Proceedings of the Special Senate Committee on the
Anti-terrorism Act

Issue 9 - Evidence - Afternoon meeting


OTTAWA, Monday, May 2, 2005

The Special Senate Committee on the Anti-terrorism Act met this day at 1:04 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.

[English]

The Chairman: Honourable senators, this is the twentieth 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, in Washington, D.C. and in Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation and we agreed. The deadline for the passage of the bill was mid-December of 2001.

However, concerns were expressed at that time 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 public.

The work of this special committee represents the Senate's efforts to fulfill that obligation. When we complete this study, we will make a report to the Senate with an outline of any issue that we believe should be addressed and allow the results of our work to be available to the government and, of course, the Canadian people. The House of Commons is undergoing a similar process at this time.

So far, the committee has met with government ministers, with officials, with international and domestic experts on threat environment, and with legal experts as well as with those involved in enforcement and in intelligence gathering. This afternoon, we will continue to hear from representatives of the Canadian legal community.

We are joined this afternoon by Mr. Trudell, Chair of the Canadian Council of Criminal Defence Lawyers; Mr. Mia and Ms. Rashid, members of the Canadian Muslim Lawyers Association, and Mr. Morris, a former member of the Board of Directors of Canadians Lawyers for International Human Rights.

As always, it is hoped that senators will keep their questions brisk and clear and that the answers will flow as such. We have until 3:30 p.m., which should give us time to have a good exchange on each side of the table. We will have an introductory set of comments from our guests, and the floor is theirs.

Mr. William M. Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Honourable chair and honourable senators, on behalf of the Canadian Council of Criminal Defence Lawyers, I am grateful for the opportunity to be heard with respect to the important and historical work of this committee in relation to the three-year review of the Anti-terrorism Act.

We put together a small brief, which I have distributed. We did not have an opportunity to get it translated, for which I apologize, but the good side is that it is very brief.

In 2001, it was understood that Bill C-36 was a necessary and direct response to the threat of international terrorism on an expedited basis. We had to act quickly and did so, but built in sunset provisions and review, and I should probably say thanks to the great work of the Senate committee.

Three years later it is clear that this legislation has become part of our national policy. As such, the need for oversight and accountability is greater than ever. As Minister Cotler stated, when he appeared before this committee on February 21, 2005, we have moved into a culture of prevention and pre-emption as distinct from reactive, after-the- fact law enforcement. As was noted on that day, in referring to the mischaracterization of this as a “war on terror,” a war, by definition, is limited, whereas the provisions of this act are apparently here to stay.

Citizens around the world deferred to governments in 2001, hoping that in the “war on terror,” legislation such as Bill C-36 would reflect proportionality and candour in return for the trust that we put in our leaders.

Unfortunately, as we have seen, governments may have lied, manipulated and been careless around the world. The United States and Britain went to war in Iraq on the basis of the presence and threat of weapons of mass destruction. We have discovered that international treaties on the rights of prisoners have been ignored in Abu Ghraib and in Guantanamo. Unjustifiable arrests and detentions have occurred. Racial profiling is a real concern.

Indeed, our nation has not escaped serious mistakes. We have seen serious examples of police agencies clashing and operating clandestinely at the expense of lost evidence in the Air India case and probably serious misuse of secret information in Arar. Of course, we defer to the capable work of Commissioner O'Connor.

We cannot afford to defer to governments and their investigative agencies without ensuring accountability. Secrecy will destroy democracy. We cannot account for what we are ignorant of. Oversight is the most important protection of the rule of law. It is missing in this legislation.

In 2001, we suggested that an ombudsman — perhaps a retired justice of the Supreme Court of Canada or a Court of Appeal of this country — be appointed and entrusted with independent authority for overseeing the use of the provisions of this bill. We make the suggestion again, more emphatically.

Having had the opportunity to look at some of the testimony that has gone before, including even the Canadian Bar's presentation to you this morning, and looking at the papers and presentations of my colleagues, I must say that the pursuit of accountability as a mechanism seems to be a consistent approach throughout by everyone who is concerned with the balance here.

Despite safeguards of an annual report on any use of the Anti-terrorism Act by the Attorney General and the Minister of Public Safety and Emergency Preparedness Canada and provincial Attorneys General, as well as mandated parliamentary review of the laws in three years and a sunset clause activating renewed debate over five years, as well as its alleged narrow focus, amendments to the Criminal Code and other acts by the Anti-terrorism Act are overly broad and inherently offensive to the civil liberties enjoyed by Canadians.

The continued use of these laws is to be followed prior to a tentative repeal at a future review. While no other country seems to have specifically created a post of ombudsman, several countries — for example, Germany, Norway and New Zealand — have created novel committees to oversee their security forces' correct and democratic use of anti- terrorist legislation. We think Canada can do better and lead the way in this area.

The Chairman: Mr. Trudell you are speaking on behalf of the group today. Does each one of you have a statement you would like to make?

Senator Smith: There are three separate groups.

Mr. Trudell: I was speaking on behalf of the Canadian Council of Criminal Defence Lawyers, so my friends may have opening statements. I am sure they do.

Ms. Faryal Rashid, Member, Canadian Muslim Lawyers Association: Good afternoon, Madam Chair, honourable senators.

My colleague and I are members of the Canadian Muslim Lawyers Association. The Canadian Muslim Lawyers Association is a national association of lawyers, articling students and law students. One of our objectives is to promote awareness of legal rights within our community.

Three years ago the anti-terrorism legislation was passed and the Canadian Muslim Lawyers Association has been active in the national security debate since its inception. Our purpose today is to illustrate how this piece of legislation is eroding the rule of law and respect for human dignity and to provide our recommendations as to how to rectify these issues.

Secrecy surrounding the listing process, security certificates, charities deregistration, the eroding of the role of the judiciary and profiling and discrimination are fundamental flaws with this act. My colleague will summarize these fundamental flaws and provide an overview of our recommendations and our concerns.

Mr. Ziyaad Mia, Former Director, Canadian Muslim Lawyers Association: In the name of God, the Compassionate, the Merciful, Madam Chairman, honourable senators and guests, it is a pleasure to appear before you again to offer our ideas on and input into this very important matter, the anti-terrorism legislation. It affects all Canadians.

When we appeared before you a little over three years ago, we expressed our concern to you that the Anti-terrorism Act was the wrong response to the events of September 11, 2001. We say it is the wrong response because it trades fundamental values in Canada, such as the rule of law and human dignity, to gain a false sense of security. It is false because it is conceived out of fear.

History has taught the lesson that fear is not a basis for good public policy. Our history bears this out with the Ukrainians in World War 1, with the Japanese in World War II and with Quebecers during the October Crisis of 1970. Our governments acted out of fear and the results were devastating human consequences, inevitably followed by regret.

Unfortunately, since September 11, 2001, the public-policy discourse in this country has been infected again by a culture of fear. Fear spawns suspicion, overreaction and hate. Fear breeds simplistic one-dimensional world views.

You have our written submission, but I want to give you a flavour of what is in there. As a caution, they are not exhaustive, because we did not address every matter. However, you should not take our silence on any matters as consent to those.

Our submission is in two parts: the fundamental flaws in the national security legislation and the recommendations for reform. The flaws focus on themes that run throughout the national security regime that we think erode fundamental values and yet do not make us safer. The recommendations for reform look at salient reforms that will protect legitimate national security interests and preserve our fidelity to the rule of law.

I will walk through the flaws with you. Number one is secrecy: the use of secret ex parte proceedings and secret evidence in the security certificate process and the listing process and in charities deregistration are all unjust.

It is difficult to know if the government's serious allegations have any merit at all, and ultimately, this undermines the search for truth. That is the kernel of what the adversarial process is about in our criminal and common law traditions. Full answer and defence are eroded, and the right to counsel is eroded. It takes away the adversarial process and, ultimately, the search for truth.

Linking into that is the erosion of the role of judges in the national security regime. Judges in this country are constitutionally mandated to play a checking role between the executive and individuals and to balance the state's rights against the interest of the individual.

Time and again, in the national security legislation that we have before us, judges are put in very uncomfortable positions or they are robbed of their duties. That does not serve them or this country well. You have heard one Federal Court judge describe his role in the security certificate process as making him feel like a “fig leaf” lending legitimacy to an unjust process.

The third major theme is that profiling and discrimination in the Muslim and Arab communities are there. We do not have hard data. The minister will say nothing is there, but we can tell you something is there. Despite her blanket denials and those of other government officials, we have compelling witness from members of our communities that since the introduction of the anti-terrorism legislation, we have been targeted. There is a pattern of discrimination and profiling. This phenomenon stems directly from the national security regime and the culture of fear that feeds into it. The flaws we talked about in terms of legal process compound these problems.

We have seven major recommendations with some subsidiaries in them. I will quickly walk you through them.

First, we want oversight and accountability with teeth. That oversight should be independent, effective and accessible.

Second, abolish the security certificate regime because it is unfair and unjust. You have heard the House of Lords on that.

Third, restore the rule of law and the adversarial process. Bring in security-cleared counsel. Bring in an objective standard of evidence for national security information used in proceedings and let judges do their jobs.

Fourth, remove the permanent emergency model and sunset the entire legislation at five years; then, if the emergency is deemed to persist after a full debate in public and with parliamentary review, they can reintroduce it.

Fifth, let us get the facts straight on profiling. There is a gulf between the government's position and the communities' positions on racial profiling. Let us get some simple facts on the table so we can deal with this problem directly.

Sixth, get a better definition of terrorism. You have heard from many people that the motive requirement is problematic. We need to jettison that, because it is inefficient in terms of prosecutions and it feeds in to profiling.

The most important thing is building community trust. Muslims are proudly Canadian, and we will not accept being treated as anything less than full citizens in this country. Since September 11, 2001, there has been a chill and a climate of suspicion in our communities, because important decisions that affect the communities and the direction of this country are made without us. We are left out in the cold, and that in unacceptable.

Muslim Canadians must be a part of a successful strategy to build a secure Canada. Anything less is doomed to fail. We need to replace the perfunctory consultations that still place our communities in ethnic ghettos; we need to be given real seats at the table.

Minister McLellan and others recognize that our security is tied to and bound up with the security of others — to Rwanda, to Sierra Leone, to Chechnya. I do not disagree with that. It is an interdependent world, and we all share it, just as we share the environment. One could call it a concept of “globalized security.” While I do agree with that notion, I totally disagree with how the minister is working to attain it. Genuine safety and security is not achieved by just managing fear; it can only be achieved when we nurture and foster hope. Hope does not mean that we need to ignore reality or abandon our allies or ignore the perils we may face together. Hope demands imagination, vision and a world view that does not build walls and fences to keep fear at bay; rather, it is about creating a concept of “we,” not of “us versus them.” When we find the “we,” we are in a better place and will build better security.

Today, I urge honourable senators to reject the simplistic notions driven by fear and rediscover Canada's great strength as a model and beacon of justice and compassion in the world so that together we can build a globalized security that is grounded in hope.

Mr. David Morris, Former Member of Board of Directors, Canadian Lawyers for International Human Rights: Thank you, honourable senators. I am here on behalf of CLAIHR, the Canadian Lawyers for International Human Rights. We thank you very much for having us here to make these submissions. CLAIHR has made certain submissions before, but this is my first time before this committee, and I am very honoured. You have received my speaking notes, and it is my hope that we will be in a position to provide you with more detailed written submissions shortly.

Since 9/11, events in the U.S., in Afghanistan and in Iraq have given rise obviously to a legitimate concern for the security of our country. Unfortunately, they have also given rise to a disturbing trend in the United States and elsewhere, and to a lesser extent in Canada, whereby government seems willing to sacrifice the protection of human rights in the name of greater security.

CLAIHR believes this is a misinformed direction to pursue. CLAIHR begins from the basic standpoint that the maximum protection of core human rights is the best way of protecting our security. In order to fortify security, the Canadian government must ensure that core human rights and the dignity of its citizens are fully protected.

In his presentation to this committee, Professor MacKay from Dalhousie indicated that human rights and security were neither natural enemies nor natural allies, and what was needed was a balancing of the two. The presumption behind this balancing is that the protection of the nation's security and the protection of human rights must come, to some extent, at the expense of one or the other. CLAIHR does not believe that that is necessarily the case. Philosophical arguments aside, however, CLAIHR recognizes this is a balancing that will inevitably take place. We believe the balancing must begin with a rational determination of the extent of the threat.

In his recent speech to Ottawa University, Justice Binnie of the Supreme Court indicated that the greatest threat to our rule of law and our civil liberties is terrorism. With respect, CLAIHR questions whether that is in fact the case. Although clearly a threat to our national security, it is difficult to see how terrorism can compel us to abrogate the rule of law or fundamental rights. These are choices we have to make for ourselves through our legislators. If we take the position that we must curtail human rights because of something that has been done to us, we are simply moving the responsibility for such action or curtailment to an unknown third party, rather than keeping it where it belongs, which is with our legislators and with us. Therefore, it becomes much easier to justify such measures.

In this regard, CLAIHR refers the committee to the example of the United States. This is not meant by any means to be an attack on the U.S. or an expression of approval or disapproval of the current government there. While there are clearly differences in what has happened in the United States as compared to our situation, nonetheless, there are similarities that cannot be overlooked, because we share many of the same values as well as many of the similar security concerns. However, CLAIHR believes the U.S. poses a good example of what can go wrong once we set down the path of restricting human rights in the name of national security. It remains to be seen whether, in our opinion, the U.S. is more or less secure as a result of the measures they have taken. Perhaps that is not capable of demonstration.

For example, the U.S., like Canada, has increased its power of surveillance, investigation and detention; they have attempted to block public scrutiny, perhaps unlike Canada, and to limit legal rights and congressional oversight and meaningful judicial review. CLAIHR believes that the use of such methods is particularly disheartening in a country such as the U.S., which is generally considered to respect human rights. If these rules and values that we share in common are to have meaning, we believe they must apply even when our security is threatened. CLAIHR strongly believes that the rule of law and the protection of human rights must be for all people, including those who may have committed human rights abuses or terrorist acts themselves. We believe that the legitimate security concerns of both countries can be addressed without resort to systematic violations of human rights.

In his remarksto this committee, Professor Wark indicated that he does not see many signs in Canada of practical abuses, nor any momentum towards possible abuses in the future. However, CLAIHR nonetheless believes that the potential for abuse exists under the ATA. We strongly believe that the use of so-called security certificates, as the provisions in IRPA now stand, do little to enhance security at the expense of fundamental human rights.

Internationally, Canada has a relatively good human rights reputation; part of that reputation derives from Canada's support for domestic, regional and international systems of human rights protection. Although CLAIHR supports Canada's efforts in this regard, we recognize that such support cannot be the only source of Canada's human rights reputation. The paramountcy of human rights must be generally reflected in all aspects of Canadian law.

With regard to the issue of security certificates, we note that, to date, they have been much more widely used thus far than the Anti-terrorism Act, and therefore CLAIHR urges that the committee also turn its attention to the issues of security certificates issued under IRPA. We believe there is a serious question as to whether that process is fundamentally flawed and is an abuse of basic legal rights which should not be condoned in Canada.

In all cases, CLAIHR favours the prosecution of alleged terrorists, or persons who are alleged to have committed offences under the anti-terrorism legislation, in accordance with fair trial procedures recognized at international and domestic law, and prefers those to the use of proceedings under IRPA. Prosecution of alleged terrorists by transparent processes will prevent Canada from sliding into the cycle of abuse that seems unfortunately so prevalent in the United States.

With that in mind, we would like to make a number of recommendations for the committee to consider:

First, the government should commit to the review of the Anti-terrorism Act by Parliament every three years as a minimum.

Second, this review should include all legislation aimed at combating terrorism and enhancing security, including the Immigration and Refugee Protection Act and the Public Safety Act.

Third, we would hope that the stated object of these reviews should be to ensure that core human rights are protected.

Fourth, security certificates and other measures that limit rights set out in the Charter should never be used in place of prosecutions in accordance with fair trial procedure.

Fifth, where such measures or provisions are invoked, the government and the security establishment should be required to demonstrate the necessity and effectiveness of the measures taken.

Sixth, we would ask that you consider the possibility of introducing legislation that effectively prohibits racial profiling and provides some redress when it occurs.

Finally, and I think this is in line with what you have heard from many presenters, we would like to see an independent body created to review the use of security certificates and ATA provisions on a case-by-case basis.

CLAIHR recommends that such a panel be comprised of lay persons, human rights advocates, security personnel, government representatives and legal experts who would all receive security screening. Given that there seem to have been relatively few cases up to now concerning the ATA, perhaps such a panel would not need to be permanent but would be struck when and as needed to review particular cases.

The panel would review the use of preventive arrests, investigative procedures, surveillance, prolonged detention under IRPA, and withholding of evidence for security reasons from persons subject to detention, deportation or prosecution. The panel would make its own determination as to whether the use of measures taken was justified and it would make those findings public. Where it is determined that the evidence must be withheld for security reasons, the panel should be empowered to make public the reasons for withholding the evidence.

The panel should determine whether the use of measures taken is justified in the circumstances and make that decision public. When the panel comes to the conclusion that the process has been abused, it would make that finding public and provide reasons for the finding.

Finally, when the panel determines that sufficient evidence has been collected, we suggest that it be empowered to require that the Crown either proceed with a prosecution or provide clear reasons for declining to do so as a prerequisite for continuing proceedings other than a prosecution.

Those are our submissions, and we thank you again for the opportunity to present them.

The Chairman: Thank you very much, each one of you. You are clearly dealing with issues that have been of great concern to members of this committee since it was formed last December, and we have been looking forward to your appearance here.

Senator Kinsella: In the latter part of this morning, we had an opportunity to ask the previous set of witnesses questions concerning their reading of the current statute as it applies to a review committee of the act. We have had a chance to examine the statute since then, and it is pretty clear that within three years of Royal Assent of the Anti- terrorism Act there was to be this parliamentary review. Once this review has been completed, if there are no amendments made to the act, you will no longer have even the three-year review by a committee such as this. Does that concern you?

Mr. Trudell: Senator, on behalf of the Canadian Council, it is of great concern. As I read the transcripts, this legislation is not an immediate response. It is legislation that is on the books, and it is on the books apparently on a go- forward basis. When it came in, we all were concerned. No one really knew what was happening in our world, so we had to act immediately, but we wanted to review it. The built-in review brings us here today. However, if it is permanent legislation, then a review in three years does not answer the question, because it is something that will continue throughout history with changing governments; therefore, we believe that there has to be an ongoing review of this legislation.

I note that Parliament has struck a committee to look into some of these aspects, but we feel we cannot just say, “We have reviewed it; there does not seem to be a problem; the preventive arrests have not been used yet, and we will not be worried about that, because the real bill has really not been used in many of the sections.” That would be a mistake, because it is there in the future, five or ten years from now.

Senator Kinsella: In the statute right now, there is no review after this review.

Mr. Trudell: That is right, and that is a fundamental flaw. If this were a three-year review to decide whether or not the bill should be repealed, that would be one issue; but it is not. We are talking about permanent legislation.

Mr. Mia: One of our central concerns is that this is a permanent emergency model. Our submission addresses a bit of that in more detail, but when we were before this committee and the House committee, when the legislation was introduced, we suggested that there were other ways to move forward on this. One option was the Emergencies Act; why did the government not use that?

There is a bit of schizophrenia in terms of the government mind on this. We have Minister McLellan and others saying that this is just normal criminal law and ordinary legislation; we have to deal with this as a crime model. You have Mr. Cotler, the Minister of Justice, telling you we have passed, and this is disturbing to me, a juridical watershed in this country. I am quite surprised Canadians were not consulted if we have passed such a significant line in the sand, so to speak, in law.

As Mr. Trudell mentioned, you have entrenched this into permanent Canadian criminal law and other legislation. When do we have another opportunity? Certainly, there is the so so-called sunset of the two provisions, the preventive arrest and investigative hearings, but, even if you look at that, it is not really a sunset clause but a simple renewal. The government moves a motion in the House; there is no debate, no consultation and no committee review; and a simple majority will renew those provisions.

This is extraordinary legislation. We are in an exceptional situation. If you need the legislation, well, fine, we are there. At five years, let us have a true sunset of this legislation and full debate in public and in Parliament. Let us have committee review and determine whether there is an emergency. From the geopolitical end, in the political science sense, a democracy limits when emergencies happen.

Senator Kinsella: Would you support what I consider to be even a better proposal, which is that we repeal this act, and if, in the future, for geopolitical reasons or an imminent apprehended domestic threat, there is need for these special emergency measures, Parliament is convened and Parliament adopts them. What is wrong with that approach?

Mr. Mia: I agree. If you were to recommend that, I would be one of the first in this country to applaud you and throw you a party. However, in my old age, I am starting to become more of a pragmatist and I do not believe that will happen. That is why I suggest these things.

Senator Kinsella: Let me join you in your voyage of pragmatism. Let us deal with the issue of oversight. This morning my colleague Senator Joyal fine-tuned a proposition that I had raised with other witnesses, and that is whether we should have some kind of ombudsman office to deal with — I love your phrase — the security regime. Senator Joyal pointed out that the ombudsman responds to maladministration of public law that affects the citizen and also pointed out, quite correctly, that we need the preventive. We need an inspector general, if I might use that terminology, who would take the initiative and be on top of the usage of any of these special powers whilst it was being sought or whilst it was going on. We need someone who would have the appropriate clearances to do all these kinds of things.

If we are thinking of models of oversight that would be effective, could you see any merit in a model such as that?

Mr. Mia: Certainly, I would support that. I do not know if you have had a chance to look at our recommendations, but the first one is oversight. Now we have this octopus of national security out there. We have all these acronyms and agencies. Some of our own government staff do not know what is out there. To have piecemeal oversight, to have the RCMP, the CPC, or Public Complaints Commission, and SIRC, and yet have no model for other things in order to have reasonableness in the review of security certificates — it is a patchwork response to what is now becoming a centralized national security regime. You need a counterweight to that in a democracy.

It is one thing to say we may need these agencies to respond to threats to Canada, which I support, but we also need to ensure that those agencies do not devour this democracy from the inside.

We are recommending a full agency that would handle complaints, that would be security cleared, with people from the Muslim and Arab communities involved as staff and policy makers. We advocate security-cleared counsel so that, when we are vetting things, security-cleared counsel play a role in that adversarial process, because I understand that sometimes you may not want to have evidence out there. I agree with that.

It also would have a proactive role in launching investigations and there would be an annual auditing of all performances according to mandate, and that would feed back into the law reform process; it would improve agencies by making them more efficient and effective, and would reduce abuses and save money. When we tighten up what we are doing, we reduce our fiscal constraints, because this national security behemoth sucks up a lot of our budgetary resources which we should be spending on things such as health care and cleaning up the environment.

Senator Kinsella: One issue that concerns all honourable members of this committee is the issue of racial profiling. One of our witnesses testified to the effect that in this particular statute we have a pretty clear example of legislative discrimination, or legislative racial profiling, which flows directly from the definition of terrorism in the act. This is not the first time in Canadian law that we have had legislative discrimination. I refer to the old section 12.1(b) of the Indian Act that discriminated against Indian women.

Under international human rights law and the UN instruments currently at the United Nations, which definition is accepted by the international community? Would that definition be a better one than what we have currently in this statute?

Mr. Morris: It would be better to have a more focused definition, for sure. You have brought out a very valid point with regard to the overly broad nature of the definition as it exists and the potential for abuse. Whether it has been abused or not, the potential is there. I would defer to my colleague on issues of racial profiling, but CLAIHR is definitely concerned about what we regard as the overly broad nature of that definition and we would prefer the UN definition.

Senator Kinsella: Let us talk a little bit about racial profiling, because it is one of the great social maladies associated with the act.

Mr. Trudell: One of the things missing here is an educative process for police agencies and people who are going to be exercising the powers here. I note that Deputy Prime Minister McLellan was asked about this. I do not understand what is going on, but I do not think that those police agencies in this country have been educated into understanding racial profiling.

Our courts have said that in the normal operation of the criminal law sometimes we fall into racial profiling, but obviously there has to be an undertaking by the government to address this issue and understand what it is so that the people enforcing this legislation are aware of it, attuned to it, and can prevent it.

Mr. Mia: The motive requirement I do not understand. I have read the transcripts; some government staff are saying it is a limitation. To me, when someone causes violence to civilians on a mass scale in order to compel a government or other body to do or not do something, I do not see why we need to limit that down to something else. As Professor Stuart of Queen's University said, what if you have a crazy, motiveless terrorist? For example, there was the Tylenol murderer in the 1980s, and God knows why he or she did that, but it was terrorizing; you have the Beltway Sniper, who was terrorizing, but we do not know the motive. There are other examples. Does the “crazy motive” mean that such people are exempt from these special punishments? I do not think they should be.

What we say is that we do not want to sanction terrorism, when what we want to do is have an objective renunciation of terrorism, whatever your religion. The problem with “motive” is to know what it really is. Cynically, in the Muslim community, when it says the motive is “religious,” for all intents and purposes, given the public policy background and what feeds into the security agencies' intelligence information, you might as well write “Muslim” in there.

You have heard testimony from self-styled experts in terrorism in which they talk about jihadists and Islamists. In all of these transcripts, I have not read about anything other than Islamic terrorism. If I came from Mars, I would think this is the scourge of the world. We know there are alternative views.

You have heard from Professor Wright-Neville that these are complex matters to be dealt with. Certainly, we need to renounce terrorism, but we should not persecute communities. With respect to motive, what happens is that motive is married with this fixation on Islamist terrorism, which leads the security agencies down the road to focus on Muslim and Arab communities in a shotgun approach. It is ineffective and inefficient because, if there are terrorists there, the security agencies might be missing the needle in the haystack when they are looking around like this.

I will finish off by saying that Minister McLellan, in her testimony before you, said that they do not do racial profiling; what they do is risk management. We need to go one step back and ask the question, “How do you define your risk?” You set up a profile. It is skating around there, but we are asking how do you define your risk to manage? That is where the profiling is, in that risk management process.

Mr. Trudell: If I may, I recommend that you look at page 10 of the Canadian Bar Association's material, which they probably left with you this morning. It deals directly with the definition of “terrorist activity.” It deals succinctly with the issues we are talking about here. It says:

The act must be “committed in whole or in part for political, religious or ideological purposes, objectives or causes.”

That immediately raises the problem my friend has referred to. The Canadian bar has done it very helpfully.

Senator Jaffer: Thank you to all of you for coming. You have certainly helped us in understanding the challenges we are facing. I have a question for Mr. Trudell on the issue of the challenges judges have in our system at the moment with secret trials.

If I understand the job your association tries to do, it is that, as defence lawyers, you get all the information and the document disclosures, you speak to the accused, and then you defend. At present, on the secret trials, the judge has to look after the rights of the accused. All the judge gets is disclosure. The judge does not speak to the accused, but has to decide or determine if there is sufficient evidence to continue to detain that person. What do you think about that? Is it eroding our rights? If so, what do you suggest we do?

Mr. Trudell: If you speak to judges about criminal law only, their worst day is that of the unrepresented accused. That is a problem now throughout the country that every judge has to deal with because of cutbacks in legal aid and for whatever other reasons there might be.

A judge's nightmare in the morning is to see an unrepresented accused, even in a situation where he can name an amicus curiae, and can ask for the assistance of legal aid and stop the proceedings until someone comes in to help. If that nightmare exists when there are clear rules of admissibility, proper administrative procedures and knowing how the Charter affects the admissibility of evidence and rights in criminal law, then in this area of the ATA it is truly a nightmare. It is a nightmare that the judges do not want. I do not speak on their behalf, but they are afraid of this and they should not be put in such a system. That is not the type of system we have in this country. We do not have an inquisitorial system; but we have put too much weight and emphasis and too much responsibility on the judges.

In my respectful submission, in the International Criminal Court right now, what is missing is the third pillar, the independence of the defence that can challenge not only the prosecutor but the court. The judge needs to be challenged. Even a judge who wants to do the right thing and wants to try to find the right balance has to be challenged, because judges may get it wrong. That system is absolutely foreign to the way we do things in this country.

Minister Cotler, and perhaps Minister McLellan, in search of a better term, talked about the difference between criminal law and security law. They are very different. In criminal law the rules are straightforward in terms of investigation and what you get into. In this other area, the judge is sitting there with all the rules gone, and it is not even necessary.

Why do we have a situation in which there is no amicus curiae built into those hearings? Can you imagine what we lose by that? Every day, as defence counsel, we operate on the basis of solicitor-client privilege and security. We operate on the basis that the Crown may give us disclosure while saying they are worried about this disclosure getting out because of the victim. We live with that. There is a balance, and we are officers of the court. But this other is a horrible situation to place judges in.

The other aspect is that judges are no different from the rest of us. They get up in the morning just like the rest of us. If there is this element of fear, as my friend mentions, and we all sort of reacted in 2001, judges sometimes err on the side of authority. The judge is told that there is a risk here. What is the risk? It is an undetermined risk, so what is the judge going to do in those circumstances? He will err on the side of protecting the public-security interest. That is human, but it may be very wrong.

I am sure if you asked, the judge would say, “Please give me the help that I need. I will do the right thing, but I cannot be judge and jury, sift through the prosecution and then think for the accused.” That is wrong and it is impossible to do properly.

Senator Jaffer: This morning, the Canadian Bar Association's presentation really hit home for me when they were talking about what is put in front of a judge being investigative. It can be hearsay; it can be anything other than evidence. I would invite you — not necessarily today — but I would invite you and your organization to give thought to what is being presented to the judge in security matters, which is not necessarily evidence. We have seen this last week where Ressam gave information about one of the people that Canada has detained, and now we are finding that perhaps that information is not reliable. People are being detained without allowing the person giving the information to be cross-examined. It is done just on hearsay, sometimes. I would like your organization to give more thought to this.

Mr. Trudell: There is no question about it. We would be delighted to do that.

I would say, though, that in the normal criminal case this country, in the front end, is moving toward more Crown involvement. I am not saying anything negative about the police,who are trained to investigate and get a conviction, but the system sometimes gets in the way because we demand so much of them. What is happening is that Crowns are getting involved more in the front end to run it like a business, to explain to police officers how to get it right. There is Crown input in terms of the obtaining of warrants; there is the screening at the front end in criminal justice issues, not in security measures.

It is a case of “those people out there.” There are no rules. We are acting on suspicion and it makes no sense, because we know that at the end of day there will likely be a public inquiry or something. We will avoid all that if we deal with it in a proper fashion, not to tie the hands of police officers but to make sure that everything is done properly. When someone comes into my office, I say that defending a criminal case is like a doctor performing an operation and needing x-rays.

Senator Jaffer: On page 17, Mr. Mia, you talk about a more effective definition of terrorism. We have been struggling this morning, and in the past, with the definition we have now. In your presentation you spoke about its being based on political, religious or ideological considerations, but suggested that basically it was motive. In your paper, at page 17, you make the following statement:

Because the Immigration and Refugee Protection Act does not have a definition of terrorism the Cout read in the following definition:

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.

Would you expand on that? Would you be happy with this kind of definition instead of what we have now?

Mr. Mia: I would be happier with that than with what we have now. Mr. Morris could perhaps tell me that the definition probably has a lot to do with international standards and international law because it is echoed in international documents. That gets closer to what we want. Stepping back, did we have the debate about what are we doing here? Do we want to criminalize the act of terrorism itself? Terrorism is simply criminal acts done on a massive scale. There are sanctions already set aside in the Criminal Code for those acts, so when we start to put further sanctions on terrorism we are making a political statement that we want to send the message that we denounce these acts and they will have stiffer sentences, and so on.

That is fine, if that is where we are going. However, take away motive, because that muddies the waters and makes it ineffective. Keep it simple. What are we trying to denounce? We are trying to denounce violence that is done against civilians and non-combatants in order to compel someone to do something or other. That fits a lot of situations. Someone could argue that the U.S. bombing of Iraq was terrorism, because it fits that definition, or that the Russian government's actions in Chechyna were acts of terrorism. That definition would certainly capture a wide range of activities in the world that are terrorism; clearly, the events of September 11, 2001 would fall into that definition.

I would agree with that, but, as Mr. Trudell has just mentioned, are we, like the doctor, operating without an X ray? What are we deciding in the case of risk management, as Minister McLellan put it? That is where we have our problem. Who is it we are looking at and why?

Which terrorism are we denouncing? I know it is probably not nice to get into the debate about the LTTE, but I know it has come up before, and Senator Lynch-Staunton talked about it. There seems to be a disconnect. We have all these groups listed as terrorists, and we go after these terrorists, and we have a certain policy about Islamist terrorism, as it is called. The LTTE, it seems, is like a blind spot.

I am not making a decision one way or the other, because I do not know whether they should be listed or not, but it is inconsistent that they have been listed in the U.S. and with other allies of ours. Purportedly, the government says we list some groups because our allies have done so, so why not with the LTTE? There seems to be a disconnect there.

When politics starts to enter into the process of whom we select, and which terrorism do we denounce, we get into a bigger problem of then implicating ourselves as a nation in conflicts abroad and inviting ourselves to be engaged in those conflicts.

As you heard from Professor Wright-Neville from Australia, this is a complex phenomenon, which has a lot to do with societies in transformation. I am not making excuses for terrorism. All I am saying is that we need to be a bit more subtle and sophisticated, in the sense of our understanding of the world and what we are trying to renunciate.

I am all for a neutral definition, but then, as well, we need to apply that definition equally to everyone all the time.

Senator Smith: In the interests of trying to be brief, let me just say at the outset that I am not arguing with the point you made on the LTTE. I am not contesting that. I will just put out on the table three or four questions that are on my mind, and then whoever wants to respond to them can respond to them.

I think it is fair to say that this committee as a whole wants to strike the right balance between respect for human rights and security; where that balance is to be found is always tricky.

Mr. Mia, when you conjectured about what the right response would be, following which there was a further comment as to whether we agreed that any response was necessary, it was not clear to me whether or not you were trying to make the case that we did not need to do anything, because there is a huge appetite for trying to do things that fall within the right balance.

Let me comment on racial profiling. We all agree with you in theory. We are all human, too. But how do you legislate how people's minds should operate?

We know the backgrounds of all of those involved in 9/11; we are pretty clear about the Bali bombers and some of the people involved there; then there was the shoe bomber, and the man from Montreal who was trying to cross over from B.C. to blow up the L.A. airport; there was also the Chechen school issue, and I am not even getting into the Israeli-Palestinian stuff.

If there is an awareness of driven people from various sorts of categories and schools of thought, even if they are from a small minority of the Muslim community — and I believe it is a miniscule proportion, how do you have legislation that will prevent somebody from saying, “Oh boy, I'd better be sure here?” I do not know how you do that.

In regard to the security certificates, what if you have, from pretty good sources, some information that somebody was known to associate with one of these terrorist groups or had been at some camp in Afghanistan, or something like that? Do you just pay no attention to that, if you have no hard evidence of some event in Canada?

Finally, I am not remotely a U.S. sycophant. I do not relate particularly well to the current administration there. Some things I agree with; other things I do not. Books will be written about Guantanamo. Having said all of that, and admitting that maybe they overdid it, nevertheless, had they not been very proactive post-9/11, I suspect there would have been quite a few more acts of terrorism. The question is how to do it in a way that means something but still tries to strike that balance.

Those are the questions that are on my mind, and I am happy to listen to whoever wants to respond.

Mr. Morris: Your point that you cannot legislate how people's minds operate is a good point. To me, to CLAIHR, the answer would be that that is why it is so important not to have these types of provisions that insulate hearings and prosecutions from scrutiny.

Speaking from my experience, which is mostly in the immigration area, people come with a mindset. I represent the person concerned; others represent the government. They are trying to prove their case, and they are trying to present their case as best they can. It is important that we be able to look at how the case is presented and what evidence is there so that people cannot, in essence, hide how their mind is operating in a particular case. That is the argument I would put forth.

Mr. Trudell: The racial profiling issue is something that we have all been asked now to confront. We are from Toronto. Ten years ago, we never would have thought that there would be cases in our court where jurors would be screened for racial profiling. We have had to face that. Courts have said it is real and now we find jurors coming forward to say, “You know what? I'm prejudiced. I don't think I can sit on the jury.” It has happened.

In Toronto, it may be directed towards Blacks. In the Prairies, and perhaps in British Columbia, it may be directed towards Aboriginals. There is no question, with great respect, that people of Aboriginal origin are centred for different treatment, in my respectful submission.

This is a form of racial profiling. How do we deal with it? We educate. We confront it, and then we educate. We have to do the same thing here. Not everyone whose skin is a little darker than mine at the airport today should be centred out for more screening. We have to start thinking differently.

With respect to security certificates, we are not saying that everyone is setting out to suppress people. We are simply saying, “Open it up. Give the information.” The secrecy is the biggest problem, in my opinion. On behalf of the Canadian Council of Criminal Defence Lawyers, I say that secrecy is the biggest problem with this legislation and the evidence gathering.

I know what you are saying. People are concerned about persons entering the country, and, therefore, under the immigration procedures, there are these certificates. Fine, but have a balance in there. Have openness and disclosure to make sure that the front end is not being abused.

Senator Smith, 18 criminal lawyers from the United States have been involved in every meeting in the formation of the International Criminal Bar. They are trying to bring their country on side, away from the isolationist mood that the United States has. They teach the civil society in the United States so much it is unbelievable.

In my respectful submission, there is a problem of secrecy in the United States, of subterfuge in the United States, of questions of motive in the United States, and perhaps of overreaction. In this country, everyone responded by opening their arms to the United States after 9/11 — every family, every citizen, every child in this country. But there is an extensive use of secrecy and powers in the United States; there is the President defining what he considers to be the prisoners at Guantanamo; and then there are some suggestions that the United States is terrorist in certain respects in the way they treat people. So we have to stand back and look at it. Of course, it is a great civil society, but there are problems there. Thank you.

Mr. Mia: I will try to be concise in addressing all of your questions. On the LTTE issue, I am not saying they should be listed or not. I just do not have enough confidence in the process itself. However, I find that an interesting anomaly to point out.

Regarding the striking of a balance, in my opening statement I mentioned that it was the wrong response. Today, as well, it was the wrong response. Does that mean I am saying that we did not need to enact some legal tools? No, I am not saying that. I am saying that these were the wrong legal tools — this omnibus overhaul of our legislative system of the criminal law in this country, which was unprecedented, and the juridical watershed, which according to Mr. Cotler has been passed in such a quick fashion in this country. That was the wrong response.

We want to look at a holistic response. I used the term “hope.” The one-dimensional simplistic model is that you have to hammer these guys and hammer terrorism, because it is a war. That is a very machismo way to approach it, whereas the real solution may be part law, part interdiction and part military option. I do not disagree, but we also have to be a lot more sophisticated in how we deal with the world and how we deal with what is the phenomenon of terrorism.

I again go back to Professor Wright-Neville, who has appeared before you; and others have also talked about this. It is not just this nihilistic thing that operates out there. I know no one wants to talk about it, but we need to say it: it is caught up in a policy and development issue as well, so how do we deal with that, not to appease the terrorists, but to see about what conditions give rise to people losing hope and wanting to engage in terrorism.

I am giving a fuller response; I would have pulled back and said, “Let's tweak the criminal law where we need to and other legislation too,” which would have been more precise and would not have been as big. That is what I would say was a better response; but, again, the Emergencies Act is what we had; again, we had Mr. Cotler talking about the transnational super-terrorist and the new world order, and Ms. McLellan saying “Business as usual.”

On the racial profiling issue, all of the examples you listed — Bali, 9/11, Ressam, Beslan — involved Muslims. That just goes to prove that those are the things that stick in people's minds as to what terrorism is. If you count up the people who have been killed unjustly in this world in the last 100 years, most of them were probably slain at the hands of state terrorists like Stalin, Hitler and others.

This is not to belittle your point. I am just saying that this goes back to my point about how we manage risk. Whom do we focus on? We get fixated. Now there is this culture driven by the U.S. model of fixation on the Islamist terrorist. This is where we need to put our resources. Unfortunately, the media plays into that and we focus on these things.

I can tell you the Chechen terrorism at Beslan was a terrorist act, but the flip side is that the Russian military, as documented by the Human Rights Watch, Amnesty International, is committing acts of terror and borderline genocide in some cases in Chechnya. Therefore, we need to be more sophisticated about what we look at. I can also tell you that I know Palestinians and others in the human rights community who think that many of the actions of the Israeli defence forces, in terms of collective punishment, are acts of terrorism, because it is terrorism to destroy homes and disrupt farms and destroy olive groves and orange groves in order to compel a village to drive out those who commit violent acts. That would fit the definition of terrorism.

I am all for human dignity. Let us respect human beings and human life, but let us do that equally in all cases; and how do we deal with it in all cases? I agree that we cannot legislate away racial profiling, because it is what people do. We all have our hunches and gut feelings about people. I am not saying I do not. I probably have them as well; and that is wrong. We need to train ourselves to change the way we think.

Many of us are lawyers here and that training is part of our legal training. What we can do is build community trust; bring Muslims and Arabs into the intelligence community. We saw a horrible, embarrassing fiasco when the 21 South Asian men, under Project Thread, were scooped up on ridiculous evidence. It you read the backgrounder, it was a farce. It was very embarrassing for our country. The lives of those people were destroyed. Some of them may have been involved in some kind of immigration scam, but I do not think they deserved what happened to them. Some of them were deported eventually with the stigma of terrorism attached to them. Imagine going back to Pakistan with that terrorist label. You have been cleared, but you cannot ever really shake that monkey off your back.

Perhaps we can start to texture our national security so that it is intelligent intelligence, so we know whom to look for and whom not to look for. That is the problem of diversity in this country, that the public service and the government do not reflect this country. If we do not look like we reflect this country, we do not serve our country well; we do not find the problems in the communities, and we then end up with this problem where we vilify some of our communities — in this case the Muslim and Arab communities.

In terms of law, you can remove the motive-based definition. We do not need it; jettison that thing and save some space. Next, you can pass a non-discrimination clause. Minister Cotler made that recommendation when he was not yet a minister, but when he was on committee. It has been recommended by Kent Roach and Sujit Choudry, who have appeared before you, and I think by many others. I do not think it does much. I mean no disrespect to those who proposed it, but we need to make the statement as a country that we will not engage in this kind of business.

It means the training of people. I know police officers are trained to become more aware of the communities they police and deal with. With respect to policing, when you engage communities you are not policing a community, you are working with them. Similarly in an intelligence framework, we do not need to be policing the Muslim community; it is a matter of how we work together to find solutions and make ourselves all safer.

Regarding the security certificate, you asked what you should do if you have good information; should you ignore it? That is precisely the point. How do we determine what is good information? My point is this: Let us bring back our tried and true friend, the adversarial process. The common law is a great system and we have the adversarial process. It is not there for fun, it is not there to protect the Paul Bernardos, because usually when those guys get a fair trial people are always beating up on the system. It is to protect those of us who are innocent. When the full power of the state is making serious allegations against you, it is essential that you have a right to defend yourself. It is in the Charter: full answer and defence; the right to counsel.

As Mr. Trudell said, let us bring forward objective standards of evidence and vet this. That is one of our recommendations to you. Let us have the X rays that vet intelligence information, and if that says to us, “Buddy, here is a terrorist,” well, certainly I do not want that guy in my community either. Then we need to follow the proper legal models for incarceration. Deportation of real terrorists is just security procrastination. We are just getting rid of them now, but it may be a case of “the cat ccame back the very next day.” How do they come back to you? They find a way.

Your last concern was about how to strike the balance. You mentioned some of the things happening in the U.S. under their “war on terror”; you mentioned Guantanamo, Abu Ghraib and other things. Ultimately, the answer there is that we need to come back to what we are as common law societies. I would extend that, as a Muslim, to Muslim jurisprudence and Islam as a rich history of law that is based on the rule of law. Some of the Muslim communities, mind you, have lost that, but we all need to, both in the West and in the Islamic world, come back to that sense of the rule of law and break a culture of impunity and lawlessness. It is a strong term, but I think there is a culture of impunity and lawlessness in the United States administration. When you have the Attorney General of the United States writing memos advocating that torture can happen — Mr. Morris can tell you — that is clearly in violation of the Convention Against Torture and the customary international law. It is a no-go zone and we should not go there.

If the Supreme Court of the United States, which is arguably very supportive of the President, and very deferential, if this Supreme Court, with Rehnquist and Scalia, is telling the President of the United States to step back on Padilla, on Hamdi, and on Rasul, and is saying that the Guantanamo people cannot be held without trial — they have some show trials now — if that court is pushing back against this administration that is reaching for absolute power, I believe that is a signal that we have gone too far. Therefore, restoring us to the rule of law brings us back to a safe and secure society.

Mr. Morris: The debate that we have been having lately about whether taking away human rights is ever justified takes away from the debate that we really need to get engaged in, which is, under a particular set of circumstances, whether the person is guilty or not guilty of terrorist acts, or is likely to engage in those sorts of things. Instead, we are talking about under what circumstances it is okay to torture people, under what circumstances it is okay to take away a certain right. That takes away from actually getting down to the very issue that is before us in the particular instance.

Mr. Trudell: I would like to say one thing in response to Senator Smith's saying that we had to do something. In Minister McLellan's testimony here on February 14, 2005, she said this at page 16 of the transcript:

...I made it plain when I testified here in the fall of 2001 that this was not emergency legislation. We did not see in the foreseeable future that the main provisions of this legislation would disappear.

When I read that, I shook my head for a minute. When we testified here in 2001, we thought it was emergency legislation. It was emergency legislation. Let us look at it again, because it is not emergency legislation. It is there for a long time. We did have to respond, but the Attorney General, the Minister of Justice, said this is not for emergencies only but is for the foreseeable future. She said:

I presume our Criminal Code will, for as long as I am alive, have a definition of terrorist activity, and it will be a criminal offence.

Ms. McLellan was thinking “long term” when she made those comments.

Senator Smith: There was an interim aspect to it, obviously, by the presence of the three-year review, but I get your point.

Mr. Trudell: This committee was probably the reason for that.

Senator Fraser: My questions are for Mr. Mia and Ms. Rashid. The first area has to do with racial profiling, which has been of serious concern to this committee. I am sure that to some extent racial profiling happens. Everything we know suggests that it happens and, in the context of this legislation, it probably happens more in connection with Muslims than with anybody else, although in other contexts it happens with other groups.

In connection with this legislation, you say that there are hundreds of examples. We have heard others say that there are many examples, that many people have been frightened. It is hard for us to grapple with that kind of sweeping assertion, even if in our guts we are inclined to say, “Right.” Would it be possible for you to forward to this committee in the future some more specific examples? I expect that in many cases, maybe not all, the people involved would be concerned about giving their names or details that might reveal them. It would be nice for us to have names, if that were possible, but, if not, it would suffice to have an indication of specific real cases of people who believe that they have been the targets of racial profiling and what that involved, and what happened to them.

Often in such cases it does not look that bad on paper. I was singled out in an airport line-up and the person next to me was not. It might not sound bad unless it happened systematically, then obviously something odd is going on. I am not saying you have to bring indications of state murder for them to be credible, but what are we talking about so that this committee can have something to grapple with? I think you nodded. You indicated you would try.

Ms. Rashid: Yes.

Senator Fraser: I would tend to side with the school of thought that suggests — I think you even hinted at this yourself, Mr. Mia — that whatever we say in the law or in the regulations can only go so far in terms of controlling racial profiling. What we really need to do is some sustained work on building community relations, community implication and communication.

I was interested in your last set of recommendations, including Muslim and Arab communities in the design of national security policy, and so on from there. Two of the things that struck me as particularly constructive were recruiting intelligence personnel, law enforcers, et cetera, from the Muslim and Arab communities and appointing qualified Muslims and Arabs to the judiciary.

Do you have any indication of how many people there are now from the Muslim and Arab communities in each of those branches?

Mr. Mia: For fear of being incorrect, I would only hazard the guess that it is very few. Senator Jaffer is a lawyer and has been active; she may know more people.

Senator Fraser: She is not a judge or police officer.

Mr. Mia: She may have more information about others in the community. To my knowledge, in Ontario, I do not know of a Muslim person who is a judge. It may be that there are a few, but none of our members are judges and I know of no others. Part of that has to do with where the community is at. For me to be one of the most senior people in the Canadian Muslim Lawyers Association is a bit strange. We do not have too many grey-haired members, although I am getting grey. I would guess it is few. I am not saying there are none. There may be some.

Part of the recommendation is getting specifically to this area of law and this expertise, so that we would have people who are familiar with this area of law, familiar with the community but also familiar with our national-security and geopolitical concerns.

Senator Fraser: What about intelligence people and law enforcers, members of police forces?

Mr. Mia: I am not aware of any in the intelligence communities; there may be some, so as not to mislead you. In law enforcement I know of some police officers in the Toronto service and I know that many municipal services are making an effort to diversify their ranks. So there are police officers.

Senator Fraser: We are on the way, but we have a long way to go yet. I really believe that that is very important.

The next area is oversight. Your independent, non-partisan, centralized oversight body would have quite a lot of power, I think. A redress process involves a lot of power, including the ability to order remedies. Where do you see the dividing line between that and the judicial process? A great deal of Bill C-36 has to do with judicial processes of one sort or another.

Mr. Mia: The oversight would be oversight of the national security system, partly designed as a back-end of complaints and redresses. Certainly, I was not intending this model to be a substitution for, or interruption of, the judicial process. If someone were in a security certificate process — and I am asking for that to be done away with — but if that were proceeding, certainly. This agency or body would then have some oversight and perhaps intercept at some points in the line to ensure that the system is working well.

As I would see it, you would have your flow of national security model either in intelligence or security certificates or the criminal law, and this system would intersect to prevent abuses. If abuses do happen, they are dealt with, and we learn from those and it feeds into correcting the system again. So it is a continuous improvement.

Senator Fraser: It would have authority over the administrative mechanisms and the intelligence-gathering procedures and all that kind of thing?

Mr. Mia: Exactly.

Senator Fraser: Getting the facts on profiling, at first blush I was intrigued and attracted by the recommendation that we have this annual report on who is interviewed by the security forces — whether on the basis of faith, ethnic origin, et cetera. Then I began to wonder how useful that information would be in the end, unless we were breaking it down into much finer categories.

For example, CSIS does security clearances for a raft of people. If you go to work for the Foreign Affairs Department, you have to get a security clearance. It has nothing to do with whether you are a Muslim or an Arab. You may be one, but that is not why you are being checked out by CSIS. However, you would crop up in lists because the net would be quite wide. In the end, would it be useful? Can you refine that?

Mr. Mia: My colleague has some more comments, but first I will give you an answer to what you are getting at. We may cast our net so wide that we may dilute what we are trying to get. We are looking at allegations of terrorism and terrorism investigations. Certainly I would not add to the mix the routine federal staff checks and those kinds of things. I would be happy to work with you to refine that model so that we catch what we want to catch. In statistical terms, we need an exact example or a sample size.

Ms. Rahid: Your question also ties into your first question, whether it is hard for you to grasp whether racial profiling exists in our communities. I have a unique perspective at the law firm where I work. We provide pro bono legal advice to members of our community who are being interviewed and investigated by different national security agencies. We receive reports from hundreds of people. We know that our community leaders, our religious leaders and the leaders of our mosques are being investigated. We know that no charges are being laid.

One of the recommendations we make is that the information that these agencies can provide to us can be used to counter the government's position that there is no racial profiling. The government's position now is that there is none. We are saying there is. We are asking to use that raw data to show our communities that it does not exist. With that raw data we can agree or disagree; I do not know. We need that information.

Further, there is a negative perception of our community in the public at large that we are trying to fight. That is the greater purpose behind requesting that raw data.

Senator Fraser: To clarify, I was not saying I was having trouble believing that racial profiling occurs. On the contrary. I have no trouble at all believing it occurs despite the very best intentions of the people in charge of the various organizations. What I was saying was that, if this committee is to make any recommendations, we need something rather more specific than a simple assertion that it is happening.

Ms. Rahid: Certainly. I will take that on.

Senator Joyal: I will start with Mr. Morris first. Thank you for your brief. You raise an issue on page three of your brief that has not been dealt with, to my recollection, by this committee, which is international law. You refer to some sections of the Universal Declaration of Human Rights. I have the perception — and it is only a perception; I am not yet in a position to make a formal suggestion to my colleagues in the committee here — that if we were to make an appreciative judgment of the Government of Canada's initiatives in the last three years of implementation of the anti- terrorist legislation, we would have fallen into the trap of fighting the threat of terrorism by scaring. When you are caught in that trend of public opinion, you lose track of the fundamental values of your system.

I was struck by the fact that last Tuesday the Council of Europe adopted a resolution with regard to the torture at Guantanamo camp. I do not want to single out the United States. As Senator Smith has said, it is easy for us to do that because our media are much more open and receptive to what is going on in the United States, but I feel that Canada in the last three years might not have made as much effort as it should have done internationally to promote the rule of law at the same time that Canada was expressing its concern to fight terrorism.

There have been G8 summits at which terrorism was one of the first items on the agenda. We follow generally what is happening internationally. We must be concerned to promote the rule of law internationally in terms of the measures that are proposed to fight terrorism. Also, when we look at what we have achieved internationally in the last three years, I am not sure that international law has been improved at all. On the contrary, I think we have had setbacks in some areas.

As Senator Smith has suggested, we might not approve of everything that the United States does, but it is easy for us to condone the actions of the United States. However, it is not the only country fighting terrorism. Other countries are fighting terrorism, such as Russia and the Southeast Asian countries. We have heard satellite testimony to that effect.

If this committee is to make recommendations, we should cover that aspect of the recommendations to the government. It is an important element of balancing the system. There is a big debate in the Supreme Court of the United States on the influence of international law on the domestic law. There is a split in the court on this issue and it has opened a very tense debate in the United States. Personally, and I am quite upfront on this, I strongly believe in the international law as a law of countries to maintain the equilibrium among the various forces in the world. That is my first question.

My second question is for Mr. Trudell. Thank you for your brief. When I see you, Mr. Trudell, I see defence lawyers. When I try to understand the system of justice, defence lawyers, per se, occupy a key and central role in any criminal proceeding. They represent the capacity to gather proof and to test the proof to the satisfaction of the court so that the guilt of the person can be decided by the judge or the jury.

With regard to your brief, in looking at all the recommendations individually, I did not come to the conclusion that you have drawn in the anti-terrorist legislation. I am not accusing you, of course, because you are a defence lawyer and you can defend yourself, but I am not satisfied that you have identified where in the sections of the act the balance is tilted against the defence in the procedure and where we should concentrate our capacity to amend the legislation.

I want to go through all your recommendations. I concur with what you say about oversight. You deal with judges, which does not deal specifically with the defence, and the fact that we should not catch lawyers under the definition of participating and contributing. That is more about the status of the lawyer than the evidence per se. You refer to the capacity to be informed of the evidence, to review the evidence and to address the evidence. I do not see that in your subsequent brief, however, and I would as for your comments.

I have one more question, and that will complete my set of questions on this round. Ms. Rashid and Mr. Mia, thank you for your last section at page 18 and 19. In any of the paragraphs there do you refer to the minister's announcement at the round table that was made two or three months before this committee started its work? You know that the minister has announced the establishment of a round table, which is a bona fide group, although it does not have any statutory existence or any budget and so forth.

If we are to address any of the recommendations that you make, should we not have a body that is more permanent, that has more power, that has a legal existence? My perception is that you would have the support of Canadians to fight racial profiling if the Muslim community was not being seen as the threat. The problem now is that according to all that has been reported by the media, by the movies, by everything, the evil comes from the Muslim community and so the general society feels threatened by the Muslim community.

It is important to me that there be Muslim leaders coming forward to be part of the effort that is made generally by the society to maintain a safe and reliable political environment. In other words, we need high profile Muslim leaders to come forward and to share the concerns of Canada as a whole, to maintain the peace and reasonableness that we try to build and maintain in this country, even though we have all kinds of other differences.

It seems to me that, in order to improve the general situation, it is very important that we do not concentrate only on the letter of the law, but concentrate on what I call the social and political climate of our society as a whole. We have had witnesses who suggested to us that we need to have a holistic approach to fighting terrorism. If we concentrate only on amending paragraphs and subparagraphs of legislation, we may satisfy some lawyers, but we will not achieve generally the kind of balance we want to create or the perception that there is a capacity for each group to take part.

Mr. Morris: If I understand you correctly, there is a place for Canada in effecting change and influencing the United States and other countries on how international law is to be implemented and to be regarded. It is a role Canada has not played very well with our neighbour to the south up to this point. It could be that our influence is somewhat limited, given the serious nature of the concerns they have down in the United States and the nature of the attacks against them, but I believe that we still have a role to play, because we are their friends and neighbours.

If you take a look at the legislation that we have, and the things that we have attempted to do here with the committee, it has been a much more measured approach on the whole. That is something that perhaps the Americans could learn from.

From the international perspective, I believe that, as a whole, the international community does look to countries like Canada to see how international law is interpreted domestically for leadership in that respect. It is unfortunate what is happening in the United States today, because it is really eroding the perception of what is acceptable and what these norms should be in the international community as a whole.

It is very important that we look to the way international law has informed our laws and how it has developed in terms of the Charter. Some of it is very similar to the UN declaration, and you know that the declaration on human rights was partially drafted by a Canadian.

These are fundamental aspects of our society that should inform all aspects of our law as well. To the extent that we can affect other countries, we should. When we see these types of provisions being implemented here, such as security certificates and secret hearings, or hearings where evidence is given, let us say, by two government lawyers to a judge without any chance of input from an accused or from a person concerned, that just sends out the wrong message as to what is acceptable in the fight against terrorism internationally.

Mr. Trudell: Before I move to the issue of defence counsel and defending in some of these matters, I would like to spend a few moments talking about the role of Canada internationally. This is why we have suggested an ombudsman. It is not an ombudsman at the back-end; it is an ombudsman right through. We would respectfully submit that this person would be the Canadian conscience of this legislation. Internationally, we will have got on board, but we would have someone who is the conscience of this legislation in Canada, who is not sort of getting reports after the fact, but knows when information is going to be shared at the same time internationally.

We look at the ombudsman as someone who would know, for instance, when the minister was about to override the Privacy Act, not as someone who simply stands up at the end of the day and gives a report about what is happening.

We have kept it to one person in an office who is actively involved on an ongoing basis. We feel that, in this way, Canada can play a part in the world community, because we already do that in terms of proceeds of crime. But we would have something different. We would have a conscience and that conscience would be the ombudsman, and that ombudsman would not just be someone who reads an auditors report at the end of year.

Second, and I say this with some reluctance, you have talked about the rule of law internationally. We are seen to be major supporters of the International Criminal Court, but this country has timidly supported the International Criminal Bar. The first president of the International Criminal Bar formed by 400 lawyers from around the world in Berlin was Elise Groulx, a barrister from Montreal, almost unrecognized outside Quebec. When we were in Berlin and when we travelled around the world to the meetings, Canada was under-represented. You could count five lawyers from Canada, but there were 100 from France and many from Germany. Quite frankly, it has been a struggle for Canada to get government to stand up and shout out how important the third pillar is, even though the first president of this organization, which hopefully will be recognized, was a Canadian.

Last, in relation to Guantanamo, we have not spoken out strongly enough. Where is the voice that said this was wrong? I would submit that we do not sort of just jump on the bus, but we recognize our international obligations. That is why we are saying we need someone to oversee this, in relation to the specific question you asked me.

A number of years ago the Stinchcomb case was dealt with by the Supreme Court of Canada. That case says, “Disclosure? End of story.”

Right now, throughout this country, Stinchcomb applications are being made in criminal courts for disclosure. If disclosure has not been given and is withheld, then cases are stayed. That is in the normal criminal court process. I will not answer the question about defending criminal lawyers or lawyers who get caught in facilitating that kind of stuff. If we do not have the tools, or anything other than a summary of the evidence, then we are not equal players in these hearings. Therefore, I cannot find out what the X rays are if I have been given some kind of executive summary at the end of the day by the court. It is the same thing. We come back to the main thread of secrecy. I can defend, but I can only defend when I have the information.

As a prosecutor, if you fail to disclose in the normal course in a criminal court, your prosecution will end, or there will be a public inquiry that shows that information was withheld and another person might be found wrongfully convicted. However, for defence counsel, whether criminal lawyers or lawyers operating as immigration lawyers, the problem is primarily that we do not have access to the information. We cannot make full answer and challenge, if not defence, unless we have been given it.

This is new. We are only in three years here, but I would respectfully submit that that is the biggest problem. If you allow us in the door as amicus curiae in some of these hearings, that is the beginning; but if you allow us in the door and only give us this much information, how can we effectively assist? Our job is to challenge, just like this committee is doing. What you are doing is challenging this legislation. You have people coming forward with briefs, all the X rays, and you can make the decision. In defending this kind of stuff, you get an envelope. It is sealed and there are a couple of lines. What do you do? That is the biggest problem.

Mr. Mia: Your question was whether, because of the tenuous nature of the cross-cultural round table, that could be made more permanent to address our concerns. I agree with the sentiment, but I have serious concerns and trouble with the round table, first as an idea. I really do not know what its purpose is. I have read the mandates. It is not to direct the minister to do anything, because obviously the round table is not an arm of government or anything like that. They are there, to use a soft word, to “advise” the minister, and I do know where that goes.

I can tell you, as an aside, that the announcement of a cross-cultural round table was warmly received at first in the Arab and Muslim communities, in that we would be consulted for advice. Our organization has worked with other organizations in the Muslim and Arab communities and the NGO community. However, we were stunned by the makeup. I do not see people on that committee with significant experience. I am not disparaging their community experience and accomplishments, but this is a committee about national security. The absence is glaring of the expertise from our community on national security matters. I can tell you that there is not an absence of expertise on national security matters in our community. We have the people; we were ready to offer them up. In many cases they were offered up. We do not see that table reflecting our community. That is one problem, as an aside about this particular process.

My problem with the whole point of having a cross-cultural round table speaks about this ethnic ghettoization attempt, in that we are speaking to a cultural problem. I am not saying this is what the government is doing, but one of the soft messages is that terrorism and culture and religion are melded together again, and we need to manage these problems offside. It also gives a nod to the effects of it.

The approach I am taking in our recommendations in what I have talked about is that we are full citizens of this country. We are proud to be here. I was born in South Africa under apartheid. My family left that country to come to a better country that respected the rule of law. We came under Mr. Trudeau, and some of those just and compassionate society ideals inform what I stand for today and also resonate with my faith. We do not want to be sitting at a cross- cultural round table left out of the loop, giving some comments to the minister and then sitting with someone else to make the real decisions. We want to be in the fabric of this country sitting as judges, in the national security departments as security-cleared counsel, and shaking off the stigma that Muslims and national security cannot go together.

Muslims can contribute a lot to the national health care debate and the fiscal crisis in the country. We have a lot to bring to the table. By stigmatizing the Muslim and Arab communities into this pigeon hole of national security, we are losing that human asset that Canada has. Weave us into the fabric of the nation. This cross-cultural approach just puts a patch on the quilt. You are over here, but the real decisions are made there. We want a seat at the table. We are ready and we do not want to be boxed in to a cultural round table. We are Canadians and we want to be at the table as Canadians, taking a full part in managing this country to make us all secure.

Senator Jaffer: My question to you has more to do with the rule of law, and you have mentioned this a number of times. A number of the panel members have mentioned it. I would like you all to expand on what exactly you mean by the rule of law and how this act has gone away from our basic values and the Charter, and, of course, I would like your comments on the fear that exists. Even the judges sometimes make the communities feel that they are not getting a fair shake. I would like you to expand on your notions of the rule of law.

Mr. Trudell: In this country oftentimes we hear people complain about publication bans. How can we know what is going on? Usually they are publication delays, and we will find out later what it was all about. The problem is that we believe that things should not be done in the dark here. We believe that there are checks and balances in the system. We believe that no matter how heinous a person is, and we can all sit here and imagine a horrible crime or crimes, everyone must have the benefit of a fair process. A fair process is one that is done in the open, and a fair process is one that is done with rules, and a fair process is done with a level playing field in terms of three pillars: the court, the prosecutor, the defence. When I am referring to the rule of law, in a nutshell, that is what I am referring to.

Fairness is such an overworked word, but to have the presumption that someone can challenge the accuser in a fair and open hearing, and only then be punished or stripped of liberties, is for me the rule of law. If I do not know what is going on, if it is all darkness, then how can I say that the basic fundamentals of the democracy that I live in are being honoured by the system? That is the rule of law for me.

Mr. Morris: In the immigration context, which is what I deal with mostly, there are very similar concerns, except that the threshold above which the government has to prove its case is an even lower threshold. It is not “beyond a reasonable doubt”; in many cases it is not even “on a balance”; it is simply “reasonable grounds to believe something.”

When you combine that with provisions that allow for secret hearings or hearings that take place without the provision of the evidence to the person concerned, when you combine that with not being able to make informed submissions, with hearings being conducted without the person concerned being present, to me that is just antithetical to the rule of law. What you are doing is taking away all the safeguards that we have to make sure that the Crown or the government has to prove its case and has to bring evidence to the table to justify what it is they are seeking.

More and more, we are getting away from that. The further we get away from that, in my estimation from what I have seen, the less secure we are. I do not see that the results we are getting from those types of hearings are the sorts of things that are actually making us more secure.

Maybe that is not something that is capable of being demonstrated in some respects. For one thing, we will never know what the evidence was that was brought forward; but it seems to me, if we are going to be engaging in a balancing, then by the very definition of that enterprise, you have to know what it is you are balancing. If you do not know that, what is the sense?

This becomes very stark under the security certificates in particular, because you are dealing with people who are not Canadian citizens, so you have a set of rules that applies to non-citizens and another set that applies to citizens. I would stop short of saying that that is racial profiling, but certainly it is differential treatment.

I think the British House of Lords has, in a recent decision, raised the question: what is the justification? If what we are really trying to get at is to make sure we are secure and to stop these activities from happening, why the difference in treatment? Both groups should be treated exactly the same so that we can get the information we need. The bottom line is that I do not see how any of the provisions, particularly with regard to IRPA, make us more secure or facilitate security.

Mr. Mia: Senator Jaffer, the rule of law is a fundamental value in Islam, as it is in our legal system as well. The Koran says you should stand for justice even if it is against yourself, your kin and your family. It takes it one step further, because to stand against yourself violates the self-incrimination provision, but that is the sense that the Koran and Islam says. The closing part of that message is: do not follow the “lusts of your heart”; that might include your prejudice or bias, that you might favour one over the other. Do justice, do what is fair, even if it is against someone else.

Islam has a very strong tradition of meting out justice between Muslims and non-Muslims, because many non- Muslims live in Muslim lands. It has shown great examples where Muslims did not always win, but justice was done.

The common law speaks to that. We know that in our common law tradition, going back to the Magna Carta, we are limiting executive authority, the authority of the Crown, the government. That to me is what the rule of law is. It really plays hand in hand with what democratic accountability is as well. We want to put a box around executive authority because we know very well that when that gets out of hand, we may lose our democracy. It sounds like hyperbole now. I am not saying that I do not trust Mr. Martin. However, these things happen incrementally; you lose a little bit here and a little there and at the end of the day things are done in secret and we are not aware of them.

The problem in the legislation is that executive authority is sprinkled throughout in a dangerous way. When I appeared before you during the Public Safety Act hearings, we know that there is an abundance of executive authority to pass regulations, not subject to Charter oversight, through the Statutory Instruments Act and others. That is troubling; and that authority is then delegated to bureaucrats to exercise that power. We talked about this. We did not know where those databases and no-fly lists ended up. Our fear was that they ended up in the U.S. and the next time I made a trip out west, I would not know where I would end up. That is what we are looking at.

Regarding security certificates, listing and the de-registration of charities, the minister makes the decision. It takes away the judge's role in determining guilt. When the minister issues a security certificate, that is a determination of guilt. A lot of steps are taken and the aspect of reasonableness is whether the minister was reasonable in looking at the evidence she put before herself? That is a self-fulfilling prophecy.

In the case of a charity, is it related to a terrorist group? That is tied again, because those that are listed are based on the minister's decision.

A lot of it hinges on executive authority and it takes away the judges' role. One of our recommendations is to give judges back their jobs. We are paying them for something. Let them determine guilt, test merits, look at evidence. They are trained to do that and they are good at that.

A little thing that seems to have slipped by is the de facto override of the summary decision. The three models are identical almost — charity de-registration, listing and security certificates. The judge may decide that he can give you a summary of this evidence here that you were in Afghanistan in the summer of 1989, but it is very troubling that the minister can then pull that information and say, “I do not want that disclosed, but you can disregard that.” As human beings, we know that, once you have seen it, you wonder what it does to the judicial mind. It is a bit creepy because you do not have a record that the evidence ever existed, even in secret.

Again, that is an example of executive authority then overriding a judge's decision. In essence, the law needs to be objective, non-discriminatory, prospective and based on acts, not on intent and not on membership, because the security certificates criminalize membership. We need to give judges back their role, and bring in advocates and restore the adversarial process.

The rule of law preserves democracy, accountability, and keeps us safe from the abuse of executive authority. This all takes expression in our Charter: the right to counsel, the right to a fair trial, the right to fundamental justice — section 7.

There is a Nazi legal and political theorist, Carl Schmitt, who has a famous book called Four chapters on the Concept of Sovereignty. His opening sentence is, “Sovereign is he who decides on the exception.” That is what we are trying to get away with here. The executive is deciding that “This is an emergency and we are passing ordinary law; we will tell you when it starts and ends.” That is the difference between us. Weimar failed because it did not have some of these things in it. The difference is that we put limits on that, that there is oversight from the public or from Parliament that says, “Let us test that.”

The Emergencies Act really was a response to that Schmittian view that the executive does not decide when emergencies start and end; Parliament and the public decide, and then we limit extraordinary power even though we may need it in some cases.

Senator Jaffer: You had referred to Project Thread. I would like Mr. Morris and Ms. Rashid to say what it was. It started off with us all seeing the headline “21 terrorists in the heart of Toronto,” and then we found out they had breached immigration rather than being terrorists. Can you explain what it was like in Toronto when that happened?

The Chairman: May I intrude for a moment? Can we keep our explanations tight, because Senator Fraser and Senator Kinsella want to have a quick question before our time runs out.

Mr. Morris: I cannot say what the situation is in Toronto, but as an immigration practitioner in Ottawa, I know that every immigrant's biggest fear is that someone will point the finger at them in that way and lump them in with a group or an activity that is proscribed. Once that happens, legally your rights start to disintegrate; and also within the community you find yourself isolated as well.

In my practice, it is very chilling. I can tell you that there are many people from the Arab and Muslim community in my practice who have been approached by security people and asked to inform on their friends and community members. In some cases, they have been threatened: “Your application will not be approved unless you provide us with this information. We can do more security checks on you, if that is what you want.” It has a very chilling effect. So long as the security forces look at people within those communities as potential information sources rather than as potential participants in trying to make our country more secure, then we are just going to see more of it.

Ms. Rashid: I believe your question with respect to Project Thread as well goes back to your first question about how the act has gone away from the basic values of the Charter. Project Thread involved 21 individuals who were arrested and detained on very flimsy evidence, many of them students of Muslim or Pakistani origin. Certainly, it created an ostracizing of that community and discrimination against those individuals. They are now let go, but they will feel the effects of what happened for the rest of their lives. We have moved on. That in itself offends the basic values of the Charter and what we understand to be the rule of law, and we should take into account that discrimination factor.

Mr. Mia: To add one thing about Project Thread, the 21 south Asians who were detained after the great blackout of 2003, the detention provision used was of even a lower threshold than security certificates, but did not require a certificate to be signed by the minister. It was just some sort of suspicious detention. They were suspicious; they detained them. It was everywhere. Ernie Eves used it in his election promos, keeping us safe from the blackout, from SARS and the terrorist threat. They were the headlines of the day. Even after that passed, the stigma was still with them when it started to fall apart quickly.

I looked at the evidence. I recommend that you look at the little sheet the RCMP put out, indicating that they slept in a room together, that they slept on the floor, that they had poor cooking skills, and that they came from a part of south Asia known for Islamic extremism. They were lazy students too; that was one of the things, and it goes back to how we can inform ourselves when we use our resources and avoid these embarrassments.

As my colleague mentioned, the devastating human effects for those people are still there, but, as human beings, we forget and move along. This is the problem with the detention provisions. For those who say security certificates and these sorts of things are administrative measures, who are we fooling? These are semantics. When you detain someone, does it matter if he is detained under a security certificate or charged with a crime? Detention is detention, and the same standard should apply.

Mr. Trudell: It was a new tool used without information, with no discretion and no discipline. That is the basis for what could happen. What would have happened if no one had found out about it? All of a sudden, the news media started to follow this and, at the end of the day, “threadbare” is a pretty good description for it. There was no education, discipline or understanding by those officers out there who made these arrests. The tools were there, and they grabbed them. That is the problem.

In something I was reading yesterday I came across this line from Jonathan Swift, who you could imagine must have been testifying here: “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

Senator Kinsella: I have three short questions to Mr. Morris. The subject of “torture” came up in our discussion. Would you confirm for the committee that, pursuant to the International Covenant on Civil and Political Rights, the right to be free from torture is not a right that can ever be derogated from?

Mr. Morris: I would agree with that. In the hierarchy of international human rights, I would say that the right to be free from torture is almost the very highest.

Senator Kinsella: If you look at Article 4 of that covenant, which is adopted by Canada and is an obligation under international human rights for Canada, even in times of national emergency, when the life of the nation itself is threatened, there are certain rights that cannot be derogated from, and the right to be free from torture is one of them.

Ms. Rashid and Mr. Mia, I want to ask questions with respect to the issue of charities, and in particular the charities in the Muslim communities in Canada and the tremendous amount of humanitarian work that those charities do both domestically and internationally. Can you advise the committee whether this legislation, in particular, and other legislation of a similar vein, impedes the humanitarian work of Muslim charities both domestically and internationally?

Mr. Mia: I can say that from my understanding, it has in several ways. I cannot speak to particular cases, but there are de-registration processes. I do not know if they have been used. As I mentioned in my submission on the use of the powers themselves, it is the soft use, the chill, that sends out the message. You then have members in the communities not wanting to participate. They do not want to donate. In Islam, one of the five pillars of the faith is charity — to give, to give to others, to give to Muslims. Unfortunately, from the countries where Muslims are a majority, there are humanitarian needs. The problem is that the loosey-goosey offences in the act, like “facilitation” and “participation,” mean that you can pull the thread through and an innocent donor can then be caught. I think people in the community have figured this out. Therefore, they are wary because, even if 99.9 per cent of something goes to good works, the other 0.1 per cent assists someone. It is not even if it assists someone engaged in terrorist activity. It would be giving aid or a benefit to a terrorist.

Arguably, in Sri Lanka and Aceh Province, many of these groups are complex and engage in other activities as well. If MSF donated something or, through one of their water purification setups, gave a drink of water to an LTTE member — and this is a bit far-fetched, but I am just trying to show how this might play out — that person would have received a benefit. Or if they gave medical aid to an LTTE member who was hurt by the tsunami, that would be covered, because it does not say “giving assistance to those engaged in combat or in terrorist activities”; it says “giving aid to this group or organization.” So there is a drying up of funds. Not just Muslim charities, but mainstream charities are also speaking about this. There is a chill, because anyone can get caught up in the web of law.

Senator Kinsella: Not mainstream charities.

Mr. Trudell, in your opinion, did the Canadian military violate any domestic legislation when it turned over to the Americans those captured in Afghanistan, who ended up in Guantanamo Bay?

Consider that a couple of years ago Parliament passed legislation relating to the extradition from Canada of persons accused of capital crimes, and the question was whether a guarantee would be sought from the jurisdiction seeking the extradition of a person so accused that the death penalty not be sought. When Canadian agents — the military — turned over to the Americans those captives, was there a requirement that Canada be assured that the death penalty would not be sought? Were other Canadian laws violated by turning them over to conditions where habeas corpus, along with many other human rights guarantees, was non-existent?

Mr. Trudell: I should retain counsel before I answer the question. My understanding of the situation is that some rights to a hearing under the Geneva Convention were not followed. Optically, it seemed that there were short cuts, and it seemed to me that it was improper. There may have been other circumstances, but there seemed to be a short cut from the proper procedures as we know them.

Senator Fraser: Mr. Trudell, your ombudsman would receive regularly reports of all uses of investigative hearings, of preventive arrests, of the exercise of ministerial powers over disclosure, and many other kinds of information. Somewhere along the line this person or establishment, this ombudsman, might end up being a bit of a “big brother” in its own right, if you are centralizing access to all secrets?

Mr. Trudell: I do not anticipate that this person would operate all alone. Rather, this person would be responsible, ultimately, to report to Parliament. It is that one other step — that independent organization — that has to be informed of the use of a special powers under this legislation that may allow for caution and for someone to think twice before acting.

For example, in the material from the Canadian Bar Association, you will see at page 42, under the heading, “Privacy, Access to Information and PIPEDA,” that “sections 87, 103 and 104 of the Anti-terrorism Act amended the Access to Information Act, the Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA) respectively, to permit the Attorney General of Canada to issue a certificate...” and so on.

Our position would be that the ombudsman would have to be informed if the Attorney General intended to do that. The mechanics of how expansive this office would be have yet to be determined, but we think that this independent agency would provide the proper check and balance as the conscience of the system. We have not examined all the possible ramifications or all the possible uses of this office. If it is in place and is independent of Parliament, then it may offer the balance that is missing. Secrecy is the problem. The government agencies would be charged with placing the information before this agency or person.

Senator Fraser: You also suggest that all information shared with foreign governments should be submitted through the ombudsman, practically speaking. I have some difficulty envisioning how that would work in urgent cases.

Mr. Trudell: It is a difficult issue to discuss, because Commissioner O'Connor will rule on it. Before the information was sent to the United States that resulted in having a person transferred to Syria, if it had been brought to the attention of an independent person, an ombudsman, would events have proceeded in the same way? Perhaps not.

Senator Fraser: If we had a case of someone slipping through our net and heading to the United States with the intent to blow up a major building with many thousands of people in it and the capacity to do so in the trunk of his car, would we call the ombudsman and listen to the recorded message to call back during office hours?

Mr. Trudell: No. You have to give an ombudsman the proper tools to do the job. If you were the ombudsman and I was the branch of government making such an arrest, I would tell you what we were doing. I would want you to know about it. You would ask whether we had done A, B and C or had followed a certain procedure, but you would not tell me to stop. This is imperfect, but it is akin to the Senate with its sober, second thought.

Senator Fraser: All human institutions are imperfect. This has been enlightening.

The Chairman: I thank all of our witnesses for their testimony today; it has added greatly to our deliberations.

Senator Jaffer: I understand that we have the Commissioner of the RCMP appearing next week.

The Chairman: Yes.

Senator Jaffer: Would it be possible to obtain the report on racial profiling prior to that meeting?

The Chairman: Certainly; we will follow that up.

The committee adjourned.