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

Issue 14 - Evidence - Morning meeting


OTTAWA, Monday, June 20, 2005

The Special Senate Committee on the Anti-terrorism Act met this day at 10:33 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C. 2001, c.41).

Senator Joyce Fairbairn (Chairman) in the chair.

[English]

The Chairman: Honourable senators, this is the thirtieth meeting 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 2001.

However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short period of time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and a less emotionally charged situation with 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 that will outline any issue that we believe should be addressed and allow the results of our work to be available to the government and to the Canadian public. The House of Commons is also undergoing a similar process.

Thus far the committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts, those involved in enforcement and intelligence gathering, as well as representatives of community groups.

This morning, we are fortunate to be joined by Mr. Jean-Paul Laborde, Chief, Terrorist Prevention Branch of the United Nations Office on Drugs and Crime. Mr. Laborde is joining us by videoconference from his offices in Vienna.

[Translation]

Mr. Jean-Paul Laborde, Chief, Terrorism Prevention Branch, United Nations Office on Drugs and Crime: Madam Chair, I am very honoured to appear before you today. I believe we will have a very fruitful session. I am open to any questions you may have on the various aspects of legislation regarding terrorism prevention internationally, and especially on the binding nature of various resolutions or instruments the United Nations have implemented which affect the various member states of the UN such as Canada.

I am perfectly willing to answer your questions in English or in French. However, given that French is my mother tongue, I would ask you for the permission to speak French. I want to thank you, honourable senators, and I hope we will have a very fruitful session.

[English]

The Chairman: That is perfectly fine, Mr. Laborde. Do you have a presentation to make, sir?

[Translation]

Mr. Laborde: I will start with a few preliminary remarks, because I would not want to get involved in a debate which in principle has to do with Canadian democratic institutions. The situation, when it comes to the fight against terrorism, is unique. Before I express my opinion on the matter, I would like to start by saying that, for years, I was, as we say in France, a magistrate, in other words a judge and attorney. I have also held several positions within the International Association of Penal Law, as secretary general of the International Review of Penal Law and secretary general of the Scientific Committee of the International Association of Penal Law. I remain associate professor at the Université de Toulouse Law Faculty, with the authorization of the United Nations organization. I try to have both a practical and an academic outlook.

In looking at the United Nations provisions on terrorism, what we should address first and foremost, and I believe that this point is most important for national legislation, is the fact that we are working within the framework of the chapter on peace and security, chapter 7 of the charter, which is binding.

I noticed in the documents you sent to me that this point had already been mentioned. However, I would like to get back to it, because it is of major importance in terms of legislation. In my opinion, this is something you should focus on a great deal, because it has a direct effect on the way you may choose to address this legislation as well as the view you may have of this legislation you are wisely reexamining.

All the members of your committee certainly know that Security Council Resolution 1373 under chapter 7 of the United Nations Charter is a resolution divided into several parts. As is the case for any United Nations resolution, it does carry some weight. Because it derives from chapter 7 of the charter, this resolution is binding upon states.

What is extraordinary, literally, is that the UN did legislate. The Security Council, through this resolution, enacted international criminal law. This is something that can be done within a specific geographical area, or even according to a theme, but something so broad had never been done in the past.

In the past, Security Council Resolutions have always dealt either with geographical areas, such as Rwanda, the former Yugoslavia or several other areas, or been very specific, even when it came to terrorism.

For instance, Resolution 1267 set out sanctions against a specific organization, al-Qaeda and other associated organizations. Up until that point, the Security Council had almost never issued a peremptory provision in a general area of criminal law which is, in this case, terrorism.

In my opinion, this is a new aspect we should focus on specifically. Why? Because binding provisions in paragraphs 1 and 2 of Resolution 1373 are absolutely binding on states.

I noted in an article in the June 9, 2005 Recueil Dalloz, a renowned French magazine, a comment regarding a decision by the Cour de cassation in which it is clearly stated that states must incriminate people for acts of terrorism and the funding thereof; they must set up the means and institutions needed to effectively fight terrorist groups, and must fully cooperate in order to prevent and crack down on terrorism, according to Resolution 1373.

There is a comment according to which these statements are based on chapter 7 of the United Nations Charter, and are therefore legally binding on UN member states. Moreover, it is stated that these provisions are indeed directly applicable and take precedence under article 103 of the United Nations Charter, in case of a conflict.

This is what we must remember. When there is a conflict between United Nations members' obligations and their obligations under any other international agreement, Security Council provisions prevail. This comment is taken from a decision made by the International Court of Justice on April 14, 1992, regarding Security Council Resolution 748.

This is quite extraordinary. I was involved personally in negotiating the convention on organized crime and its protocols. These are classic provisions, that could be found in any other convention. But in this case, and I will give you a specific example, the famous international law principle of aut dedere aut judicare or ``adjudge or extradite,'' is now binding, because of the effect of subparagraph 2e) of Resolution 1373.

Indeed, the provision under Resolution 1373 also dictates that all states must ensure that any person involved in financing, preparing, supporting or perpetrating acts of terrorism or supporting them be prosecuted. And I want to insist on the word financing, because in your discussions you have talked about acts leading up to terrorism and the financing of terrorism.

That means they should be prosecuted in either country, and, this principle aut dedere aut judicare, if properly construed, will become a binding principle in these cases.

I tried to address this aspect of international law. It is an aspect which should be raised because it does cause some problems. In my work, practically speaking, I see that it does create some problems on a daily basis for states to whom we offer technical cooperation.

What is the purpose of the work that we do within the Terrorism Prevention Branch of the United Nations that I lead? On a daily basis, we give legal advice to states which must legislate in the fight against terrorism. That is our daily business.

For the time being, we have given advice to more than 60 states, including 62 bilaterally and others in the course of subregional seminars or regional seminars. That is our daily work.

On a daily basis, we come up against problems trying to explain that Resolution 1373 provisions may be binding. Indeed, when you take, for instance, extradition or judicial cooperation among states in the fight against terrorism, to say that a resolution's provisions, which were not necessarily set out in legal terms, are binding, leads to existential questions for the legislators in the various countries we help. That was the first point.

Secondly, I would recommend that you not consider yourselves to be alone in grappling with these problems. Currently, there are 137 states which have ratified the convention against the financing of terrorism.

There are therefore 137 states wondering about these same issues, on the one hand asking about the criminalization of offenses committed prior to the indictable offence, and on the other, about the use of specific investigative techniques; and also, finally, wondering about the detention or imprisonment of persons in particular areas, even detaining people under what are sometimes excessive provisions of common law.

The implementation of antiterrorist legislation is awkward in this way. The antiterrorist conventions make up the framework through which Resolution 1373 must be implemented. These are conventions that apply within the framework of classic international criminal law.

This means that they are to be enforced as part of the rule of law, taking into account the human rights that must always form the foundation of our work. Why? What I say in the various countries I visit and in the conferences I give is: why are we fighting? We are not fighting terrorism for the pleasure of it, even though it certainly causes horrendous damage. It is, rather, that we fight against terrorism first and foremost to defend the common values we have enshrined, to use a more Canadian term, in the great international human rights texts, in the covenant on civil and political rights, in the Universal Declaration of Human Rights, or in other texts like the Declaration of the Rights of the Child.

Within the limits of the rule of law, when we are working on issues of extradition and judicial cooperation, we must always ensure that the defendant's rights are respected. It is because we have this respect for human rights that we are able to fight against terrorism in a fitting manner. It is a fundamental issue that must not be sidestepped. It is not an easy combination, but this means that Resolution 1373 is conclusive. This means that when we enforce it, we must have elements of these conventions that allow us to achieve the different solutions and the different possibilities that present themselves — whether they concern charges or procedural issues — always bearing in mind that there must be some effective monitoring of these measures by the judge, which is in harmony with the general principles of the rule of law.

Those are the points I wanted to make, while telling you at the same time — particularly as concerns the offence of participating in a terrorist group — that as you are not the first to come up against these difficulties, you also have a relatively clear way of working on this on the international front, under section 2 of the International Convention for the Suppression of the Financing of Terrorism, for example. I use this as an example because it is one of the most interesting examples to frame the discussion on offences committed prior to the main offence.

That is really the problem, as you are well aware. The documents you sent me are wrestling with the issue, that is why there is this considerable difference between the financing of terrorism in comparison with money laundering. The reason is that money laundering happens after the offence. It is perhaps theoretical, and both are closely related, but in theory at least, in criminal law, the crime of money laundering is committed after the main offence, while the financing of terrorism happens beforehand.

It is a very significant problem. It is true of money laundering that you can use the investigative means that the financial intelligence units use, or the evidence that comes as a result of this money making its way through the banking networks. But money laundering could potentially finance the activities of terrorist groups. For a given terrorist act, the financing of terrorism or of a terrorist act is much more difficult to detect: firstly, because it is inexpensive, and secondly, because you must resort to investigative means involving the more sensitive information of the secret services as compared to the public legal information or pre-legal information that is available from the RCMP or other bodies doing police work in the course of inquiries on behalf of the courts.

In terms of the general framework, you have ratified the twelve United Nations conventions, the 12 universal texts in the fight against terrorism. This measure, in light of paragraph 3 of Resolution 1373, which is now construed as stemming from paragraphs 1 and 2, imposes a type of recurring obligation to prosecute all terrorists. I know you are in full agreement with the ratification of these documents, but I realize that for your type of legislation, it is necessary to incorporate international conventions into national legislation, otherwise they have no value. However, I can assure you, even in countries which are considered ``monistic,'' the same thing applies. I have never seen a country which could, for instance, create indictable offences without there being specific legislation on that or without incorporating them within the Criminal Code. I do not know any legislation under which offences covered by the Convention for the Suppression of the Financing of Terrorism would be sanctioned under (a) or (b). You have to qualify these offences and have relevant sanctions.

I understand the issue of legislative incorporation. You have already done this, and you are currently reviewing the matter in terms of incrimination as well as procedure. I wanted to tell you these few basic things because they are important and because my colleagues and I deal with them on a regular basis. I work with 18 colleagues and 10 consultants. So we have reviewed legislation the world over. The problems you are raising have been noted in Cypriot and South African legislation. There are other examples concerning the financing of terrorism in French legislation. I would not be so bold as to tell you that there are United Kingdom provisions, because you have studied them in great detail within various committee documents. I am available to answer any questions you may have. I want to thank you for your kind attention.

[English]

The Chairman: Thank you very much. We do indeed have a list of questioners for you, beginning with Senator Kinsella.

[Translation]

Senator Kinsella: Our committee's mandate is to study the current Anti-terrorism Act in Canada. We only have three years of experience with this act. Do you note any gaps or aspects within Canadian legislation which it would be important to revise, from an international standpoint and according to current conventions?

Mr. Laborde: At this point, Canadian law, which we have studied closely, covers all subjects relatively well. First, the famous offence prior to the main offence, which is an essential aspect, can be found in it. Second, as I stated, you also have offences involving terrorist groups, which is a challenge, specifically for those groups that are listed. In terms of incrimination, you are rather well equipped, and moreover — and this is something that I do appreciate, if I can allow myself to say so as someone who is to some extent a specialist in international criminal law — you have safeguards. There is not only incrimination. There are also all other related aspects and these are very strong aspects which I would strongly recommend to many states.

I want to get back to what I was saying earlier. The Anti-terrorism Act and its openness to the international aspect, is a balanced piece of legislation because it contains these two aspects, i.e., incrimination to serve in the fight against terrorism, and also concern and respect for human rights.

These two aspects are key. There are various types of legislation, some that has to do with human rights, which is completely honourable, but does not adequately address the given challenges. There is legislation that goes in the other direction and which is very coercive and does not sufficiently take into consideration the values we are fighting for.

One positive aspect of the Canadian act is that there are well codified incrimination aspects which relate to questions asked or the instructions under Resolution 1373. These incrimination aspects also refer to the differences between money laundering, terrorist financing offences, offences prior to an act of terrorism and all other matters under the Law of Evidence, and at the same time there are Federal Court guidelines. Overall, you have legislation which holds water.

Senator Kinsella: I would like to ask you a specific question regarding the necessary balance between human rights and the Anti-terrorism Act. One of the witnesses who appeared before the committee raised the issue of torture. The international covenant on human rights is very clear; in article 4 of the international covenant on civil and political rights, in times of crisis, torture is prohibited. Can you share with us your international experience on this? Frankly, I was quite surprised to hear this testimony; people testified to cases of preventive detention and secret situations. We can just imagine Guantanamo Bay. From an international standpoint, do you have the same concerns?

Mr. Laborde: We should always be concerned about torture. We have enough experience, 21 centuries' worth and maybe more, in order to know what reasons have been raised to justify committing acts which go against human dignity in general. It depends on what we want to leave as a legacy to our children. It is the classic debate between the force of law and the law of force. Let us not be naïve, we know it exists. We must propose — and that is not only the strength of your legislation but also the strength of what we are proposing — a world vision of the fight against terrorism which respects the rule of law. The convention is very clear on this point — and it is consistent with international practice — we cannot torture people to reach an end, no matter what it may be. In the end, it is of no use, because we will not achieve our objective, which is to promote an international state of law in the fight against terrorism.

Otherwise, we would be using means which would in fact breed terrorism. We do not even engage in debate on torture. We know that it exists and will exist, but it is our duty to promote the rule of law. We must promote the rule of law, and this is what my team and I do on a daily basis, in supporting the men and women from 112 countries who are implementing this legislation on terrorism.

I wanted to add something else. In the end, we can have a dream, as Martin Luther King said. International cooperation in the field of criminal law is the dream. At this point, I have to say that for the time being, international cooperation in criminal matters actually occurs very little. Why is that? I was a magistrate in areas where we needed international cooperation, so I can only fault myself and the people that I know. It is used as a last resort. It is something we do when there is nothing else we can do, when we try to remove someone and have them sent to another country. It is very seldom used. These are tools which are not easy to use. There are not that many extradition or judicial cooperation experts throughout the world. There are few of them in each country. So, we either have to create small groups of specialists, people who know the field, or spread this knowledge, more broadly. That is the only way to create an international rule of law which will help us to advance the needs of states.

Obviously, you may say that we cannot trust such and such a country, where human rights are violated. In some cases, I ask why people extradited from some countries cannot be admitted to other countries? Because the countries which must extradite refuse to do so because the other countries involved do not respect human rights. As soon as human rights are respected, there will be positive responses to your requests.

Let us create the proper procedural frameworks and avoid torture, which, in any case, is absolutely prohibited by international criminal law and international practice.

Senator Kinsella: Under the Immigration Act and at the minister's discretion, when we discover a terrorist, there is an extradition process in place to deal with him. In the fight against terrorism, how can the CLA determine if someone is a terrorist? Do you see things differently in the international fight against terrorism?

Mr. Laborde: Can you clarify your question? I am not sure I understood.

Senator Kinsella: The Canadian Immigration Act allows the minister to determine whether an individual seeking immigrant status in Canada is acceptable or not.

The minister then issues a certificate and, in some cases, the individual may not be allowed to immigrate to Canada, or worse, he may be removed, regardless of his destination.

Mr. Laborde: You know, we often get back to the classic concepts of the executive branches' sovereign powers in the field of immigration. Besides, immigration is a very sensitive issue — at least in Europe, where it is a real problem.

There are two aspects to consider. First, in any case, we always have to think about the consequences of our actions. We have to be cognizant of the risks involved. Immigration laws, which may not have an effect on the country in question, may have effects on people who find themselves outside of the country. This is clear and it has to be considered. However, on the other hand, it is easy to understand why a government may decide not to allow entry to certain individuals. So those are the two aspects. It is conceivable that a country may not wish to allow people engaged in terrorist activities in. If the person is outside of the country, I do not think it is much of a problem. If the person is in the country, obviously, the problem is knowing where that person will go. This is the executive branch's responsibility and does not fall under the enforcement of international conventions.

There is another point concerning immigration which seems particularly important to me. Immigration often involves a series of networks, which is not always the case for terrorism. There are migrant-smuggling networks which support terrorist organizations through this immigration. So it is not strictly an immigration problem. In this regard, we have to distinguish the lone immigrant from the person who is part of a terrorist or migrant-smuggling network.

Five years ago, in Palermo, our office supported the negotiation of the protocol against the smuggling of migrants. This protocol, which is still in effect, deals with trafficking as it relates to organized crime. Several criminal groups make money from the smuggling of migrants. Others are created to send people into countries in order to finance some activities or do some groundwork. So we must distinguish between the lone individual and the person deemed to be a part of an organization.

[English]

Senator Jaffer: I would like to follow up on Senator Kinsella's theme on extradition and arbitrary detention. You mentioned Resolution 1373. Another part of it calls

By the text, before granting refugee status, all States should take appropriate measures to ensure that the asylum seekers had not planned, facilitated or participated in terrorist acts. Further, States should ensure that refugee status was not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation were not recognized as grounds for refusing requests for the extradition of alleged terrorists.

Canada's Immigration and Refugee Protection Act contains several grounds for prevention of terrorism. It allows individuals to be held indefinitely. Senator Kinsella referred to the security certificate where an in camera trial is held, and often the detainee's lawyers do not have the information.

In your opinion, does this process meet the requirement of the UN Resolution 1373?

Mr. Laborde: There are two different issues. First, you speak about the political motivation of the acts of terrorism. Let us take the political motivation out of the extradition field within the two conventions. The first one is the 1997 International Convention for the Suppression of Terrorist Bombing, and the second is the International Convention for the Suppression of the Financing of Terrorism.

It is not specific to Resolution 1373, which, by the way, contains this provision in paragraph 3. It is not ``fully binding.'' It has to be underlined. You have the two first paragraphs of 1373, which constitute international and full criminal law. The rest is application or interpretation of articles 1 and 2, but they are not at the same level of the other conventions.

Without being cynical, obviously I believe that provisions in the anti-terrorist act concerning detention comply with 1373. However, the point is whether they comply with other instruments of international and criminal law. That is the point that is important, in my view.

Then you have to review the general principles of international and criminal law to determine if these requirements are met. Again, I say the point is that Resolution 1373 ensures that any person who participates in financing, planning, preparation or perpetration of terrorist acts or supporting terrorist acts is brought to justice. The point is that you bring the people to justice. That means obviously they have to have certain rights, but they have to be brought to justice.

Senator Jaffer: The concern under the Immigration and Refugee Protection Act is that a person is detained. If the person agrees to return to their country, then they would be released. Some people in Canada feel that means we are sending the problem away somewhere else rather than dealing with it here. I see the UN as the protector of all, and I would appreciate hearing UN's opinion on this is subject.

Mr. Laborde: This is always a problem with regard to the interests of countries, individuals, and international communities.

If a person is a suspect in an act of terrorism, it is, in my view, the obligation of the country to continue investigating. Otherwise, as you said, you send the problem somewhere else.

I am not speaking about national terrorism, which is more and more rare; I am speaking about international terrorism. If we go to the global level, we should proceed in a way in which the evidence is collected and guarded in order to get the best evidence and to protect the international community as a whole, not to release someone who could do the same thing in another country.

Senator Jaffer: My last question is with regard to the definition of ``terrorist activity.'' In Canada, some of us have difficulty with the definition because it is ``persons with religious, political or ideological affiliations.''

I know there have been many discussions at your level with regard to the definition. I would appreciate your views on the definition of terrorist activity.

Mr. Laborde: If I had the answer to that question, I would not be here. I would most likely be the most popular member of the United Nations Secretariat if I knew the answer to that question.

First of all, it is obvious that in the end we will need, as the Secretary General has said, a general definition of terrorism in order to avoid this debate about freedom fighters and many issues and aspects of international terrorism.

By the way, freedom fighters are against the rules and regulations of liberation movements within several resolutions of the UN. The Geneva Conventions can deal with the state of the military.

What I would like to say is very simple. I am asked this question very often. At the moment, we have no definition of terrorism, but we have a definition of terrorist acts.

I am speaking from a political point of view. I would still like to say that in the legal field we have more or less enough acts of terrorism defined in the 12 international and universal instruments, the conventions and protocols, to cover more or less all the acts of terrorism.

The point is not that we need something else as a criminal policy tool. What we need is a general consensus around the definition of terrorism, but not for the purpose of criminal law. We need a consensus in order to achieve political momentum within the international community. That should be heavily stressed.

We need a definition because countries must adhere to this fight against terrorism around the definition. As far as Canada and other countries are concerned, we get enough criminal policy through the 12 conventions. In addition, with the 13 new instruments related to the International Convention for the Suppression of Acts of Nuclear Terrorism, we are even more equipped now. We now have 11 instruments of criminalization, but the Montreal Convention on the Marking of Plastic Explosives for the Purpose of Identification does not contain a criminalization process.

At the moment, we are waiting for a political move. We are still well-equipped for criminal policy.

Senator Jaffer: Thank you.

The Chairman: Thank you very much.

[Translation]

Senator Joyal: I would like to get back to the interpretation of article 2(e) of the resolution you referred to, specifically the part of the resolution recommending that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or who supports terrorist acts be brought to justice.

It seems to me there is something missing in the resolution as it stands, as was mentioned earlier by my colleague Senator Kinsella. Let me explain: when an immigrant comes to Canada and is rejected based on a security certificate issued by the immigration minister, he is rejected, not extradited. There is a fundamental legal difference between these two notions.

Mr. Laborde: Absolutely.

Senator Joyal: When this person is rejected, he is sent back to his country of origin. If this country has not adopted the convention — you mentioned that 137 countries have — this person is back out on the international scene and is free to pursue the terrorist activities they were suspected of in Canada, which were used as grounds for their refusal of entry into Canada. Therefore, we do not achieve the convention's objectives, nor the resolution's, if this person is not brought to justice or is not monitored, subsequently, by his or her country of origin, a country which may not have signed the convention and therefore does not fall under the committee created under paragraph 6 of the convention.

Would you not agree that there is a loophole there in the fight against terrorism Canada is joining in? When Canada rejects this type of person, they end up ``out in the wilderness'' and these people can, practically speaking, pursue terrorist activities. Is that not a concern for you at this point?

Mr. Laborde: Having people ``out in the wilderness'' is always a concern in matters of terrorism, Senator. The point you are raising is extremely important. As soon as there is any suspicion that a person may be engaged in terrorist activities, the first obligation is to prosecute, rather than ``get rid of'' this person. Obviously, from the perspective of international criminal law and of the United Nations, our recommendation is to bring these people to justice.

To go even further, senator, paragraph 2 of Resolution 1373 is binding, and that is the part we are concerned with, not paragraph 3. That means these people should be brought to justice, through an extradition process or by causing them to appear before a Canadian judge. I fully agree with you, refusal of entry or removal are in no way consistent with the principle of bringing people to justice, that is obvious. You should reflect on a legal position which could lead to prosecutions as soon as a person is considered suspect.

The issue is the following. I think that in this case, you have to deal with something that is always very hard to deal with.

One of the matters our office is considering, in the course of technical cooperation, is how to bring intelligence, obtained by secret service agencies or others, before a legal instance. This serious problem remains a concern for several countries. It remains unsolved and will continue to be the subject of hard work for quite a while, because it calls for a very high level of legal accuracy.

Far be it from me to speak for your government, but the level of suspicion has to be determined as sufficient. If you do not have sufficient grounds, the most classic administrative stance is to turn people back at the border. If you have sufficient evidence to carry out an investigation, the applicant should be brought to justice. That is the sort of position you should take.

The resolution has to be respected as far as possible and that is what you are recommending, honourable senator. These people must be brought to justice, otherwise the problem will persist.

Without naming any countries in particular, there have been examples of just that. In some instances, terrorists have not been brought to justice, nor have they been extradited, which has led to further terrorist acts in other countries.

France and Spain, in particular, have put their heads together on the issue of Basque terrorism. The two countries have worked together not only by sharing information but also from a legal standpoint. What is more, this collaborative effort has solved several problems. In other words, it is not enough to just get rid of a problem, you have to deal with it head-on.

Senator Joyal: I would like to come back to paragraph 6 of the resolution where it is stated that the committee of the council must file a report within 90 days on the measures taken to comply with the resolution. Which signatory countries, or countries that have complied with the resolution, have filed reports within 90 days pursuant to paragraph 6? And which countries still have not fulfilled this reporting requirement which lays out the procedures to follow in compliance with Resolution 1373?

Mr. Laborde: First, there is no need to sign Resolution 1373, as it is mandatory. Under the Charter of the United Nations, resolutions of this nature are implemented without any convention-like agreement. This is an instance of an ex abrupto resolution. Once the resolution is adopted, it becomes part of international criminal law and takes precedence over all other international texts, including convention-like texts under the charter.

As a member of the United Nations, you have, of course, adhered to the Charter of the United Nations. This is, therefore, without question a binding text for Canada. What is literally extraordinary is that Canada must enforce this, subject to penalty of the law. Some countries are starting to cut it very close and they are on the verge of sanctions because they are not enforcing Resolution 1373. Chapter 7 of the charter and section 103 are very clear. In the case of conflicting international texts, chapter 7 of the charter applies.

The counter-terrorism committee has thoroughly gone over this issue. I am not part of the committee, however on occasion, I testify at their meetings. The counter-terrorism committee is comprised of members from the Security Council and therefore reflects its position. The five permanent members as well as the five current members of the Security Council are present. In addition to the Security Council a very distinct body of the secretariat called the Counter-Terrorism Committee Executive Directorate has been established. This body supports the committee in its decisions and is currently reviewing the effectiveness of Resolution 1373.

Pursuant to Resolution 1373, upon the establishment of the committee, two or three countries ratified the Convention on the Financing of Terrorism.

[English]

Just after September 11, two countries ratified.

[Translation]

There are now 137 of them. This was not achieved overnight. Reports were filed, of course, within the 90-day timeframe. What is extraordinary, though, is that before this committee was struck, terrorism was not a priority on the United Nations' radar screen. Of course, the issue required some important decision-making, but it was not a priority per se under chapter 7 on peace and security. These conventions were implemented, just like the usual international criminal law conventions were. Countries signed, ratified or adhered to the conventions. Then, all of a sudden, with the resolution and the committee, governments seemed to be virtually forced to sign or ratify these conventions. That had an extraordinary impact, as you can see from the last report on the ratification of texts issued on June 9, 2005 by our service.

Furthermore, this committee is closely monitoring the situation with its experts. Some governments are sending in their responses accordingly, whereas others are not doing so and are being called to task. We will be going to see them in order to help them prepare these reports and to specify when the reports need to be ready. Should the reports actually reach the committee, they will be reviewed by experts and we will determine whether the legislation is complete or not.

The incredible thing, and this is what is extraordinary about international criminal law, is that conventions set up without monitoring systems, all of a sudden end up having very close monitoring systems, far tighter for example than that of the convention against organized transnational crime whose conference of parties was established pursuant to the text. The conference of parties only includes parties which signed or adhered to the convention. However, that was not the case in this instance. The committee hands down its approval or disapproval on various matters and prescribes a course of action. We are up to the third or fourth round of consultations between the committee and various governments.

So we ended up with a monitoring organization which is genuinely exceptional as far as the United Nations is concerned. It is the first time from a criminal law standpoint that we have had such a thing. What is interesting and positive is that this approach is being taken to implement the conventions. So this brings us back to classic international criminal law. Even if we force countries to sign and ratify the conventions, the fact remains that the implementation of these conventions must be carried out in line with international criminal law.

Senator Joyal: Is there a direct link between Resolution 1373 and the status of the International Criminal Court or, in other words, the jurisdiction of the International Criminal Court?

Mr. Laborde: No, there is no relationship between the two. First, the International Criminal Court is no longer a United Nations organization. It is an autonomous body which sets its own course.

Second, the International Criminal Court deals with non-terrorist-related offences. In the Geneva Convention, there are a few references to wartime terrorist acts, in particular those perpetrated against civilians.

That does not affect the 12 texts under Resolution 1373. The Geneva Convention is something altogether different.

My second point, and I suppose the issue was raised in Canada, because at the time, the president of the plenipotentiary conference was a Canadian — that is Mr. Philippe Kirsch, who is now the chair of the International Criminal Court — in short, the issue was raised as to whether terrorism did or did not constitute a crime under the jurisdiction of the International Criminal Court.

Governments at the time agreed that the International Criminal Court would have jurisdiction over crimes in relation to international ``custom.'' However, until we have a general definition on which all or at least the vast majority of the world's countries agree, we do not see how that could be part of international custom. Furthermore, that is why the plenipotentiary conference has decided to review the issue of terrorism falling under the International Criminal Court's jurisdiction when the court's statutes are reviewed, following a nine-year period, in 2007. In 2007, we will be able to once again think about terrorism falling under the court's jurisdiction. I am just giving you a few ideas about what may happen, but we are a long way from that yet.

At any rate, the question was very clear: is there a relationship between Resolution 1373 and the ICC? The answer is no.

[English]

Senator Andreychuk: This committee is looking at the right to security, but we are trying to balance it against all other human and civil rights. We are looking at the proportionality between the right to security and other rights.

You say that 137 states have ratified. The binding aspect of Resolution 1373 comes from self-administration and monitoring by the international community. To what extent are you contemplating taking into account the other aspects of the United Nations' machinery?

For example, the United Nations' Working Group on Arbitrary Detentions was in Canada recently. They report to the United Nations' Human Rights Commission, and they raised some concerns about Canada's system of jailing suspected terrorists. In Canada, we jail suspected terrorist without trial using these national security certificates.

The United Nations' Working Group on Arbitrary Detentions will be reporting next year on a host of issues within their responsibility. You are working on the terrorist aspects.

How are you balancing this proportionality question within the United Nations system?

Mr. Laborde: If I may, I do not agree with the word ``balancing,'' because the implementation of the conventions and protocols must be in full compliance with the rule of law, taking into account human rights.

It is not a question of differentiating or deciding to apply this one and not this one. That is not the point. Otherwise, you will go against your own values, and it does not work like that. This is why I try, as a member of the United Nations, to promote international cooperation against terrorism and not to promote the use of force.

It is not even a question of the UN system. It is a question of international criminal law, which is a different point. Perhaps you will have an international criminal law which will supersede the law of the United Nations. At the moment, you have a hierarchy of laws. It is not a question of the various parts of the United Nations.

The hierarchy of laws means that primarily, you have the binding resolutions of peace and security. It is not my opinion; it is the law of the United Nations and the law to which every member state has agreed through the Charter of the United Nations.

In order to comply with Resolution 1373, countries must fully implement the conventions against terrorism in their internal law. It is not so much a matter of the convention to apply, because the conventions by themselves do not touch too much the issue of, as you say, the administrative detention certificate. These are simply the means by which you want to implement the fight against terrorism. The criminals or the terrorists must be brought to justice; that is the point. The way in which they are brought to justice obviously is in the hands of countries, taking into account all the parameters, including the rule of law and human rights.

In your role as a legislator, if you feel that the great danger inherent in this fight against terrorism necessitates that your law be a little bit more coercive — or perhaps less coercive, depending on the situation your country is in — this I can appreciate. However, the convention must apply first in full compliance with the rule of law and human rights.

The implementation of these conventions is something that you cannot escape. You cannot say, ``Well, I will do something else,'' because it is at the top of the hierarchy of international criminal law. I cannot say anything else, taking into account the rule of law and human rights.

Senator Andreychuk: Perhaps I used the term ``balancing rights'' when I meant ``proportionality.'' They certainly are in contradiction at times. The type of balance to which I refer is whether the right to a free and fair trial is compromised when someone is taken in for security concerns.

Signatories have to pay attention to all of those conventions and to the United Nations Human Rights Commission. This will all come to the attention of the government when they are passing their own legislation.

Are you in discussions with the United Nations Human Rights Commission, as to how states should go about enforcing 1373 while respecting other resolutions that that fall within other UN jurisdictions?

Mr. Laborde: Of course. We are not only in contact, but they are part of our team when we go to advise countries on changing legislation. We went, for example, to Paraguay. This is why I say it is ``full implementation taking into account.'' This is exactly what we do. There is a point there. It is not theoretical. When you go for an extradition, you have to fully take into consideration the rights of the defence. If you do not do that, at the end of the day you are not in compliance with the other instruments. The instruments against terrorism do not tell you that you have to go against these rights. Obviously, they cannot tell you that, because they are out of the boundaries of the work that we are doing.

Each time we go for implementation for the ratification, plus legislation, implementing legislation or the implementation of the convention and protocols, we fully involve one or two experts from Geneva. That is the point.

Senator Andreychuk: As a final point, I may have misunderstood what you said in your initial presentation. You made a point about the overwhelming cooperation because of this terrorist activity and because of the UN actions.

You seem to say that that criminal law does not use this cooperation internationally. I did not quite understand whether it was a translation problem or whether you were making that point.

Witnesses tell us that there is an overlap between terrorist activity, international criminal activity, drug smuggling, and international criminal financing schemes, et cetera.

Please elaborate on the differences between the international criminal law and terrorist activity.

Mr. Laborde: There was no difficulty in translation. Thank you for noting what I said.

First, international cooperation in criminal matters is a technical matter meaning traditional law enforcement cooperation, transfer of prisoners, transfer of proceedings, et cetera. There are, I think, seven elements. They do not work together enough. That is what I said. There is pure consultation, but it does not work well enough. I did not say we should do something very speedily. The difficulties in making these kinds of legal tools work are extremely high. There is the rule of specialty, the rule of criminality, et cetera. We will not go into those kinds of criminal law difficulties, but it is certainly not easy, except when you have bilateral treaties. By the way, that is always a problem in many common law countries. I have not checked for Canada, but I am sure you need bilateral treaties for terrorist assistance. Perhaps you need more, but I am not sure about that.

Terrorism and other types of criminal activities might have links between terrorist criminal activities and other types of criminal activities. Obviously I say terrorist criminal activities because, under the conventions, all aspects of terrorism that are taken into account are criminal acts. Otherwise it does not go under criminal law. That is the first point.

Second, the other aspects of crime include organized crime, corruption and petty crimes. We have drug trafficking, et cetera. In some countries, you have these connections. In Colombia and Afghanistan, for example, you can see that. In some others, you cannot. That means that the countries have to be legally equipped to face such links without saying that we have enough proof that there are constant links between terrorism on the one side and the other types of criminal activities on the other side.

Third, as to what I said about money laundering and financing of terrorism, if I understood your question properly, I said that in these types of criminal activities, money laundering comes after the offence. When you have a lot of money coming from the drug traffickers, you have to launder it and put it somewhere else and not keep it where you cannot keep it anyway, such as in your pockets. You have to launder the money somewhere.

The proof of the activity happens after the predicate offence. This is the point. The flow of the money from money laundering offences is huge. It is because the criminals have to face this kind of laundering activities that you can trace these activities, because the flow of the money is extremely huge.

If you take the financing of terrorist activities on the other side, you can have a lot of money coming from several sources, including criminal activities, for the funding and supporting of terrorist organizations, but you do not need too much money to commit a terrorist act. That means what? It means that when tracing this money to support terrorist acts, it is extremely difficult and necessitates different techniques, especially more law enforcement, more intelligence, than the money laundering which will be more obvious in terms of something that we know such as banking regulations, et cetera. With APTF, we have plenty of regulations that could fight money laundering properly.

I did not say that it is not useful to have these techniques to fight money laundering or to fight financing of terrorism whenever there is a link. I said that we have to be careful and that it is not enough. It is not enough because you can have these kinds of preparatory acts against terrorism which are not connected and which can be not connected to money laundering activities. This is what I said, and I hope that I was clearer this time.

Senator Andreychuk: Thank you.

[Translation]

Senator Fraser: I would like to get back to the issue brought up by senator Jaffer earlier with respect to our definition of terrorist activity.

As the senator said, and as you must certainly know, there has been a lot of public debate here on including religious motivation in our definition. I always had the impression that it was more of a protection for the accused or the ordinary citizen.

Allow me to explain myself. Suppose that I commit a harmful act, either by wounding a person, or several people, causing considerable material damage, interrupting public services, in summary do something that is very bad. I would still nonetheless be found innocent of carrying out terrorist activity, unless it is proven that I had done so in pursuing a goal that was political, religious, or ideological in nature.

I would perhaps be guilty under the Criminal Code, but I would be protected against preventive arrest or accusations of facilitating terrorist activity. My name could not be put on the list of individuals who finance terrorism.

I have always been under the impression that I would be protected by virtue of the fact that it would be very difficult to prove the religious or ideological motivations behind my actions. Others will say that building the notion of religious motivation into Canadian legislation is in and of itself dangerous, that it would open the door to abuse on the part of police forces or the legal system.

We are raising some very serious and important points. I must say that I am in the midst of contemplating all of this. I would like you to help me out.

Mr. Laborde: I will do my best. Quite honestly, I believe that if we start trying to determine religious or political motivations, we will never see the end of it.

A terrorist act is an act committed to cause the death of several people. Take the definition under section 2 of the International Convention for the Suppression of Terrorist Bombings. Religious or political reasons do not give people excuses to commit offences and there will always be reasons which may lead to overly philosophical discussions on criminal law. Unfortunately, criminal law is not a philosophy.

However, philosophy does force us to ponder what act has been committed. In the international convention it reads, and I quote:

[English]

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility.

a. With the intent to cause death or serious bodily injury.

[Translation]

For example, if you place a detonator somewhere, it is not to go bird hunting. You are aware that it is to be placed in a particular spot, as was the case at the Saint-Michel metro station in Paris. You know that you will cause deaths, that is the intention. It is referred to in section (a).

Section (b) reads:

[English]

b. With the intent to cause extensive destruction of such a place, facility or system, when such destruction results in, or is likely to result in major economic loss.

[Translation]

Therefore, there is an intention to cause death. A terrorist act is not homicide in of itself. On March 11 last year, in Spain, a group of people placed bombs in a train. That constitutes a terrorist act because it was done with a view to kill people and sow terror.

Unfortunately, one has to be emotionally detached. Very often, people talk about ``avenues leading to terrorism,'' ``roots of terrorism.'' Very often people say that poor people commit terrorist acts. That is not always the case; take for example Bin Laden, who was not poor. Terrorist acts are not carried out only in poor countries. One has to be quite objective on secondary motivations.

Yes, the intention is clear. The intention is to kill many people. For example, who is going to contest the fact that what happened in Beslan was a terrorist act? No one will contest it because is resulted in the death of innocent civilians and young schoolchildren.

There are some very specific elements that can be found in the general definition of terrorism, but one must bear in mind that a terrorist act is an act intented to bring about death on a very large scale.

Senator Fraser: According to the fine definition you have just given us, what is the difference between a terrorist act and a settling of accounts between two rival motorcycle gangs, one of which decides to place a bomb in the headquarters of its adversary?

Is it important to draw this distinction, or is it not so important?

Mr. Laborde: It is very important; however, I will be very trivial. It is well defined in the convention on organized crime. The objective of all the acts committed is to make money. The United Nations Convention to fight transnational organized crime and its protocols say the following:

[English]

... in order to obtain, directly or indirectly a financial or other material benefit.

[Translation]

Whereas terrorist acts intend to sow death or wound people. That is the difference. Indeed, there can be situations where the two are mixed up. In the case of members of the mafia who want to bomb the house of members of the competing organization, the ultimate objective is to have them hand over money. When it comes to terrorism, motivations can be either political or religious, but the primary goal is to wound and kill.

Once their act committed, terrorists realize their primary goal. However, those working in organized crime expect a financial return on the acts they commit.

Senator Fraser: Thank you very much.

[English]

The Chairman: Thank you very much. This has been a very educational morning for us all.

Mr. Laborde: Me too, madam.

The Chairman: We wish you would come over so we could sit in the same room. Then we could take you out for lunch.

At any rate, it is a very important part of our committee study, and we are very pleased to have had this opportunity to talk with you and for you also to know the concerns and the interests of the individuals on this committee.

I should tell you that most of the people in this room were on the original committees that put forward the legislation in Parliament. It has been a very good morning. I thank you very much and good luck in all you do.

Mr. Laborde: Thank you very much, Madam Chair, and I hope that your arm is not a consequence of your fight. I remain at your disposal. I travel often to Canada since my son in studying in Montreal. I hope that you have a very successful end-of-review committee. Each time I come to Ottawa, I will not miss the occasion to visit you.

The Chairman: I would hope not because you should know that we do not finish our hearings until some time in the fall. Our deadline is December, so should you be in the country, please do get in touch with us.

The committee adjourned.