Proceedings of the Special Senate Committee on the
Issue 5 - Evidence - Afternoon meeting
OTTAWA, Tuesday, March 15, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:15 p.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.
The Chairman: Honourable senators, I would like to call this meeting to order. This is the 11th meeting with
witnesses of the Special Senate Committee on the Anti-terrorism Act.
For our viewers, I will explain the purpose of this committee. In October 2001, as a direct response to the terrorist
attacks in New York City, Washington, D.C. and 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 then,
Parliament was asked to expedite our study of the legislation and we agreed.
The deadline for the passage of that bill was mid-December of 2001. However, concerns were expressed that it was
difficult to thoroughly assess the potential impact of this legislation in such a short period of time. For that reason, it
was agreed that three years later, Parliament would be asked to examine the provisions of the act and its impact on
Canadians with the benefit of hindsight and in a less emotionally charged situation.
The work of this special committee represents the Senate's efforts to fulfill that obligation. When we have completed
the study, we will make a report to the Senate that will outline any issue that we believe should be addressed, and the
results of our work will be available to the government and to the people of Canada. The House of Commons is
undergoing a similar process at this time.
To date, the committee has met with government ministers, the director of the Canadian Security and Intelligence
Service (CSIS), as well as international and domestic experts on the threat environment within which the Anti-
terrorism Act is expected to operate. We will spend the afternoon hearing from legal experts to get their perspective on
We are joined this afternoon by Professor Patrick Monahan, Dean of Osgoode Hall Law School, and Professor
Kent Roach from the University of Toronto's Faculty of Law.
Honourable senators will recall that both Dean Monahan and Professor Roach joined us in 2001 for the initial
review of Bill C-36. As usual, honourable senators, I encourage you to be as concise as possible with your questions so
that we will be able to have as thorough an exchange of views as possible.
Mr. Patrick J. Monahan, Professor and Dean, Osgoode Hall Law School: I have prepared a deck of slides, which I
believe has been distributed to members of the committee, that will serve to outline my remarks before you this
It is a great pleasure to appear before this committee. I see a number of members who were here in 2001, and it is
encouraging to see the continuity of knowledge and expertise in this committee, which serves a very important
I wish to talk a little bit about a comparative approach to the response to terrorism in Canada, Great Britain and
the United States, focusing on a number of key court decisions, with which I am sure you are familiar. It is important
to review those decisions, and also to place Canada's response in a broader context, as members of this committee have
already heard from experts from other countries.
The chair indicated that following September 11, governments across the world enacted legislation to respond to the
threat posed by terrorism. The challenge for democratic states is to respond in an effective manner that does not
sacrifice respect for the rule of law and individual liberty. On the whole, I think Canada has adopted that balanced
approach, which will be the thrust of my remarks.
I will begin by focusing on executive or administrative detention. Executive detention is detention by the
government without charge or without trial. Protection against administrative detention or executive detention lies at
the very core of the principle of the rule of law. Indeed, the Magna Carta protected against being seized or imprisoned
except by the law of the land, which was understood to mean conviction by a court.
In 1628, in the Petition of Right, the British Parliament prohibited imprisonment without charge. The common law,
in concert with that, developed the writ of habeas corpus, which preserved those liberties by permitting any subject to
challenge the legality of his or her imprisonment before a court.
The question is whether the special threat posed by international terrorism after September 11, 2001, justified the
resort to executive detention or administrative detention. We will see that in the United States, that government has
made extensive use of administrative detention, particularly at Guantanamo Bay.
Coupled with that is the question of whether, if you did permit administrative detention, the courts should have a
role in reviewing decisions by the executive to detain without trial. Here, I note Cicero's dictum to the effect that the
laws are silent in battle. What he meant by that was that the law and courts would have nothing to say about battle or
about warfare. Courts could only intervene once the war was concluded and a period of peace had returned.
Cicero was right when he wrote that hundreds of years ago; and in fact, he continued to be right until very recently.
For example, in Canada and the United States, the Japanese-Canadians' internment in 1947 was a case of
administrative detention, and the courts essentially said that they would not review that. The courts have no role in
reviewing decisions by the executive in conditions of warfare. However, recently courts in this country, as well as in the
United States and Great Britain, have come to a different conclusion. Cicero is no longer right; the laws are no longer
silent in battle. The resulting effect is to introduce an additional check on the executive and its use of arbitrary
I wanted to review briefly the decision of the House of Lords in the case of FC v. Secretary of State for the Home
Department, on December 16, 2004. It arose under a statute enacted by the British Parliament in 2001, at the same time
as this Parliament enacted the Anti-terrorism Act. Under that British statute, the Home Secretary was permitted to
issue a certificate against a non-U.K. national if the Home Secretary reasonably believed that person posed a national
security risk and was suspected to be a terrorist. The issue there was it took only a matter of suspicion to justify the
issue of a certificate, which could result in that individual being detained.
There was a procedure to review the reasonableness of the Home Secretary's belief and suspicion, but the question
was a limited one: Did the Home Secretary have a reasonable belief or suspicion that this individual was a terrorist? It
was not necessary to prove whether the person was a terrorist or whether there were reasonable and probable grounds
to find he was a terrorist, merely that the Home Secretary was reasonable to suspect it.
In order to enact that legislation, the U.K. Parliament derogated from the right to liberty and security that was
protected by Article 5 of the European Convention on Human Rights. That derogation was required because of the
Human Rights Act of 1998 in Great Britain, which had introduced the protections of the European Convention into
Under the European Convention, derogation from rights protected by the Convention is permitted only in times of
war or other public emergency that threaten the life of the nation. Also, the statute requires that the derogation is only
to the extent strictly required by the exigencies of the situation. It is a much more restrictive clause than our section 1 of
the Charter of Rights and Freedoms; and, of course, we have a section 33 of the Charter that permits derogation
without any requirements. Here, there are certain requirements to be satisfied before derogation can be permitted.
Using the powers under the statute, the Home Secretary detained nine foreign nationals and held them without
charge for more than three years. They could not be deported because they faced the threat of torture in their home
states, contrary to Article 3 of the European Convention. Those individuals chose not to leave Great Britain
voluntarily, so they had been detained for three years. That detention was upheld by the Court of Appeal, and then
went to the House of Lords.
It was quite an extraordinary case because the appeal was heard by a nine-member panel of the House of Lords,
which normally sits a panel of five. By an eight-to-one margin, the House of Lords quashed the order derogating from
the European Convention on Human Rights, and declared that the legislation permitting the Home Secretary to detain
on mere suspicion was inconsistent with the Human Rights Act of 1998.
Lord Bingham, who was the senior Law Lord and wrote the leading opinion, accepted that the threat of terrorism
was a public emergency, threatening the life of the nation. On that question, he said the courts should defer to the
government because that was a pre-eminently political judgment. Lord Hoffman dissented, taking the view that
terrorist groups were not a threat to the life of the nation. Eight Law Lords agreed with the government on that point.
However, the House of Lords quashed the derogation order on the basis of a proportionality analysis. They relied
specifically and expressly on the Oakes case, our own Supreme Court of Canada's 1986 decision, which established a
proportionality test under section 1 of the Charter.
The House of Lords found that this derogation order went beyond what was strictly required. They pointed out that
these powers of detention were not being sought against U.K. citizens, even if U.K. citizens were suspected of being
terrorists. It was only non-U.K. nationals that could be detained under the powers in the statute. They found that the
detention of foreign nationals was discriminatory because it distinguished between U.K. and foreign nationals without
My own view is that the House of Lords made a bold and courageous judgment. It required the government to
justify its measures, particularly those to single out foreign nationals for discriminatory treatment. It indicated that the
House was prepared to challenge the government's determination of what was required in the face of a significant
The British Parliament enacted a new statute last Friday, the Prevention of Terrorism Act 2005. The key feature is
that it requires judicial supervision over the making of control orders, in particular, where an order would derogate
from liberty guaranteed by Article 5 of the European Convention on Human Rights. A court must be satisfied on a
balance of probabilities that the making of that order is necessary; that the person has been involved in terrorist-related
activities; and that the imposition of a control order is necessary to protect members of the public from a risk of
The other point about the legislation is that it does not distinguish between foreign and U.K. nationals. It applies to
any individual, which was a key criticism the House of Lords made about the earlier statute. Parliament has responded,
taking on board many of the criticisms that were made of the original statute.
A number of cases have arisen in the United States Supreme Court. In June 2004, there were two cases that were
significant, involving the legality of detention without trial, and the extent to which individuals who had been detained
at Guantanamo Bay or elsewhere could have a remedy in front of the courts.
The first case, Razul v. Bush, considered the detention of foreign nationals at Guantanamo Bay. The United States
argued that the individuals being held at Guantanamo Bay were outside of the territory of the United States proper,
and that they had no resort to U.S. courts. In the United Kingdom, although the test was weak, there was at least an
opportunity to test the reasonableness of the Home Secretary's decision. In Guantanamo Bay, there was no
opportunity whatsoever for non-U.S. citizens to challenge the legality of their detention.
The U.S. government has conceded that U.S. citizens at Guantanamo Bay did have a right of judicial review. Six of
the nine members of the U.S. Supreme Court held that U.S. District Courts do have jurisdiction to review the legality
of the detention of foreign nationals at Guantanamo Bay, even though the U.S. did not have ultimate sovereignty over
the base. Three of the judges dissented on the basis of a 50-year old precedent, and because of the fear of injecting the
court machinery into military affairs. The six remaining judges made what would be an obvious decision to us, that
individuals must have the opportunity to challenge the legality of their detention.
The second U.S. Supreme Court decision, also in June 2004, was Hamdi v. Rumsfeld. It involved a U.S. citizen who
had been captured during military operations in Afghanistan and was detained without charges or trial for three years
as an enemy combatant. He was then transferred to the United States, where he was being held in a jail in Virginia.
In this case, eight of the nine members of the court agreed that Mr. Hamdi could not be held without trial or some
form of judicial review. Justice O'Connor, who wrote the plurality opinion for the court, maintained that Mr. Hamdi
had to be given the right before a neutral decision-maker to contest the factual basis for his detention and, in this case,
whether he was an enemy combatant.
Justices Scalia and Stevens would have gone further. They held that the detention of U.S. nationals could only be
possible if they were charged with a crime or if Congress suspended habeas corpus under the U.S. Constitution.
Congress has the power to suspend habeas corpus on limited grounds, but that had not occurred in this case.
In comparing House of Lords to the U.S. Supreme Court, we can say that the reasoning of the U.S. Supreme Court
is much less robust than that of the House of Lords because the U.S. Supreme Court seems prepared to concede wide
authority to the Executive Branch. Nevertheless, both courts confirm that arbitrary and non-reviewable detention and
arrest are unacceptable as a means to combat terrorism, holding that, unlike Cicero, the laws are not silent in battle.
They may be limited but they have some operative effect.
In respect to the Canadian response, the important point to remember at the outset is that Canada did not rely on
administrative or executive detention in response to September 11. There are procedures for investigative hearings and
for detaining suspected terrorists. However, in each case, there is also the opportunity and the requirement for judicial
oversight. The government cannot hold individuals, as they are held in the United States at Guantanamo Bay, without
some form of review, even though that review might be done in secret and the amount of information provided to the
individual, or his or her counsel, might be limited. The court has access to the information in most cases, as well as the
opportunity to determine the appropriateness of the detention.
We did not seek to derogate from the Charter of Rights and Freedoms. We did not invoke section 33 of the Charter.
We allowed individuals to challenge potential infringements of their constitutionally protected rights in the court,
which reflects a balanced response.
When I appeared before the committee in December 2001, I was generally of the view that Bill C-36 was an
appropriate response, although I made some suggestions for modest changes, some of which were reflected in the final
version of the statute. I continue to believe that the legislation in Bill C-36 was a balanced and largely appropriate
It is important to look at the way the courts have interpreted the legislation. In a June 2004 case before the Supreme
Court of Canada, regarding section 83.28 of the Criminal Code — a provision inserted in the Criminal Code through
Bill C-36, the court upheld the validity of the investigative hearings provisions of the Anti-terrorism Act. The Supreme
Court of Canada held that these provisions did have appropriate safeguards and did not infringe unreasonably on the
Charter of Rights and Freedoms.
Writing for the majority, justices Iacobucci and Arbour affirmed that although terrorism changes the context in
which the rule of law must operate, ``it does not call for the abdication of law.'' That is to say, both the law and the
courts have a role to play. The court extended immunity against subsequent use of compelled testimony to include
immigration proceedings, which had not been referred to expressly in the original statute.
It is also important to note the Suresh decision of the Supreme Court of Canada in January 2002, which upheld as
valid the Canadian definition of ``terrorism,'' and has a reference to a number of criteria, including the terrorism acts
taken for political or ideological purposes. That definition is broadly similar to the definition you find in Britain, the
United States and other jurisdictions. The Supreme Court of Canada has said that is constitutionally valid, and that it
is not unduly vague,
They also found that section 7 of the Charter requires that the minister should generally decline to deport suspected
terrorists where there is a substantial risk of torture. That is an appropriate response for a Canadian court and for this
country. Mr. Suresh was prepared to adduce evidence at a new hearing on the basis of proper legal principles. The
court found that while governments need legal tools to effectively meet the challenges of terrorism, there is a need to
ensure that those tools:
... do not undermine values that are fundamental to our democratic society —liberty, rule of law, and the
principles of fundamental justice ...
These three courts have affirmed that democratic societies must respond to terrorism while respecting the rule of
law, and have upheld the principle of the separation of powers — the independent role of the judiciary from the
executive. Proportionality is a key principle, I would suggest to you, in your review of this legislation. The principle of
proportionality, as reflected in the Oakes case under section 1 of the Charter of Rights and Freedoms, states that
measures taken should be proportional to the threat or the objective that you are seeking to pursue. They should
actually achieve or advance that objective, and they should go no further than is necessary or reasonably necessary to
achieve that objective.
That is the test applied by our courts under the Anti-terrorism Act. They have affirmed broadly the judgment of this
Parliament in 2001 that it was appropriate to enact Bill C-36. The courts have confirmed that executive detention
without charge or trial is now an exceptional circumstance, not only in Canada but also in Great Britain or in the
United States, and must be subject to judicial review and oversight.
I do not propose to go through a detailed line-by-line analysis of the legislation. Rather, I want to suggest that those
are the broad principles that ought to guide this committee and the Senate in its review of Bill C-36.
Mr. Kent Roach, Professor, Faculty of Law, University of Toronto: Thank you, senators, for allowing me to appear
before the committee to contribute to your important deliberations.
My brief has been distributed to senators, and I apologize for the length of the academic paper. I will take a few
moments to summarize some of its main recommendations.
I recognize that much has changed since Bill C-36 was introduced and enacted in 2001. We have a new national
security policy and other new laws such as the Public Safety Act, under which the Supreme Court has upheld
investigative hearings. However, I believe there is still a need for careful line-by-line examination of the law's
provisions to determine whether there can be improvements.
These improvements can be guided, in part, by the judicial decisions that Mr. Monahan talked about: the House of
Lords' landmark decision in December 2004 standing for the principles of both proportionality and non-
discrimination; and the Supreme Court of Canada's decision in the Suresh case. This is an appropriate time to
continue that dialogue about the best, most proportionate and fairest way to combat terrorism.
To that end, I will make six recommendations where improvements to the Anti-terrorism Act could be made
without compromising the important social interest in combating terrorism. These proposals are in the spirit of
proportionality and non-discrimination.
The first is to go back and look at the definition of ``terrorist activities,'' which is a difficult and somewhat nitpicking
process. There is a five-page definition in Bill C-36 of what constitutes a terrorist activity.
What the Supreme Court of Canada did in Suresh, which was a case under the Immigration Act where there was an
undefined definition of terrorism, was to read in a different, more restrained definition of terrorism into the
Immigration Act. At the same time, they said that Parliament was free to adopt a different definition of terrorism. I
would suggest that attention should be paid to the definition that the Supreme Court of Canada read into the
Immigration Act, and which still applies now under that act, because it is a much simpler and more restrained
definition of terrorism.
Following the lead of the International Convention for the Suppression of the Financing of Terrorism, the Supreme
Court of Canada in Suresh said that terrorism, in section 19 of the Immigration Act, should include any:
... act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active
part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is
to intimidate a population, or to compel a government or an international organization to do or to abstain
from doing any act.
The Supreme Court of Canada adds:
This definition catches the essence of what the world understands by `terrorism'.
It seems to me that definition is a good starting point because it is simpler.
Tomorrow, we will have the verdict in the Air India case. I pity the poor judge who has to instruct a jury as to the
definition of terrorism found in the Anti-terrorism Act, who must go through potentially five pages of legislative text to
explain to a jury what an illegal terrorist activity is. The Suresh definition of terrorism is simpler, tighter and more
My point here is about potential over-breadth and civil liberties, and also about where we as a society should focus
our resources in combating the essence of what the world understands as terrorism, which is essentially the murder and
maiming of innocent civilians. That is the definition of terrorism we now have in our Immigration Act, which seems to
be a more proportionate alternative to the definition in section 83.01 of the Criminal Code.
If you are not prepared to go so far as to adopt the Suresh definition of terrorism, there are still some things that can
be done with the definition of terrorist activities in Bill C-36 to amend the Criminal Code. The first would be that there
is a requirement that the accused must act for political, religious or ideological purposes.
The idea that the Crown must prove the motive of a crime is a significant departure from basic criminal law
principles. Basic criminal law principles are that a motive — a good motive, a political motive, any motive — does not
excuse the commission of a crime, but that motive is not itself an essential element of a crime.
In response to concerns that many of us voiced, there was an addition to Bill C-36 that said political and religious
speech by itself will not be an act of terrorism unless it falls under one of the other definitions. However, I believe that
you could safely remove the requirement of proof of political, religious or ideological motive. This would respond to
some of the concerns that Canadians have that if their politics or religion is similar to that of people who commit acts
of terrorism, they might get lumped in with those individuals.
It would also make any trial much simpler. Right now, if someone is charged with a terrorist activity, the police
must collect evidence about his or her politics and religion in order to do their job properly, and the prosecutor must
introduce that evidence.
There are a number of offences in both the Anti-terrorism Act and the Security of Information Act that could do
with some trimming. For example, section 83.03(b) of the Criminal Code makes it a crime to provide property,
financial or related services to a terrorist group. It does not matter if there is any connection with terrorist activity. On
its face, does that offence apply to a lawyer who is providing services to a terrorist group?
Similarly, section 83.19 of the code has onerous duties on all Canadians to report any dealings with terrorist
activities. This is different than the proceeds of crime legislation, which quite appropriately puts duties on financial
institutions. Again, the reporting duties in section 83.19, on their face, could apply to lawyers.
In addition, there are a number of provisions in the offences in the Anti-terrorism Act that are subclauses — often
with the appropriate heading ``prosecution'' — that try to force the courts to adopt the broadest possible reading of
what the offence in question is. Many of those subclauses could be lopped off, keeping the basic offence. The offence
would then be subject to judicial interpretation in accordance with fundamental principles of law and proportionality.
Some of these subclauses are section 83.18(2) (3) (4), section 83.19(2), section 83.21(2) and 83.22(2).
Then we come to the Security of Information Act, the revamped Official Secrets Act. One part of that, which you
should look at carefully, is the quite crucial definition of what is prejudicial to the safety or interests of Canada in
section 3 of that act. That is an extremely long definition that, for example, includes:
... an offence against the laws of Canada or a province that is punishable by a maximum term of imprisonment
of two years or more in order to advance a political, religious or ideological purpose, objective or cause ...
Again, I question whether it is necessary to include that in the ambit of our Official Secrets Act.
There are a number of offences that could be trimmed to respond to concerns about over-breadth; concerns that
anti-terrorism laws — although they have not so far — might be applied to street protests by the anti-globalization
movement, or strikes by nurses or blockades by Aboriginal people. The risk of that happening is both a threat to our
civil liberties and a misallocation of resources. We should define these terms as tightly as possible in order to get at
what the Supreme Court of Canada has recognized is the essence of what the world understands as terrorism —
murder and maiming of innocent civilians.
My next point is a need for increased fairness in listing individuals and groups as terrorists. One of the features of
the Anti-terrorism Act, and indeed a feature of anti-terrorism regimes throughout the world now, is that we are
increasingly allowing the executive to list groups and individuals as terrorists. This started at the UN and now is
coming down to the domestic level.
If we are to go down that route, we need to think about a means to have an ex ante adversarial challenge before
someone is put on the list. The act does, quite appropriately, have quite some ex post judicial safeguards. However, if
you are wrongly put on that list — and this has happened to at least one person in Canada — it will not be fun. You
may eventually get your name removed, but once you are on that list, you are a virtual pariah. No one will deal with
you for the legitimate fear of being charged with various criminal offences. Therefore, we need some way to have an ex
ante adversarial challenge.
It may not always be feasible to give the person or group being listed a heads-up. However, I recommend that we
should look at the British system of having special advocates putting the government to its test. My concern here is
both with fairness and accuracy, in the event that an individual might be wrongly listed as a terrorist.
One thing that my current research is delving into is the risk of miscarriages of justice in terrorism cases. If there is
such a miscarriage, as there was in the United Kingdom in the Irish cases in the 1970s stemming from horrific
bombings by the IRA, not only does that impose a huge unfairness on the individual wrongfully convicted or tarnished
as a terrorist, it also means that we do not get the actual terrorist. By permitting adversarial challenge to the
government's position and testing the government's case, we can ensure people are treated fairly and that we have as
much accuracy as possible in making these decisions.
My next recommendation, which I initially made before you in November 2001, is that there is a need for a
commitment to anti-discrimination principles in the Anti-terrorism Act. Dean Monahan has talked to you about the
Oakes case. One of the important and praiseworthy dimensions of that landmark case was that it applied not only
principles of proportionality, but principles of non-discrimination. It found that using immigration law as anti-
terrorism law constituted an unjustified form of discrimination.
I believe we should have some form of tangible commitment to anti-discrimination in the Anti-terrorism Act. I give
the government credit for setting up the cross-cultural round table on security issues as one response to concerns in a
number of communities in Canada. However, there would be nothing wrong with amending the Criminal Code to
prohibit racial, ethnic and religious profiling.
We have proposed some draft legislative language to address the issue. It seems that many organizations come
before you and say, ``We do not employ racial or religious profiling. That would be bad policing; that would be bad
security work.'' If that is the case, putting that into the law in a tangible way, with reporting and remedial
requirements, would be an important statement that, yes, Canada is concerned about terrorism, Canada will combat
terrorism, but Canada will not do that in a discriminatory way.
Indeed, an anti-profiling amendment to the Criminal Code would serve a purpose beyond the security context. The
Ontario Court of Appeal has recently recognized that racial profiling does exist in criminal justice, and this would be
an added remedy in response to racial profiling by any law enforcement official for any reason.
A further recommendation is to look at the security certificate system under the Immigration and Refugee
Protection Act. I realize it is a matter of some controversy whether this is even within the mandate of your committee
as it examines the Anti-terrorism Act. However, there are a number of reasons why it would be justifiable for this
committee to look at that part of the Immigration Act.
Dean Monahan has already mentioned that the Supreme Court of Canada, in the investigative hearing case,
extended the immunity provisions to apply to immigration proceedings. The Supreme Court of Canada has already
recognized that, in many terrorism cases, there is an immigration nexus. That is one reason why this committee can
legitimately look at security certificates.
Another reason is that this committee has been asked to look at not only the provisions, but the operation of the
Anti-terrorism Act. The fact is there has been only one criminal charge under the Anti-terrorism Act against a person
who was a Canadian citizen. In all other cases where we have identified people who are suspected of terrorism, security
certificates under the Immigration Act have been used. In an operational sense, that is where most of the action has
Further, there are some functional similarities between the provisions in section 78 of the Immigration and Refugee
Protection Act and provisions in section 38 of the Canada Evidence Act, which is part of the Anti-terrorism Act;
sections 6 and 7 of the Charities Registration Act, which is also part of the Anti-terrorism Act; and sections 83.05 and
83.06 of the Criminal Code, which is also part of the Anti-terrorism Act. All of these provisions share the same
architecture. They allow the government to present evidence in closed court to a judge, which is then never disclosed to
the person who is affected. In the immigration and the security certificate case, the effect on the person is quite
dramatic, because that person may be subject to long-term detention.
In all of these areas, we are getting into compromising the judicial function. Dean Monahan is right that the judge is
an important safeguard, but the judge is there in a room with only government lawyers. Frankly, that is not the way
our legal system is designed to work. We live in an adversarial system, not an inquisitorial one. If we were having this
conversation in France or Germany, the concerns might be somewhat different.
For all of these reasons, you have a closed hearing with only one side being present. Why? There is a legitimate
concern about the leakage of national security information, which may have been provided by our allies.
The question then is: How do you deal with this in the most proportionate manner? Obviously, protecting the
confidentiality of this information is a legitimate objective; but is excluding the person affected from the room the best,
most proportionate means to pursue this objective?
This leads me to my last recommendation, and that is what the British have done. That is an interesting story
because, in part, they learned from our Security Intelligence Review Committee (SIRC), which looked at security
certificates. The British system allows security cleared special advocates — a Q.C. with a security certificate — to go
into that room whenever the person affected has to leave the room for legitimate national security reasons. The special
advocate can then play the role of the adversary and challenge the government's case.
That is an area where Parliament can really show some leadership. There are applications going before the courts to
ask for special advocates — amicus curiae — with security clearances to be appointed. To my knowledge, a special
advocate has been appointed in only one case.
I believe that the courts are looking to Parliament for leadership here. A security-cleared Queen's Counsel is
someone who can test the government's case. Again, I believe that is important to ensure that we treat the affected
individual as fairly as possible, and that we have the most accurate decisions possible about who is or is not a terrorist.
Senator Kinsella: Professor Monahan seems to be allowing for some derogation of human rights provided there is
appropriate oversight or judicial review mechanisms in place. Are there some areas in which there ought not to be any
derogation of rights?
Mr. Monahan: It would be helpful if you had given a specific example. I think that there needs to be a balance
between the interests of individual liberty on the one hand and national security or the threat of terrorism on the other.
The question then is how to strike that balance in a way that is proportional. In my judgment, at least broadly
speaking, Bill C-36 has done that. However, if you have some specific concerns, I would be happy to offer any
comments I might have.
Senator Kinsella: I would like to get your views on the relationship between security and other rights in terms of the
unity of human rights. You mentioned the Law Lords' decision and how they were testing it against the provisions of
the European Convention on Human Rights, to which Canada is not a party.
Canada is a party to the International Covenant on Civil and Political Rights. It has been in force for Canada under
international human rights' law since August 1976. Article 4 uses much the same language as that section of the
European Convention, namely:
In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties ... may take measures derogating from their obligations ... to the extent strictly
required by the exigencies of the situation ...
That is the same language as in the European Convention. It goes on, and this is the obligation to which we as a
country are subject:
... provided that such measures ... do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin.
It further states that there is no derogation from Article 6, which deals with the right to life; or Article 7, which says:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to medical or scientific experimentation.
There is no derogation from Article 8, which prohibits people from being held in slavery; Article 11, which prohibits
imprisonment merely on the ground of an inability to fulfill a contractual obligation; Article 15, being held guilty of a
criminal offence on account of an act or omission that did not constitute a criminal offence at the time when it was
committed; Article 16, a right to recognition everywhere as a person before the law; Article 18, the right to freedom of
thought, conscience and religion. There is no derogation in any of these instances.
It speaks to Professor Roach's concern about racial profiling. There are some rights that are not subject to
derogation, according to this instrument. Do you have any concerns that the Anti-terrorism Act needs to be analyzed
to see whether we are derogating in ways that we ought not to derogate?
We did have some evidence here from some security people, because I asked them about their techniques of
interrogation. I was not overly comfortable when they testified that there were a lot of grey areas.
Mr. Monahan: My comment would be that all of those rights that you indicate are protected by our Charter of
Rights and Freedoms. We do not need to look to the international covenant. All of those rights against torture, slavery
and right to life are protected under the Charter. The government has not derogated from the rights under section 33,
which would potentially have been available in relation to section 7 of the Charter, and sections 7 to 14, which detail
those types of protections — protections against cruel and unusual treatment, for example.
The full panoply of Charter rights are available and can be invoked in the event that it is held or argued that the
provisions of Bill C-36 involve derogation from any of those rights. What the court has said in the section 83.28 case is
that the procedure for investigative hearings satisfies the Charter of Rights. Therefore, no derogation exists in that
sense from the rights that are protected because, in the court's view, the balance that is struck is a broadly acceptable
Mr. Roach: On the issue of derogation, there is one disturbing possibility that arises from the Supreme Court of
Canada's decision in Suresh, which is that the court said while it was generally in violation of the Charter to deport
someone to face torture, it was not saying never.
It would be my view that should a Canadian court hold that is indeed the case, we would be in derogation of both
the international covenant and the Convention Against Torture.
Back in the 1970s, when the Supreme Court was fairly deferential in its interpretation of the Canadian Bill of Rights,
this Parliament sometimes went beyond the court when it came to protecting rights. This Parliament said we will not
have capital punishment even though the Supreme Court said it was consistent with the Canadian Bill of Rights to do
I think that the Suresh exception is, quite frankly, an embarrassment for Canada internationally. In September, I
was speaking at an international law conference in Austin, Texas. Trying to explain to a foreign audience that the
Supreme Court of Canada, a leader in incorporating international law, actually will contemplate that it may one day be
constitutional to deport someone to face torture was not an easy sell.
In my paper, I suggest that Parliament should think about closing the Suresh loophole, because it is my
understanding that although that has not taken place yet in Canada, there are arguments being made that there are
some exceptional cases in which we will send someone to a country where there is a serious risk that they will be subject
I take your point seriously. We have to be concerned not only about compliance with the Charter, which is
important, but also compliance with our international law obligation.
Senator Kinsella: We all witnessed the situation in Afghanistan. When members of the Canadian Armed Forces
apprehended some prisoners and turned them over to the American forces, some of them ended up in Guantanamo
Bay. Given what you told us about due process in Guantanamo Bay, do you think that the Canadian Forces ought to
have secured from the Americans, before they turned over these prisoners, the kinds of assurances that the Attorney
General can seek from jurisdictions that impose the death penalty? That is, that we would not turn over a person
accused if that jurisdiction was going to seek a death penalty.
Mr. Roach: Absolutely, senator, especially because when those handovers took place, this was years before the
Razul v. Bush decision. My preference in that situation would have been to follow the decision British forces made in
Afghanistan, which was not to turn over any prisoners to the United States because of a fear that they would drop into
a legal black hole at Guantanamo.
Mr. Monahan: I do not think the government should be handing anyone over to face torture, nor do I think the
government is suggesting it would want to do so.
We should be cautious about making after-the-fact judgments about what particular soldiers may have had to do
with particular circumstances of the case. I would not want to comment on that.
It is appropriate for a government and the military not to hand over individuals without seeking the kinds of
assurances that I think you would be looking for. As well, our own Supreme Court of Canada, in Suresh, largely said
that the government should not hand over prisoners to face torture. It is true there is this reference to exceptional
circumstances, but I do not regard that as being the main focus of the court's judgment in that particular case.
Senator Smith: Dean Monahan, I think your approach from the outset was you felt that there had been a positive
balance struck between the realities of the terrorist threat and civil liberties, but that there were a few areas that could
be fine-tuned. Professor Roach has set out several of his ideas. Perhaps you could send a follow-up letter in which you
would set out some of the fine tuning that you are promoting. In the meantime, are there any that you would
particularly like to emphasize?
Mr. Monahan: I had suggested some modifications to the definition of terrorist activity earlier; perhaps there could
be some minor modifications there. The definition is complicated, probably necessarily, because of all of the concerns
that have been raised in the testimony before the Senate and House of Commons in 2001. The definition became longer
and more complicated in order to narrow down the definition of terrorism.
For example, the requirement that there be an ideological or political purpose to the activity in question for it to
satisfy the definition of terrorist activity is an additional requirement that the Crown must prove to satisfy the offence.
It is not a broader definition. It is not a definition that is easier for the government to satisfy; it places a more onerous
or restrictive burden on the government. Partly, what you saw in the process of amendments in 2001 was that the
definition got longer and more complicated to rule out the possibility, for example, that a lawful strike or
demonstration might be used as the circumstances that would prompt the government to arrest someone for a terrorist
I do find attractive the suggestion that Professor Roach has made for special advocates in the context of
investigative hearings. I agree that judges have a very difficult situation at present in trying to deal with the evidence
that is brought before them. It would be appropriate, and in fact an improvement, to provide for some opportunity for
special advocates or friends of the court to put the opposing case.
Generally speaking, however, the broad outlines of the balance that has been struck are appropriate, in my view.
Senator Smith: I must confess that when we were talking about the political, religious or ideological purpose, I was
musing, would an anarchist qualify? Probably, but you could have almost absurd ideological debates, which I think
makes your point.
Professor Roach, I was very intrigued on your point about failure to report. I have to confess that I have not overly
focused on that, but would some element of mens rea exist there? If you were totally unaware or ignorant of it, is that a
Mr. Roach: Section 83.1 (1) says:
Every person in Canada and every Canadian outside Canada shall disclose forthwith to the Commissioner of
the Royal Canadian Mounted Police and to the Director of the Canadian Security Intelligence Service (a) the
existence of property in their possession or control that they know is owned or controlled by or on behalf of a
terrorist group ...
There is a requirement of knowledge that it is owned by a terrorist group. As a lawyer, if you are asked to do
something with respect to property, I suppose you would have a defence if you say you did not know it was owned by a
terrorist group. However, if you did know, you have an obligation to report. The failure to report is a very serious
Senator Smith: My last point, and I would invite you both to comment, is almost a philosophical thing. How do you
approach the question of racial profiling in a practical way that is realistic and not just trying to be politically correct?
I have a personal observation to illustrate my point. My in-law is a very successful businessman in India, who travels
all around the world. I asked him if his ability to travel had changed much since 9/11. He looked at me as if I were
crazy; why would I even ask such a question? Of course it had, even though his religion was not listed on his passport.
It went without saying.
Racial profiling can be totally subconscious. I want to be sensitive to this, and keep us from falling into that trap.
How do you approach this issue in an effective, but not naive way?
Mr. Monahan: I believe it is important that this committee and Parliament affirm that racial profiling is not
acceptable as a practice in this country. That affirmation must be there, and there should be appropriate safeguards in
place to ensure that racial profiling is not occurring.
There is some dispute about what the facts are on the ground; but as a society committed to non-discrimination and
equal rights, it is essential that we stand firmly for the principle that you are not judged by your race, religion or ethnic
origin. The government has to make it clear in the directions it takes and the directives it issues that it will not be
Mr. Roach: I agree completely. There was serious discussion of a non-discrimination clause being added to Bill C-
36. I believe it was part of the special committee's first recommendation and that Minister Cotler, who was then a
backbencher, also made that proposal. We need to have a national debate about the appropriate form to do this.
I have proposed something in my paper; and there also have been other proposals of following the model of the
Emergencies Act. I do not believe that act is as robust as it should be since it is tied to the issue of detention. It only
applies to Canadians and permanent residents of Canada, where the House of Lords' non-discrimination principle
applies to all non-citizens.
There must be consultation and discussion among many more people to figure out what is the most appropriate
statutory and administrative vehicle to deal with this problem. This is a problem not only in the security area; this is
also a problem in many Canadian cities.
I spoke about the Ontario Court of Appeal. The Aboriginal Justice Inquiry of Manitoba made a finding in the J.J.
Harper case. They found that he was stopped by police, with tragic consequences, in large part because he was an
Aboriginal man walking late at night in Winnipeg.
There are many dimensions to this issue, and we need all the help we can get in order to deal with it constructively.
We also need to deal with the fear that may underlie some elements of racial profiling. One of the lessons of equality
law is that people can engage in discriminatory behaviour even though they are not bad people or necessarily intended
to do wrong.
Senator Andreychuk: Professor Monahan, you seem to indicate that the law has withstood the test and needs only a
few minor changes. One approach we could take is to determine whether what we did three years ago has passed
certain tests — one judicial and one, perhaps, public.
Professor Roach, your approach is that now that we have had three years, what can we do better on proportionality
and on our approach to terrorism that is more acceptable in terms of rights and freedoms and our understanding of the
laws? It will not surprise you that I fall into the second camp.
It seems that is where the House of Lords was going, and I would like your comments on that. While they have
made changes, the signal I heard was that it is not only the law that is important in this whole issue of terrorism; the
process is important as well. People need to understand the process and the choices that are made, and they should be
the least intrusive ones possible.
This is the point where we reassess proportionality, having three years' experience. Perhaps one would draw a
proportionality line differently after 9/11 than we do now, or at least we should think about that. I would like you to
comment broadly on that.
Professor Monahan said that the proportionality test is fine because we have judicial involvement in these
investigative hearings, as they have in Britain. The court is there to balance the prosecution, et cetera. That does not
seem to withstand the test that you had put out at the start — that surely Canadian society would want any person who
finds themselves in an investigative hearing to have some ability to contest the factual basis upon which the detention is
The test of an impartial judiciary is good; but we have found that there are a host of things that go into a
prosecution's case that the judge is not the best equipped to look at. Certainly, in the Arar case, the judge had a
different idea than the prosecution and the government on what should be disclosed to the public.
Professor Roach said that perhaps having a security advocate would be a way to alleviate some of the concerns I
have. Are you concerned, Professor Monahan, about having some way to ensure that the process is known and
understood within all of the rights that we have tried to gain, and the balances we have tried to strike?
Mr. Monahan: It would seem that I have been put in a position to defend this legislation. I do not know why I have
that role but I will step forward and carry on.
I am trying to look at it from a broad perspective rather than at all the details of the legislation. When someone is
arrested, they must be brought before a judge within a period of either 24 hours or 48 hours. The judge then has to
determine the circumstances that have given rise to that person's detention, and whether the detention should continue.
The judge is able to assess the evidence that has given rise to the detention. In contrast, under the previous
legislation in the United Kingdom, the only test was the existence of reasonable suspicion on the part of the Home
Would it be better if the individual had access to the evidence, and if the judge assessed to what extent the
government should be required to disclose that evidence in certain cases? It is not practical, given the nature of the
activity this individual is alleged to have taken part in, to say we should provide that evidence to this individual because
that could have the effect of compromising the ability of the security services to effectively monitor and provide
protection against some of these activities. I recognize that it is undesirable to have to strike that balance, but it seems
to be a necessary evil.
Senator Andreychuk: Would not the committee and Canadians be better off if we were to say that we have heard
competing arguments? One of those is that the accused has no idea what he is facing. How do you make a case? How
do you say that you are not a particular person when you do not know whether they have a confusion of names or
whether they have substantive information? You do not know the case made against you. That is not something we
have grown up to respect.
We also know that many things put under national security are not matters of national security when they are
exposed to the light of day. It is simply easier to do it that way. Rather than to take three paragraphs to say that those
items should not be disclosed, it is easier to take the whole page.
We have seen conflicting issues around that. Should we not try to find a compromise, such as a security advocate,
that would give some assurance that these things are being discussed behind close doors and that some balance is being
Mr. Monahan: I have already indicated that some provision for an amicus curiae or a special advocate would be a
beneficial improvement. I agree with you, senator, on that point.
Mr. Roach: The special advocate would be of most use in the immigration security certificate process, and in the
listing process under the Criminal Code and the Charities Registration Act. My understanding of the investigative
hearing is that an explicit provision gives that person the right to retain and instruct counsel.
We have to be careful about the suggestion of a special advocate; although it is a more proportional response, it is
second best. It applies only in those cases where, for legitimate reasons, we cannot disclose the evidence to the person
affected. Therefore, the next best thing is to disclose that to a security-cleared individual who can represent the interests
of that person.
In the British system, the special advocate can talk to the person affected before he or she sees the security
information. Once the special advocate sees the security information, he or she can no longer talk to that person. I do
not want to suggest that it is a panacea. Special advocates could find themselves in difficult positions because they
would be in receipt of information on someone identifying an individual as being in a certain location in a certain
country. That could well be information that the government could not give to the individual because it was received
from a foreign intelligence agency. Or, if the government were to divulge the information, it could have the effect of
revealing a foreign intelligence operation.
If government cannot give the information to the person affected, it is given to the special advocate, who can at least
pursue it and test the government's case. However, the special advocate cannot go back to the person affected and ask,
``Do you know Mr. X, because Mr. X says you are part of al Qaeda?'' It may well be that the detainee says that Mr. X
has a vendetta against him that goes back to high school.
The special advocate is in the spirit of proportionality; and the spirit of proportionality is such that there are few
absolute rights, although torture is one. Under the spirit of proportionately, you try to protect the right as much as
possible, consistent with the societal objective for limiting the right.
Senator Joyal: I would like to come back to the Immigration and Refugee Protection Act because both of our
witnesses referred to it. Over the past three years, the government has resorted more often to the Immigration Act than
to the Anti-terrorist Act.
You are aware that a person who is the object of a security certificate under the Immigration Act can be detained
indefinitely without being brought before a judge. I am surprised that you did not refer to it in your presentation,
considering the principles that Lord Bingham stated in his decision, the concurrence of other judges and the fact that
we have to maintain the principle of natural justice in our system. When a person is deprived of his or her liberty, he or
she has the right to appear before a court to rebut the accusation.
Similarly, when a person faces valid detention under a security certificate, he or she cannot be detained ad infinitem
on the basis that the individual might face torture if deported. The individual should be brought back before the court
to seek preventive measures that would limit the risk that the person represents.
In a recent court case decision — I will not mention any names because the proceedings are ongoing — the
conditions imposed on the person included not using the Internet or cell phones, wearing of a special bracelet,
surrendering his or her passport, et cetera. In other words, before detaining the person in prison, there should be an
opportunity to look into what I call proportional measures. These would ensure that the security is satisfied before we
detain that person for five, six or seven years without that person being offered ``the principle of our penal system,''
which is rehabilitation.
Anyone who is sentenced in our system has to go through two different kinds of initiatives to serve his penalty —
imprisonment or whatever fine or other punishment is imposed and, of course, a rehabilitation process. Security
certificates hurt those principles without the person being offered anything. Even though it is difficult to fight
ideological convictions — you cannot measure the minds of people and the level of the strength of their conviction —
nevertheless, the opportunity for rehabilitation should be given to that person.
There is something wrong in the system. We all are aware that security is important, but the word ``threat'' is
overused. Propaganda during times of fear is another issue; but to limit our discussion to the legal aspect of it, we
should be very conscious that at each step we try to maintain the principle and spirit of our system as much as we can.
If we find out, after 15 years, that there is something lacking in our Immigration Act — because it has become, to a
point, the most effective tool for the security service — we should look at it.
Would you care to comment?
Mr. Roach: I have just returned from New Zealand, where the New Zealand Supreme Court read a right to bail into
their version of the security certificate. This is mentioned at footnote 60 of my paper.
I agree that the Immigration Act did not receive the sort of attention, and perhaps criticism, that the Anti-terrorism
Act received in 2001. As a result, the Anti-terrorism Act has been used with restraint but the Immigration Act has
become a much more state-friendly instrument.
You mentioned the issue of grounds of release. Just recently, the Federal Court of Appeal, although it upheld the
security certificates, said that the grounds for detaining someone under a security certificate are so broad — danger to
public safety or security, danger to the security of Canada or national security, detriment to national interest, danger to
the safety of any person, et cetera — that anyone can see or discover whatever they wish in them.
I think that the courts are indicating that we need to go back over the Immigration Act and make clear that we
detain people as a last resort; that, according to the principles of proportionality, we release people when that will not
present a danger to the safety of the public. However, I would point out that as people are starting to come out of
Guantanamo Bay, often not to be prosecuted in their home countries, we are starting to realize that perhaps the danger
of some of these people can be subject to conditions.
Does that mean we need an equivalent to the British control orders that Professor Monahan mentioned? My
position would be that section 83.3 of the Anti-terrorism Act does provide a possibility for reconnaissance for someone
who a judge reasonably suspects could be involved with terrorism. I would think twice about importing the British
control orders because we have our own version of that in section 83.3, and it is subject to special reporting
requirements. It is also subject to the sunset in five years.
My final point is that we would have to go back and look at the Immigration Act, which does not require proof
beyond a reasonable doubt. The Immigration Act says something exists if there are reasonable grounds to believe that
it has occurred, is occurring or may occur. A person can be detained under a security certificate for being a member of
a terrorist organization. A deliberate decision was made not to make that a crime in the Anti-terrorism Act.
We need to go back and look at these two acts and ask, ``Are we treating these different groups of people in the same
way?'' The House of Lords has reminded us that there is a risk of discrimination against non-citizens, and that the
immigration law shortcut to anti-terrorism law is not necessarily a solution to the problem of international terrorism.
It is true that the immigration law can and has detained people for years — you have to ask whether that is
necessary — but the end product is to remove them from Canada. If they really are terrorists, why would we not want
to prosecute them and punish them as terrorists in a criminal court of law, with all of the traditional safeguards that we
have fought to retain in the Anti-terrorism Act?
Mr. Monahan: I did not comment on the immigration provisions because it was my understanding that was not
before your committee. However, based on the principles I have set forth in my brief, I think that there would be
serious questions that would arise in relation to the Immigration Act provisions for security certificates.
As Professor Roach has mentioned, the Federal Court of Appeal in December upheld the validity of those
provisions, but I expect that case will be before the Supreme Court of Canada. I do not know if the Supreme Court has
granted leave yet; but, in any event, it will have the opportunity to review very carefully, and in the context of a detailed
argument from counsel, whether the measures set forth in the act in that case are appropriate.
I do not think it is necessary for the committee to delve into that at this point. There will be a full argument before
the Supreme Court of Canada, and an opportunity for the court to review that in light of the House of Lords' decision,
which I believe came just one week after the Federal Court decision here.
Senator Joyal: Nevertheless, the Immigration Act should be streamlined with the anti-terrorist legislation. You have
two measures aimed at the same purpose, which is to remove someone who represents a threat to security. In one case,
there is one procedure to be followed and some kind of consequences, and in the other there is another procedure. On
the basis of the decision of the Law Lords, it seems to me there is something there that needs to be streamlined.
Of course, the Supreme Court may rule on the issue; but I do not if the court has accepted to hear the case or when
we might get a decision on it. According to our term of reference from the Senate, we have a one-year mandate to
report on this matter. If the Supreme Court comes forward with some comments within that year, we could include the
recommendations or whatever comments it made on that case.
When Justice Minister Cotler appeared before the committee recently, we raised this issue with him, especially
concerning deportation to countries where there might be torture. He suggested that we reflect on it. In the months
ahead, if you can bear to look into that and come back to us with a brief, that would certainly be helpful to us in our
Even though our term of reference is strictly the anti-terrorism legislation, as Senator Andreychuk has expressed, we
must have a holistic approach to this. Otherwise, we are not paying respect to the reality that the government is using
more legislation to achieve its security ends in Canada.
That being said, I would like to come back to your recommendation about the anti-discrimination clause. You
salute the government's initiative to establish a round table. However, as you know, sometimes a statutory advisory
body is given statutory recognition in an act. Would it not be better to have it recognized as an obligation for the
government to act, considering that it took three years for it to come forward with the suggestion on the eve of the
Mr. Roach: The cross-cultural round table has had only one meeting; we need to see how it works out. However, its
formation signals the government's recognition that it has a problem with at least perceptions among some
communities. It may be a first step.
Another valuable step would be to have an anti-profiling provision in the Anti-terrorism Act through the Criminal
Code, and also to look at the issue of security certificates. There is a danger that if it is just a round table, and if it is just
a generic non-discrimination clause without any teeth, it will be seen as symbolism. That will not respond to the
concerns in a number of communities, which I think the government recognizes have some legitimacy in terms of
perception or they would not have established the cross-cultural round table.
Mr. Monahan: It is important to recognize there is an anti-discrimination clause in section 15 of the Charter of
Rights and Freedoms. It applies not just to laws; the Supreme Court has held that it also applies to administrative
practices pursuant to laws. Therefore, if racial profiling takes place, it would be subject to challenge under the Charter.
The danger with adding a clause is that the devil is in the details. The provision of such a clause could give rise to
unintended consequences, such as actions being brought based on such a clause that would not have any basis in fact.
My concern is that it would be difficult, and perhaps counterproductive, to attempt to draft such a clause into the
I have no argument against it in principle; I agree that the power should not be used in a discriminatory fashion.
Neither should any other powers in any other law be used in a discriminatory fashion, but we generally rely on the anti-
discrimination provision in the Charter as the protection against that.
Senator Andreychuk: One of the benefits of being in the Senate is that we are here long enough to have some
corporate memory. I sat on the committee reviewing the new immigration bill, I think it was Bill C-11 at that time, and
the talk was not about terrorism. It was about how we could efficiently and quickly handle immigration cases. There
was concern about harbouring terrorists and war criminals, and not dealing efficiently with them; but it was only after
that that we started looking at global terrorism, which I think is a little different.
On the point about what happens if we deport these people, not only do we send them where they may be tortured,
but we may send them where nothing happens to them except that they begin their activities again. Three years ago, the
minister came and answered our questions about the definition of terrorism — I think it was Minister McLellan at the
time. She said that since it was not defined within the act or regulations, there was some understanding or undertaking
that they would try to marry the definitions. That has not happened.
Perhaps there is a need to have the minister back at some time to talk about how these two pieces of legislation fit
together. There was an expectation that in light of global terrorism, the government would look at that. Some of these
are the unintended consequences.
The government says it does not do racial profiling; however, the minister indicated that there is something called
``risk management.'' If we put in a non-discrimination clause, and if we are not racially profiling but doing something
called risk management, are we going to be better off on the issue? Or is it better to try to deal with it under the
Charter, trying to get the community to understand why racial profiling is wrong and building a culture in the security
system and in the government that is non-discriminatory?
Mr. Roach: It is a continuum. Training and outreach are important. It would be quite valuable if we could agree
statutorily on what racial profiling is. Any debate that I have attended about racial profiling tends to get bogged down
Our proposed definition of racial profiling is relying on the prohibited grounds in selecting a person for
investigation or heightened scrutiny. It may be that risk management, if it is based upon race, religion or national
origin, might fall within that definition. We would have a clearer debate if we attempted statutorily, or even just in the
report, to say what we meant by racial profiling. That is where I disagree that section 15 of the Charter necessarily
provides an adequate remedy. Once you are into section 15 of the Charter, you are into this 15-point test for what
constitutes substantive discrimination.
What I think this committee could contribute is coming to an agreement. You might want to hear from other
human rights' commissions — the Ontario Human Rights Commission recently completed a report on racial profiling
— in order to understand those definitions and try to come to a specific definition. We all seem to agree that it is wrong
and that we are not doing it, but we do not know exactly what it is. It would be nice to nail that one down in some
Senator Kinsella: We obviously must grapple with different kinds of rights. We have been talking about section 15
rights. The Minister of Justice articulates the right to security and sees that as a right to permeate things. In your mind,
what constitutes the unity of human rights?
Mr. Monahan: That is a short question but the answer could take us days. I have some sympathy with the minister's
view that security is itself a right. As the most fundamental basis of a free society, we expect to be able to move about
freely in that society without the threat of danger to our physical person and property.
I do not know that there is a simple unity in which these things can all be brought together in some calculus where
everything is achieved. There are necessary trade-offs that have to be made in order to deal with existing threats; and
there seems to be overwhelming evidence that there is significant risk that needs to be dealt with. Therefore, I do not
think I can give you the magic bullet that you are seeking.
The Chairman: Nonetheless, you have tried. Thank you both for coming here today. It has been a terrific session,
which surprises none of us. We wish you all well, and we will call you back if we need you.
Honourable senators, we will now hear from Professor Wayne MacKay of Dalhousie Law School, who is not a
stranger to this committee, as well as from Professor Jamie Cameron of Osgoode Hall Law School.
Some of us around this table were here at the time Professor MacKay appeared before us during the initial review of
Bill C-36. We have only one hour for each witness, and a very lively bunch of questioners here, so I will ask all
honourable senators to be as quick as possible so that we will be able to get the most we can out of Professor MacKay.
Mr. Wayne MacKay, Professor, Faculty of Law, Dalhousie University: Thank you very much. It is nice to be back. I
have been before various committees of the Senate and this one, in particular, a number of times. I always enjoy the
experience as the level of analysis is very high and the questioning is very good. It puts me through my paces, which is a
I realize that time is relatively short, so I will highlight a few points. Being an academic, I usually try to put a title on
something, so I struggled over what I would entitle this presentation.
What I came up with in the end — ``Human Rights and Counterterrorism; A Fine Balance'' — was not very
creative. The only mildly clever part of it is the reference to a fine balance. I do not know how many of you are familiar
with Rohinton Mistry, the Canadian author of an impressive book with that title. He has stopped going to the United
States on book tours because he usually gets stopped and racially profiled. I thought using ``a fine balance'' might be
ironic in this context.
I would like to make some preliminary points before I highlight a few sections. First, I believe all the members of the
committee have a copy of ``Canadian Democracy at a Crossroads'' from Rights & Democracy; although I will not be
referring to it in detail, it contains some useful information. I cite it for several reasons, partly because I am currently
the acting chair of the Rights & Democracy board, but mostly because it is a good piece of work, looking at the
Canadian scene in the larger international context.
You also have a short handout with the relevant sections from the Anti-terrorism Act, and some suggested elements
to a definition of terrorism from another international study — the UN high-level panel looking at a host of issues on
security and shared responsibility. We will come to that.
I would like to make four preliminary points. The first one is that drawing upon the study from Rights &
Democracy, in order to promote coherence and accountability in our counterterrorism policy and practice, we need to
examine not just the Anti-terrorism Act, but also related statutes. Having read some of the transcripts, I know that has
been an issue, but it does not seem realistic to study the Anti-terrorism Act in isolation. There are a number of other
statutes, particularly the Public Safety Act, national security certificates under the Immigration and Refugee
Protection Act and so on.
I would encourage the committee to look at it in the broader context of anti-terrorism. That is particularly true since
not a lot of use has actually been made of the Anti-terrorism Act. It is the other statutes, in fact, that have been more
involved. Indeed, one of the arguments I made in my earlier testimony was that other legislation is already in place.
The second point concerns the burden on the government, in the free and democratic society that is Canada, to
demonstrably justify these unusual limits on freedoms. I read through the testimony of ministers McLellan and Cotler
in preparation for this. I believe that the burden should be on the government, as it was initially, to say why we need
this legislation. This is perhaps even more so the case when, after three years, it has not had much use.
The third point is that Canada's approach to counterterrorism is closely linked to our relations with the United
States. In that, I am perhaps stating the obvious and also straying from law into politics, although they are hard to
separate. That clearly is a context point. As we hear about the John Manley report and common borders and so on, the
linkage between security, economic rights and the American position is increasingly important.
On the point of coherence, it is important that our coherence be defined in a Canadian context, not exclusively in a
North American or international one, although we obviously have to look at that.
It also is very important for this committee to make some recommendations on accountability. A three-year review
should not be a one-shot item, but rather an ongoing process of review. A Senate committee or the Senate itself might
be an appropriate body for sober second thought on issues of counterterrorism.
My final preliminary point concerns human rights and security. Are they really allies, as the Minister Cotler
suggested in his testimony before you, or are they enemies or somewhere in-between? Obviously, I will suggest the last.
I do not think security and human rights are natural enemies, nor do I think they are natural allies. Going back to my
title, I believe what you need is a fine balance between the two.
I want to make a few comments on the act itself. There was a great deal of discussion originally about the definition
of terrorism. As you well know, many changes for the better were made in respect to the definition, but it is still very
I was interested to read a 2002 article in the National Journal of Constitutional Law by Irwin Cotler, before he
became an MP or Minister of Justice, where he was still fairly critical of the over-breadth of the definition of terrorism.
He stated that it was broader than the definition in both the United States and the United Kingdom and suggested two
particular things that might be modified, with which I agree.
The first is the removal of the motivational elements in the definition of ``terrorist activity'' in section 83.01, an act
that is committed:
... in whole or in part for a political, religious or ideological purpose, objective or cause ...
Mr. Cotler and others have argued that those kinds of motivational factors are unusual in a criminal context. His
suggestion then was that they need not be there; they are covered elsewhere and those are broad things that may not be
Perhaps more controversial, his second recommendation was the removal of 83.01(ii)(e), an act or omission, in or
outside Canada, that intentionally:
causes serious interference or serious disruption of an essential service, facility or system ...
His concern around that was of drawing a line between terrorism and legitimate political dissent. His view was it
should be narrowed, or possibly eliminated, as grounds. I am not as sure that elimination is an easy thing to do with
subsection (e) under 83.01, but it could be debated that the motivational factors could be taken out.
The second part of the definition you have has the elements from this high-level UN panel. That sets out four factors
they feel have to be present in any proper definition of terrorism. The panel was dealing with a very significant report
released in 2004, talking about security as a shared responsibility. Most of those elements are in Canada's definition,
other than the first one, which is the recognition in the preamble that: ``The state use of force against civilians is
regulated by the Geneva Convention and other instruments, and if of sufficient scale constitute a war crime by persons
concerned, or a crime against humanity.''
That is a big issue about state terrorism and what you do with prisoners in a terrorist context, certainly within
Canada. Perhaps even more important, to what extent is Canada violating the Geneva Convention, if we send
prisoners to the United States and they are then treated in ways that are not in accord with it? That is a rather
interesting international reminder of whether or not we should have some reference in the Anti-terrorism Act to that.
The second item is the list of entities and terrorist entities under the Anti-terrorism Act, which includes significant
power for the Governor-in-Council to establish a list. In addition, there are international lists which supplement that. I
know there has been debate about the Tamil Tigers not being on the entities list, but being on the other list, and so on.
Another interesting question arises from the various provisions in 83.08 on freezing assets and property, which
instruct banks and other financial institutions to freeze assets of entities either listed under the entities list or this UN
list. There is a rather interesting footnote saying that if there is any doubt in the spelling, that you probably should
freeze the assets.
Out of curiosity, I looked at spellings in the Halifax telephone book and found a listing for an Osama bin Laden. I
wondered what a bank holding that person's assets would do. To be fair, that is not so much under the act itself, but
rather under a kind of footnote to the international list of entities. However, it does raise an interesting question.
Registration of charities is another big civil society issue that is talked about in that Rights & Democracy book. I
will not go into the details other than to say that it is a significant issue because it touches on the question of who is on
the list. That leads me to the next point on racial profiling.
I know that senators had lengthy discussions with Mr. Roach and others on that topic. I think that is a significant
issue under the Anti-terrorism Act. Someone suggested that there should be a reference in the act to anti-
discrimination. Of course, we have other statutes such as the Charter to cover that; however, given all the concern
about racial profiling and targeting of minorities, why not include it in this act? I believe that Minister Cotler, in his
testimony before the committee, talked about his various principles, including one on minority protection. Although
``racial profiling'' is used generally, the terminology might need to be broader because profiling includes cultural,
religious and racial.
The general view is that profiling is not as big an issue in Canada as it is in the U.S, but that depends on how you
define it. Many suggested responses to the issue include better training and education, which we obviously need. In the
testimony to date, there was a suggestion for a cultural exchange and round table as a way of being informed on the
effects on various communities.
The next issues are privacy and the flow of information. Privacy is one of the casualties of the Anti-terrorism Act.
Even though we have more access and more protections in Canada than they have in the United States, there has been
some significant loss of privacy and flow of information. One of the best examples of that is section 38.13, the
amendment to the Evidence Act, which allows the Attorney General certificates to disallow access to evidence that is of
concern to national security.
In that vein, interesting questions were raised by the B.C. Privacy Commissioner about whether American
subsidiaries in Canada have to send personal information to the United States under the U.S. Patriot Act; and,
therefore, do not fall under the benefit of the various pieces of provincial and federal privacy legislation in Canada. In
her testimony before this committee, I believe that Minister McLellan reassured senators that the Privacy Act would
apply. However, the B.C. commissioner still had grave concerns about whether Canadians had to send personal
information to American companies in violation of privacy protection under Canadian statutes. That is another big
issue to take a look at.
Investigative hearings and preventive detention are the two provisions that have sunset clauses. As I understand the
testimony, the preventive detention has not been used to date and the investigative hearings have been used only once
in the Air India case, where the Supreme Court of Canada upheld its constitutionality. Although it was a 7-2 decision,
the majority thought that it was fine. I would recommend that this committee flag the non-use of these provisions and
determine whether to continue them, given the sunset clause and what will happen in two years' time.
While security certificates are not part of the Anti-terrorism Act, they have received a great deal of discussion before
this committee. In Canada recently, we have had the Zundel case, the House of Lords' decision and other judicial
attention. As well, much attention has been paid to the limits on basic freedoms that are implicit in the security
certificates under the Immigration and Refugee Protection Act. I would urge this committee to look at these, although
they are not directly part of the Anti-terrorism Act.
I will conclude on the twin principle of coherence and accountability. Obviously, the government should be
accountable for its anti-terrorist policies and legislation. We need to have ongoing mechanisms beyond the three-year
review. Some time and attention should be spent on exploring what those mechanisms might be, including Commons
committees, Senate committees and possibly other configurations. The Senate would seem to be the logical place to
have an ongoing review not only of the Anti-terrorism Act, but also of the package of counterterrorist statutes, policies
and practices. That goes back to my point about breadth.
With that whirlwind tour of some of the points in the Anti-terrorism Act, I would be happy to answer questions.
Senator Kinsella: Welcome, Professor MacKay. Chair, if I might be permitted a small commercial, Professor
MacKay will be delivering the distinguished Abdul Lohdi lecture on human rights this Thursday afternoon at 4 p.m. at
St. Thomas University in Fredericton, New Brunswick.
Abdul Lohdi passed away a number of years ago. He was one of the founders of the Atlantic Human Rights Centre
and a strong follower of Islam, who worked in a Catholic university. He was symbolic of what is good about Canadian
multiculturalism and our multi-faith society.
That brings me to the issue of accountability. A counter-argument that we heard against removing some of these
sections because we have never used them is that they are needed as tools in case we do have to use them. There is
validity to having the tools required for national security. However, when weighed against the need for accountability,
do you think we would be moving in the right direction by continuing the three-year review and the sunset provisions
that you helped shape?
Mr. MacKay: You would be moving in the right direction, even if, in an ideal world, the total removal of the Anti-
terrorism Act was a good idea. Politically, it is not realistic to do that, especially not at this time. I do think you are
heading in the right direction by doing two things: looking at particular sections that might no longer be needed —
particularly the detention and investigative hearings once the five-year review is up; and refining some of the problem
areas, such as an overly broad definition of ``terrorism'' and the lack of a built-in, ongoing accountability device.
In regard to that last one, which is what you are keying on, Minister McLellan, who was the Minister of Justice
when the bill was put forward, made it clear that in her view this is permanent legislation. It is not emergency or
temporary legislation. Notwithstanding the frequent use of the war on terrorism, it is an ongoing war — it will not
necessarily stop. In light of that, we should have some ongoing accountability and review, not short-term.
That is a really important route to go, to look at who will continue to monitor this. Again, I come back to the point
of monitoring the whole picture of counterterrorism legislation, policies and practices, not just one particular act. That
would be another extension that might be important.
Senator Kinsella: I found your reference to your examination of the literature interesting, particularly that part of
the literature to which then-professor Cotler contributed. Of course, as a professor, he was enjoying the fullness of
academic freedom. Once you join the ministry, the principle of academic freedom is modified, shall we say.
However, we do know that the minister is deeply sensitive to issues of human rights. We listened very carefully to,
and you referenced, his attempt to conceptualize our struggle against terrorism, using the necessary tools of a free and
democratic society such as Canada, under the rubric of the right to security.
In balancing these rights, I asked your predecessors at the witness table a somewhat academic question. It is
incumbent upon us to attempt to understand that rights are not necessarily to be analyzed as rights in competition, but
rather that there is a unity to human rights. Numerous United Nations resolutions appear to be saying that.
Under that model of analysis, it is more benign when we try to understand the right of security in relationship to the
right to be free from racial discrimination. That forces us to look at standards — and I alluded earlier with the previous
witnesses to the International Covenant on Civil and Political Rights, and in particular, Article 4, which deals with
times of national emergency, when certain rights can be derogated when the life of the nation is threatened. However, a
number of rights may never be derogated, and one of them is the right to be free from discrimination because of race,
religion, et cetera.
When you underscored the view that a new section should be added to the Anti-terrorism Act, would you
conceptualize it within that philosophy of why the world community and Canada ratified that standard back in 1976?
In other words, yes, we are quite prepared and capable as a free and democratic society of dealing with terrorism and
threats against our security, but we will do so fully embracing non-discrimination.
Mr. MacKay: I have been in the trenches a while myself, so I am probably not objective about this, but it seems like
a sensible position to me. As you indicate, there are connections between rights, not only non-discrimination but the
dignity of the person. There are certain kinds of rights that are inviolable in the broad sense — rights to be free from
torture, rights against non-discrimination and those kinds of things. That is where the international references can be
helpful to us in saying what about the Geneva Convention and the limits placed on that when we are talking about
torture, and what about adding a clause on non-discrimination and respecting people's dignity?
Again, reading Minister Cotler's testimony, he seemed to be quite open on that. On your interesting point about
academic freedom, I believe he said his principles are his principles and they are the same whether he is minister or
professor. I would take his word on that.
It would be quite consistent to have something built in to deal with non-discrimination, especially since there has
been a great deal of concern and discussion about racial profiling and disparate impacts of anti-terrorist law on various
groups, particularly Muslim and Arab communities. To me, that would be a sensible thing to do.
Senator Joyal: I would like to continue on that, professor. I listened very carefully to the Minister of Justice when he
testified here with his eight principles. Frankly, that issue of right to security is a bit of a misnomer to me. I think we
are trying to confuse people, to try to sell something.
I participated 25 years ago in the definition of the Charter of Rights and Freedoms. In fact, I chaired the 352 hours
of testimony and the 120 witnesses we heard. Strangely enough, in all that process, nobody came to us to say the right
to security exists, put it in the Charter.
If we are so concerned about the ``right to security,'' let us make it a Charter right. To me, there is no such thing as a
right to security. Governments have the responsibility to respect the integrity and security of the person. That exists as
a right. That is in the Charter. We have to respect the dignity of human beings; by the mere fact that the person is a
human being, that person is entitled to dignity — that is, protection of his or her condition as a human being.
However, there is no such thing as the right to security.
Of course, we now find ourselves in the context of anti-terrorism. Well, Canada had a previous period of its history
where there were terrorists and we had an emergency act that was invoked at that time. Nobody during the course of
those debates and in their aftermath ever invoked a right to security to expect that the government would take some
measures to protect the population and to maintain peace, order and good government — or law and order, if you
I have great difficulty buying into that new theory of the right to security. I know it is being developed. For instance,
Professor Ignatieff has been a proponent of that and has written on it. I know there is a school of thought on this, but
it has not materialized into formal legislation, i.e., that everyone is entitled to the right to security.
There is a blurring of concepts here. I wonder if, in fact, the right to security is not a pretext to give to the
government of the day extraordinary power to overrule the other rights that are essentially covered by section 1 of the
Charter — limits that are reasonable in a free and democratic society.
The government might want to propose some initiatives, policies and legislation that hurt or violate the rights that
are listed in the Charter, but there are limits to that. I believe we are trying to circumvent section 1 of the Charter with
that language of the right to security. Do you have any reflections on that?
This bill was sold to us by the government as ``an emergency situation.'' Pass this quickly — we are in a war.
Everyone knows that a war has an end, but now there is no end to this. Why? Because it is a risk in our society, as much
as organized crime or the Mafia is a risk in our society.
We are confusing people because all kinds of concepts are being pushed into this discussion. It is part of what I call
the propaganda initiative taken to sell all kinds of things that amount to the same thing in the end — limits on the
rights and freedoms of citizens as they are entrenched in the Charter. Could you share your reflections on this?
Mr. MacKay: I have a great deal of sympathy for the view you expressed. Someone — I cannot remember who —
stated that words are sometimes used to conceal rather than reveal. Perhaps that is the case, though not necessarily
deliberately, with the use of security.
First, there is ambiguity about what we mean by the term ``security.'' There is personal security or security of the
person in section 7, but that is not what they are talking about. They are talking about national security, which is a
different issue altogether. Presumably we are not talking about economic security and health care and those kinds of
things. It is one of these terms you can throw out there, but people have different interpretations of what it means. I
think it is deliberately vague.
Second, if we are talking about it in terms of national security, it is not a competing right. It is a section 1 limitation
on a right. That is partly why I brought us back again to the burden being on the government to justify the Anti-
terrorism Act. I do not accept the view of Minister Cotler and others that these are obvious allied rights either. How to
balance limits in the name of national security — and we must have some — and basic rights is the real question; and
that goes back to the burden on the government to justify this.
I also agree with your point that even though the language was not temporary, the terminology of ``war on terror''
suggests an end. It evokes the War Measures Act and emergency legislation and things that have a termination point.
That is not the case with the Anti-terrorism Act. It is being somewhat repackaged to say this is really protecting rights
as well as limiting rights.
If you go again to the international level, a lot of the writing talks about only having national security when you
have protection of human rights and the rule of law. In one sense, you cannot have one without the other, and there
needs to be a balance.
To end my reflections on this, I would agree that the term ``security'' is being used very broadly. First, we should be
talk about national security and what that means, with the understanding that it is a limitation of rights, not a separate
right in and of itself.
Senator Joyal: I think you are right, professor. We are talking here about national security. Because we belong to a
country that has a rule of law and a body of rights, people expect that their government will respect those rights. In
some circumstances, the government might adopt legislation that limits those rights, but it has to justify it, and do so
regularly if circumstances change. There is an insidious element in that right to security; it is a pretext to put something
permanent into the system that does not exist per se.
There is no such thing as a right to security. There is a right to national security; that is, you can expect your
government to take measures to protect the exercise of your rights, but not at the expense of those rights. We are trying
to put the cart in front of the horse here. It is very important that the academic community reflects and writes on those
issues, because there seems to be confusion here that is not helpful for the kind of society in which we want to live,
develop and prosper.
Mr. MacKay: In addition to national security, there is also North American and international security, so it is a
moving field. Human rights may be somewhat difficult to define, but we are relatively clear on the kinds of things we
are talking about. However, when we talk about security, people use the same label for very different things.
Senator Kinsella: Supplementary to Senator Joyal's point, what we dealing with here is a problem equivocal
language. Security, in the sense of national security, is used as a ground to derogate from rights. However, in the
Universal Declaration of Human Rights, in Article 9 of the International Covenant on Civil and Political Rights and in
the Charter, it does articulate security of person as a clear human right.
In the old days, we used to think of that as a self-executory right; ``State, do not do anything, and I will enjoy
security of person.'' However, in the world in which we live in today, perhaps there needs to be a programmatic
component. If the state does not do anything, the right to security of person might not have much flesh on the bones.
Senator Smith: We are getting a bit philosophical here, but I think it is useful. While I am not really arguing with
Senator Joyal, I would perhaps put my emphasis a little differently.
I was in the Commons when we debated the Charter. It is true that people were not talking about security then; but
if 9/11 had happened in 1980, they probably would have been. There is a concept that people expect this of
government, going way back to peace, order and good government. What does peace and order mean? Is that security?
We could muse about this a fair bit.
In 1970, we had the dreadful events that resulted in the War Measures Act. However, with respect, they were not
quite like 9/11 and the World Trade Center. Again, it is a balance.
When I was voting on the Charter, I supported it and was very enthusiastic. I do not recall anyone ever
contemplating same-sex marriage at the time. I happen to support the concept — although I have some religious
friends who think that is sacrilegious and blasphemous. I do not think it is a religious issue at all; it is a minority rights
Consider invasion of privacy. Things happen because of science. Today, we can take DNA from serial rapists. If we
had had that science available in the past, many lives may have been saved in cases where there was only circumstantial
evidence against the suspect. I do not want to get into that stuff, except to say you do need some kind of balance when
it comes to security. Perhaps I put more emphasis on it than Senator Joyal, but I respect his view; it is just that I have a
little more appetite for respecting the public's need for security.
That was not a speech; it was an invitation for any commentary you might want to give in response.
Mr. MacKay: It is true that rights evolve and change, and the language of the Charter is fairly open-ended. The
example I would use is the right of privacy. It may well be that as we have an increasingly technological society — and
this relates to counterterrorism and security measures such as iris scanning and all the various technological means of
surveillance — there will be major threats to what we would think of as human rights in society generally. The
increasing focus on surveillance and the end justifying the means results in the use of this technology. If you focus on
privacy as the question, maybe we should start thinking about privacy as a kind of human right that is threatened by a
host of measures, including our counterterrorism measures.
Senator Andreychuk: The Universal Declaration of Human Rights states in Article 3 that everyone has the right to
life, liberty and the security of person. Article 9 states that no one shall be subjected to arbitrary arrest, detention or
exile. Further on in the declaration, it speaks of the responsibility of all individuals and states to promote those rights.
We are really talking about two things: the right to life and the right not to be detained arbitrarily. We are talking
about where it is my responsibility to protect myself and others in my community, and when the state must do that. I
believe that was the fine balance you were talking about. It is not simply Bill C-36 as we know it now and what our
government is doing; you have to take it all into context.
Certainly, in passing Bill C-36 so quickly after 9/11, the government was responding to unknowns. At that time,
having planes crash into the World Trade Center was something that no one had contemplated, although security
people knew that some horrific act could occur. They did not connect the dots, as we keep saying, but they knew.
Since then, everyone seems to be saying to the government, ``Have you thought of this; are you sure you have
covered that; are we insecure here; are we insecure there?'' The government has responded by taking all these powers to
say we are ready, whatever happens.
In the Aeronautics Act, ministers were given unfettered powers to cover anything — not just terrorism, but any kind
of disaster or catastrophe that could occur. To me, that is the most troublesome thing, rather than particular sections
which I can track — this whole idea that the government will protect me against anything and everything or be held
accountable. How can we hold it accountable? Should we not be trying to put more reasonableness into a public
debate, rather than the guarantee we are expecting from government?
Mr. MacKay: First, in terms of things like aeronautics, the Public Safety Act has received very little attention, which
is interesting given that it is almost as large as the Anti-terrorism Act. We had the original hearings on Bill C-36, and
we are now reviewing the Anti-terrorism Act as required; yet we have not looked at the Public Safety Act or the
security certificates under the Immigration and Refugee Protection Act, both of which raise large issues in terms of
security and human rights.
As you rightly indicate, there are very broad powers of invasion of traditional privacy under the Public Safety Act.
There is lack of access to information that would normally be available, sharing of information that in the past was not
available and, perhaps most important, a concentration of power.
That goes back to the emergency war setting. Under the War Measures Act and most emergency legislation, power
gets concentrated in the executive because there needs to be quick decision making and response in times of crisis.
However, one would not normally accept that on an ongoing basis because it is not consistent with our view of
parliamentary democracy and balance in society.
In areas like the Public Safety Act, we have a lot of concentration of power in ministers, the Governor-in-Council
and others to make decisions that they would not normally be able to make. Yet we have had very little review or
accountability of that legislation or other related legislation. We are only now looking seriously at the security
certificates because of the media coverage of high-profile cases like Zundel and others, but the certificates have been
around since 1991. That raises large issues of liberty of the citizen, human rights and other kinds of issues that are quite
important to review; again, I come back to the accountability on a broader scale than just the Anti-terrorism Act.
We are focusing on the Anti-terrorism Act, which has not really had a lot of use. However, we are not necessarily
looking at some other statutes that have had a lot of use, and that raise very practical, on-the-ground issues of human
rights limitations in the name of security.
Senator Joyal: I want to come back to the issue of privacy and the B.C. Privacy Commissioner. Are you aware that
the President of the Treasury Board has announced that the government will come forward with a policy to protect
Canadian companies from the application of section 238, I believe, of the Patriot Act? The section compels American
subsidiaries in Canada to disclose information without having been notified that they are subject to the American act.
The government intends to legislate, if need be, to make sure that the privacy of Canadians is protected, especially with
the exchange of data. One would think of things such as credit cards and all the other financial transactions that
Canadians may have with U.S. companies that are subject to the Patriot Act and to disclosure in the United States.
Were you aware of that?
Mr. MacKay: I was not. I am happy to hear about that because of concerns that sensitive personal information may
be available. Another one to add to the list would be health information. In some of the Maritime provinces, for
instance, health information is handled by private companies that are subsidiaries of American firms, so that could go
to the United States.
That does seem to circumvent the kind of privacy protections that we have in Canada, which tend to be broader
than in the U.S., so I would certainly welcome that as a step in the right direction. It would be consistent with what
Minister McLellan indicated to this committee, that the privacy rights of Canadians should be set by Canadian law,
not by American law.
The Chairman: Professor MacKay, we appreciate you coming to our committee and we hope to see you again.
Professor Cameron is our next witness. The floor is yours.
Ms. Jamie Cameron, Professor, Osgoode Hall Law School: I would like to begin by thanking members of the Senate
committee for inviting me to participate in these hearings. I hope what I have to say will do more than repeat and
reinforce what others have already spoken of this afternoon.
I will begin with a couple of comments on the three-year review under section 145. I think these hearings are a very
important part of that process.
Section 145 demands a comprehensive review of the provisions and operations of Bill C-36. Yet, according to the
Public Safety Minister's remarks, which were reported in the newspapers, the government got it right the first time.
None of the dire consequences that were predicted in the fall of 2001 had come true: investigative hearings were only
held once: only one person had been arrested under the legislation: and fine tuning was all that was needed.
I want to make it clear to members of the committee that I do not agree with that assessment of Bill C-36. That is
why I begin by redirecting the committee's attention to section 145 and its imperative that a comprehensive review be
I have neither the time nor the expertise to provide a comprehensive review of all the issues I have with Bill C-36.
Instead, I will pick out some themes or irritants about Canada's response to 9/11 and the problem of terrorism. Several
of these cut across different parts of Bill C-36 and our response to 9/11 — things like the security certificate process.
As Professor MacKay said a few moments ago, we are talking about a package of responses; and in that context, it
is a little difficult to isolate Bill C-36. I understand that the committee's mandate is specific to a review of Bill C-36, but
it is impossible to avoid talking about a series of responses and measures that have been taken to combat terrorism. In
this way, I hope I can provide some modest guidance to the committee in its work ahead.
I have prepared a short list of the issues that, in my view, should be of special concern to the committee. The first is
the concept of national security, which I have described as ``the pre-emptive concept of national security'' in my
speaking notes, a term I will explain in a moment.
Second on my list is secrecy and non-disclosure, which I view as a fairly serious defect in various parts of Bill C-36
and in other legislative provisions such as the security certificate process. Third are due process deficits or deficiencies.
Fourth is the definition of ``terrorist activity,'' which was one of my concerns in the fall of 2001 when I appeared
before the Senate to discuss Bill C-36. Finally, I wanted to say something about the Charter of Rights and Freedoms
and the democratic process.
I listened with considerable interest to the exchanges between members of the committee and Professor MacKay on
the question of security, because national security is the first issue on my list. It is also the overarching principle in Bill
C-36; if you look at the preamble of the bill, security is invoked again and again in the successive paragraphs.
My concern about the focus on national security is that it has become an absolute and unanswerable concept in all
discussion of anti-terrorism measures. It seems that whenever the government invokes national security, whatever it
does is immune from challenge. As such, the concept of national security does have a tendency to pre-empt and even
silence those who defend the rights of individuals that are affected by this legislation.
The Public Safety Minister said that the government got it right in the fall of 2001 when it enacted Bill C-36.
However, it seems to me that the balance is somewhat skewed in favour of national security over the rights of
individuals. Therefore, I disagree that that is the appropriate way the two sets of competing interests should be
There are examples in my speaking notes of how national security enters into Bill C-36 and other kinds of measures
and events that have occurred since 9/11. The provision that enables the government to create a list of terrorist groups
makes specific reference to national security. The public is not entitled to know much of what is going on with the Arar
inquiry because of national security. There is, as well, the security certificate process.
While national security is the conceptual foundation for the entire act, I would argue that all the provisions in the
bill are based on a skewed conception of the appropriate balance between national security and the rights of
My second point has to do with secrecy and non-disclosure. Certain parts of the act operate in secret. A good
example is the investigative hearing that was initiated in Vancouver as a sort of an ancillary to the Air India trial which
was under way at the same time.
The secrecy of that investigative hearing was highly problematic for two reasons: the fact that the process was taking
place entirely in secret created and compounded the opportunity for an abuse of process; and the exercise of that power
to initiate that process was not transparent. As a result, the state was not held accountable for the way the power was
exercised until the existence of the investigative hearing was discovered by happenstance. There is a problem with
secrecy and the extent to which it is allowed or indicated by the mechanisms of Bill C-36.
Related to that is the issue of non-disclosure, which is another serious defect in the various anti-terrorism measures
that have been put in place. There is a lack of public accountability when information and evidence is withheld from
For instance, why are certain organizations listed as terrorist groups? We do not get an explanation, because the
information on which the decision is based is withheld. Why is Ernst Zundel a threat to national security? The specifics
of that information were likewise withheld in the security certificate proceeding that was recently concluded in the
Federal Court. There is an accountability gap in such circumstances that I think reflects adversely on the credibility
and legitimacy of those kinds of decisions.
A second problem is that the non-disclosure of information disadvantages those who are subject to the act and
creates a near-conclusive presumption in favour of the state. Individuals who are subject to the terms of the act have no
access to the case against them. That is a violation of the basic principle of fairness that an individual is entitled to
know the case against him and to have some opportunity to meet it. I take very seriously the opportunity for secrecy,
and the provisions of the Anti-terrorism Act that are based on non-disclosure of information.
Fourth, there are due process deficiencies, many of which I have already mentioned. There are the issues around
about non-disclosure; the Air India trial and the misapplication of the power to compel witnesses, against their right to
remain silent and their freedom from self-incrimination, to attend an investigative hearing; and the power to create a
list of terrorist groups.
On that last point, I would add that this mechanism strikes me as being quite flawed. The grounds on which groups
are listed are not disclosed either to the groups or to the public. There is very limited access to review any decision to
place a group on the list.
A third reason, which I give a little bit more detail on in my speaking notes, is that it seems as though this power has
been exercised in an arbitrary and rather political way and, for that reason, is not particularly credible. I refer to the
constant allegations that you see, particularly in the National Post, that the LTTE and the Tamil organizations should
be included on the list and that the government has chosen to exclude those organizations for political reasons. I do not
know whether those organizations should be on the list or not. I am drawing it to your attention because the decision
to list organizations as terrorist groups is not based on evidence or criteria that is available to the public or to the
groups who end up on the list, and that is a problem.
Regarding the definition of terrorist activity, I was opposed in the fall of 2001 — and I remain opposed — to the
definition's targeting of groups on political, religious or ideological grounds. I am deeply troubled by the definition of
terrorist activity in the act, which includes any act that is committed:
... in whole or in part for a political, religious or ideological purpose, objective or cause ...
It is not necessary to punish individuals and groups for their beliefs to achieve the goals of this legislation. I view this
as a form of statutory profiling. I know the committee has been concerned with the problem of profiling, and here we
have profiling in the legislation's definition of terrorist activity, which stigmatizes groups and organizations. It places a
chill on their legitimate activities, contributes to a culture of suspicion and sends the message that Parliament thinks
profiling is okay.
If Parliament says it is okay to target groups because of their political, religious and ideological beliefs, then it is
hardly surprising that police, airport officers and customs officers will do the same thing. It is there in the legislation. I
feel very strongly that is a part of the legislation that the committee ought to look at and reflect seriously upon.
I want to say a couple of things about the democratic process, which reinforces some of the discussion I heard in
Professor MacKay's presentation. Three years after the fact, now that the immediate fear and the emergency of 9/11
have abated, we have the opportunity to reflect on Bill C-36, its consequences for the rights of individuals and the
unprecedented powers it grants the state.
I am not convinced that the state needs to have all these powers. I believe the burden is on the government to explain
why these powers are indispensable in the fight against terrorism, and I am not sure that explanation has been given. In
my view, to the extent certain powers are not indispensable or are exercised at too great a cost to the rights and
freedoms we prize, those powers should be amended, modified and even eliminated.
I will stop with that and entertain questions, as I am sure I have provoked a few.
Senator Smith: One or two of our previous witnesses said they did not buy into the concept that we had whatever
powers we needed already in the Criminal Code, if they were just used as they could have been used. Are you of that
school of thought? Did you think the Criminal Code was adequate for what powers were needed, or do you think we
needed additional measures?
Ms. Cameron: I will give you a yes and no answer. Yes, the Criminal Code was up to the job of punishing acts of
terrorism that had actually been committed. I cannot think of any gaps in it that would allow those acts to go
What Bill C-36 did, which the Criminal Code does not, is to give the government the power to take preventive action
against prospective acts of terrorism. It does so through measures like the listing mechanism, the financing provisions,
the provisions that deal with forfeiture of property, freezing of property, seizure, restraint — all those kinds of things.
The provisions that deal with facilitating, harbouring, et cetera are another part of Bill C-36 that provides a value-
added dimension to the Criminal Code; they go beyond it in terms of providing assistance to terrorist activities or
Senator Smith: For the sake of discussion, if we accept your analysis of the categories, do you think it is a valid and
legitimate role for government to try to actively prevent terrorist activities? If so, to what extent?
Ms. Cameron: I have difficulty with far-reaching, speculative, preventive powers and measures. It is difficult to
confer powers on the government to prevent offences that may never be committed. There is a price to pay for that in
terms of the rights of individuals; individual rights and liberties are curtailed and affected, notwithstanding the fact
that we do not know whether any offences will be committed. I have a problem with the idea of pre-emptive action. I
would require a fairly high threshold of risk or danger to the government before I would see that as a permissible
mechanism for the government to activate.
In terms of the specific provisions in the act, I am concerned about the reach and breadth of those parts that deal
with facilitating terrorist activities. You have to worry about the remoteness of the connection between the activity of
the person and any subsequent terrorist activity that might or might not be committed. As the connection becomes
more remote, the cost to the rights of individuals becomes more difficult to justify.
I also have problems with having a list of terrorist groups generated at the political level. It is not so much with the
idea of a list generally, but rather with the transparency and the grounds on which the list is created — with who is in
and who is out, whether there is a provision to review the list and whether there is disclosure of the basis on which a
group is listed.
Senator Smith: Would you have trouble with al Qaeda being on the list?
Ms. Cameron: I do not know. I would need to know what the information is about al Qaeda in Canada because I do
not know whether there are operatives here. A listing has to be based on evidence for any of these consequences to
groups and organizations.
Senator Kinsella: Do you think there is a correlation with the federal government's perception of the amount of
pressure it is under from countries such as the United States and the United Kingdom? We heard a witness from
Singapore last evening, whose testimony seemed to indicate that the people in Singapore are also of the view that
Canada should have tougher anti-terrorism legislation. Do you think there is a relationship between international
pressure and the content of the Anti-terrorism Act, and the kinds of amendments to the existing act that the federal
government might be prepared to support?
We have not used many of the powers authorized in the act. To what extent are we keeping the statute as is, if that is
the intent of the government, or keeping whatever amendments they might find benign enough to allow in? I am trying
to understand the psychology of the present government vis-à-vis dealing with this act. Could you comment on
translating that into the political realm, given the majority in the legislative chamber from which it receives direction?
Ms. Cameron: Yes. In the fall of 2001, I wrote a short article that was a little irreverent entitled, ``Bill C-36, Canada's
Me Too Legislation.'' By that, I meant that Canada was joining forces to show its solidarity with the rest of the
Western world in response to 9/11 by putting in place fairly tough anti-terrorism legislation and regulations.
I have to guess that there would be political resistance to any proposal for significant amendments to Bill C-36 on
the grounds that we have it in place. It is difficult to retreat from that, particularly in light of all the sensitivities with
the United States about whether we are doing enough to play our part in respect of security.
I have tried to select some of the discrete issues that strike me as being important and fundamental. I would push on
those fronts to the extent possible, because we have this opportunity to reflect on what we did by enacting Bill C-36.
We can consider whether all the powers created and authorized by this legislation are now necessary.
I believe that investigative hearings and preventive arrests are candidates for repeal. It has not been shown necessary
for the government to exercise those powers. I agree with Professor MacKay, who said, I believe, that the burden is on
the government to justify these powers because they come, unquestionably, at the expense of the rights of individuals.
If these powers are not of any utility and, like the investigative hearing, remain available and pose a potential abuse of
process, then they are legitimate candidates for repeal, amendment or modification.
I would like to comment on the investigative hearing, which is section 83.28. Professor MacKay made reference to
the Supreme Court of Canada decision that upheld section 83.28 and the constitutionality of the investigative hearing.
However, I want to add a qualification. A majority of the Supreme Court of Canada, in a companion case, was strict
on the point that investigative hearings under section 83.28 are subject to a constitutional requirement of openness.
They cannot be held in secret, unless the government comes forward with evidence to support an exception to the time-
honoured principle of open hearings.
As well, section 83.28 was not a unanimous opinion of the Supreme Court of Canada. One member of the court
found that the Air India investigative hearing was an outrage and an abuse of process, and two members of the court
were prepared to strike down 83.28. They also agreed with the member of the court who wrote an opinion explaining
why he viewed it as an abuse of process.
I would be reluctant to concede that Bill C-36 should remain as is simply because there is a need to fall in line with
what other countries have done. It is worth noting that the highest courts in the United States and the United Kingdom
have had to tell their governments that they have gone too far with some of their anti-terrorist measures.
The U.S. Supreme Court, which is not exactly a bastion of liberalism at this time, cracked down on the Bush
administration for some of its policies and practices with respect to detainees. Likewise, the House of Lords found
unconstitutional some of the provisions of the British legislation.
Senator Kinsella: The current sunset provision in the act will deal with those two in two years hence, when the
burden will be on the government to make the case, if it seeks to reinstate those provisions.
Senator Joyal: I would like Professor Cameron to continue on that issue. On page 6 of your brief, the last two lines
in the paragraph before the recommendations state:
It is the responsibility of those who defend these measures to explain and demonstrate why they are necessary.
And in the absence of that explanation, the Committee should recommend significant changes to the
It seems to me that with the passing of time, there is a kind of reverse onus. At the beginning when this bill was
introduced, the government told us that we had to act quickly. The threat was there; the American government was
pushing; there was the spin that the terrorists might come through the border; everybody was on his or her toes on this.
All those measures were seen to be needed immediately to prevent a second wave of terror.
The government is responsible for making a political judgment, and answering for its initiatives. As time passed by,
it seems that the onus changed to proof that this is needed. As you said in your brief, even in the investigative hearing
that was upheld by the Supreme Court, it was not in the course of an investigation, it was in the course of a trial. That
might be why there were some judges that were reluctant to bless that investigative hearing.
Would not the way to tackle the government strategy be to maintain in the act section 145, that is, to maintain a
permanent parliamentary role in reviewing those powers? The problem with 145, as I said earlier on, is that it is a one-
shot deal. We are a group here who is trying to understand and listen carefully, but once we produce our report, that is
going to be it. The government will have locked the door. Then it will be up to the court to deal with issues arising from
all the recommendations that you are making about the list of terrorist organizations, the secrecy and disclosure for the
security certificate, for the due process and so on. It will be up to the individual citizens to go to the court for that.
When we maintain parliamentary pressure on the government, considering that those are extraordinary powers —
and they are still as extraordinary to me as they were three years ago — that is a better way to approach the issues. The
argument has been given to us that we have not used the powers, but you never know, tomorrow we might need to
have them. There is a Catch-22 situation when you start running in that direction. In order to break that circle, would
it not be better to consider, among the other recommendations, that we entrench permanently the role of Parliament in
reviewing Bill C-36 and other legislation?
Would it not be better to trust Parliament with that responsibility at this point in time? Rather than try to get one of
those amendments, say on the listing of terrorist organizations, establish a level of consideration instead of losing a big
thing, which is the whole approach of the government in relation to all those exceptions?
Ms. Cameron: I have not included any sort of proposal for annual review, or oversight or monitoring in my
recommendations. However, I certainly do agree that that would be a good direction to go in with Bill C-36 after this
review has been undertaken and recommendations have been made.
In addition, however, I would stick to my guns on some of the specific points, and make the argument that what
section 145 calls for is not just fine tuning, but a comprehensive review and some suggestions for change. You are right;
now that the bill is in place, it is easy for the government to say do not take these power away because you never know
when we might have to use them. That does put a difficult burden on anyone who would make the suggestion that
some of these powers should be relaxed or modified.
However, I would still make the argument that, in principle, some amendments are called for now that we have had
three years with this legislation and the kind of dire emergency that we were looking at in the fall of 2001 has abated.
We have changed all kinds of procedures in other ways to make sure that kind of thing does not happen. We do not
need these extraordinary powers, like the investigative hearing and the preventive arrest.
Senator Joyal: I thank you very much for your brief. I think it is very scalpel-like kind of exercise, and it is helpful to
try to understand the workings of all the aspects of the bill that are questionable under the Charter, and the kind of law
tradition that we have had in our country.
Let me draw your attention to a point that I was expecting to find in your brief that I did not, which is what I call
the law of unintended consequence in the implementation of Bill C-36 and the anti-terrorism legislation. The law of
unintended consequence concerns those who were affected but were not contemplated originally to be affected. The
bill, unfortunately, has brought into Canadian society now something that we were reluctant to consider at any time in
our modern history after the Second World War, which is racial profiling.
We like to praise ourselves as being a multicultural society, and we have even recognized the multicultural character
of Canada in the Charter. It hurts our sense of ourselves as a nation to adopt legislation that targets some Canadians
on the basis of their origin or their religion. Personally, I feel that this one of most disturbing elements of it, because it
is fluid. You cannot pinpoint any section in the bill and say, ``This is racial profiling. This will lead to racial profiling.''
However, the entire dynamic of the bill gives us that kind of reality.
As some witnesses have said to us, this is a perception, but it is not real. However, if, on a one-to-one basis, people
feel that way, it is because there is a series of little facts here and there that led them to believe or conclude that. How
do we address that situation, which is not really stated or expressed in the bill but has been created by the operation of
the legislation? That is as much our concern as any other section of the bill, because racial profiling affects a large
number of people, much more than sections that are applied to one individual. This is the collective impact of the bill
as phrased or as operated.
Ms. Cameron: I was here when Professor MacKay and you were speaking about an anti-discrimination amendment
to the legislation that would try to address some of those issues. In my view, it goes back to the definition of ``terrorist
activity'' and the targeting of groups on the basis of political, religious and ideological objectives. That is profiling. It is
not race profiling, but it is profiling just the same. It legitimizes all the other kinds of profiling.
I would add that when the government sets out to develop its list of terrorist organizations, it is doing so on the basis
of their profile. The fundamental mechanisms of the act actually encourage this practice of profiling, stereotyping and
judging groups and individuals on the basis of their racial characteristics, as well as their political, religious and
I suppose I am more of a hard-liner than some of the other witnesses, and maybe it is not feasible. Maybe there is
absolutely no possibility that the government would give up that part of the definition, but I think it is a problem. If the
government does have an interest in addressing the problem of profiling, it can start with the way that this legislation
encourages and legitimizes it.
As to how else profiling can be controlled, that has to do with members of the public service who are in the front
lines at Customs and at airports and so on. That is a whole other issue that I do not know can be addressed by
The Chairman: This is of great concern to the committee. Many of the witnesses we will be hearing will go over the
nuts and bolts of the legislation and how it has worked, including the RCMP and the other security groups that had
indicated how they were going to work with this. We want to have that on the record, and then we will bring voices
from the various communities to tell their story and how the bill has or has not affected them. That will be a very
important part of our hearings.
Ms. Cameron: There likely is a certain amount of profiling that does occur that should not be permitted. There is
also the perception that is experienced by individuals and groups who belong to certain races, organizations or
religions that feel stigmatized and profiled. Whether or not they are specifically stopped at the airport, it is the way they
are treated pervasively by a community that has in place this kind of fairly serious anti-terror legislation that targets
groups on the basis of their beliefs.
The Chairman: They will have a forum here.
Senator Andreychuk: When we dealt with Bill C-36 three years ago, we attacked the definition ``statutory profiling.''
I was not in favour of the bill because of that definition, and for some other reasons. You could belong to a religion, or
a political group, or hold a belief and be instantly tainted. That would be the result.
It was not the racial profiling that goes on elsewhere on an individual basis that was a concern, but it seemed to have
sanctioned that attitude. It was not as if Canada did not have that history. We had done that before. We have profiled
people who came from certain countries.
When I started practicing law, people who came from countries that were under communist rule could not get
citizenship easily. If they were seen in certain environments, they would be tainted simply by going to a dance there. We
have not learned from our history. I do not want to put it all on the record today, but I think that is very important.
In the U.K., a very aggressive foreign affairs committee questioned the government step by step, and an aggressive
House of Lords questioned the government. That has made the public in the U.K. understand that it is a balancing act.
You put emphasis on the fact that our government has put it out that there is this terror out there that they must
respond to. I do not think citizens question their government. The government said it is horrific, and therefore it is.
How do we fight back to get a debate and to get a right balance?
Ms. Cameron: I think you are doing it, in the first instance, by the serious review that is under way here and the
lineup of witnesses that the committee is going to hear from over the course of time. I do not know that this committee
can do much more than what it is already doing. It falls to some of the rest of us who have access to the public by
writing editorials or giving speeches to offset some of the claims that are made by the government that we do not agree
with. Otherwise, this committee is doing the right thing by having the hearings and by preparing a report, which will be
the outcome of the review.
Senator Andreychuk: When the act was passed, there were some critics who said that the bill was too pervasive or
unnecessary, that we could accomplish our security needs without intruding on the rights. When visiting the
communities, I got the distinct feeling that most people thought the powers would not be used unless they were
absolutely necessary; and besides, it would not be us that the attack would be on. It is really only with the Arar inquiry
that people have started to contemplate what it does to one individual who becomes part of the process.
Do you still feel that there is a pervasive feeling in the communities that while it may harm a few, the many will be
secure? Is that philosophy still entrenched, or are we beginning to see that rights are important for all of us and that
you gain them one person at a time?
The struggle that led to the system we have in criminal law did not come quickly; it came through much agony and a
lot of miscues. We identify with the person who has been wrongfully convicted strongly now, but we did not do that 25
or 30 years ago. Must we go through the same learning curve in security legislation?
Ms. Cameron: Perhaps. We did get there with wrongful conviction, but we had to have a number of examples before
that really came to the attention of the public in a way people showed concern about that issue.
I do not really know about the anti-terror legislation. Sometimes I think that the public is acquiescent and
deferential to the government's assessment of what is needed and what is being done. Then there are times when I see
the public's capacity to react, as with the Arar case and some of the other excesses — not only in Canada, but elsewhere
— that have arisen from this whole post-9/11 era that we are in. I think that members of the public are capable of
looking outside Canada, at some of the practices in the United States and elsewhere, and saying to themselves that they
do not want this to happen here.
In any case, I would say that the fate of this legislation should not depend on public opinion polls. In my view, that
is not the way a system of democratic governance should operate. The Public Safety Minister brought in some
statistics, which I have forgotten by now, about the percentage of Canadians that were onside with the legislation; only
a small percentage was concerned about it. I do not think that should determine whatever recommendations about
changes to the legislation are ultimately made by the committee if changes are indicated because of the flaws or
deficiencies that are uncovered by the hearing process.
Senator Joyal: On the issue of definition, we have heard previous witnesses with very precise suggestions to us,
including Professor MacKay and Professor Roach. Were you here when Professor Roach gave his suggestions?
Ms. Cameron: No, but I know Professor Roach quite well. I would have guessed he, like me, is not too happy about
the political, religious and ideological part of the definition. Am I right about that?
Senator Joyal: Yes.
Senator Kinsella: The notion of statutory profiling has now been coined.
Ms. Cameron: Professor Roach is probably the individual in Canada who has studied this legislation with the closest
attention. I do not know what he said today, but without having heard him, it is likely that I would have agreed with
Senator Kinsella: It is worth noting this is a very important issue for senators. One of our constitutional
responsibilities as members of this house is to keep an eye open for issues of minority rights, and this is very much a
minority rights' issue.
Ms. Cameron: I think so, yes.
Senator Smith: I did keep notes and I can confirm he recommended it be deleted.
The Chairman: Ms. Cameron, we appreciate your attendance at our committee. You have offered very vigorous
points that will undoubtedly be discussed as we continue on through our hearings.