appreciate whether our response meets the rights-based proportionality test.
[English]
Accordingly, while the terrorist threat has crossed a strategic and juridical watershed so as to comport with the first requirement of the proportionality test that there be a substantial and pressing objective — or what has sometimes been referred to as a ``compelling state interest'' — for the purposes of enacting such a law, it must still pass constitutional and policy muster in respect of the three prongs of the ``remedial means'' part of the proportionality test. That is to say there must be a rational basis for a remedy that is specifically tailored to the objective sought to be secured; that the remedy should intrude upon Charter rights as little as possible and that the effect or cost of the legislation — particularly in its impact on civil liberties — not outweigh its purposive and remedial character, which seeks in its most profound sense to protect human rights. That is why I say there need not be a contradiction between the two, but that test is there to pick up any disproportional character in a response.
Thus, while we are dealing with special legislation responding to an extraordinary threat, that legislation must comport with the principle of proportionality — of just remedies serving just objectives. As Professor Errol Mendes has noted, ``As our world gets more dangerous, the law and justice of proportionality will become one of the most foundational principles that constitutional democracies around the world must strive to adhere to.''
Principle seven is the comparativist principle.
[Translation]
In a word, in determining the justificatory basis for Bill C-36, Parliament had recourse to comparative anti-terrorist legislation in other free and democratic societies such as the UK, the US, Australia, France, Germany and the like.
[English]
The importance of this and the experience gained from it was not only to appreciate what other free and democratic societies were doing, but also to appreciate that all other free and democratic societies had enacted or were in the process of enacting anti-terrorism legislation. The purpose of these enactments, looking at their ``travaux préparatoires'' in the various countries that enacted them, was to protect those societies and allow them to remain free and democratic.
This does not mean — nor should it be inferred — that just because we looked at other free and democratic societies and found that our legislation was preferable that we have thereby satisfied the threshold requirements of our Charter and our Canadian principles and values. I think if you do take that kind of comparative look you would find that rights security configuration is in that context.
I make reference to the comparativist principle because it formed part of the review process in drafting the legislation. The Supreme Court of Canada has looked and will look to the comparativist principle in terms of appreciating the constitutionality of such legislation.
Principle eight is due process safeguards. While I argued earlier that an analysis of our anti-terrorism law should proceed from a more inclusive, international criminal justice model, this does not mean that the domestic due process model is unimportant or irrelevant. On the contrary — and I speak here as one who has defended political prisoners in different parts of the world who have themselves been suspected of acts of terrorism — the domestic due process model is a necessary model and safeguard, and one that must be included in our appreciation of the foundational underpinnings of this legislation.
Principle nine is the minority rights principle. It addresses the particular concern of protecting visible minorities from being singled out for differential and discriminatory treatment in the enforcement and application of anti- terrorism law. This was also a central concern in the submissions of civil libertarian and Muslim groups before the Standing Committee on Justice and Human Rights, which considered Bill C-36. At that time I was a member of that committee, as well as involved with the deliberations before the Senate committee. In their brief to the justice committee, the Coalition of Muslim Organizations argued that the fallout from the government's anti-terrorism law and policy would be differentially and discriminatorily borne by Muslim Canadians. That submission has continued to find expression in the concerns respecting racial profiling, which formed part of your deliberations last week in that regard.
I reiterate again what has been my long-standing principle and policy in this matter: Discriminatory practices, including the targeting of minorities, have no place in law enforcement and security and intelligence work. We are committed to ensuring that the operation of the Anti-terrorism Act does not have a discriminatory impact on members of ethnocultural and religious minorities, and that racial profiling is itself a form of racial discrimination that can undermine the constitutional right to equality.
Principle 10 moves to clothe the anti-hate principle.
[Translation]
This principle — another variation of the minority rights principle — seeks to protect visible minorities from any hate on the Internet or in the public communications sphere, which can have the effect, not only of singling them out as targets of hatred, but also as targets of terrorist acts.
[English]
Thus, our anti-terrorism law includes important provisions that will allow the courts to order the deletion of publicly available hate propaganda from computer systems, such as an Internet site. As well, there are Criminal Code amendments that would create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour, national or ethnic origin, committed against a place of religious worship or associated religious property.
In addition, there are amendments to the Canadian Human Rights Act to make it clear that using telephone Internet or other communication tools for hatred purposes or discrimination is prohibited. This is particularly important in light of the Internet's ability to extend the potential reach of hate messages to millions.
Principle 11, the last principle here, is the oversight principle.
[Translation]
This is a particularly important principle which finds expression in oversight mechanisms in the anti-terrorism law, to ensure both parliamentary and public accountability. I want to talk about a few of these.
[English]
Just a quick enumeration of some of the oversight principles of course deserves more elaboration. I am referring to the application of the Canadian Charter of Rights and Freedoms; the application of international human rights norms; the annual reports of the Minister of Justice and Solicitor General to Parliament and the counterpart reports to provincial legislatures; the requisite authorization or consent by the Minister of Justice for prosecutorial purposes of terrorist offences; the enhanced judicial capacity regarding offences and investigative mechanisms under the act; the mandatory three-year parliamentary review, which we are engaged in right now; and a sunset clause for the provisions respecting preventive detention and investigatory hearings and the like.
[Translation]
In addition to judicial and parliamentary oversight, the medias, NGOs and an engaged civil society also oversee the operation of the act and, therefore, promote the act's overall integrity and efficacy.
[English]
Madam Chair, today this committee has the advantage of examining this act, as you mentioned in your opening remarks, from the perspective that can only come with time. In undertaking this review, you will have the benefit of three years' experience of this legislation being in force, with the expertise and experience of those officials and academics — Canadian and international — whom you choose to call as witnesses, with the wisdom and guidance that have been provided by our courts, and with the experience of our diverse communities that make up the Canadian mosaic.
[Translation]
The importance of this legislation cannot be overstated. Canadians need to be reassured that their government has both done all we can to protect them against terrorist acts, without unnecessarily infringing on their individual rights and freedoms.
In effect, in developing a comprehensive anti-terrorism law, the challenge is not one of balancing the protection of national security with the protection of human rights but one of the re-conceptualizing human rights as including national security and vice versa.
The inquiry is not one of the freedoms that should be surrendered, but of the rights that should be secured. The two are inextricably linked.
[English]
Accordingly, the Government of Canada must have a principled approach to the protection of security and human rights, which we share with this committee as we have sought to build upon it in our discussions with our international partners and in our work with our provincial counterparts. To this end, I am pleased that an FPT working group on terrorism is being established to ensure a comprehensive, integrated and coordinated strategy to address terrorism.
Honourable senators, your valuable work initially on Bill C-36 and the recommendations that were forwarded by your Special Committee on Bill C-36, at the time, enhanced and strengthened the legislation that is before this review. Similarly, we are looking forward to the outcome of your deliberations in the months ahead and in particular to receiving your views on the provisions and on the operation of this legislation.
I am looking forward to hearing the submissions and the testimony of the witnesses who will be appearing before you. If invited, I would be pleased to appear before you again. I wish you every success as you begin this review and I welcome your questions and comments.
The Chairman: Minister Cotler, thank you for your thoughtful presentation today.
In emphasizing the issues that the minister has raised, it would be helpful if we could be as concise as possible. Due to the generosity of the minister, in staying longer, there will be a second round of questions.
Senator Andreychuk: Minister Cotler, thank you for coming here today and laying out the principles as you see them. They will be a good guideline for us to use with other witnesses. I am looking forward to reviewing all of the principles that you have placed before us.
Depending on where we are and the fact situation, I believe that the tensions and balance of protecting society from terrorism and infringing on other civil liberties is a very real one. That is an issue that the public is preoccupied with and rightly so.
The legal slack that society normally allows government in infringing on civil rights during wartime cannot be applied to the war on terrorism, because it will not have an end as, for instance, the Second World War. I am paraphrasing the words of Supreme Court Justice Ian Binnie when he addressed the meeting of the Canadian section of the International Commission of Jurists. He also said that no one believes that the war on terrorism is an episode; it will be with us all our lives and the justice system must get back to reality. He stated further that while most would agree that terrorism is the greatest danger to human rights and the rule of law, society cannot ignore the individuals who may be wrongly caught up in mistakes made by the government or in intelligence miscalculations in security systems. Mr. Justice Binnie said that there is an uneasy balance between society's interest and the human rights aspects of the case, and there is an extreme difficulty in adapting our normal judicial processes to working out the rights and wrongs of that kind of conflict.
Mr. Justice Binnie further stated that the rule of law generally punishes people for what they do, not what they think, but those attempting to prevent terrorism try to get inside the heads of those who may be plotting such activities and by doing so push beyond what traditionally have been the limits of criminal responsibility.
I would like your opinion as to whether Mr. Justice Binnie is correct when he further states that since September 11, 2001, the notion that a judiciary would be willing to trust elected officials to satisfy themselves about the integrity of the security system is pretty wide. In other words, only the executive is being given credit to fight the war on terrorism. As a result, it is increasingly important, first, that we not prejudice any segment of our society; and, second, that there is some oversight. If I understand Mr. Justice Binnie, judicial oversight has also weakened because of terrorism.
Mr. Cotler: I subscribe without equivocation to everything that Mr. Justice Binnie said. Perhaps he expressed more eloquently that which I sought to express in my remarks, particularly in my opening approach to the relationship between security and rights. It is a proper characterization that a certain tension has organized itself around the concept of this relationship.
My approach, and it is very much the approach of Mr. Justice Binnie, is that there need not and should not be any contradiction between the protection of the security and the protection of human rights. We ought to look at the relationship in a twofold human rights perspective.
As Mr. Justice Binnie says, since terrorism constitutes an assault on human rights, then counterterrorism law can be seen as the protection of human rights. At the same time, in the course of the enforcement and application of that anti- terrorism law, we must always respect the rule of law and never permit minorities to be singled out for discriminatory treatment, nor should we pressure people for what they think rather than for what they do, to use his words. I subscribe to those remarks and others that have been made.
In conclusion, I agree about the importance with respect to oversight of the role of the judiciary. In my remarks I alluded on a number of occasions to principles enunciated by the Supreme Court, be it ``contextuality,'' proportionality or the minority rights principle, all of which are intended to create a situation where the whole approach to terrorism should be conceptualized and configured in terms of the rule of law.
One thing that worries me — and this is where we slide into a stereotypical approach to analysis — is where we have a situation that those who purport to protect national security or speak in favour of the anti-terrorism law are sometimes said to be anti-civil libertarian, whereas those who speak in favour of civil liberties and are critical of the anti-terrorism law are sometimes said to be anti-national security. There are good civil libertarians on both sides of the issue. There are people who care about national security on both sides of the issue. I am worried about a zero-sum analysis of national security versus civil liberties.
I take Justice Binnie's approach to be one that seems to suggest that what we need is both the protection of security against an assault from terrorism and the protection of human rights in the course of enforcing and applying our anti- terrorism law. He expressed it more eloquently than I could, and I subscribe fully to all his remarks.
Senator Andreychuk: To clarify, I do not think that either Justice Binnie or I were going into the proportionality between rights and the need to protect from terrorism. You had pointed that out, and I was going to look at it. What I was asking about is that normally citizens can rely on the rule of law, as we know it and as we have honed it within our national law and within some of our international treaties, to protect us. The balance had been struck correctly. From what I understand now, the courts are struggling with the same issue as citizens: How much of the balance needs to be moved toward terrorism, and what intrusions into our other rights are fair in a time when we are dealing with terrorism?
The question is that even the courts may be more lenient or in a struggle to define a correct balance. Consequently, is there not some need for other oversights so that citizens are not just relying on the courts, because the struggle involves the courts? Should there not be continuing valuable oversight from parliamentarians — more than there has been?
When I mentioned the proportionality principle, along with the contextual principle, and the minorities rights principle, it was only to underpin Justice Binnie's remarks that the courts have not only played and continue to play an important oversight role, but they have articulated principles in respect of which the balance between security and rights can be properly configured and applied. The proportionality principle is one that was developed outside the framework of anti-terrorism law, but it is appropriately applicable to anti-terrorism law. In other words, is the remedy that we choose in anti-terrorism law — in one form or another in regard to the facts and circumstance of a particular case — proportionate to the objectives sought to be secured? The proportionality principle is a means of trying to get the balance right.
It is true that civil liberties scholars and human rights watches said that the balance with regard to security and rights may need to be reconfigured in an age of terrorism but never lose sight of the importance, at all times, of protecting the rule of law? Here I get to your point about Parliament. It is not enough to leave the matter to the courts. The courts are an important bulwark with respect to the protection of the rule of law and enunciated principles. They give us framework for that protection, but Parliament has a crucial, ongoing, oversight role with respect to holding the executive accountable and to holding the operations and applications of the anti-terrorism law to conformity with the rule of law. Yes, there is an important oversight role for Parliament. We are indeed engaged in that role right now by reason of this review three years after the adoption of the act.
I have to say — and here I admit this is self-serving as a Canadian — but when I did look at the comparative approach to the enactment of anti-terrorism law in other countries, I did not find the kind of parliamentary oversight that both the House and the Senate gave in the wake of the enactment of Bill C-36 and the mandatory review requirement included in the legislation itself in section 145. This speaks well of us in terms of appreciating the commitment and the necessity of parliamentary oversight in this regard.
Senator Andreychuk: The question I wanted answered is in regard to the deference the court seemed to be paying in the executive arm and its discretion. Is it different from what we had before? I will leave that for the second round.
The Chairman: Minister Cotler, you will remember that our special committee had a recommendation on an oversight before, which did not quite make it that round. We will see what happens this time around.
Senator Jaffer: It is a pleasure to have you here. In your other life, you were a human rights lawyer. We know you have defended in many countries and are going to other countries to promote a training of judges in the justice system. I want to commend you on your effort to open this dialogue toward improving legislation. I have appreciated your openness to this.
I have a number of short questions of you. My first question is on security certificates. I do not like them, but I think we are stuck with them for a little while. The challenge with the certificates is the suppression of information such that the accused is denied the basic right to information, including the right to know the nature of adverse evidence, the right to access the evidence collected against him or her, and the right to confront witness testimony and to be able to rebut adverse evidence.
You heard what Justice Hugeson has said and what retired Superior Court Judge Roger Salhany has said. Both have said that they do not have training; they are used to an adversarial system. We work in an adversarial system. With that in mind, minister, I would like you to consider having legal advocates as in England, so somebody can work with the judge, solely representing the accused.
The second thing I would ask is that besides the special advocates, there be an annual reporting of how many certificates have been issued. At the moment, what is happening is what you have fought all your life — as in South Africa — there were secret trials. People of minority groups like mine feel discriminated against.
When you were speaking on minority rights, you had recommended a discrimination clause in the act, and I would like your opinion as to whether you would recommend that there be one. You had said before that you were recommending a non-discrimination principle prohibiting the arrest, investigation, detention and imprisonment of any person on grounds of race, religion, ethnic origin, et cetera. I would like your comments.
Mr. Cotler: Let me go first to the issue of security certificates. I am not unmindful, upon reviewing what I had written on issues of anti-terrorism law and policy, that I had not written about the security certificates. I wrote about the Attorney General's certificate, which is confused by some with the security certificates. They are different remedies and applications. One reason I did not write about it was because in reviewing the anti-terrorism law, Bill C-36, at the time and since, the security certificate had predated the anti-terrorism law. It had been inserted into the Immigration Refugee Protection Act in 1991, and it had been used for reasons other than just acts of terror. Clearly, it has become part of the legal culture in relation to the anti-terrorism law and policy.
Let me address it in its particulars as you mentioned — the question of having a friend of the court or amicus curiae take part in camera sessions.
As I said, I did not write about this issue, but I thought about it. I had a disposition toward that view, but then I read the judgments on this matter by the Supreme Court, and I will share with you the appreciation that I took from them, which may assist you in your deliberations and any recommendation you might wish to make.
In 1992, the Supreme Court examined the issue of in camera ex parte proceedings in the Chiarelli case. They ruled that this process does not breach the principles of fundamental justice and that it was not necessary that individuals be given details of intelligence investigative techniques or sources used to acquire the information upon which the two ministers would rely in issuing the certificate.
In response to that, some people thought that, given the in camera character of the hearing, the Federal Court should appoint an amicus curiae, arguing that it was necessary for the purposes of having a right to a fair hearing. The court rejected such a request in the Harkat and Mahjoub cases in part on the basis that the summaries prepared by the judge are adequate means to inform the individual of the case against him, and because having certificates reviewed by an independent judiciary is also important in ensuring fundamental justice.
In the Charkaoui case in 2003, the Federal Court concluded that it would not be advisable to adopt an amicus curiae mechanism. The court reasoned that the adversarial element afforded by such procedure might be rather artificial and would make the process of approving applications unduly complex. Further, the court indicated that a judge is capable of giving adequate consideration to all relevant aspects of an application without the assistance of an adversarial procedure.
These have been an abbreviation of the court's response to your question, which I have also thought about. I went to the jurisprudence and have distilled for you what I found in the jurisprudence. It is something that this committee can look into. You may find that to be an appropriate mechanism with respect to ensuring the accused the right to a fair trial.
In the matter of a discriminatory clause, I did recommend it at the time and, as I always say, I do not usually change my principles because I have gone somewhere else — from law professor to MP to minister. I would recommend it again, not because there has been a pattern or practice of abuses that warrant it, but for further certainty and not so as to restrict the generalities of the foregoing. That was what prompted me at the time to suggest an anti-discrimination clause, though there was in another context an interpretative anti-discrimination provision that was put in with respect to the definition of ``terrorist activity'' and the motivational elements in relation to that.
Senator, if you wish to revisit a suggestion that I have made, I have not changed in my recommendation.
Senator Jaffer: Minister, I commend you on the round tables you have held with the community since you have become minister; however, they were not taking place previous to your becoming minister. I am sure it is not news to you that the community, especially the Muslim community, feels very much under the threat of being arrested.
My colleague Senator Andreychuk was talking about oversight. One thing that I would ask you to look at is instituting an oversight officer, meaning a parliamentary officer that would look at the Security Intelligence Review Committee, the Canadian Security Intelligence Service, the RCMP, and the Integrated National Security Enforcement Teams. There would then be a comfort level to the minority communities that there is somebody overseeing these processes.
Mr. Cotler: Since I have become Minister of Justice and Attorney General, I have made a point to meet with ethnocultural and religious groups across this country and sought to include such visits in the context of other visits that I might be making to a particular province or region.
As well, since I have become Minister of Justice and also before, the Department of Justice has maintained ongoing consultations, though perhaps not as regularly as one might wish. In that regard, on November 29, 2004, officials from my department and the Department of Public Safety and Emergency Preparedness held a one-day consultation with some 22 representatives of religious and ethnocultural groups, and I participated in that deliberation. As well, a meeting was held with groups outside that particular officially designated consultation.
As you know, and I need not elaborate upon it, we have established a cross-cultural round table on national security for purposes of securing feedback from the representatives on that cross-cultural round table, so we can better appreciate how the application of the law is being received and how it is seen as impacting upon visible minorities in this country — in particular, the Muslim community, who have been concerned that they are singled out at various places, be it cross border or information gathering.
I am aware of the concerns. We need to develop a number of initiatives for purposes of addressing those concerns: one, regular consultations with religious and ethnocultural groups; two, the cross-cultural round table on national security, both of which are in place; three, training for our law enforcement officials with respect to the whole matter of the interdiction of singling out visible minorities for differential and discriminatory treatment; and any other initiatives that you might come up with, be it in the form of a parliamentary officer or otherwise to address such concerns.
Senator Lynch-Staunton: Thank you, minister, for your thoughtful and learned presentation on the principles that guide you and, in turn, make us reflect.
I was struck by the fact that you only made passing reference to Bill C-36, without pinpointing features in it that are essential in the war against terrorism. Your colleague, the Deputy Prime Minister, was maybe a little more forceful in her support of Bill C-36, but she did not pinpoint in her formal presentation any aspects of it that are essential.
In studying the application of the act over the last three years, very little of it has been used — certainly the more contentious features of it that were focused on by the committee set up to do a pre-study and the committee that studied the bill itself before passage. The minister last week pointed out that our fears on those were not founded, which is reassuring. Other than creating a list of entities and all that that implies, I have not found anything controversial or contentious in the act, which has been scarcely used, if at all. What has been preoccupying us now, with you and your colleague who appeared before us last week, is the use or misuse of security certificates, which come under the Immigration Act.
I hope that we will have someone from the Department of Citizenship and Immigration come to tell us more exactly why security certificates are being used the way they are.
Can you convince us that Bill C-36 is so essential that it must be continued in total? If so, what in particular in Bill C-36 is essential in the government's policy to collaborate with other governments to fight terrorism?
Mr. Cotler: You are correct that I did not go into the specifics of the anti-terrorism law, because I thought it more important in my opening presentation to share with you the principles that underpin both the specifics of this law and the raison d'être of the law as a whole. I hoped to address in that initial presentation, in the contextual principle, the importance of appreciating the threat environment that gives rise both to the need and to the continuing raison d'être for an anti-terrorism law and policy, the importance of always bearing in mind the relationship between security and rights from that two-pronged human rights perspective.
There were some specifics tucked away in what I was saying that may not have been fully appreciated. For example, I referred to the fact Bill C-36 is the domestic implementation of 12 issue-specific anti-terrorism international law treaties. That comports fully one half of the definitions of ``terrorist activity'' under the anti-terrorism law. I made reference to that because that is often ignored.
People sometimes have a sense that the anti-terrorism law was somehow enacted out of whole cloth or in a vacuum. It was not only a response at the time to the fallout from 9/11. I wrote for the need for an anti-terrorism law while an academic, and it was published long before the question of 9/11 ever came into being.
In terms of our own appreciation, the Department of Justice — and this may be fortuitous — was engaged at the time in developing our domestic response to our international anti-terrorism obligations. When 9/11 occurred, that work was already largely in place and then found expression in the actual legislation itself — not only the domestic implementation of the 12 anti-terrorism treaties but also the domestic implementation of UN Security Council mandates with respect to what we had to include in our anti-terrorism legislation by the nature of the acts that needed to be criminalized. To refer to some specifics in that regard — and that is when I was referring to the international criminal justice model — look at the 12 international conventions that address specific terrorist acts that Canada both signed and ratified.
The treaties oblige Canada to do a variety of things such as severely punish, prosecute or extradite those who commit acts of aviation sabotage and protects against hostage taking. I can go on and on. You will find reference as well to create a regime of universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices into or against various defined public places with the intent to kill or cause serious bodily injury or with the intent to cause extensive destruction of a public place, to prevent and counteract financing of terrorists by holding those engaging in such acts criminally, civilly or administratively liable. This comes from the International Convention for the Suppression of the Financing Terrorism, just as I referred earlier to the International Convention for the Suppression of Terrorist Bombing. I can go on and on in that regard.
There are specific mandates that we were asked by the UN Security Council to incorporate and enact by way of Bill C-36. We have done that namely to criminalize the wilful provision or collection of funds to be used to carry out terrorist acts; to prohibit making available funds or financial or other related services for those purposes; to refrain from providing any form of support to entities or persons involved in terrorist acts; to take necessary steps to prevent the commission of terrorist acts; and to establish terrorist acts as serious criminal offences in domestic law and reflect the seriousness of such acts in the sentences served by offenders; and to implement administrative and operational measures to increase the capacity to prevent and suppress terrorist acts at home and internationally.
Therefore, in response to this UN Security Council mandate — and I only excerpted from some of those mandates — you then have specific offences. The bill establishes a series of new criminal offences, the most important of which relate to the financing of terrorism, and it also incorporates both a definition of ``terrorist activities'' and ``terrorist groups.'' If you look into the legislation, you will see the prohibitions and the matters of offences relating to participation in, contribution to or facilitation of terrorist activities; instructions to anyone, prohibition of instruction to anyone to carry out terrorist activities, harbouring or concealing a terrorist, threatening or attacking UN personnel or other protective persons. Again, I can engage in a recital of the legislation, but I do not wish to burden anyone with doing that.
Senator Lynch-Staunton: You are not answering my question. My question was not what prompted the bill or what is in the bill. My question is this: What in the bill has the government found useful in its fight against terrorism? In answer to questions on the Senate Order Paper over the years, it has been found that in very rare circumstances — and even then only once or twice, depending on which section you look at — except for the list of entities and all that implies, I have not been convinced that Bill C-36 has been found so effective that it has been applied on a constant basis. If it is applied at all, it is on a rare basis.
Again, we get back to the certificates under the Immigration Act. That is where the government seems to be emphasizing its need to keep certain suspects in detention indefinitely, in effect. That is a discussion for another time. Under Bill C-36, there is also a provision for arrest without warrant, but that has never been used. Other features, which are draconian, have also not been used. The government is using another bill, but the one that is under review has hardly been used, if at all. I am wondering why.
Mr. Cotler: The fact that some provisions have not been used does not mean that they were not then or are not now needed.
Senator Lynch-Staunton: I will stop you here. What is needed here?
Mr. Cotler: We ignore something. I do not want to belabour the point, but we need to be seen to be and in fact be a good international citizen with respect to the juridical response to transnational terrorism. Being a good international citizen means enacting, as a matter of law —
Senator Lynch-Staunton: I am not faulting you on that.
Mr. Cotler: I am saying there is an inherent purpose for doing just that.
Senator Lynch-Staunton: I want to know what you are doing with it, now that you have it.
Mr. Cotler: When you have it, then you apply it where it is appropriate. I do not mean to take issue with you, but if the UN Security Council mandates that state parties do A to Z, then doing so, regardless of the application that is then to follow, is in and of itself an adherence to international responsibilities that we have.
If it were never applied and never used, that in itself would have its own inherent validity. As to the application itself, there have been some uses of the anti-terrorism law. In fact, there have been 35 entities listed under section 83.05 of the Criminal Code, and you made reference to that. I would not belittle the importance of that.
Senator Lynch-Staunton: I do not.
Mr. Cotler: If you list a terrorist entity, that has a whole range of associated prohibitions.
Senator Lynch-Staunton: What else?
Mr. Cotler: I say that that in itself is important. From 2001 to 2004, Financial Transactions Reports Analysis Centre of Canada, FinTRAC, made 69 disclosures of information to law enforcement and intelligence agencies related to suspected terrorist financing and threats. I indicated that that was one of the major purposive approaches of the legislation to begin with, in terms of suspected terrorist threats to national security, pursuant to sections 55 and 55.1 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. In fact, in 2003 and 2004 alone, FinTRAC disclosed to law enforcement and national security agencies 48 cases of suspected terrorist financing or threats to the security of Canada, the total value of which amounted to approximately $70 million. You may say that this is not all that much, but these things have a kind of building block effect, when you take the issues of the listing of terrorist agencies; when you take in the question of the combating of terrorist financing; when you take our ability to engage in mutual legal assistance and international legal cooperation in matters of terrorism, because we are a state party to these conventions; and when you take into account the development, in April 2004, of a national security policy in respect of which the anti-terrorism law can remain a kind of linchpin for the protection of any threats to the critical infrastructure of this country and the like.
I am reminded of when former Prime Minister Trudeau was criticized at one point for proclaiming the War Measures Act, and an insurrection did not occur. His response to the fact that an insurrection did not occur was that it does not mean that it could not have been apprehended, and that the very apprehension may have deterred it from occurring.
I do not want to make facile analogies. I say that part of the act is in fact a culture of prevention. In other words, it will allow us, as I said, to disable and dismantle the terrorist networks rather than just after-the-fact law enforcement or after-the-fact prosecution and punishment. The crucial thing when you are dealing with terrorism is the prevention of these acts of terrorism to begin with. Much of this legislation is organized around what might be called, as the UN Security Council put it, a culture of prevention.
The Chairman: I will intrude slightly here, noting that we have now 45 minutes left, and we still have three senators on the first round. I do not know if there is any leeway in time here, Minister Cotler, but I know that all the senators are eager to have an opportunity to ask questions.
Senator Fraser: Minister, I note your eloquence in defence of prevention. I cannot imagine that any Canadian citizen would quarrel with the absolute importance of preventing terrorist acts.
I would like to ask you about what may have been the most controversial single element of this law, and that is the provision for preventive arrest. It is very comforting that we have not had any in the past three years, but nonetheless the law is there. It represents a significant departure from what Canadians had previously understood to be the protections that they had in our society. One can end up imprisoned for as much as a year under these provisions. The grounds for the arrest provision can be as simple as a police officer suspecting on reasonable grounds that you might be about to commit an offence under the act, such as harbouring somebody, et cetera.
Is this a reasonable provision? I am asking you because of your profound background in human rights law. It is still very hard for me to swallow that we have things like this in Canadian law. Are there ways in which we could refine it?
Mr. Cotler: I wrote rather extensively about the question of recognizance with conditions or preventive arrest, as it has been sometimes called, which permits a judge to impose a recognizance with conditions on a person in order to prevent the carrying out of terrorist activity.
You are correct that we are dealing here with a preventive approach because punishment after the fact is not enough. While often described as preventive arrest, the purpose of the provision is not to arrest the person but to put that person under judicial supervision in order to prevent the carrying out of a terrorist activity. The recognizance with conditions power has numerous safeguards built into it. I will only identify some, because while there is an understandable concern with a ``démarche'' that is novel under the criminal justice system, it may appear to be less aberrant if it is appreciated and is part of, as I said, prevention rather than after-the-fact law enforcement, which may be too late.
Let me look at some of the safeguards. Except in exigent circumstances, the consent of the appropriate Attorney General is required before a peace officer may lay an information to bring a person before a provincial court judge. The peace officer needs to meet two standards before an information is laid. The officer must believe on reasonable grounds that a terrorist activity will be carried out and suspect on reasonable ground that the arrest of the person or the imposition of a recognizance on the person is necessary to prevent the terrorist activity. Only a provincial court judge can receive an information and has the residual discretion not to issue process where an information is unfounded or the arrest of the defendant would be excessive and unwarranted.
You have here an approach that has built-in safeguards. I would go further to say that a person detained in custody must be brought before a provincial court judge without unreasonable delay and, in any event, within 24 hours of arrest, so we are not talking about indefinite, unsupervised and unreviewable detention, unless a judge is not available within that period, and the maximum period of detention can only be 72 hours. I have heard this thing with regard to a year, but that is ignoring the process and the process of ``reviewability.'' Where an information has been properly laid and a person is taken before a provincial court judge, the judge must order — and this is important — the release of the person unless the peace officer can show cause why the detention of the person is justified. The judge may order that the person enter into a recognizance to keep the peace and be of good behaviour and may prescribe any other reasonable conditions. A recognizance may not exceed 12 months in duration, having regard for the ongoing supervisory safeguards in this regard. In other words, a person entering into the recognizance has the right to apply to vary the conditions under the recognizance order, and the recognizance with a conditions provision is subject, as we know, to annual reporting requirements, and is subject also to a sunset clause.
While this is something that understandably has caused concern, one must appreciate the purpose and the nature of it, which is a preventive one; the safeguard features, which are there by way of oversight; and the particular ongoing supervisory capacity in that regard.
As a general approach I take to your deliberations and to my presence here, I welcome any engagement with any of these provisions or with the operations of the act that can improve upon what we now have. This is an opportunity for a three-year retrospective. You can come up with suggestions that say, ``Well look, you had this preventive arrest provision; we know you have safeguards, but looking at it three years later, has the provision proven itself? Do we still need it? Do the potential breaches of civil liberties that may be involved therein outweigh the remedial and purposive approaches in enacting it to begin with?'' These are things your committee can look at.
Senator Stratton: Has this ever been used?
Mr. Cotler: No.
Senator Fraser: Let me ask you about one thing that seems to me potentially sweeping. The judge can order detention of the person in order to maintain confidence in the administration of justice. That sounds to me like a loophole that in the right public climate could also be like a lynch law. I may be overstating my case here, but can you tell me your response to that specific provision?
Mr. Cotler: One of the things I have not done here is make use of the expertise of my officials who may give you better informed and more succinct answers. For the moment, I will invite them to respond. If there is reason to do so, I will supplement it. I will call upon any of my officials who are here who wish to address these matters. They have a particular expertise, and I am being presumptive in answering all the questions.
Mr. George Dolhai, Director/Senior General Counsel, Strategic Prosecution Policy Section, Department of Justice Canada: Honourable senators, the provision that you are referring to is in 83.3(7) of the act, and it is the third ground. It refers to the grounds upon which the provincial court judge can continue the detention of the individual for that maximum period of 72 hours. It is similar to the ordinary rules for purposes of bail that apply in a criminal proceeding. There are the primary, secondary and tertiary grounds. The primary ground is that the person will flee; the second is they are going to commit an offence; and the third is it is necessary to maintain confidence in the administration of justice.
That tertiary ground was added to the ordinary bail provisions four or five years ago, I believe, and has since been the subject of consideration by the Supreme Court of Canada, which has held it to be a constitutional ground for bail provisions. The ground is very much modeled upon what exists in the ordinary rules for when a person can be released. As a phrase, it is known to our law, including in respect of consideration of when to exclude evidence under section 24(2) of the Charter.
Senator Fraser: That is to protect the person involved. Excluding evidence would be to protect the accused, I assume?
Mr. Dolhai: That is correct, but when considering when to exclude evidence, the court considers not only the interests of the individual, but also societal interests and whether or not the evidence should be excluded.
Senator Fraser: I have exhausted my time. I wonder if we could ask the expert witnesses to provide us with some specific examples of what this could mean. Most people here, but not all, are lawyers. I am one of the non-lawyers. All the help I can get will be gratefully received.
The Chairman: I do remind colleagues that we will have the benefit of the officials staying with us to pursue this into the afternoon.
Senator Stratton: I believe the minister used the word ``succinct.'' I appreciate that word particularly when we are running short of time.
I would like to go back to the area of review. Are you looking at other countries and the processes that they are going through now in their reviews of the laws that they have enacted? Are you monitoring those other countries? If so, can you give us a brief summary of those reviews? For example, Great Britain has had problems. If there are no reviews underway, are there other countries contemplating those reviews?
Mr. Cotler: First, let me deal with the United Kingdom. I recently visited the United Kingdom and met with the Lord Chancellor and the Attorney General — Lord Falconer and Lord Goldsmith, respectively — to discuss a number of matters included in which is the question of the anti-terrorism law and policy, and any reviews undertaken in that regard.
Other countries have not been engaging in the kind of mandated review that we have, although some parliaments and the Congress of the United States have sought to engage in some oversight. There again, if you look at their experience both in terms of the nature of the oversight and the time provided for it, they are far less than what we have been engaging in here.
We are looking to the legislative and the operations experience of the anti-terrorism law in other countries. I gave the U.K. and the U.S. as examples. During the next break I will be visiting Germany, and I have arranged meetings with the Minister of the Interior there, precisely for that purpose — to appreciate the German experience as well as that of Australia, New Zealand and the like.
These meetings are at a ministerial level. The meetings of the G8 ministers of justice this year, as well as the meetings of the Organization of American States Ministers of Justice contemplate a look at the anti-terrorism law. I benefited last year from the meeting of the ministers of justice of the Organization of American States by looking at the principles they adopted in terms of their OAS convention in matters of counterterrorism and the particular experiences of their respective countries.
On a ministerial level, we engage in an ongoing relationship from which we hope to learn. I will ask the officials about their involvement and what they may share with you.
Mr. Cohen: Other examinations have occurred; this is just supplementary to what the minister has stated. In the U.K., the Privy Councillors conducted a review of their anti-terrorism crime and security legislation. We have had reference to the American congressional examinations. There is a large amount of material out there that can be consulted for comparative purposes, but I do not believe that anyone has come out with the kind of parliamentary direction that we have in Bill C-36.
Senator Stratton: Irrespective of that, Great Britain has undergone a review. What were their findings? What were the problem areas, and what were they doing to correct them?
Mr. Cohen: I am sure we can provide the committee with a copy of the report. It is extensive.
Senator Stratton: Is there nothing in a brief summary that you can give this committee here this morning that would be specifically highlighted, that they found one, two or three areas of great concern? Surely you know, because people around this table are aware of concerns.
Mr. Cohen: The issue that has generated the most publicity recently was the way in which the House of Lords has dealt with the situation of indefinite detention. That was followed up with an examination of the government, and there was a discussion of a legislative response that would involve a form of extended house arrest. That is one example, if you wish.
Senator Stratton: We have that same power for indefinite arrest here. Can you put people away without any hearings, and if so, for how long?
Mr. Cohen: We do not have the same power here in Canada.
Senator Stratton: We do not.
Mr. Cohen: We have a situation involving the security certificate process, which involves an assessment of whether an individual ought to be removed from Canada, so the emphasis there is on the processing of the individual to secure the ultimate removal of a security risk. Difficulties creep into that process, which happened in the circumstances where an individual would be facing the prospect of torture or death in the country to which they are to be moved. That is a policy issue that arises.
Senator Stratton: I would like to pursue this further later.
Mr. Cotler: May I add to the question? I have found that particular issue to be one of concern among my counterparts — the dilemma between the detention of a person who is deemed to be a threat to national security on the one hand, and on the other hand, the removal of that person to a country where there may be a substantial risk of torture. This is something that I think various countries are grappling with at this point. It may be something that your own committee may be able to come up with.
What kind of options do we have here? We want to protect the national security of our citizens on the one hand, but we do not want to have to remove somebody to a country where there is a substantial risk of torture, even though the Supreme Court of Canada in the Suresh case did authorize such removal in exceptional circumstances. We need to explore the other available options between those two seeming polarities in that regard. That has been the subject of my discussion. In fact, I did meet with some of the Law Lords involved in that decision to more fully pursue their discussions in that regard.
Senator Stratton: I would agree with the minister. This is an area that needs to be explored. Perhaps a briefing on what the Law Lords did in Great Britain is necessary for this committee. It may be the Lords, and not necessarily the Law Lords — or perhaps that is the case — but it would help this committee immensely to have an overview of that.
The Chairman: Thank you, Senator Stratton. Focusing on that issue can be pursued by our steering committee.
The final person in round one is Senator Joyal, who is always brief and to the point.
Senator Joyal: I may not be brief nor to the point this morning. I want to continue on the point raised by Senator Stratton. I have the decision of the Law Lords here in front of me. I would like to quote the summary of the decision, especially Lord Bingham, a Senior Law Lord — the minister will know him by name. He rules that the rules of the case were incompatible with the European Convention on Human Rights as they allowed detentions ``in a way that discriminates on the ground of nationality or immigration status'' by justifying detention without trial for foreign, but not British, suspects.
In his last paragraph, paragraph 73 of its decision states:
There will be a declaration under section 4 of the Human Rights Act, 1998, that section 23 of the Anti- terrorism Crime and Security Act, 2001, is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.
If you look into sections 5 and 14 of the European Convention, those two sections have their similar counterparts in the Canadian Charter. Section 5 of the European Convention is similar in substance to the Canadian Charter provision, and it reads:
Everyone has the right to liberty and security of person. No one shall be deprived of their liberty save in the following cases and in accordance with the procedure prescribed by a law:
My reasoning is the following: If the Law Lords in Britain have based their decision to quash the unlimited detention certificate on the basis of a similar provision as the one in the Canadian Charter, do you not think our own legislation, based on similar nature to that section 23 of the British act, is to be quashed on similar grounds?
Mr. Cotler: We need to appreciate certain differences between the situation in the U.K. and the situation here.
In the U.K., the effect of a certificate is that a person can be detained indefinitely, subject to the review by the administrator of the appeal tribunal if he or she could not be removed, because it would violate the U.K.'s obligation, or for practical considerations such as the country of destination would not issue a travel document.
In Canada, the ultimate goal of the security certificate is to secure removal through a process that seeks to protect confidential information in exceptional cases where disclosure would be detrimental to national security or the safety of persons.
Both systems seek to balance the need for national security and the need to protect confidential information with the right to a fair process. They do this somewhat differently. In the U.K., there is no obligation — this goes back to what Senator Jaffer was referring to — on the Home Secretary to provide the person concerned with a summary of the confidential information. That information is provided to a special advocate who represents the individual but cannot disclose the confidential information to his or her client. The reviewing authority, the Special Immigration Appeals Commission, also has access to the confidential information but cannot disclose it.
In Canada, the Federal Court has a statutory obligation as set forth in section 78 of the Immigration and Refugee Protection Act to provide the person concerned with a summary of the confidential information so that person can be reasonably informed of the circumstances giving rise to the certificate without disclosing information that is deemed to be injurious to the national security or safety of persons.
I want to go back to what Senator Jaffer said. There is another difference relating specifically to compatibility in section 5 of the European Convention.
The House of Lords decision addressed the compatibility of the U.K. anti-terrorism act of 2001 with section 5 of the European Convention on Human Rights. That provides there is no authority to detain foreign nationals when their removal is no longer legally or practically possible.
This situation and this case is distinguishable from the Canadian context and the Canadian law since the European Convention does not apply in Canada and the Immigration Refugee Protection Act does not authorize the indefinite detention of foreign nationals, and because our Charter makes distinctions in the matter of rights. In other words, with respect to section 6 and mobility rights in the Canadian Charter of Rights and Freedoms, it speaks of every Canadian citizen having the right to leave, the right to remain and the right to return to Canada. That mobility rights provision is limited to Canadian citizens. We do make distinctions in our law, and we have a Charter of Rights that the U.K. and the House of Lords do not have.
In terms of the follow up to the House of Lords decisions and the actions of my counterparts in the United Kingdom, on January 26, 2005, the Home Secretary announced that new legislation would be introduced amending the anti-terrorism act of 2001 to take into account the House of Lords decision. The principal measure announced was to replace indefinite detention by what he called ``control orders,'' which at the higher end can amount to house arrest. The government will try to negotiate agreements with countries of destination, which we already do, that include assurances of respect for the human rights of persons removed. These amendments will bring the U.K. in line with the other signatories to the European Convention on Human Rights, all of whom use restrictive measures short of detention to address security risks posed by non-nationals. Our own situation here, as a matter of law and context, both having regard to the Immigration Refugee Protection Act and the Charter of Rights and Freedoms, is distinguishable from that which obtains in the United Kingdom.
Senator Joyal: I want to come back to the issue of what you call ``war on terror.'' I wonder if we are not caught in a contradiction of terms here. As Senator Andreychuk mentioned, a war by definition is limited. You seem to conclude, as did Minister McLellan, that the provisions in the act that we are reviewing are there to stay. If we are to have a permanent situation, it is not a war. It is a fight against terrorism as much as we fight drugs, crime and other related international criminal activities. If we are to have a war on terror, and we are to resort to exceptional sections of the act, I do not think that section 145 affords the oversight that should be permanently entrenched into the act.
Section 145 reads, ``within three years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken.''
In other words, it is a one-shot deal. We meet this year and after that it is over. The Senate committee in recommendations four and five recommended to the government that within 90 days of the Royal Assent of Bill C-36, Parliament appoint an officer of Parliament to monitor, as appropriate, the exercise of powers provided in the bill.
We recommended a permanent mechanism. What we are doing now is not a permanent, entrenched mechanism of oversight the way you had suggested when you were a member of Parliament. In order to obviate to the situation limited in time created by 145.(1), should we not permanently entrench that review each three years into the act so that Parliament has a compelling obligation to regularly review the extraordinary powers that are given to the administration in the context of the fight on terrorism?
Mr. Cotler: When I spoke of war on terror, I used a different metaphor to intentionally distinguish it. I spoke of a juridical war on terror. I was saying that whatever we do has to comport with the rule of law. I was distinguishing it from the sometimes open-ended reference to a war on terror. I do not subscribe to that type of ascription. I speak of a juridical war on terror, which means a legal response that is always compatible with the fundamental principle of the rule of law. I will not restate anything else I said in my opening remarks.
In the matter of oversight, even the National Security Policy of April 2004, when it was enunciated at the time, signalled the importance of ensuring ``that there are effective mechanisms for oversight and review so that, in protecting an open society, we do not inadvertently erode the very liberties and values we are determined to uphold.''
What was said there with respect to our National Security Policy holds true with respect to the Anti-terrorism Act. You put the question: Are any of us suggesting that the Anti-terrorism Act remain intact in all its particulars as it now stands? No. If you senators or my colleagues in the House of Commons can come up with refinements or recommendations that can improve the Anti-terrorism Act, we would not only be responsive; we would welcome it.
As one of the members of the justice and human rights committee in the House of Commons, I made a series of recommendations I trust did assist in helping to improve the Anti-terrorism Act. I went so far as to say at the time that had some of these recommendations I felt were threshold requirements not be included I would have had problems supporting that Anti-terrorism Act at the beginning. Six principal recommendations I and others made did improve the anti-terrorism legislation to the point that configurative balance, which we talked about earlier, helped to have security.
This committee did that then and this committee can do that now. Specifically, as to having and entrenching in the legislation that there be a mandatory review every three years, I would support that.
Senator Andreychuk: I am going to combine two questions that are not necessarily connected. We are waiting for the outcome of the Arar case, and we already know the dilemma of disclosure there.
I think Canadians want to know that their citizens, but also non-citizens, are going to be treated fairly and justly.
Does it give you any concern, as it does me, that those soldiers acted as they did in Afghanistan, arresting people who were ultimately taken to Guantanamo? We have no idea what happened to them.
If we are aiding in terrorism, we want to make the systems that we work with accountable. What are your comments on that?
Second, putting aside the juridical war on terror, do you not agree that it has not been for the lack of laws that we find ourselves in the terrorism difficulty, both on 9/11 and on subsequent issues; it has been an intelligence difficulty. We have either not used the intelligence properly, or we have not had the resources or the capacity to do intelligence work. If we are in a position where we have to rely on the laws, we are already lost. We should not be putting our emphasis, our dollars, in any more legislation; we have quite enough. We should be putting our emphasis on a much more refined and workable intelligence security system, both in Canada and elsewhere.
Mr. Cotler: First, let me take your comments in order. In the matter of the treatment of non-citizens, and you made reference to the Arar case, I am not sure if senators know that while I was a member of Parliament, I did give advice to Mrs. Arar. I wrote publicly about the case, including matters relating to information. When I became Minister of Justice and Attorney General I recused myself from any further involvement in that case because of my prior involvement. Any aspects that relate to that case, I cannot speak to. If any of my colleagues wish to speak to it, they may.
As to the second matter, arresting people who are sent to Guantanamo, I would restate the basic principle that whatever we do has to comport with the rule of law, and we cannot find ourselves in any way, even inadvertently, compromising the protection of the rule of law in that regard.
On the third matter, with regard to issues relating to intelligence, I wrote about this at the time. I was of the view that a good law without the necessary intelligence basis may not assist as effective intelligence, even if you do not have the entire anti-terrorism legislative framework that might help to serve the purpose of appropriate pre-emption. I am referring to intelligence gathering being carried out in conformity with the rule of law. From my own reading of the 9/ 11 commission, I think the real issue there was not so much the absence of law; it was the absence of intelligence.
I think when you are involved in this kind of situation of counterterrorism, it is a very sophisticated exercise that also requires the appreciation of and respect for cultural diversities and religious particularities. If you have a situation where intelligence officers cannot speak the languages or appreciate the diverse culture of the communities in respect of which they may be seeking to be gathering intelligence, I stress always in a legitimate fashion, it does not bode well for the kind of intelligence that you ultimately secure, let alone the respect for the nature of the information-gathering process. We have to ensure that we develop and refine our information-gathering approaches that also appreciate cultural and religious sensibilities in that regard.
Senator Andreychuk: We will have time with officials, because we want to know what Canada's responsibilities were with those people who were arrested and sent to Guantanamo, since it was our soldiers participating in a legal action in Afghanistan. We do not know where they are or in what condition they are. That is appalling.
The Chairman: Thank you, colleagues. Shortly after today is over, we will be having security people in to talk about these issues directly.
Senator Jaffer: Minister, in your opening remarks you drew a distinction between terrorist tactics and the ideologies that sometimes underpin them. We know that terrorism is not unique to any unique political or ideological group or goal. Does this act draw a distinction between terrorism and ideology?
My concern is with the definition of ``terrorist activity.'' Even the House of Lords commented on it. I understand we got that definition from the U.K. and the over breath of the definition. I would like to hear from you on the motivational elements: crime committed for political, ideological or religious purposes. My understanding in criminal law is that normally we do not require motivation. This act specifically sets out motivation. Traditionally, the proposition is not necessary for the Crown to establish motive as an element of the offence. Why are we including motive in the definition?
Mr. Cotler: You may recall, senator, that I stated at the time and wrote subsequently to the effect that consideration should be given to removing the motivational elements; namely, an act committed for political, religious or ideological purpose as requisite elements for the offence, while ensuring at the same time that they cannot serve as exculpatory grounds for defence.
Some of my considerations at the time related to the fact that the criminal law does not normally require motive for conviction or excuse conduct by reason of a lack of motive, but focuses on matters of intentionality. I was concerned that where you engage in the criminalization of motive, it could run the risk of politicizing the investigative and trial processes in that regard. Ironically enough, the inclusion of motivational elements may raise the prosecutorial bar for the evidentiary purposes and may make it harder to secure a prosecution.
Having said that, I think it is important to appreciate that the law did include, after I made that critique, an interpretive provision to the effect that reference to religious, political, or ideological purposes and motivational features should not be seen to be stereotypically engaging in any discriminatory practice. Rather, the reference is intended to be a limiting aspect of the definition of ``terrorism.'' The purpose of it being included here is to distinguish terrorist activity from other types of criminal activity that are governed by separate provisions of criminal law. Nothing in that sense in this legislation, in that aspect of the definition, is intended to target any particular group, and because of the interpretive provision that I sought — which was added — nor can political, religious or ideological activities be criminalized in and of themselves. Rather, it is only acts or omissions of the extreme harm undertaken for political, religious or ideological purpose that fall under the definition of ``terrorist activity.'' The whole idea is to set up distinguishable genera of criminal violence that is underpinned by radical religious, ideological or political motivational elements, but where it is made clear in the legislation that there is no intention to criminalize per se those motivational elements.
I might add there are other instances in the criminal law where motive is also considered to be relevant. For example, if you look at section 231.(3) of the Criminal Code, it defines planned and deliberate first degree to include murder committed pursuant to an arrangement where money passes from one person to another; namely, a contract killing. The point is, the reference to ``motive'' is not unknown in the Criminal Code, even when we are referring to criminal acts that are not of a terrorist character. Here it was included to distinguishably identify acts of criminal violence that are of a terrorist character while providing, through that interpretive provision, protection against use of those motivational elements for prejudicial purposes.
Senator Jaffer: I also asked you the distinction between ``terrorism'' and ``ideology.'' Do you believe that the law draws a distinction?
Mr. Cotler: I think the law is intended to draw a distinction. No one seeks to criminalize ideology. That religious, political or ideological expression must always be protected. We are talking about motivational elements that have to link up with all the other elements in the definition of a ``terrorist activity'' for the purposes of it becoming a terrorist offence. It is not a stand-alone provision. It is one element in a series of constituent elements for the purposes of defining what a terrorist activity is and distinguishing it from other general acts of criminal violence.
The Chairman: Minister, we have two senators who wish to ask an extra question. Would you have time to entertain them?
Mr. Cotler: I would be happy to answer.
Senator Lynch-Staunton: You mentioned Mahar Arar and torture. That prompts me to ask this question. As we know, Mr. Arar was returning from Tunisia and landed in New York. He was seized — not arrested — detained and sent to his place of birth as a Canadian citizen. We know his version of events. It is now subject to a royal commission, so we cannot get into any details.
Following that shameful treatment of a Canadian citizen, breaking all elementary rules of human behaviour, what representations, if any, have been made by the government to the American authorities pleading for a guarantee that this sort of treatment of Canadians will never happen again?
Mr. Cotler: Senator, that question might better be put to those in our foreign affairs group who have been engaged in bilateral discussions in that regard; however, I will ask my officials if they wish to comment on that particular issue.
Senator Lynch-Staunton: Should it be part of the softwood lumber dispute and be just thrown into the mix?
Mr. Cotler: No, it will not be thrown into the mix. I stated earlier the general principle that must apply here. That is that our partners in anti-terrorism would expect us to conduct ourselves in a manner that comports with the rule of law, and we would expect our partners to conduct themselves in such matters to comport with the rule of law, because we all have undertaken, in a system of international justice, to operate in a manner that respects the rule of law.
As I said, because of my involvement in the Mahar Arar case and related considerations, I have had to remove myself from the ambits of those discussions.
Senator Lynch-Staunton: In this case, there was no rule of law respected. It was under an unusual policy called ``rendition'' where the government has given opinions that they can seize people, not arrest them, and deport them and see what happens after. If you read the recent article in The New Yorker, you will get a pretty good analysis of the excesses created by that policy.
As Minister of Justice, with your strong feelings about torture and about respect for human rights, particularly for Canadian citizens, why have you not made representations to the Attorney General or whoever is responsible in the United States to the effect that once is bad enough; do not do that again. Put it on the record. I have not heard anyone in the government condemn that policy.
Mr. Cotler: I will state for the record that I have had to recuse myself.
Senator Lynch-Staunton: I am talking about the policy of the United States against Canadian citizens.
Mr. Cotler: I will say the following: You can refer to that which I have already written on that matter during the period that I was involved in that case, and my views on these were then a matter of public record.
Senator Lynch-Staunton: That is not my question.
Mr. Cotler: If I may continue: In my discussions with my counterparts, the positions that I have expressed here this morning I have expressed in those discussions. I do not change what I have to say depending on the forum in which I find myself. If I have expressed certain views here about the need to protect the rule of law, those views will find expression in my discussions with my counterparts in other countries. Indeed, I have made a point of saying, and it is there in my remarks on an ongoing basis, that I believe in Canada we have developed a principled approach to counterterrorism law that seeks to anchor itself in a relationship between security and rights. We can protect both and not have to trade off one for the other. I take that same position, as a matter of principle and policy, which I articulate in my discussions with my counterparts, be it the Attorney General of the United States or the Attorney General of the United Kingdom. I would expect that they would ask us to be held to that principled approach, and I do not think they would regard it as being inappropriate for me to say that we all have to be held accountable to that approach.
Senator Fraser: My question is much less controversial. It addresses a matter of administrative practice and the principles behind it. This is something I raised three years ago, and again last week with your colleague, Ms. McLellan. It has to do with the drafting of the list of entities. As I am sure you remember, the list is drawn up by the Solicitor General. It is reviewed two years later by the Solicitor General, acting in both cases principally on the advice of his or her department. Given the serious consequences that flow from being on the list of entities, which is to say terrorist groups, is it appropriate that the same people who drew up the list in the first place be the ones charged with reviewing it?
Mr. Cotler: As you know, there is a rather protracted process before an entity is indeed so listed as a terrorist entity, which includes both a reasonable grounds test and intention elements that are incorporated into the listing process. You know the substance and sequence of those steps by which an entity can be listed and in respect of which such an entity can be removed. In that regard, there are a number of safeguards; whether they specifically will address that particular concern is something to be looked at. The list is subject to review and can be amended. The Solicitor General, on application, can recommend that an entity no longer be listed. The Solicitor General's decision to recommend or not to recommend delisting after such application is itself subject to review by the federal courts; so there is a judicial review oversight mechanism. The Federal Court can order removal of an entity from the list. The Solicitor General is required to perform an automatic review of the full list every two years, and any entity that remains on the list after each two-year review may again initiate an application to be removed. A mechanism is also included to address cases of mistaken identity.
It is correct that, after the two-year period, the Solicitor General is engaged at that point, once again in the oversight approach. I will try to contextualize it for you. There are judicial review mechanisms interposed so that the Solicitor General's review involvement is subject to judicial review, and individuals can make applications for purposes of that judicial review and have their names reviewed from the list.
Again, I want to go back to my initial remarks in this regard. If it is felt by this committee, looking at that process, that, ``You are right, there are many safeguards, you have enunciated them, but we feel a different review process should take place or, if it is the same one, undertaken by somebody other than the Solicitor General,'' then this is something that you might wish to consider as part of your review.
The Chairman: Thank you to all of you. This is a very difficult and painful subject. I do appreciate your cooperation, and I know that it is hard to be concise because of the nature of the issues. All considered, we have done pretty well.
I want to thank you, Minister Cotler, for being here. We will perhaps call on you to come back more than one time, if you are eager to, as our deliberations roll on. We do appreciate the generosity of time you have given us today, and certainly your thought and passion on this issue.
The committee adjourned.