Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 12 - Evidence - Afternoon meeting
OTTAWA, Monday, May 30, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:05 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, I will call this meeting to order. This is the twenty-sixth meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act.
For our viewers, I will explain the purpose of this committee. In October 2001, as a direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation, and we agreed. The deadline for the passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of the legislation in such a short period. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and in a less emotionally charged situation for the public. The work of this special committee represents the Senate's efforts to fulfil that obligation.
When we have completed the study, we will make a report to the Senate, outline any issue that we believe should be addressed and allow the results of our work to be available to the government and, of course, to the Canadian people. I should say the House of Commons is doing a similar study at this time.
So far, the committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts, as well as those involved in enforcement and intelligence gathering.
This afternoon we will turn our attention to immigration issues. We are joined by Mr. Lorne Waldman, a member of the National Citizenship and Immigration Law Section of the Canadian Bar Association. He was to be with us at an earlier hearing but had an unfortunate airport accident, and we are very glad that he is in one piece and with us today.
He will be joined later by Barbara Jackman, a lawyer specializing in this area of law, who has represented individuals being held under security certificates; and also Andrew Brouwer, a member of the executive committee of the Canadian Council for Refugees.
Mr. Lorne A. Waldman, Member, National Citizenship and Immigration Law Section, Canadian Bar Association: First, I apologize for not attending last time, but it was a forced absence because I fell at the airport. I am glad you were able to reschedule me and I appreciate the opportunity.
I wanted to point out that in the CBA brief we attempted to touch on issues not directly related to the legislation, and one of the key issues we focused on was information sharing. Information sharing is extremely important because in my other incarnation I am here to deal with the Maher Arar case, which gives us a clear example of what can go wrong with information sharing.
After 9/11, Prime Minister Chrétien appointed John Manley to act as Deputy Prime Minister and the point man on security issues. He became chairman of a new cabinet committee on national security and began meeting with his American counterpart. One of the key points emphasized throughout this process was that there had to be, as Deputy Prime Minister McLellan has said, a seamless flow of information between the United States and Canada. That has been the focus of our negotiations with the Americans.
In the Arar case we see what can go horribly wrong when you share intelligence without taking into account several factors.
One of the key factors, as was acknowledged by Deputy Commissioner Loeppky in notes that were produced before the commission, is that the Americans have a different strategy from Canadians in the war on terrorism.
We know from the documents that have become public that Mr. Arar was not the subject of an investigation. He was peripheral to the main national security investigation involving an alleged al Qaeda cell in Ottawa and he became a ``person of interest'' because he was seen with persons who were the main targets and under surveillance at that time.
As part of the information sharing process between Canada and the United States, shortly after Mr. Arar was seen with these other persons of interest, all the details of these meetings and other personal details involving Mr. Arar were shared with the American authorities. This included a lease that the RCMP surreptitiously obtained from Minto Properties in Ottawa that had Mr. Arar's name on it and the name of the person who was the target of the national security investigation.
About a year after Mr. Arar was first seen with this target, he was travelling back from Tunisia to Ottawa for a job prospect. He travelled through Kennedy International Airport. It has been expressly acknowledged through the documents that have been made public that Mr. Arar was put on the U.S. watch list exclusively based upon information provided by the Canadian authorities. It came out in evidence today at the Arar commission and in other documents that the Canadian authorities were the only source of information regarding Mr. Arar that led to his detention and ultimate deportation to Syria.
We see, therefore, that the effects of information sharing can be disastrous. The Arar case clearly raises the question of the extent to which we can share information with regimes that do not have the same values, in one form or the other, as we have. The United States is one example. We do not have to look beyond Guantanamo Bay, Abu Ghraib and what happened to Mr. Arar to realize that they have different values and are prepared to engage in conduct that we in Canada would not. However, information is shared not only with regimes like the United States. We know that in the case of Mr. Arar, CSIS went to Syria. We know in the case of Mr. Arar that Canadian officials repeatedly asked the Syrians for more information about him. This suggests that it is quite possible that information was not only transmitted by the Syrians to Canada but also by the Canadians to the Syrians when Mr. Arar was being held in a three-by-six-by-nine grave.
Although Mr. Arar's is the most notorious case, it is by no means the only example of an individual who has been detained as a result of information provided by Canadian officials to a foreign government. Ms. Jackman is representing two other individuals who were subjected to that kind of treatment as a result of information they are convinced came from Canadian authorities.
The issue that emerges, which we address in our submissions, is the extent to which, when we share information, we have to alert ourselves to the consequences; and the extent to which we can have a wholesale sharing of information with regimes that do not have the same respect for human rights as we do without receiving ironclad guarantees that those regimes will not use the information to abuse a person's human rights.
The second issue I would like to deal with, which is also highlighted in our brief, is oversight. In our submissions, the CBA has emphasized the need for oversight. The cabinet documents that we have seen in the Arar case make it clear that as a result of that case, senior officials in the government became convinced that there was a need for some kind of oversight of the RCMP with respect to national security investigations. As a result, this has become part of Justice O'Connor's mandate.
We believe that there has to be one integrated oversight mechanism and that oversight is fundamental to assuring accountability. This becomes particularly interesting in light of what we heard today at the Arar inquiry. Minister Graham testified and made it clear that he did not believe it would be inappropriate for any minister to be involved in operational details of any national security investigation.
That is fine, but if the ministers who are supposed to be politically accountable for the operations of the departments are not aware of what is going on with respect to national security investigations, it is more important that there be an effective oversight mechanism. The effective oversight mechanism must be independent of the organizations it is overseeing and must have the power to decide ultimately what becomes public. It must have significant power to conduct an adequate investigation.
Ms. Heafey, Chair of the Commission for Public Complaints Against the RCMP, said in a brief to Justice O'Connor, and repeated publicly on numerous occasions, that she did not have adequate powers to fulfil her functions.
The third issue that we wish to address has to do with the Access to Information Act and the Canada Evidence Act. With respect to the Canada Evidence Act, in our view, the current wording of section 38.01 and the following sections is completely unworkable. We were involved in an application in the Arar case dealing with the CSIS summaries that Justice O'Connor wanted to make public. The government exercised its power because it disagreed with his ruling as to what could be made public.
The Canada Evidence Act currently precludes the Federal Court from notifying even Mr. Arar, without the consent of the government, of the fact that the government was making a request under the Canada Evidence Act. The Federal Court does not have the power to govern its own process and determine what becomes public and what does not. The degree of secrecy contained in these provisions is completely inappropriate.
There are many other issues I could talk about but I believe my time has expired. I have expressly not commented on security certificates because I know that Ms. Jackman and Mr. Brouwer will be dealing with those.
The Chairman: Thank you very much, Mr. Waldman.
I wish to welcome the other members of this panel.
Mr. Andrew Brouwer, Member of the Executive Committee, Canadian Council for Refugees: Thank you very much for having us here. The Canadian Council for Refugees is a member of the International Civil Liberties Monitoring Group, who I understand will be appearing before this committee later. The CCR does endorse the brief of the ICLMG, which covers a wider range of issues of concern to the Canadian Council for Refugees. I will talk specifically about security certificates and immigration security.
We welcome the decision to include in this review the security certificate process under the Immigration and RefugeeProtection Act. In our view, the government is using immigration procedures in preference to criminal proceedings to bypass the safeguards that exist in the criminal justice system. Many of the concerns we will touch on today are also addressed in an October 14, 2004 open letter, which I have circulated and which was signed by over 50 professors of law from across Canada as well as legal networks of NGOs.
In the context of this review, I suggest that it also makes sense to look a little beyond the security certificates to immigration security issues in general, as the security certificate is not used in every case where there are allegations of security concerns involving non-citizens.
The key concern of the CCR is discrimination, both between citizens and non-citizens and against particular ethnic and religious groups, notably Arabs and Muslims.
Laws should work to minimize the dangers of discrimination. However, the ATA and IRPA increase the risk of discrimination by giving extensive powers to government with minimal oversight and under the cloak of secrecy in many circumstances.
A basic problem in the Immigration and Refugee Protection Act is the extremely broad definition of ``inadmissibility on the basis of security,'' section 34 of the Immigration and Refugee Protection Act. There are two points worth making in that context. The first is that people talk loosely about those being removed from Canada as representing a security threat, but if you look at the act itself, it provides for a security certificate to be signed, and upheld by the Federal Court as reasonable, on security grounds even if no one even makes an allegation that the person represents a security threat to Canada.
Secondly, the language of IRPA gives the government extremely broad parameters in finding a person inadmissible on security grounds. For example, on the basis of ``membership in a terrorist group,'' where membership can be construed so broadly it includes associates and fellow travellers on a particular political issue.
What is more, membership need not be established as a fact. Under section 33 of the Immigration and Refugee Protection Act, on interpretation, all that is required is there be reasonable grounds to believe that a person is inadmissible, and that can rely simply on facts that have occurred, are occurring or may occur sometime in the future. It is extremely broad.
Another general concern around security certificates is the lack of due process. The serious concern about the unfairness of the process is well known. It is shared by the CCR, and I point you to the inter-American commission report of February 2000. Sections are also appended to the document I just circulated.
Mandatory detention is another core problem. Those who are not permanent residents are detained on a mandatory basis. The process can be very long, so they remain in detention for a long time. Ms. Jackman will talk about this in greater detail.
Another core problem for us is the lack of oversight. Before the Immigration and Refugee Protection Act, permanent residents had access to review by the Security Intelligence Review Committee. That was removed under IRPA, contrary to the recommendations of the CCR and many human rights organizations and observers, who were asking for an expansion of the SIRC mandate. CCR is of the opinion that oversight should have been extended and should be extended still.
Deportation to torture is another very obvious concern. Canada is taking a position that is directly incompatible with international human rights obligations to which we have subscribed. The Committee against Torture very recently criticized Canada for:
(a) the failure of the Supreme Court of Canada in the case of Suresh v Minister of Citizenship and Immigration to recognise, at the level of domestic law, the absolute nature of the protection of article 3 of the Convention that is subject to no exceptions whatsoever.
That is the absolute ban on torture and on removal to torture. That section of the Committee against Torture's report is appended to our notes.
Deportation is not a solution to the terrorism issue. In continuing to have recourse to deportation for security cases, the Canadian government fails to take seriously its own observation about the globalized nature of security threats. If it is true that security threats are globalized, it is not useful simply to deport people to another country if they actually represent some kind of threat. Further, it is inadequate and discriminatory to use measures for non-citizens that we do not use for citizens, and I point you to the House of Lords decision that I know has been addressed by this committee before.
Finally, there is the need to fully respect the Charter and international human rights. Section 3(3)(f) of the Immigration and Refugee Protection Act requires the act be construed and applied in a way that complies with international human rights law, yet the discriminatory nature and application of the security and admissibility provisions of the Immigration and Refugee Protection Act, the security certificate process itself, and the ultimate potential result of that process — return to torture — fly in the face of established, clear, non-derogative fundamental human rights.
I would like to close with six brief recommendations. First, Canada should legislate an absolute prohibition on return to torture, as it is obliged to do under international law. Second, we should narrow the definition of ``security inadmissibility'' in the Immigration and Refugee Protection Act. Third, we recommend that security certificate provisions be eliminated altogether. Fourth, we call on the government to ensure that all persons alleged to be inadmissible on security grounds be entitled to due process, a timely decision, access to the Security Intelligence Review Committee for review and a right to appeal from a decision against them to the Federal Court of Canada. Fifth, we want to ensure effective, independent oversight of allanti-terrorism activities by all bodies, including Immigration, the CBSA, as well as CSIS, the RCMP and the CSE. Finally, we would call on Canada to eliminate the mandatory detention provisions of IRPA.
The Chairman: Thank you very much, Mr. Brouwer. We will go to Ms. Jackman.
Ms. Barbara Jackman, As an individual: I have been representing people involved in national security status proceedings from the late 1970s onward. I represented people when there was no system in place, from 1984 to 1992, and all security cases went before the Security Intelligence Review Committee. Then from 1992 to 2002, foreign nationals, people who were not permanent residents, went to Federal Court; permanent residents went to the Security Intelligence Review Committee. In 2002, all the cases went to Federal Court, so the Security and Intelligence Review Committee is cut out completely on non-citizen cases where there is a security concern.
One of the options that I will pose to you is to put the cases back before the Security Intelligence Review Committee, and there are a number of reasons that I will talk about.
I read the transcript of Mr. Paul Kennedy's testimony to the House of Commons committee about security certificates. He is a senior assistant deputy minister for the Solicitor General. He says Canada only uses security certificates in extreme cases. It is true that very few security certificates have been used. I think it is 26 or 27 in the last 14 years, 5 in the last few years, all of them for Muslims.
It may be that the government does not use the security certificate process very often, but the impact is profound. There is automatic detention for persons who are not permanent residents. Under the Immigration and Refugee Protection Act they are called ``foreign nationals.'' I will give you the examples of my three clients.
Hassan Almrei is now 30 years old. He has been in solitary confinement for three years and seven months, since October 2001. Initially, he went there involuntarily. He brought a habeas corpus application to get out of solitary. When they put him back on the range, he was beaten up because all the guards and everyone else called him a terrorist. He is back in solitary for his own protection.
I did a second habeas corpus application for him to get him shoes. I did not know he was walking around on a cement floor at the Toronto West Detention Centre for two years without shoes. The rationale was that he was in solitary, even though five guards were prepared to testify for him that he presented no threat to jail personnel. After six and a half days in court, he got shoes. His biggest concern is whether or not he gets the books that are sent to him. He goes on hunger strikes regularly. That is the only way he can cope with his powerlessness, the isolation, and attempt to get what he thinks he deserves.
Someone sent him Steve Coll's book Ghost Wars, which I have read. It is an excellent book, giving a history of what happened with the CIA in the U.S. and Afghanistan. It was held up by security for a couple of weeks. He was sent copies of the regulations for treatment of prisoners in federal jails.
He did not get that for a week or so, even though it is on the Government of Canada website. It was held up. Those kinds of events are his life. His whole life is focused on one little cell. What Canada is doing to people under these security certificates is inhumane. When the government says that these are only used in extreme cases, think about the people whose lives are being destroyed.
The other person is Mr. Mahjoub. He has been five years in jail in solitary. He is deteriorating. If he is left in solitary, he will end up crazy. His psychological profile is very bad. He cannot cope. People cope in different ways. Mr. Mahjoub is not coping with solitary confinement. He has a wife and two little children, both Canadian citizens.
Mr. Jaballah is not in solitary. He has a wife, left alone tocare for their six children. He has been in detention since August 2001 and, before that, from April to Novemberof 1999 on another security certificate that the Federal Court quashed. CSIS did not like that and brought a second one, on, essentially, no new information. September 11 happened, the certificate was upheld. It has now been quashed again. He is going back for a third time on a security certificate review. You have to understand that under the immigration legislation now, Mr. Jaballah, who did have a detention review in 2004, because at that point there was a security certificate dealt with that had not been quashed, is now not eligible for a review of his detention because it is mandatory until the certificate is considered by the Federal Court. We are back at Federal Court to consider the certificate. He has been detained for three years and nine months and cannot have a detention review for an indefinite period of time. His security certificate process is being suspended right now while the minister considers for a second time whether to return him to torture.
This kind of behaviour on the part of the Canadian government is not acceptable. I do not know if parliamentarians or this Senate, when the legislation was passed, understood the implications of putting persons in jail indefinitely without access to habeas corpus or bail.
The government will say it is not indefinite. It is indefinite detention when you do not know the end date, which can be put further and further into the future. It is not acceptable for people to be living like that. It is not acceptable for their families. Ms. Jaballah cannot handle six kids on her own without any support from her husband.
Mr. Kennedy said — and I am referring to it to address what people from the government may have testified or will testify — that Canada is not depriving people of their freedom as a punishment. I do not think you should accept that. How far can you go in the name of not punishing a person? Can you torture people to make them go crazy so they are no longer a risk to Canada and say that because it is not punishment, it is acceptable? The courts have said that solitary confinement is acceptable because it is not a punishment. It is the impact on the human being, not the purpose for which it is being done, that should engage human rights. That is not the way our courts have looked at it. That is how courts in other countries have looked at it. Canada is falling behind on that level.
The government will also say that people can always leave Canada. The House of Lords case that Mr. Brouwer talked about said, and I have the quote from Lord Nicholls of Birkenhead:
With one exception all of the individuals currently detained have been in prison now for three years and there is no prospect of imminent release.
That applies to our cases, too.
It is true that those detained may at any time walk away from their place of detention if they leave this country. Their prison, it is said, has only three walls. But this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill treatment in any country willing to admit them.
Mr. Almrei will go back to Syria. That is where Maher Arar was tortured. You can be sure he would be tortured. Mr. Jaballah and Mr. Mahjoub will go back to Egypt. There were other people ``renditioned'' from European countries to Egypt, detained and tortured. People have died in Egyptian prisons. Those are not acceptable alternatives for those men, so staying in solitary is the only option they have at present.
It is not realistic — it is a myth — to say they can just walk away from it all by leaving the country. There was one case where a wife found a country to take her husband, Mr. Baroud. That was another security certificate case several years ago. Canada does not help any of these people find safe third countries. He ended up not being allowed into the country and was in orbit, flying from airport to airport, for eight months. Canada let that happen because it did not ensure he would be accepted into a third country.
This committee and any other committee studying this issue should consider what the other options are, short of this extreme mandatory detention system that applies now. One is to leave the cases before the immigration division members at the Immigration and Refugee Board. With the amendments to the immigration legislation in June 2002, they can receive secret evidence in those normal, regular deportation hearings. That is important because the government says we have to use the Federal Court process because they can hear secret evidence. Secret evidence can be presented in normal immigration inquiries. There are 30-day regular detention reviews. Regardless of what kind of criminal they are, people get regular detention reviews. That does not happen in the Federal Court.
Secondly, the cases could be put back before the Security Intelligence Review Committee. I would say that is a much fairer process than the Federal Court. I have heard many politicians and government officials talk about how wonderful it is that Canada has the Federal Court to review these procedures. I practiced under both systems, the Security Intelligence Review Committee and the Federal Court. If you go back in history, the Security Intelligence Review Committee was formed as a monitoring committee after the McDonald commission, not just to hear security cases, but also to review the activities of CSIS and ensure it did not engage in illegality, as the RCMP intelligence unit had done before that time. That committee has the ability to know and understand the security service in a way that the Federal Court does not.
The Federal Court judges hear immigration, taxation, unemployment insurance, shipping and international law cases. The judges appointed to Federal Court are, for the most part, corporate-Canada appointed for their tax expertise, not because they know the immigrant communities.
Therefore, you appoint a judge from a little town in New Brunswick or somewhere who has practiced corporate law all his life and expect him to suddenly have experience and understanding of a different culture. It does not happen.
At least most members of the Security Intelligence Review Committee are politicians and have a lot of background in terms of dealing with people. They have the added advantage of understanding CSIS to be able to judge the credibility and truthfulness of what the CSIS officers are saying.
I feel, having acted before the committee and the Federal Court, that if CSIS says, ``Black is white,'' the Federal Court judge will nod and say, ``That's fine. It could be. There are reasonable grounds to believe that black is white.'' It is a completely different system. A court is not in a proper position to be able to assess those cases. I would favour things going back before the Security Intelligence Review Committee because it was a fairer hearing.
The Federal Court of Appeal has said in both my clients' cases, Almrei and Charkaoui, that you cannot have independent counsel testing the secret evidence. If Parliament wants to add that to the legislation, it can do that. The Security Intelligence Review Committee has the same statutory structure as the Federal Court. They read in a fairness requirement to have independent counsel because it is such an extreme kind of proceeding, where evidence is presented in secret. Nobody is there to test it. They said, to be fair, there should be counsel there, somebody who has been security-cleared, cross-examining to provide a fair process.
The other difference between Federal Court and the Security Intelligence Review Committee is the level of confidence they have in the kind of information that can be released or not. In the review committee, you get far greater disclosure. In the Federal Court, if CSIS says ``Do not disclose it,'' it is not ever disclosed. All you get is material that is either already public or newspaper articles.
The third option is to not use these anti-terrorism provisions, but use the same law for everybody.
I know my clients would prefer to be on the 12-month reporting condition under the anti-terrorism provisions of the Criminal Code than stuck in solitary confinement for an indefinite time. That is a preferable system to the one they are in at the present.
With regard to the House of Lords decision, our Federal Court said that we are different because our detentions are not indefinite. That is simply untrue; they are indefinite. They did not see the forest for the trees. We are only going afternon-citizens, although I can tell you that there are citizens of concern to Canada and nothing has been done about them. They have not used the anti-terrorism provisions against those people. Why can they not at least use provisions that are less extreme with our clients, particularly when they cannot remove them from Canada if they want to comply with international law? In all of our cases, they have made the decision to return our clients to torture. That is very serious.
In the disclosure at the Arar commission there was a memo telling Bill Graham to come on line with Hassan Almrei. Because Arar had been tortured, they knew that Hassan Almrei would likely be tortured in Syria. The memo essentially said that we will take criticism internationally because we will be breaking international law, so please support us on this. I can provide that to the Senate if you would like. It is public.
I agree with Mr. Brouwer about narrowing the terms. You have to understand the impact on the community of the broadness of the terms. I will give two examples. The Liberation Tigers of Tamil Eelam in Sri Lanka may be engaging in terrorism. They are engaged in an armed conflict, although there is a peace process under way right now. They are popularly supported by the Tamil community. One study shows that about 70 per cent of Tamils in Canada support them.
If you say that anyone associated with the LTT is a terrorist, you lose any trust you might have had among the community. The LTT is not an organization with a single purpose. It is multifaceted. It runs orphanages and the administration in the north of Sri Lanka. A doctor in an orphanage funded by the LTT is caught by the provisions of our law and deportable from Canada because of that, even in a sector completely unrelated to any military activities.
That is true for the PLO as well. I am sure you know that the PLO has all kinds of wings in addition to military wings. They are quasi-governmental. Now the different PLO factions are involved in the Palestinian Authority.
One of my clients was volunteering in an orphanage through a Fatah women's committee. Her landing has been held up for 10 years because of that.
When the provisions are so broad that people like that are caught, forget about any kind of trust between CSIS and the communities for getting needed information to identify security threats. Everyone in those communities feels that they are being targeted, that they are the enemy of Canada, even though they want to be part of Canada. You cannot run an effective intelligence service with laws so broad that they target everyone. Compound that with CSIS's lack of understanding of ethnic diversity and racial profiling, and you have lost it. We will not find any security threats in Canada because CSIS does not have the contacts it needs to find them.
Senator Jaffer: Thank you. You have covered the issue of security certificates quite thoroughly, so I will not go into that.
I want to talk about special advocates. You know the English experience. We have heard quite a bit about special advocates. Would it help you in your work if there were a special advocate who was able to receive the information?
Ms. Jackman: I found that the special advocate system under the Security Intelligence Review Committee was effective, given that we would not get full disclosure of the case. We could meet with the special advocate. The British banned any meetings between counsel and the advocate once the advocate was involved in the case. Our system before the Security Intelligence Review never did that. We could meet with them, ask questions and raise areas of concern. When we cross-examined the CSIS officer, we could go back in camera and again ask the questions that were asked in the public part of the hearing, and we could add to it. It gave my clients a degree of confidence in the process that just does not exist in what is going on in Federal Court.
Senator Jaffer: Would you be the middleman between the special advocate and your client, in the sense that you got information from the client and gave it to the special advocate? A lawyer asks the client what has happened, hears what is being said and puts the two together. How did it work for SIRC?
Ms. Jackman: We did not give the independent counsel the entire case, but we raised areas of concern in terms of the outline we got from SIRC. We also got expurgated transcripts from the secret hearing, which we never did in Federal Court. They do not even keep transcripts in Federal Court, much less necessarily examine witnesses.
We would raise issues and sometimes pose questions on areas of concern. We would not tell them to ask specific questions, but rather to ask about a certain business, for example.
Senator Jaffer: You were able to raise issues because you knew what was being said in secret.
Ms. Jackman: That is right. We would tell counsel about that, to the extent that it was relevant. Of course, they have to understand the background of the person. I do not think it compromised them.
Senator Jaffer: What kind of recommendations do you think we should be making on the issue of special advocates?
Mr. Waldman: It would be interesting for the committee to speak to Mr. Cavalluzzo, who is counsel in the Arar inquiry, although given that the inquiry is ongoing, I do not know whether he can testify in public. The experience of counsel there is similar to what was happening in SIRC. He was able to review the documents that we were not able to see; he understood what the issues were. We met with him without reviewing national security matters. He was able to pose questions to us and we were able to provide information that was of assistance to him.
It is a tricky process, which is probably why in the British system they have advocated to keep them separate, but I believe that, if you intend to consider the special advocate route, in order for it to be meaningful, you cannot separate the advocate from counsel for the person involved. The only way special advocates can fulfill any kind of meaningful function is if they are able to meet and put one and one together, obviously understanding that they have an obligation not to reveal national security confidentiality.
Our experiences with the Arar inquiry so far have been that it has been a useful process, in the sense that we have been able to have discussions. Obviously it is impossible for us to know what goes on behind close doors, but we believe we have had input that was useful to counsel in their questions and cross-examinations.
From the point of view of the Canadian Bar Association and from my personal point of view, special advocates would be a minimal recommendation. It is not a preferred option. Having some kind of amicus would make the process fairer, but it must be a meaningful process that would allow the special advocate to engage in the type of dialogue that occurred in the Arar hearings and the SIRC hearings. At SIRC hearings, independent counsel would meet with us and, without revealing what was being said, would ask us questions.
There are ways of asking questions whereby he can get the information out without revealing national security confidentiality. It requires a skill, but it can be developed over time.
To create an amicus totally separate from the client makes it impossible for that amicus to fulfill his role. From the point of view of the client, it feels as if he is not being represented. He does not get an opportunity to speak to the counsel going behind closed doors to represent his interests.
Senator Jaffer: I am not sure if you can share this with us because it is ongoing, but is the counsel in the O'Connor inquiry able to get information from Mr. Arar? Is Mr. Arar able to have some input?
Mr. Waldman: It is public, I think. Not only is Mr. Cavalluzzo, counsel for Commissioner O'Connor, meeting with counsel for Mr. Arar, but he is also meeting with counsel for the interveners. We have the opportunity to suggest to Mr. Cavalluzzo what questions we would like him to pose in the in camera hearings based upon the versions of the documents that are disclosed to us.
Although it is a very frustrating process for Mr. Arar, at least he gets a sense that he has some input into what is going on in the secret hearings.
Ms. Jackman: If you are interested in exploring the amicus issue, Maurice Archdeacon, who was executive director of SIRC from 1984 to 1999, could be considered the guru on fair process for secret proceedings. It was largely under his direction that the Security Intelligence Review Committee became as fair as it could be. He is the one who implemented all those procedures, including counsel.
The other point about fair hearings is I think Federal Court needs this more than most because of the lack of expertise on the part of judges and of an understanding of other cultures. We have, for the most part, a White CSIS and a White court. They are not immigrants. They do not reflect the diversity of Canada. SIRC had the power to call independent experts to speak, and often did. They would have a professor who was knowledgeable about the PLO, the LTTE or whatever, some super-expert independent of any body to give background information and context. That is essential for a court trying to understand the issues with which they have to deal. They are not black and white issues. They are very complex and you can misread them if you do not understand the context.
Senator Smith: I am not asking this sarcastically, but genuinely. Can you think of any grounds that would ever warrant clients or non-clients — and we are talking about the category where the security certificates are a factor — non-Canadians, being deported?
Ms. Jackman: Of course I can think of non-Canadians being deported. If there is a real risk of torture, I do not think they can be deported unless Canada can find a third country to accept them.
Senator Smith: Sometimes I get the feeling that this is a convenient claim. What about that Iranian situation? Were there not all sorts of assumptions made that the individual was being tortured? To the best of my knowledge, such was not the case at all.
Ms. Jackman: You are speaking about the Ahani case. The problem is trying to verify what happened. I know the government said he was not tortured. He came to the embassy to ask for something. We tried to contact him directly.
Senator Smith: He wanted stuff sent back over there?
Ms. Jackman: Yes. We have not been able to make direct contact with him to find out, and we have heard rumours to the opposite effect, that he was detained at one point. I do not know the truth of it. Once they are back in those countries, how can you confirm it? You cannot send a reporter like the National Post did to someone's house and say ``Are you okay in Iran?'' They will say ``Yes, of course I am.''
Mr. Waldman: I have a client now whom the Government of Canada says will be tortured. Despite that, they propose to send him back to his country because they determined that it is more important to do that for national security reasons than to protect him from being tortured.
If we leave aside the case of the Iranian, where we could dispute the facts, let it be clear there is absolutely no doubt that the Government of Canada has decided that it will send people back to countries where they will be tortured. The only reason my client has not been sent back is because the Federal Court of Appeal is looking at his case. Until they decide whether the Supreme Court of Canada in Suresh left the door open to sending people back to torture or not, they will not send him back.
They have made it clear, and in all their briefs they are accepting, that my client would be tortured and they want to send him back. This is not hypothetical any more. I can give you the name of the case. It is reported in the Federal Court. It is called Sogi.
The Government of Canada was confronted before the Committee against Torture with the fact that they had interpreted Suresh as saying they can send people back to torture. The representative of the Government of Canada said we have not done it yet. The only reason they have not done it yet is the Federal Court has not allowed them to. We have to wait to see whether the Federal Court and, if it goes to the Supreme Court on appeal, the Supreme Court will decide that we can send someone back to torture.
I am suggesting to the committee that it is not acceptable. In Europe, there is an absolute ban against ever sending anyone back to torture.
Ms. Jackman: New Zealand practices that as well.
Mr. Waldman: Canada, which prides itself on being a country that respects human rights, is proposing to violate one of the most important human rights conventions that it has signed since World War II, the convention against torture. Article 3 expressly prohibits removal back to torture. The committee criticized Canada for doing that. It is an embarrassment to me as a Canadian citizen to see that our government is prepared to ignore an international obligation it has undertaken, which is to not send people back to torture.
This matter was confronted in the United Kingdom after the decision in the House of Lords to which Ms. Jackman referred. What they came up with — and it was criticized in the United Kingdom by human rights groups — is a better alternative to being tortured, namely, control orders. They passed legislation that said they could not send people back to torture, but if it is believed they are a threat to national security, an order that restricts their freedom of movement can be imposed upon them.
Senator Smith: Which is the country where you, and, you say, the Canadian government, assume this person will be tortured? Can you say?
Mr. Waldman: It is in the Sogi decision. An official for the Government of Canada, when reviewing Mr. Sogi's case, concluded if he was sent back to India he was likely to be tortured. This has not been disputed by the Government of Canada. Despite that, the government said the national security required he be returned.
Ms. Jackman: They have made the same decision in respect of Jaballah and Mahjoub in Egypt and Hassan Almrei in Syria.
Senator Smith: I intend to keep an open mind on the matter to which you just referred. I am sure our staff will be able to get available information that is on the record. I think, on balance, Canada's record with regard to refugees is fairly generous. Maybe we are talking about some of the extreme cases.
If I go back to the days when I was an MP, I would have them knocking on my door every Saturday morning, and some of the claims people made on humanitarian grounds were transparently queue jumping and had no basis for reality. Maybe there was the odd one. I do not want to see us put into a straitjacket whereby we cannot deal with ones that do fall into the category and that do exist. When you look at the numbers, 26 to 28 since the beginning, and just 5 since this act we are dealing with came into existence, those are pretty modest.
Ms. Jackman: They are. The impact on the individuals is life changing and life destroying.
Senator Smith: Just out of curiosity, did Ernst Zündel's deportation trouble any of you? Did you think due process occurred?
Ms. Jackman: He was going to Germany.
Senator Smith: That was not my question.
Ms. Jackman: I do not think he would face a risk of torture. I think they handled Ernst Zündel's case completely wrongly.
I do not know why they used the security process. They could have let him go through the normal process and he could have been deported.
Senator Smith: How many years did it take?
Ms. Jackman: It took them a lot longer because of the way they used the process.
Senator Smith: Did the end result trouble you?
Ms. Jackman: Did the end result of a man going back to face prosecution in a democratic country trouble me? No, it did not.
Senator Stratton: We have individuals being held in solitary confinement for three years, and that leads you to ask why they have not been able to deal with this situation in a shorter time. Why does it keep going on? As you said, it could go on indefinitely.
Do you know of any reason why it would take so long? It is a fundamental question, and it is not just Canada that is doing this, but also, apparently, Britain and other countries.
Ms. Jackman: It is just the Commonwealth countries. Spain, Germany and the rest of the European countries do not use this kind of system. It is as if the United States, England, Australia, New Zealand and Canada all jumped on the bandwagon and copied each others' laws. However, it is not happening in other countries.
Senator Stratton: Why is there that length of time?
Ms. Jackman: For example, in Mr. Almrei's case, the security certificate was imposed in October. He was detained and the certificate was upheld in November/December 2001, right after September 11. The delay has been the time it has taken the government to make a decision about whether to deport him to torture. They made a decision. We went to Federal Court because he would be tortured. The minister conceded there were mistakes in the process. It went back to be considered a second time. The minister made a decision a second time to return him to torture. We brought that before Federal Court. The court looked at it, quashed the decision and sent it back. He is going through the third time for the minister to decide whether to return him to torture because the minister made mistakes every time. It is not his fault.
Mr. Waldman: The fundamental reason is it is tied to the process, but what is underlying it all is we are talking here albeit about a small number of people, but these are the extreme cases, and as we all know, democracies are measured by how they treat the most difficult cases, not the easy ones. The problem with these cases is we are talking about people who are terrified to return to their countries because of their fear of torture. As Ms. Jackman said, my client, Sogi, has been in detention in Montreal, in a holding centre, for over three years. He is very uncomfortable, but when faced with the alternative of going back to be tortured, he would rather sit in that holding centre. Until we get a final resolution from the Supreme Court of Canada or the Federal Court of Appeal as to whether it is possible to send people back to torture, they will sit in detention for years, because that is the first issue.
The Supreme Court of Canada decided Suresh, and we all assumed that Suresh meant you cannot send people back to torture. However, we were wrong. The government interpreted one sentence in that case to mean there might be some exceptional circumstances where we cannot rule it out. They have tried in the last three years to drive a truck through this tiny exception that the Supreme Court of Canada suggested might exist.
The first thing that has to happen is we as a society, either through the courts or through the government process, have to decide whether we will follow the example of countries like the United Kingdom, where they say, ``We will not send people back to torture and we have to look for an alternative when we are dealing with this small group of people that are of concern,'' or will we abrogate our international obligations and send people back to torture. When that issue is resolved, I suggest that will speed up the process.
Ms. Jackman: I do not think it will, because right now the government is admitting people will be subjected to torture and is saying it will use ``exceptional circumstances'' and send them back anyway.
If we succeed before the courts with the argument that they cannot be returned to torture because it is an absolute prohibition, then the minister's officials will say they will not be subjected to torture, even though the documentary evidence would support an opposite finding. Once they close the door to returning them, we will end up before the courts again. You cannot avoid the judicial process. I wish we could. It is terrible.
Senator Stratton: I can understand that, and I guess that is a given. These people are described as ``of concern,'' and it would appear that they must be because they have been held so long. Otherwise, why would they be held? That is the underlying question, that if these people are of concern, then perhaps there is something there. The underlying implication is there is something there we may not be able to prove; ergo, we will deal with it by delay. You people delay the process by saying ``You cannot do this, you cannot deport,'' and the government is saying, ``Yes, but these people are of concern. We will not just let them go free.'' You cannot.
I am not sure if this is accurate, but surely, if after three years they are still saying those people are of concern, then maybe they are. Maybe there is an issue that needs to be dealt with. That is my concern.
Ms. Jackman: A Canadian ambassador at a dinner I was at in Santiago, Chile, with a Canadian member of Parliament and some Chileans — we were talking about detention of political prisoners in Chile — said to Svend Robinson, who was also there, ``These people would not be in jail in Chile if they had not done something.'' Every person at that table, including Ricardo Lagos, who is now the President of Chile, had been in jail. He was saying that to a table full of people, including the head of the human rights commission, the head of the major democratic parties and Ricardo Lagos, a socialist, who had all been in jail. You have to be careful because it is a question of degree. I think sometimes that they pick on people — in fact, Paul Kennedy admitted it — and they profile them in order to have an impact on a community so that detention may not be necessary.
In the case of Suresh, for example, they believed he was a leader of the Tamil community. He was a leader in that community. It had a chilling effect on the Tamil community. They could have sat down with the Tamils and said, ``Look, we do not want you to support the LTTE,'' instead of making him spend two and half years in the Don Jail to prove their point.
To a certain extent, I do not think the cases necessarily warrant detention. You have to look at other alternatives to keeping people in jail. You also have to look at why it is only non-citizens in jail. In Mr. Almrei's case, he was alleged to have contact with Mr. Al-Quisi, a Canadian citizen and a person of concern to CSIS. He has never been put in jail. He is of the same level of concern as Mr. Almrei. I do not buy it that they have to keep them in jail for all this time. I think that control orders or measures like that could address the concerns, depending on the degree of risk. Mr. Almrei had his risk reduced to the lowest possible in the Toronto West Detention Centre.
Mr. Waldman: I want to address your comment again. It is important, based upon what we learned from Arar, to do that.
As Ms. Jackman pointed out, one of the key facts in Mr. Arar's circumstance was that he was a Canadian citizen. A lot of material has been withheld. We know there was a conversation between an RCMP officer and someone in the U.S. authorities prior to Mr. Arar's deportation. Now, a lot of the conversation is blacked out, but parts of it were left unblacked, and one part that was left unblacked was ``He is a Canadian citizen so we have to let him in.'' It is pretty clear to me that if Mr. Arar had not been a Canadian citizen, they would have considered the possibility of using a security certificate against him.
Just bear in mind what we now know as opposed to what we knew when he was arrested, and ask ourselves whether we can make the assumption that because the security services assume that someone, in their view, might be potentially dangerous, we can accept that assumption without question. Just recall what happened at the 9/11 commission in the United States, how they talked about there being major intelligence gaffes, and apply it to what we know about Mr. Arar. The government released documents today that we have been demanding be released.
Those documents basically say that Mr. Arar was not under investigation in Canada but was of interest because of his connections with others.
Having heard all of that, knowing that he is a Canadian, knowing that the Americans alleged he was a member of al Qaeda based on the Canadian information, which the Canadians said was not enough to charge him or even to investigate him, is it fair to assume that someone is dangerous just because the security services say so?
I have been dealing with Mr. Sogi for almost three years now. The government says he is a very dangerous person. All I have seen are newspaper reports and information about the organization that he says he belongs to. It does not give me a lot of comfort to accept that on its face, knowing that it has not been challenged in any process by anyone who is representing Mr. Sogi's interest.
There has been a process for the five people who are in detention now, but the people representing them believe it is fundamentally flawed because all this evidence has been evaluated in secret and no one representing the interests of these people, or even an independent person like an amicus, has been in the room to challenge the evidence. It really depends on the Federal Court judge or the immigration judge, depending on which process the government has used, being able to effectively challenge the evidence, which is not the role that we normally ascribe to judges and one that we believe is extremely difficult for them to assume. That does not give us a lot of confidence.
It is obviously true that CSIS believes these people are of serious concern, and some judge who has looked at the evidence CSIS has provided has accepted that, but there has not been anyone independent to challenge the evidence.
Senator Stratton: I thought the judge would have been independent.
Mr. Waldman: The judge's role is to make a decision.
Senator Stratton: I do not want to be argumentative, but there is a question that, it appears to me, is not being answered.
Mr. Brouwer: The security certificate procedure follows a process that we would never consider acceptable for Canadian citizens. Until we have a procedure that meets basic standards of due process that we demand for any Canadian citizen, we will not know whether there is a good reason to keep them in detention. There has to be a proper way to at least challenge the detention and force the government to provide full and fair evidence and then have an independent decision maker decide.
Ms. Jackman: You could formulate a set of common fairness rules. In the Harkat case, Justice Dawson has been very good in terms of testing the evidence. In Suresh, Justice Teitelbaum's way of testing the evidence was to cross- examine counsel for the minister — the lawyer, not a witness.
There is no common process. The Court of Appeal said that Parliament should institute a fair process. Maybe that could be recommended. If they are not intending to do it as a matter of fairness when an administrative tribunal did find it fair and the court does not, at least there could be a recommendation for standardized rules on what is fair.
Senator Lynch-Staunton: Mr. Waldman, do we know what information was sent by the Canadian authorities to the Americans leading to Mr. Arar's detention?
Mr. Waldman: It is public information that a CD was sent with a lot of information on it. We do not know the specifics. It is on the public record, for example, that CSIS was conducting a national security investigation involving an alleged al Qaeda cell in Ottawa and that after 9/11 a decision was made to transfer a lot of the investigations that might lead to criminal charges from CSIS to the RCMP. A unit called ``O Canada'' was formed under the control of the RCMP, with representatives from the OPP and the Ottawa Police Service. There was a national security investigation involving other individuals, to which Mr. Arar was peripheral. He was seen with one of the individuals and, as a result, a lot of information concerning him was sent to the United States.
We do not have the details of all that was sent, but it has been confirmed that it was a great deal of information.
Senator Lynch-Staunton: I do not want to take sides, but you called it ``misinformation'' at the beginning. If we do not know what the information was, how can we call it ``misinformation?''
Mr. Waldman: I do not know that I said ``misinformation.''
Senator Lynch-Staunton: Misleading information?
Mr. Waldman: It was misleading, clearly.
Senator Lynch-Staunton: If you do not know what it was, how can you come to that conclusion?
Mr. Waldman: We know that based upon on that information, the Americans concluded that Mr. Arar was a member of al Qaeda, while the Canadian authorities said they did not have enough information to charge him or even to warrant making him the subject of an investigation.
Senator Lynch-Staunton: Have we seen what information the Americans had?
Mr. Waldman: In testimony today, Mr. Graham made it clear, and it has come out in the documents we have seen, that the Americans based their decision only on Canadian information. If the information that was the basis for the Americans' opinion that Mr. Arar was a member of al Qaeda was not even enough for him to become the target of an investigation here and deemed him only a subject of interest because he was seen with others whom it was thought might be members, clearly there is a problem with the conclusions that the Americans reached with respect to that information. However, in either case it raises the issue that I spoke to before Ms. Jackman arrived. When we share information with regimes and governments that have views different from ours with respect to human rights, what safeguards do we have to establish to ensure that it does not lead to an abuse of the human rights of Canadian citizens?
Senator Lynch-Staunton: I cannot dispute that.
Some time after Mr. Arar's return, the Government of Canada announced that it had reached an agreement with the United States that there would be no unilateral removal of a Canadian citizen from the United States without Canadian input or consultation. A witness before this committee confirmed that and was to send us a copy of that agreement. I do not believe we have received it yet.
Are you aware of that agreement? If so, can you tell us how firm and binding it is, if at all?
Mr. Waldman: I can give you some background. After Mr. Arar returned to Canada there was an outcry for a public inquiry. I know this because I have been reviewing cabinet documents in preparation for cross-examination of witnesses later this week. The government developed a three-part strategy: The SIRC review of CSIS, the commission for public complaints review by Ms. Heafey, and an agreement with the United States.
It is interesting that in the PCO documents there are subtle changes in the approach. Some of the documents said that prior to the deportation of a Canadian citizen the Canadians wanted to approve it. Ultimately, all they were able to achieve in the understanding was that there would be consultation. According to the government's own documents, this has no legal effect because it is not a treaty; it is just an understanding.
The ambassador to Canada, Mr. Cellucci, made it absolutely clear that the United States reserves the right to make a decision to deport a Canadian citizen again if they deem it in their national interest to do so. This agreement does not protect Canadians from being deported by the Americans. It only provides that there will be some form of consultation before the Americans make a decision.
That is important to note.
It is also important to note that information sharing does not only affect people like Mr. Arar who live in the United States. Information sharing can result in Canadians being detained in countries other than the United States, as evidenced by Ms. Jackman's client, Mr. Nureddin, who was detained in Syria and subjected to abuse as a result of information that originated from Canada.
When dealing with the problem of information sharing, we cannot just focus on the United States as being the recipient of the information. First, two issues emerge. Once we have released information to the United States, it can be shipped by the Americans to who knows who. That has happened. The second issue is we can ship the information directly to another country. Information sharing is not only with the United States. The question is, when we share information with a country that does not respect human rights in the way that we do, how do we protect Canadian citizens who are the subject of the information from being subjected to abuse?
I have a client who is the subject of a national security investigation because he was seen filming the CN Tower. This became something of a case last year. An investigation was commenced because people complained. It may have been a legitimate investigation initially, but at some point in the process it would appear that information was sent outside of Canada. Even though in the end it was concluded that the allegations were not of a serious nature, the fact that the information was shared outside of Canada led to his arrest and detention in Egypt, where he was held blindfolded and chained for two weeks while being interrogated about information that came from Canada.
Problems arise not only when the information is sent to the United States. The problems with information sharing begin when you start sending information into cyberspace. Do we have control over who ultimately will see it, and should we be aware of the possible consequences if information gets into the hands of regimes that do not respect human rights?
Senator Lynch-Staunton: Could we remind the officials that we did ask for that agreement? It is important, now that we have received Mr. Waldman's clarification, that we actually see the text.
Senator Joyal: On your last answer, which came back to your first opening statement about seamless sharing of information, it strikes me that not all information is accurate. In other words, we live in a world of disinformation, of ``règlements de comptes.'' If we are to share information, we have to be, to a point, satisfied that it is accurate. That seems to me to be the first precaution that we should take. Otherwise we expose people who have done nothing to be reproached for and put their lives in jeopardy. How can we assure ourselves before we share the information that it is accurate?
Second, even though we should not share all information with countries that do not have similar records to Canada's of protection with respect to human rights, the fact is, as you have said quite clearly, once the information is released, we have no further control over it.
To take your suggestion in its primary meaning, is there in fact not a permanent risk in any sharing of information in the present context? If so, is it part of what we have to live with as a ``free society'' in the context of information sharing agreements that Canada has with many of its partners?
Mr. Waldman: Your point is well taken. I do not know what the answer is. All I can tell you is that as a society we have to at least think about it and engage in a debate. When you read through the cabinet documents, it is very clear that there is this overriding concern that we have to continue to share information, especially with the United States, because we get more information from them than they get from us. It is extremely important that we be able to continue to share information about national security investigations with the Americans. I understand that.
However, what needs to happen, and what I believe is now happening as a result of the Arar case and other cases that have come to public attention, is we are asking precisely the question that you posed. How can we share information? If we share information and it causes harm, how do we deal with that?
I do not know what the answer is. To say that we cannot ever share information is clearly not reasonable, nor is it something that we could possibly accept. I believe that we have to try to find a balance. Acknowledging that we have to share information, we must insist that the authorities involved at least consider the risks that sharing of information will impose on Canadian citizens. We must insist that they put whatever reasonable controls they can on the information and that they evaluate at what point it would be appropriate or not to share information. As you said, there may be raw intelligence that might put someone at risk if it is sent to a certain regime, but it is completely unverifiable.
All I am saying is there has to be a debate, and we have to engage in a discussion as a civil society to determine precisely where we draw the line with respect to information sharing. There was a sense of shock after 9/11. The floodgates opened, and we just started sharing information without even thinking about the consequences.
Three years have passed, and now we have to say, ``We need to share information, but when we do, what kinds of safeguards will we insist be imposed?'' You may come up with a different conclusion than I. Clearly, it depends on where you put the balance.
Ms. Jackman: The question with information sharing is, for what purpose? Why do they need to give information? In Mr. Nureddin`s case, it looked like they were sharing information in order to have him interrogated in another country, because he was asked the same questions about the same people and the same organizations in Syria that he had been asked by security officers in Canada.
We should not share information unless there is a purpose to it. It is as simple as that. If there is a concern about someone who is subject to an investigation, and that person is travelling and they think the individual may be meeting with someone, they can ask for a monitoring brief. They do not have to share information. They can say, ``Keep us advised whom this person meets with if they meet anyone beyond their family.'' They will not be detained if that kind of a monitoring request is sent out to a state.
Unfortunately, that is not what they are doing. They are using every bit of speculation and gossip they have received about people and sending it off to other countries. I do not think there is any purpose served by doing that. It does not further our interests to have people tortured. It does not help the other country. If we are intending to charge them, charge them. We do not want Syria to charge them. It is not a fair process. These people are Canadians.
Senator Joyal: My second question is about the role or the status of the judge in reviewing evidence that is presented as the basis of the security certificate.
Is it not true that the judge is put in the untenable position of being the interrogator and the arbitrator? In other words, a judge who has experience of security issues might lead a much more thorough investigation with the representative of the department or the Crown than one who happens not to have mastered such issues. He or she would be then more prone to believe what is shown to him or her, especially on the basis of ``grounds to believe.'' The test is on believable grounds, not on reasonable grounds. The two are different. A lawyer can determine the differences if he or she has to judge the evidence.
Have we not established a legal protection that has changed the nature of the legal system? That is why, to adopt the proposal of the British, as was stated by Senator Jaffer, we should have an appointed counsel to keep the judge as an arbitrator between competing interests, which would maintain the principles of the system. Otherwise, you make your decision on a roll of the dice. You do not know exactly how you will end up making a decision that is fair to everyone.
Mr. Brouwer: If I can just reply briefly from the CCR perspective, your point is exactly right and it leads to at least two conclusions. First, the review should be conducted by a more expert body like the Security Intelligence Review Committee. Even with a special prosecutor, you will still be before a Federal Court judge who may or may not have the experience necessary to weigh the evidence. There is also the need for independent counsel.
Apart from that, there is the issue that ties into your first question, which is the reliability of information and evidence. You were asking about evidence that we send out. There are also questions about information from other governments, many of which have particular agendas with respect to the person being investigated, that is used in security certificate proceedings. There, too, there is a real need for a thorough testing of the evidence. That cannot happen before the Federal Court without counsel.
Ms. Jackman: Senator Joyal and Senator Jaffer referred to the British system. It is the SIRC system. The British took it from us. Originally, it was the Jahal case. That case referenced the Federal Court, but they meant SIRC. That is the European Court of Human Rights decision. The British adopted our system. When you refer to the system, you should talk about it as the SIRC system.
Senator Joyal: For once, we invented something that the British imported from us.
My third question is about a statement by Mr. Brouwer about the so-called globalization of the fight on terrorism. It seems odd to me, and I have expressed it here, that when Canada comes to the conclusion that an immigrant is a threat to security, we — to use a vulgar expression — dump the matter in somebody else's lap. We do not want to touch that person.
If we are concerned about global security, we should be concerned about the fate of that person. That person should be dealt with somewhere in the global system. No one has come to us with a determination of the role that Canada should play in addressing the issue internationally. In other words, in a world where Canada will be more and more looking to immigration for a renewal of its labour force, where the doors will be more open in our country, the risk that we might have more cases of persons who might not be acceptable for security purposes will not diminish in the years to come. They will stay there.
We must ask what kind of world we wish to operate in on an immigration basis that would satisfy our need, not only for labour but also for security, and for a world whereby security is served by the other countries.
Ms. Jackman: There is a good example reported in the National Post on September 29, 2000, about how Osama bin Laden used Canada to prepare for his Paris trial. Mr. Adnani came to Canada as a refugee claimant, was caught and identified as a violent Islamist extremist. Canada could have charged him with criminal offences — theft, fraud and a number of different activities. Instead, Canada deported him to Bosnia, where he had acquired citizenship. He was at large until France convinced the Bosnians two or three years later to extradite him to face charges there. We were exporting an alleged violent extremist to be free to carry out those activities until some country took on its responsibility to prosecute him. Our international obligation in respect of criminal activities is to extradite or prosecute people, not set them free in another country. We are just exporting the problem, as Mr. Brouwer said.
For people facing torture, the reality is that you must put them under control orders in Canada. It must come to that. You cannot keep these people in jail. You can control them. When you think of it, once people are outed, how effective are they? Take Mr. Jaballah with the six kids; if the allegations against him were true, how effective is he now? He will live as a normal person taking care of his six kids. He cannot do anything else because CSIS is on to him and so is the international community, provided any of the information is true.
Mr. Brouwer: There is a set of UN Security Council resolutions talking about terrorism. The point continues to arise that the responsibility of states in a community of nations is extradition or prosecution.
What the Canadian government is trying to do with non-citizens they accuse of presenting a security threat is fundamentally irrational; it does not make sense.
Senator Joyal: Would you suggest that we change the legislation to set a context in which a person who has been dealt with as a security risk would be on a list to be revised regularly by the court? If Mr. or Ms. X, after a certain number of years seems to have resumed a normal life, then the court would review the conditions for the release of that person. We would have to clearly state the regime under which the court would operate so that there is a well-defined system that we must implement to ensure we address our obligation, nationally and internationally, and to maintain security at both levels.
Mr. Waldman: In the U.K. system, orders are automatically reviewed on a 12-month basis. The Anti-terrorism Act has similar provisions, but in the U.K. they are far broader. You can detain people in Canada under the Anti-terrorism Act if there are reasonable grounds to believe that they are about to commit an offence. In the U.K., in cases where they do not believe that they are about to commit an offence but that they are a danger to national security, they can be put under control orders.
How far we go depends on what Parliament thinks is necessary.
The point is, however, we are better fulfilling our obligations internationally when we deal with the problem as opposed to shipping it off somewhere else. Dealing with the problem can mean prosecution or extradition, or, if there is no evidence to make that possible, put people under some kind of order whereby we keep them under surveillance to ensure they will not be able to engage in Canada or anywhere else in the type of activity that poses a threat to national security. In trying to ship the problem to some other country we are not fulfilling our international obligations.
Mr. Brouwer: You mentioned participation in a group that is on a list. It is an issue that a number of people have raised before you and I believe I did as well, but we do have real concerns about how a group gets onto that list, which groups get onto that list, and also, within the context of immigration security, what membership in a group on that list actually means. At the moment, it is very broad and includes humanitarian work, which is clearly inappropriate.
Senator Jaffer: One of my questions arises from what my colleague, Senator Joyal, was saying about Canada's process being an adversarial one compared to, say France, where it is an investigative process. Obviously that is where, from what I hear especially Ms. Jackman saying, the judges come unstuck, because they are not used to an investigative process. It would be useful for us to hear from your experience how judges are managing the switch. They have not received training. Part of judges' training is becoming lawyers and part of a process; and our process is not an investigative one.
Ms. Jackman: The system is changing in the Federal Court and becoming fairer because Justice Lutfy and Justice Noël were appointed to the bench, both having been independent counsel at the SIRC. Therefore they knew how the system worked. The Federal Court process existed for 12 years. Judges were not examining witnesses. They might just read affidavits. If they did examine, they cross-examined the lawyer, not witnesses. It was only when two judges came onto the bench who actually had experience of a fair process that the court started to address it. I believe the lack of experience makes a big difference. There is hope now in the Federal Court with ongoing internal training. Maurice Archdeacon, the man I talked about as the guru on how to make a fair process out of a secret one, is now acting as a consultant to the Federal Court.
There are some efforts at change, but it came not from any training of the judges but because two judges happened to be appointed who had experience in how it could work properly.
Senator Jaffer: The other question is why did the government go from the SIRC process to the Federal Court? Do you know what their reasoning was?
Ms. Jackman: I believe they were trying to cut out stages. Under the SIRC process, you could go from SIRC to the Federal Court to review the decision. They were trying to go from the administrative decision — the person is a risk, the minister signs the certificate — straight to Federal Court to cut out that middle body. In that sense, it is more efficient. However, there are ways to structure it, such as making SIRC bigger. SIRC did travel to cities to hold hearings on these kinds of cases, because they previously heard foreign, national and permanent resident cases.
There are only five members on SIRC so you would have to enlarge it to make it more efficient. The government's concern would be that they do not want people to be able to go to court for review, which you have to do and would only be fair after the SIRC process. You would not be able to cut that step out were SIRC hearing them, although even without SIRC and it just being the one level in Federal Court, if you look at the history of any of these cases, they are so complicated an legalistic because in most of them we are talking about the ultimate result being removal to torture. As counsel for the defence, we take whatever legal steps we can to defend people if we think they will be tortured back in their home country.
Therefore I do not think the SIRC process would be any more time consuming — and I do not think it was in the past — than is the present process. I applied a month ago for the court to expedite a review of a detention decision. It is another person in jail for four years on regular detention reviews. I have not heard back from the Federal Court. I could file a habeas corpus with the Ontario Superior Court on a Friday and have it heard on the Monday. The Federal Court is not equipped to deal with these kinds of cases. They do not have priorities or enough judges. It is not like the criminal courts that respond immediately and you have duty judges in a courtroom who hear things on an emergency basis. Federal Court is not set up like that.
Senator Jaffer: We have talked about what is happening in the U.K. They do not have the Charter. Does the Charter help you at all in your work?
Ms. Jackman: I wrote a paper I can provide to the committee in which I talked about how the Charter has not been as effective as it should be. A kind of double standard has developed. The Charter does help in our work, but the starting point for Charter analysis is the status of the person in Canada. That is used,I believe, to minimize the importance of rights.
For example, in the Ahani decision in the Court of Appeal, the judges said that section 7 of the Charter was not breached by the fact that there was no habeas corpus, no bail, nothing, for an indefinite period. The basis for that was that section 7 had to be looked at in light of the fact that he was not a citizen. Detention is a deprivation of liberty. It is a deprivation of a human right, not a citizen right. It is not a civil liberty but a human right. The Charter is not as effective as it could have been or should have been.
Citizenship makes a difference when you are talking about staying in Canada or leaving. Certainly it does and it must. However, when you are talking about detaining or torturing a person, citizenship should not matter. That is a human right and an important one, so the Charter is not as effective as it could be. We use it, we will keep using it, and hopefully courts will make the protections broader as time goes on.
Senator Jaffer: I understood the three of you spoke about how in the immigration courts there is the expert testimony of what happens, for example, in Palestine or Egypt. Does that not happen in Federal Court as well?
Mr. Waldman: From our understanding of the secret hearings, and obviously we do not have knowledge as to what goes on, we have certainly been led to believe that that is not part of it. Therefore it would only come out in the public hearing to the extent that we as counsel for the person try to bring it out.
Of course, having done some of the certificate cases, it is almost impossible as a counsel, and every time I do one I swear it will be my last because it is so frustrating. If you do not know what the charges are or what the evidence is and you cannot challenge the evidence, how can you defend someone? How can you know what it relevant and what is not relevant? How can you know what has to be put before the judge by way of defending your client when you have no clue as to what the judge has seen and what the basis for the allegations is? In a lot of cases, the only allegation you hear is that the person is a member of XY group, without any of the particulars. How can you respond to that? It is impossible.
In answer to your question, we do not know what goes on in the secret hearings. Our understanding is that the only thing that is disclosed is the secret evidence. I do not believe there would be any kind of country-background information.
Ms. Jackman: You should know that in terms of training on Sunni Muslims — this came out in Mr. Mahjoub's case recently — Canada sent a group of CSIS officers to be trained by the Egyptian security service, which is the service that Amnesty and other international human rights non-governmental organizations have said is actively involved in torturing people. That is where our officers are getting their training.
Senator Smith: What is it that they are getting training in?
Ms. Jackman: On Sunni Muslim terrorism.
Senator Smith: Do you have a problem with that?
Ms. Jackman: I do. Do you think the Egyptian government will be unbiased in how it looks at those organizations and movements and what kind of information it transmits to our officers? They are not.
Senator Smith: Why should they be, if they are in fact terrorists?
Ms. Jackman: It is more complex than that. It is not black and white. If you read the human rights reports, you will see that Egypt detains thousands of people because they are suspected of being involved with Sunni Muslims. How do you know whether the Egyptians have an accurate view when their information is obtained under torture? There are problems with the information. If they are to be sent to Egypt to be trained by torturers, they should be sent to other agencies or institutes that are academic and unbiased to also help in their training.
Senator Smith: Which are the Sunni countries that you think have the expertise and are also as pure as the driven snow that could help train Canadians to be knowledgeable about and au courant with what is going on in that world?
Ms. Jackman: There are a number of leading international academic experts who could give them a good training session.
Senator Smith: Let us go back to the issue of the list mentioned by Mr. Brouwer that intrigued me. Are there any groups that you think should be on the list? Let me just throw out several names and you can react to them. Is al Qaeda a group that should be on there?
I can never pronounce his name, but the man in Baghdad who I think was injured and who seems to be behind more bombings than anyone else these days, would his group qualify?
We have heard several comments about the LTTE today. I am trying to be open-minded, but the last time I was in Sri Lanka the number of people who had died was around 60,000. What about Hezbollah or any groups in the Israeli- Palestinian theatre of problems? What about the Chechen group that took over the school, or the Bali bombers? Maybe few things are black and white and most everything is grey. We try to be fair to some of these agencies that protect normal people who lead peaceful lives. Would any of these groups that I have referred to sufficiently trouble you that you would put them on a list?
Mr. Brouwer: I did not mean to suggest that there should be no groups on the list. I meant to suggest that there needs to be careful analysis of the groups. You need to look at whether the group engages in a range of activities, some of which are purely humanitarian, such as running clinics and schools, administering a region, or whether it has a limited, brutal purpose. In the latter case, they can be on the list. In the former case, we need to be more sensitive to who is or is not a threat. Beyond that, there is the issue of membership and association. Currently, the CBSA is able to use simple association with someone who shares a perspective with one of those organizations as grounds to find someone inadmissible as a member of a terrorist group, which we say is far too broad. If we want to truly protect Canada from security threats, we need to differentiate between those who are truly a security threat and those who or not.
Senator Smith: Who would you put on the list?
Mr. Brouwer: I am not the expert on this. I can certainly tell you of clients we have who are being called members of terrorist groups simply because they share a political perspective about independence for their people.
For example, there is the PKK. Anyone associated with or who has had interaction with a member of the Kurdish Workers Party in Turkey is considered to be a terrorist. However, there is a range. There are some who probably are terrorists. There are others who most certainly are not, but they do believe in autonomy for their people.
Senator Smith: I think the Kurd example is a good example of our dilemma. The one I will refer to now is apart from what we are talking about. A few weeks ago I was part of a group that was invited to Ireland. We met with officials in Belfast and Dublin. In Ireland, Sinn Fein, which purports to be a bone fide political party with members, is having a rough time right now. In fact, they do have a paramilitary organization that assassinates people in pubs, pulls off bank jobs to the tune of 26 million pounds and things like that. It is high time that that kind of thinking registered on some people.
We cannot have a double standard. If organizations are doing these things in Western developed countries, they should be soundly condemned. If they are doing them in other places, if the shoe fits, they had better wear it. I realize I am generalizing somewhat.
Mr. Waldman: Clearly there are organizations such asal Qaeda that fit into the limited, brutal purpose category. There are other organizations that are more grey areas, such as the LTTE and the PKK. We take the LTTE as the best example. Many people support the LTTE and the humanitarian aspects of what it does. To paint everybody with the same brush regardless of the nature of their involvement is problematic.
The other difficulty that Mr. Brouwer was pointing out was a very expansive definition of ``membership.'' The Federal Court has made it clear that whether the person says he or she is a member or the organization says he or she is a member, it will look at what the person does, take an expansive view of what membership is and attribute membership to people based upon the degree and extent of their involvement. That is where we see it as problematic.
When it is a limited, brutal purpose organization, it is not as problematic. However, when you apply an expansive definition to an organization that engages in some legitimate activities and some that are problematic, people engaged in innocent activities are branded as terrorists. I think that is the point Mr. Brouwer was trying to make.
Senator Lynch-Staunton: I want to comment on that topic. Not one of the groups on the list — I think there are 35 of them — has asked to be removed. There is a provision for appeal.
Mr. Waldman: It becomes problematic if membership in a group makes you subject to criminal sanction. Who will apply to get your name taken off?
Senator Lynch-Staunton: No one can show me that none of these groups has been engaged in criminal activities. It is all very well to say that Hezbollah, Hamas and others have educational, hospital and community activities and get involved in municipal politics. They also have guns. Let them put down their guns.
Ms. Jackman: The point is whether we sanction the ones who work in the hospital.
Senator Lynch-Staunton: They know they are working for a terrorist organization.
Ms. Jackman: Have you lived in Palestine? If the hospital in your neighbourhood has a job for a nurse, you take the job and help people. Will you then be denied landing in Canada just because Hamas funds the hospital? In that part of the world every single one of the hospitals was funded by one or other of the organizations. You could not work in 90 per cent of the hospitals in Palestine without working for one of the organizations. That is the reality. Should our laws be so broad that we will catch those normal people who want to live peaceful, lawful lives and always have, because the hospital was funded by one of the organizations? That is the way it is structured. That is too broad and you will alienate the entire Palestinian population in Canada. Canada has already alienated them. We want them to be good, helpful Canadian citizens. We cannot do that to them and expect their kids to have any kind of loyalty to Canada. They will not. I see it happening.
Senator Lynch-Staunton: If we had more time, I would like to engage in a debate with you on that one. I want to get back to Bill C-36. Our job is to review the act. I have condemned security certificates before. You have reinforced my view on that issue.
There is provision in the act for arrest without warrants. Do any of you have a comment on those provisions that appear to me to give the detainee or the person who is arrested some form of protection that we do not find in the immigration act, such as having to appear before a judge and having the chance to be released, et cetera?
I am talking about Bill C-36.
Mr. Waldman: Are you talking about preventive detention?
Senator Lynch-Staunton: Yes, I refer to the arrest without a warrant.
Mr. Waldman: The preventive detention arrest process is interesting. I urge you to look at the Prevention of Terrorism Act just passed in the U.K. In the Canadian anti-terrorism legislation there is a provision that allows for authorities to arrest people if they have reasonable grounds to believe that they were about to commit a terrorist offence and then to impose different types of control orders to restrict their liberty in order to ensure they did not commit a terrorist offence.
In the United Kingdom, after the House of Lords struck down the preventive detention legislation as it applied to non-citizens, legislation was passed that goes somewhat further than the Canadian legislation in terms of a solution to the issue of deporting people who are under security certificates. The quandary that emerges is you cannot deport someone under a security certificate because the person is at risk of torture. Ms. Jackman took you to that section. They end up being detained for years in horrible conditions. When the House of Lords struck down the legislation, the U.K. Parliament adopted a similar, but broader, process. It allows them to detain people not only if there are reasonable grounds to believe they are about to commit an offence, but also if they believe that they are a threat to the national security, and then to impose control orders.
The arrest without warrant was obviously criticized before this committee three years ago as being something unprecedented. However, the U.K. system goes a step further and allows for arrest and control orders, including house arrest, in circumstances where they believe the person is a threat.
We are suggesting to you that, although it is problematic, we would want to make sure it was carefully scrutinized and would have to be approved by a judge. That might be part of the solution to the difficulty of what to do with people who you view as a threat, but you do not have evidence to charge them and you cannot deport them because that would be to send them back to torture.
Senator Lynch-Staunton: My question was more specific. What are your views, any one of you, on the arrest without warrant provisions in Bill C-36? This is preventive detention.
Ms. Jackman: It has not really been used.
Senator Lynch-Staunton: It has not been used at all. It is easier for the government to use the immigration act because the detainee is at the government's mercy, whereas in this case the detainee, the arrested person, has certain procedural protections.
Ms. Jackman: Are you talking about the section whereby they can be released on a 12-month order?
Senator Lynch-Staunton: Yes.
Ms. Jackman: That would be preferable to what we have under the immigration act.
Senator Lynch-Staunton: By itself, is it satisfactory? If you are intending to have preventive arrests, which I am afraid you will have to for obvious reasons, is this an acceptable way to proceed?
Ms. Jackman: I do not want to undermine any criminal defence counsel that may come before you, but from practising in this area on behalf of non-citizens, we would love this.
Senator Lynch-Staunton: This applies to everyone.
Ms. Jackman: It has never been used for our clients.
Senator Lynch-Staunton: Your clients, unfortunately, are subjected to the immigration act. They could be subjected to this also.
Ms. Jackman: When I look at this compared to what we get under the immigration act, for our clients this is wonderful. We would like it.
Senator Lynch-Staunton: If you did not have the immigration act and had to suffer this procedure, would you be satisfied with it? Anything is better than security certificates, but by itself does it meet basic criteria, assuming that preventive arrests have to take place?
Ms. Jackman: That it is going before a judge of the Provincial Court, that that judge would review, supervise and impose conditions, all of that is acceptable. In fact, those judges have a lot of experience, which the Federal Court does not, in terms of controlling people who are released on conditions pending trial or whatever. Those judges would be better ones to deal with these kinds of detention issues.
Mr. Waldman: The fundamental approach is if it is necessary and can be demonstrated to be necessary, which is obviously something that you will have to decide, it is preferable to the immigration process, but the absolute minimum is that it would have to be subject to careful, ongoing judicial review throughout the entire period of the arrest and detention, and to the minimal restraints on liberty necessary to achieve the objectives.
We are talking here about restraining the liberty of Canadian citizens as opposed to non-citizens, based not upon commission of an offence but the belief that they might commit an offence in the future. That becomes problematic and would have to be subject to careful judicial control to ensure that the judge is satisfied that the evidence that supports the control order is sufficiently serious to warrant the order being made and that it is subject to ongoing review.
Mr. Brouwer: The International Civil Liberties Monitoring Group has done some consultations with their membership, and one of the issues there is fear of racial profiling. Even though the provision has not been used, there is a serious chill on political expression, even participation in religious communities and activities, for fear that it will be construed as something relating to a security threat and they will be picked up. Whether it is rational or not, it is a serious fear out in the community. The fact that it can be without warrant is a problem from that perspective. The ICLMG will speak about it in more detail later when they come before you.
Senator Lynch-Staunton: Those fears were shared with us when we were pre-studying the bill. I can remember the anxiety as being eloquently expressed. Fortunately this provision has yet to be used. Perhaps it is too generous and when the government decides to detain someone, they are processed under the immigration act and suffer what your clients have suffered.
Senator Jaffer: Senator Lynch-Staunton talked about preventive detention. What do you think about the investigative hearing process?
Ms. Jackman: Section 83.28?
Senator Jaffer: The one they used in the Air India case.
Ms. Jackman: The Supreme Court of Canada has upheld it as constitutionally valid. The defence counsel in the Air India prosecution were at the secret hearing. Defence counsel are never in the secret hearing. The Supreme Court upheld it, recognizing that it did put the judge in a compromising position, but finding because it was still adversarial that the judge was not totally compromised.
If you look at the reasoning of the court in that case, the reference to section 83.28, we would probably have a good challenge on the security certificate process because there is no defence counsel cleared and there is no independent counsel. Since that came out, the question has come up in our bar of whether it should be raised as a problem. However, it is a fairer process than what we see.
People are complaining about this, but this is so much better than anything we have ever seen under the immigration act.
Senator Jaffer: When you say ``this'' you mean the act?
Ms. Jackman: The anti-terrorism provisions in the Criminal Code are so much better that it is hard for us to be too critical of them when we think, give them to us, please. We would rather have our clients subject to them.
Senator Joyal: My first question is in relation to your comments about the Charter protection and the other international covenants that Canada has signed.
Section 7 of the Charter applies to everyone. It is not restricted to citizens. There are only three sections of the Charter restricted to citizens. Section 1 is not one of those.
Section 1 reads quite clearly: Everyone has the right to life, liberty and security of the person. In other words, anyone who is under an immigration procedure dealing with certificates can raise section 7 of the Charter.
I listened to your answers. The balancing of rights under section 7 and section 1 of the Charter is a very delicate issue. We have had witnesses here, and I will not name them, who said there is a right to security. Rights to security trump all other rights, because if you do not have security, everything else is meaningless.
In fact, it is not what the Supreme Court has stated. In the unanimous decision regarding Canada v. Chiarelli, Justice Sopinka clearly stated that section 7 must be put into the context of the interests at stake. The interests at stake are the interests of the person, the right to life, liberty and security. The right of the state is to have security. In other words, security does not trump the other rights. Security is one context in which the rights of the person are exercised. This is very important to me. It helps the court decide in some cases that the procedure is fair and in other cases that it is not.
It is well stated in the Suresh case. It says, other than in exceptional circumstances, the court always wants to protect whatever can happen. It is normal with this court. I have read many decisions. In the Burns and Rafay case, they say no, you cannot extradite someone if the person will be put to death, except under exceptional circumstances.
There was another decision given last Friday. The reasoning is perfect when you read it all. It says yes, maybe in some exceptional circumstances. I find this is the way that this court seems to operate. It is strange when you are a lawyer and you read all these decisions, and finally there is a window onto what the court feels is the normal system of law in Canada.
I would contend that the Charter as interpreted by the court has been generally helpful in establishing the principle. In some cases I would say you have lost, in some cases you have won. The important point is that the Charter remains more or less the background to human rights that inspires the Canadian system of rule of law.
It might not have been totally waterproof, but on the whole, the court has helped to prevent that doctrine of the ``right of security'' from prevailing. That might be more philosophical than practical, based on the name of one case.
Nevertheless, when you try to define what kind of protection you will find yourself under when you fight one case, it is still the best system invented, in my opinion. I do not see any other protection we can devise theoretically when it must be tested within the practical context of 9/11 or apprehended insurrections or any other situation where people feel their security is threatened. You know as well as I what the reaction of average citizens is when their security is threatened. They are ready to abandon their rights. It is permanent in any democratic society. It is not easy trying to reflect upon the system we have in Canada and how we want to improve it.
We might have to fight, as you said, in exceptional circumstances, so that the government or police forces are not trying to drive a truck through it. We all agree on this. In the overall system, in the way it is defined and in the principles, I am not sure that the fundamentals are incorrect.
Ms. Jackman: I agree with you in the sense that we have a good judicial system. We have a good democracy. It is strong and vibrant. I do not think that means we should say everything is fine. It means that you just keep fighting. Judges are human and we are human. Human rights evolve over time.
The first arguments I made in the Federal Court on these security certificates are like night and day compared to the arguments we are making today in terms of what we are asking judges to do. We change what we think is fair. They grow and develop what they think is fair. I think that is right.
It is still not perfect. No system is perfect. In my view, to have three or four judges say that three and a half years in solitary confinement is perfectly okay is not acceptable. It means we have to keep struggling. Maybe it is just my defence counsel point of view. I am always pushing for what I think is better. Eventually we get there. The courts do change over time.
Mr. Waldman: I agree with everything you say, but you have to understand from our point of view the disappointment that we feel when we see how limited the scope of Charter protection has been with respect to our clients as immigrants and how conservative the courts have been with respect to the interpretation of the Charter vis-à- vis vulnerable non-citizens. That is what Ms. Jackman was trying to say, and I echo that.
Clearly it means we have to push and we have to fight. Every now and then we have a victory like Suresh and then things regress and there is a dynamic struggle. Our overall frustration has been with respect to how limited the scope is. We were much more optimistic when we started the Charter litigation in the immigration area years ago, but the number of victories is small compared to the number of times we have lost when we have asserted Charter rights for non-citizens. That is all we are saying.
Everything evolves and there is a pendulum. 9/11 affected the pendulum, and three years later you are having a much calmer review than you had in December 2001. The pendulum might move back in cases like Mr. Arar's. It forces us to review things that we thought were truth.
Senator Joyal: I had the benefit two weeks ago, as Senator Jaffer had, of listening to Professor François Crépeau from the University of Montreal, who spoke about the rights of immigrants at a breakfast meeting. He pointed out seven elements that, in his opinion, were loopholes on the basis of human rights within the immigration system.
This committee is not supposed to be reviewing the immigration act. It is not in our terms of reference, but we accepted the task of reviewing it because we were impressed by a statement from someone in the security service, who said, ``We have a toolbox and we use whichever tool is more efficient to fix the problem.'' One of those tools is the immigration act, which led us to review the issue of certificates in relation to the act.
On the whole, although we are not happy with some of the decisions, we do not feel they outline the fundamental problems we would like to see addressed. It might be hard on Mr. Arar's private life to be in the media as much as he is. Nevertheless, it will bring about awareness among everyone.
If there is ever an oversight mechanism that is more efficient than what we have in the system presently, it will have helped to open the minds of people, governments, and parliamentarians to the conclusion that the system needs to be made more effective.
As Senator Lynch-Staunton has said, perhaps the commitment the Government of Canada got from the United States does not mean a lot, but in practical terms, the fact that it is now part of our reflection helps us to build a better system. At each meeting we have we convince ourselves that the system can be improved without jeopardizing the overall objective of living in a secure and safe society in terms of freedoms and movement.
I should like to call upon your own experience with the Arab community, because most of the people you have been speaking of today are Arab. I recall the exchange we had with Professor Wright-Neville from Australia. He told us that in the fight against terrorism you cannot have one single approach, that you must have a set of initiatives that cover various grounds.
You have said that the community has been alienated. What proposals would you make for an approach to get the support of the community to improve security in Canada?
Ms. Jackman: Ethnic diversification within the security service is essential. It is culturally and religiously inappropriate for a white CSIS officer to shake hands with a Muslim woman, and the officers do not know that. You will never have understanding among CSIS officers unless CSIS reflects the diversity that is Canada. They are mainly White people dealing with people from many different cultures. They did not even grow up in urban Toronto or Montreal. They grew up in little towns and villages across Canada. Some of them did not even know an immigrant when they became a member of CSIS. I do not know if that was deliberate, whether it was thought those would be better candidates, but the service has to be ethnically diversified.
Also, CSIS has to do more outreach. Rather than going to meetings to target people, they need to go to meetings to explain what they do.
I did a paper on concerns about the security service that I can provide to you. There are many problems with regard to how they relate to people. They show up at homes without appointments. When they know people have lawyers, they ignore that. They insist people proceed without lawyers. They do not record interviews, although the Security Intelligence Review Committee has told them twice that interviews should be recorded. There is always a credibility problem in terms of who is telling the truth about what was said at the interview. Police forces videotape interviews for the purpose of ensuring that there is an accurate record of what occurred and that there is no abuse of the interviewees. CSIS should be doing the same, for the same reason.
I can provide this paper to you, if you like. There are a number of points in it on what I think needs to be done for the service to clean up its act in order to better monitor and investigate real threats to Canada's security.
Mr. Waldman: Through my work in the Arar hearings, I have had a lot of dealings with the affected communities. It has been made clear to those of us who work with Mr. Arar that the communities feel they are targets. When Mr. Hooper, Assistant Director of CSIS, testified, he talked about the threat to the subway in Toronto. My daughter and son ride the subway. I do not want a bomb to go off in the subway any more than you. We are all equally at risk in this. It is the project of us all to try to keep Canada safe. When communities are subjected to the kinds of conduct that Ms. Jackman described, they feel that they are targets, which makes them afraid to come forward. Instead of being willing to come forward and cooperate, they clam up and resist. At the end of the day, what the services are doing is counterproductive to getting any kind of meaningful cooperation. The communities know what is going on better than anyone else. If we alienate them so that they are not prepared to cooperate with the intelligence services, because they are afraid, we are doing a disservice to Canada. In my view, that is what has happened with certain communities since 9/11.
We discussed this after the hearings last year. The service has to change its modus operandi if it wants cooperation. Without cooperation, I believe we are far more at risk.
Mr. Brouwer: In terms of healing the relationship, another major issue that needs to be looked at beyond CSIS is the CBSA. There is a real feeling that particular groups are being targeted for further investigation and delayed landing within the Canada Border Services Agency. Many of the points that my colleagues make about CSIS would apply there. Until that is dealt with, there will be a real feeling of being separate from the government and the establishment.
The Chairman: I wish to thank our witnesses for sharing their understanding of these issues with us.
Please send us your paper, Ms. Jackman.
The committee adjourned.