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

Issue 16 - Evidence - Morning meeting


OTTAWA, Monday, October 17, 2005

The Special Senate Committee on the Anti-terrorism Act met this day at 10:36 a.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41).

Senator Joyce Fairbairn (Chairman) in the chair.

[English]

The Chairman: Honourable senators, I call the thirty-fourth meeting of the Special Senate Committee on the Anti-terrorism Act to order. For our viewers, I will explain the purpose of the committee. In October 2001, in direct response to the terrorist attacks in New York City, Washington and Pennsylvania, and at the request of the United Nations, the Government of Canada introduced Bill C-36 in respect of the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite the committee's study of the proposed legislation, and it was agreed. The deadline for the passage of Bill C-36 was mid-December 2001.

However, concerns were expressed that it was difficult to assess thoroughly the potential impact of the proposed 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 Anti-terrorism Act and its impact on Canadians, with the benefit of hindsight and a less emotionally charged public. The work of the Special Senate Committee on Anti-terrorism represents the Senate's efforts to fulfil that review obligation. When its study has been completed, the committee will report to the Senate on any issue it believes should be addressed. The results of the committee's work will be available to government and to all Canadians. The House of Commons is undergoing a similar review.

To date, the committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts, law enforcers, intelligence gatherers, and representatives of community groups. Most recently, committee members travelled to Washington for a series of meetings.

The witnesses this morning are Joan Russow, former Leader of the Green Party of Canada; the Honourable David Pratt, Advisor and Special Ambassador for the Canadian Red Cross; and, from the Federation of Law Societies of Canada, George Hunter, Vice-President, and Katherine Corrick, Director of Policy, Law Society of Upper Canada. Ms. Russow, please proceed.

Joan Russow, as an individual: I appreciate the opportunity to appear before the committee on behalf of a group that I would hope has few members, but which I fear may have many members. This group comprises citizens who have been placed, knowingly or unknowingly, on RCMP Threat Assessment Group TAG lists.

At least since 1997, I have been on an RCMP threat assessment list. I found out about this inadvertently during the release of documents at the APEC RCMP public complaints commission inquiry.

Evidence emerged during the APEC inquiry that I was put on the list as a result of a directive from the Prime Minister's Office. My picture, along with nine others, was placed on the RCMP threat assessment group list entitled "other activists." I have enclosed a copy of the list with my written submission.

Under the CSIS Act, threat to the security of Canada means (a) espionage or sabotage; (b) foreign influence activities that are detrimental to the interests of Canada, clandestine, deceptive and involve a threat to any person; (c) activities in support of the threat or use of acts of serious violence for the purpose of achieving a political objective; (d) activities directed towards undermining by covert, unlawful acts directed towards the destruction and overthrow by violence of the constitutionally established system of government in Canada.

You can imagine my concern when I found out I was on this list. Also in the CSIS Act, there is an affirmation that threat to security does not include lawful advocacy, protest or dissent, unless carried out in conjunction with any of the activities referred to in the previous paragraphs. Given the definition of threats in the CSIS Act, one can only conclude that any citizen on a threat list must have been seen to be linked to espionage, sabotage, et cetera.

It is becoming increasingly apparent that the intelligence community is inept at assessing what constitutes real national and international threats to security. This ineptitude was confirmed recently at the colloquium entitled "The Challenges of SIRC." An official from SIRC recognized that in assessing the distinction between those who "have a disagreement with politics" and those who are deemed to be terrorists, "police agencies are not good at making that distinction and err on the side of security... Our intelligence community came out of a Cold War culture. We are in a very different world. There is a lot of catch-up... We have to have the ability to identify clearly this distinction. If we do not do this, we are threatening the fabric of civil liberties of Canadians."

The fabric of civil liberties of Canadians has definitely been threatened through the designation of citizens who have a disagreement with the politics of the Government of Canada as threats to Canada.

There is a recommendation that I would like to see in place related to the Anti-terrorism Act. The reason I am raising the issue of citizens engaged in lawful advocacy being designated as threats is to point out that there has been a long-standing practice in Canada of targeting activists. There definitely has to be consideration of what constitutes security. You have an opportunity to examine this issue carefully.

With my written submission, I submitted "a common security index." This was a way of evaluating governments to determine who the real threats are. In the common security index, I placed international agreements in a number of different categories related to peace, environment, social justice and human rights. Then I showed how governments have violated many of the international principles, and how those engaged in lawful advocacy have been the ones calling upon governments to live up to these obligations.

My recommendation is that the Anti-terrorism Act be repealed on December 10, 2005, the fifty-seventh anniversary of the UN Universal Declaration of Human Rights. I have been concerned that the war against terrorism and the Anti-terrorism Act have perpetuated the disregard for the rule of international law and for the International Court of Justice. This has resulted in serious consequences such as the redefinition of what constitutes self-defence; condoning pre-emptive aggression with prohibited weapons systems; renderings in violation of the convention against torture and Geneva conventions; institutionalizing of racial profiling; indefensible preventive arrests; and increased mistrust and guilt by association. All these have resulted from the war on terrorism and anti-terrorism acts.

I have never engaged in any activity that could be even remotely construed as falling within the CSIS definition of a threat. I have been a strong policy critic of government practises nationally and internationally, and could be considered to have a difference in politics. I was a lecturer in global issues at a university and, as you mentioned, the former leader of a political party. I have spent over 20 years calling upon governments to discharge international obligations and act on international commitments.

Placing citizens who engage in lawful advocacy protests or dissent on threat lists is an act of discrimination on the grounds of political and other opinion — one of the grounds included in years of international human rights instruments. References to at least nine international human rights instruments are included in my written submission.

I refer here only to article 2 of the International Covenant on Civil and Political Rights which Canada signed and ratified in the 1970s.

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion...

The listing of citizens engaged in legitimate advocacy has also violated the Canadian Charter of Rights and Freedoms — the right to security of the person, mobility and freedom of thought, speech and assembly. Since the fact that I was placed on a threat assessment list was broadcast and published across the country, I have had to live with the stigma of being designated a threat and the repercussions from this stigma.

Since the list had possibly been shared with friendly nations prior to September 11, 2001 and probably shared with them afterwards, with caveats down — this, of course, is being revealed during the Arar inquiry — listed citizens travel with trepidation. With the institution of facial recognition technology, it will be impossible for listed citizens to travel to the U.S. or to travel over U.S. airspace.

I have filed complaints with the RCMP, with CSIS, with the Department of National Defence and with review bodies such as SIRC and the RCMP public complaints commission. I had a legitimate expectation that after being placed on an RCMP threat assessment group list, I would be able to correct the obvious misinformation, if not through complaints and reviews, through provisions in the Privacy and Access to Information Acts.

I was mistaken. After almost eight years, I still do not know the reason for my being placed on an RCMP threat assessment group list. I submitted and, in some cases, resubmitted almost 60 access to information and privacy requests and subsequent requests for reviews by the Privacy and Information Commissioners. These requests resulted in a series of outrageous financial demands, unacceptable delays, unjustified retention of data and documents, along with questionable government exemptions such as for international and national security reasons, for being injurious to the conduct of international affairs or in the interests of the defence of Canada.

In the end, the only recourse offered was to hire a lawyer, go to court and, if I am successful, pay court costs, an option that would not generally be open to citizens engaged in lawful advocacy, protest and dissent.

Real security is common security, a concept initiated by Olof Palme, a former prime minister of Sweden, and has been extended to embody the following objectives: to achieve a state of peace and disarmament through reallocation of the military budget; to promote and fully guarantee respect for human rights, including civil and political rights and the right to be free from discrimination on any ground; to enable socially equitable, environmentally sound employment and ensure the right to development and social justice — labour rights, social and cultural rights, and the right to food, housing, universally accessible not-for-profit health care systems and education; to ensure the preservation and protection of the environment; respect for the inherent worth of nature beyond human purpose; reduce the ecological footprint; and move away from the current model of development. These are all elements of common security, true security, and to create a global structure that respects the rule of law and the International Court of Justice.

To further common security, the member states of the United Nations have incurred obligations through conventions, treaties and covenants, made commitments through conference action plans, and created expectations through UN General Assembly resolutions and declarations. Some of you may have heard Prime Minister Martin refer to the commitments made in Rio as empty rhetoric. I hope he will soon address these 13 years of empty rhetoric.

The blueprint for common security has been drawn. The issue is compliance and implementation. The Senate committee, in reviewing the Anti-terrorism Act, has a true opportunity to determine what constitutes real security and what constitutes real threats to common security. For example, who are the real threats? The states that construct and circulate nuclear power and nuclear-arms-capable vessels or the citizens who oppose the circulating and birthing of these vessels? It is often the latter that are perceived to be threats and possibly placed on threat assessment lists. I have included several recommendations in my written brief. They are related to judicial reform, ways to promote common security, and ways to monitor the government's compliance with the common security index that I have submitted.

Let me conclude by paraphrasing Senator Fraser whom I heard say on CPAC that once a person is listed as a terrorist, he or she is perceived to be a terrorist. I would say the same thing. Once a person is listed as a threat, the person is perceived to be the threat. I hope I have not misspoken Senator Fraser's comment.

The Chairman: Ms. Russow, we will draw the comment to the senator's attention when she returns.

[Translation]

Hon. David Pratt, P.C., Advisor and Special Ambassador, Canadian Red Cross: Honourable senators and members of the Special Committee on the Anti-terrorism Act, it is an honour to be here today, as advisor and special ambassador for the Canadian Red Cross, to present the concerns of the Red Cross about that Act.

[English]

With me today are two colleagues from the Canadian Red Cross, Alan Reid, Special Legal Counsel and Sylvain Beauchamp, Senior International Humanitarian Law Policy Adviser. We have prepared a written submission in English and in French. It references fully the concerns to which I will speak and contains a number of annexes with useful legal references.

We appreciate the opportunity to clarify our interpretation of the Anti-terrorism Act. Allow me to stress at the outset that the Canadian Red Cross fully recognizes the national and international importance and legitimate purpose of the Anti-terrorism Act. We are confident that it was not the intention of Parliament to include, within the ambit of this act, the humanitarian activities conducted in Canada and abroad by the Canadian Red Cross and its numerous partners. However, we feel there is a possibility that some of the language used in the act could be read in a manner inconsistent with this clear intention of Parliament. The Canadian Red Cross Society has concerns regarding the application of the Charities Registration (Security Information) Act and the amendments made to the Criminal Code by the Anti-terrorism Act to its activities in Canada and abroad.

With senators' permission, and for the sake of clarity, I will outline briefly the mandate of the Canadian Red Cross and explain how it is related to Canada's international obligations concerning humanitarian assistance. As well, I will explain our two main concerns with the Anti-terrorism Act. The Canadian Red Cross Society is a non-profit humanitarian organization registered in Canada. It is also a member in good standing of the International Movement of the Red Cross and Red Crescent. The movement includes the International Federation of Red Cross and Red Crescent Societies (IFRC), and the International Committee of the Red Cross (ICRC). The movement has approximately 100 million members and volunteers and 300,000 full-time staff around the world.

The mandate of the Canadian Red Cross is to improve the lives of vulnerable people in Canada and around the world by mobilizing the power of humanity in times of war and peace. We focus particularly on humanitarian assistance to victims of natural disasters and armed conflicts. We are called upon regularly to provide humanitarian assistance to individuals on both sides of an armed conflict under the auspices of the ICRC. In the case of a natural disaster, our efforts are discharged in collaboration with other national societies of the Red Cross or Red Crescent and the IFRC. We carry out our activities thanks to the indispensable financial and material support of individual Canadians and the Government of Canada, including the Canadian International Development Agency (CIDA). I also wish to mention that the Canadian Red Cross has a long history of working closely with the Canadian government to advise and assist in implementing international humanitarian law.

Our mandate is drawn from two Canadian sources and two international sources. The two Canadian sources are the 1909 Act to Incorporate the Canadian Red Cross Society, and our letters patent of 1970, which specify that the Canadian Red Cross is "a volunteer relief society auxiliary to the public authorities." Of the two international sources of our mandate, the first is International Humanitarian Law and, in particular, the Geneva conventions and their Additional Protocols. The second is the statutes of the International Movement of the Red Cross and Red Crescent, which were adopted in 1986. Both the Canadian and international sources empower the Canadian Red Cross with its mandate to carry out humanitarian activities in Canada and abroad. Our concerns with the Anti-terrorism Act are based primarily on our humanitarian activities abroad.

It is important to note that in fulfilling its mandate, the Canadian Red Cross abides by the seven fundamental principles of the International Red Cross Movement. They include humanity, impartiality, neutrality, independence, voluntary service, unity and universality. In particular, the Canadian Red Cross rigorously and scrupulously ensures that all our humanitarian activities in Canada and abroad, including countries facing armed conflicts, are conducted in accordance with the fundamental principle of impartiality. The statutes of the Movement define impartiality as follows: It, the Red Cross, makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

As noted, the mandate of the Canadian Red Cross is, in part, directly derived from Canada's obligations under International Humanitarian Law. As one of the states party to the Geneva conventions, Canada has two main obligations that are relevant to the Canadian Red Cross. First, Canada has the obligation to ensure respect for the principles that the parties to a conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need that is impartial in character and conducted without any adverse distinction. Second, Canada has the obligation to ensure the protection of war-affected persons who are wounded, sick or shipwrecked, whether or not they took part in hostilities, and to ensure that when providing them care "there shall be no distinction among them founded on any grounds other than medical ones." In essence, this is the expression of the principle of impartiality.

Naturally, these obligations are always easier to implement in one's own country than abroad but, in either case, states need partners. That is why the states party to the Geneva conventions conferred a very important role on relief organizations in helping them to fulfil those obligations, in particular, the ICRC and the National Societies of the Red Cross and Red Crescent, including the Canadian Red Cross. Because the help of relief organizations was not only desirable but indispensable, it was natural for the states party to the Geneva conventions to specify that relief actions that are humanitarian and impartial in character and conducted without any adverse distinction cannot be regarded as interference in armed conflicts or as unfriendly acts. The parties also specified that "no one shall be harmed, prosecuted, convicted or punished for such humanitarian acts" in favour of the wounded, the sick and shipwrecked persons. This immunity is the cornerstone principle of humanitarian relief activities without which international and domestic humanitarian activities would be simply impossible.

We are confident it was not Parliament's intention to have the Anti-terrorism Act apply in such a way as to interpret humanitarian assistance provided in conformity with the fundamental principle of impartiality as a contribution to terrorism, or to be regarded as providing resources to terrorist groups.

We also appreciate that when passing the act, Parliament certainly considered UN Security Council resolution 1456 (2003), which specified that anti-terrorism measures taken by states needed to be in accordance with international law and, in particular, international humanitarian law.

However, we feel that the language currently used in the act is sufficiently broad for an inadequately informed reader to have legitimate doubts on the intention of Parliament. We have one concern with the Charities Registration Act, which was created by the Anti-terrorism Act, and with some of the amendments made by the Anti-terrorism Act to the Criminal Code. Let me discuss them separately.

First, we are concerned that the Charities Registration (Security Information) Act could lead to deregistration of the Canadian Red Cross as a charity if there are reasonable grounds to believe that we have made, are making or will make available any resources directly or indirectly to a listed entity or terrorist group defined under the Criminal Code. It is important to note that the act does not define what he is meant by "resources." The Canadian Red Cross currently operates or funds a number of international programs in the areas of health care, disaster relief, rehabilitation and preparedness. A number of these programs are located in conflict or former armed conflict zones where groups that are either listed entities, or which could meet the definition of a terrorist group as defined in the Criminal Code, operate.

We are concerned that even by providing assistance in accordance with the fundamental principles of the Red Cross, especially the principle of impartiality, that we may be viewed as being in violation of the Charities Registration Act and face deregistration. This would severely impair our ability to conduct humanitarian operations.

We are also concerned that our humanitarian activities in favour of vulnerable persons in conflict or former conflict zones where terrorist groups or listed entities operate, may be considered as an offence under the Criminal Code. We are especially concerned with section 83.03 of the Criminal Code, which reads:

Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services

(a) ...knowing that they will be used, in whole or in part, for the purpose of... benefiting any person who is facilitating or carrying out —

— any terrorist activity, or —

(b) knowing that, in whole or in part, they will be used by or will benefit a terrorist group is guilty of an indictable offence and is liable to imprisonment for a term not more than 10 years.

There is always a risk that the humanitarian assistance provided in war-affected countries in accordance with the most scrupulous respect for the principle of impartiality may be partly diverted by various groups of combatants for their own benefit. Although all possible measures are taken to avoid such a situation, when providing humanitarian assistance in a country where a listed entity is active, there is often a risk that some of the humanitarian assistance we provide to victims may be diverted.

We are therefore concerned that our personnel who are involved in collecting or providing monies or goods to address the humanitarian needs of victims of war in a given country could have some exposure under section 83.03 of the Criminal Code in its current version. Such would be the case if one of the beneficiaries of this assistance eventually ends up facilitating or carrying out any terrorist activity or if that person is viewed as having known that part of this assistance could be used by or provide a benefit to a terrorist group.

We could reasonably assume that such a rigid interpretation of section 83.03 of the Criminal Code is not likely to be upheld before a Canadian court, as it would not only expose Canadian Red Cross personnel to a 10-year imprisonment sentence, but also CIDA and Canadian government personnel involved in collecting funds for any such humanitarian operation. However, the law itself seems to be drafted too broadly.

The concerns I have expressed about the law are based on concrete humanitarian activities that the Canadian Red Cross has in countries where listed entities operate. Let me briefly provide two examples. In Afghanistan we have joined efforts with CIDA to help rebuild and restore that country. In 2004 alone, $4.4 million were spent by our two organizations in humanitarian relief. We have sent highly trained delegates to support local hospitals, coordinate supplies and work in many prosthetic centres in the country. Our humanitarian activities are provided in an impartial and neutral manner to individuals on all sides of the conflict. Al Qaeda and followers of Gulbuddin Hekmatyar are two groups present in Afghanistan which have been identified as listed entities pursuant to the Criminal Code. Despite taking precautions, it cannot be excluded that individual members of those groups end up benefiting from our programs in Afghanistan.

The situation is similar in Colombia where we have a partnership with the ICRC, CIDA and the Colombian Red Cross. In particular, mobile clinics were set up where social services have completely collapsed as a result of the existing conflict between guerrilla groups, para-militaries and the national army. We carry out our humanitarian activities in Colombia in an impartial and neutral manner to individuals on all sides of the conflict. Fuerzas Armadas Revolucionarias de Colombia, FARC, Ejército de Liberación Nacional, ELN, and Autodefensas Unidas de Colombia, AUC, are three groups in Colombia that have been identified as listed entities. I would also refer you to other important examples of our activities in places like Sri Lanka, Indonesia and Sudan. More details can be found in our written submission.

To sum up, we are concerned about the possibility that the Canadian Red Cross may be viewed as making "available any resources, directly or indirectly, to an entity that is a listed entity" within the meaning of section 4(1) of the Charities Registration (Security Information) Act. We are also concerned about the ambit of section 83.03 of the Criminal Code. Given this, and to clarify the application of the Anti-terrorism Act and avoid any consequence not intended by Parliament when this legislation was adopted in 2001, we recommend that the Criminal Code and the Charities Registration (Security Information) Act be amended to specify that their anti-terrorism provisions "do not apply and shall not be construed to be applicable to the humanitarian activities conducted in Canada and abroad in accordance with the Fundamental Principles of the International Red Cross and Red Crescent movement by the Canadian Red Cross Society, its personnel, or by Canadian nationals working for the International Committee of the Red Cross or the International Federation of the Red Cross and the Red Crescent, or other relief organizations conducting humanitarian aid in accordance with the Fundamental Principles of the Red Cross and Red Crescent Movement."

This recommendation is included in our written submission. My colleagues and I would be pleased to respond to any questions you might have.

George D. Hunter, Vice-President, Federation of Law Societies of Canada: I appear, along with Katherine Corrick, on behalf of the organizations in this country that are statutorily mandated to govern the legal profession in public interest. Those are the 13 provincial law societies and the Chambre des notaires du Québec.

Our submission and written brief deal with our unique concerns as legislated overseers of the legal profession. Our focus is on those anti-terrorism measures that interfere with the lawyer-client relationship and that prevent people from obtaining the effective assistance of a lawyer who is independent of the state. This leads me to identify some of the basic principles that shape Canada as a free and democratic society. The right to counsel, independent of the state, who is fearless and loyal only to his or her client, is an undisputed principle of fundamental justice that has been enshrined within our Canadian Charter of Rights and Freedoms and recognized by our Supreme Court. Too many anti-terrorism measures trample on this principle. For example, two sections of the Criminal Code expose lawyers to the risk of prosecution and imprisonment for fulfilling their professional obligations to anyone subject to the anti-terrorism provisions.

Section 83.03 makes it an offence to make financial or other related services available knowing that the services will be used by or will benefit a terrorist group. "Other related services" are not defined. Legal services may be a related service.

Similarly, participating in or contributing to the activity of a terrorist group for the purpose of enhancing the ability of that group to carry out terrorist activity is an offence contrary to section 83.18. Participating in or contributing to a terrorist activity includes providing a skill or expertise for the benefit of or at the direction of a terrorist group. Obviously, lawyers who represent clients subject to these provisions provide a skill or expertise for their benefit. There is no exemption in the legislation for lawyers acting lawfully in the execution of their professional duties, giving legal advice and representing accused or suspected persons. Instead, lawyers are subject to prosecution under these sections and liable to be imprisoned for up to 10 years. Lawyers, like everyone else, are subject to the provisions of the Criminal Code dealing with criminal conduct such as aiding and abetting and counselling, which prohibit lawyers from helping their clients commit crimes. There does not appear to be a valid justification for failing to exempt legal advice and representation from the scope of these sections, and the Federation of Law Societies of Canada urges the committee to consider this idea.

Other Criminal Code provisions that adversely affect an individual's right to counsel include the freezing and forfeiture of property sections. Section 83.08 of the code makes it an offence to deal directly or indirectly in any property owned or controlled by or on behalf of a terrorist group. There is no requirement that the property is or will be connected to terrorist activity. This provision makes it an offence for lawyers acting for clients subject to these provisions to accept funds on account of professional services, disbursements or the posting of bail. Furthermore, forfeiture orders of property owned or controlled by a terrorist group may be obtained pursuant to section 83.14 of the code. Funds held in trust by lawyers for professional services, disbursements or the posting of bail can be ordered forfeited pursuant to this provision. The forfeiture provision in section 83.14 differs from the general forfeiture provisions of the Criminal Code in three significant ways.

First, general forfeiture orders can only be made once a person has been convicted of an offence. Section 83.14 permits a judge to make a forfeiture order if satisfied on a balance of probabilities that the property is owned or controlled by or on behalf of a terrorist group. There is no requirement that anyone be convicted of an offence before the forfeiture order is made. In fact, there need not even be a judicial determination that the person or group is a terrorist group. The Governor-in-Council can determine that by placing the name of the person or group on the list.

Second, section 83.14 permits forfeiture of all property owned or controlled by a terrorist group even in the absence of evidence that the property is derived from, has been or will be used in connection with any offence. The general forfeiture provisions require that the property be derived from or used in connection with an offence before it can be ordered forfeited.

Finally, the factual basis for a forfeiture order under the general provisions is proof beyond a reasonable doubt. Generally a forfeiture order is made after a person is convicted of an offence related to the property, and convictions are based on the proof of facts beyond a reasonable doubt.

Section 83.14 requires a judge to make a forfeiture order once satisfied, on a balance of probabilities — which of course is a much lower test than beyond a reasonable doubt — that the relevant conditions have been met. The combined effect of these provisions, in our submission, will make it difficult, if not impossible, for anyone subject to these provisions to retain counsel, thus rendering their right to counsel illusory.

To prevent this, the federation recommends that funds or property a lawyer receives for professional fees, disbursements and the posting of bail be excluded from the freezing and forfeiture of property provisions under the code.

This legislation not only creates barriers to the retention of counsel but, even if counsel is retained, that counsel will lack the independence necessary for an effective solicitor-client relationship. A number of measures designed to combat terrorism require lawyers to disclose confidential solicitor-client information to the state, conscripting them against their clients and making it impossible for them to act as independent legal advisers with undivided loyalty. For example, section 83.1 requires every person to disclose forthwith to the RCMP and CSIS the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist group and any information about a transaction or proposed transaction in relation to such property. Lawyers who hold money in their trust account on behalf of entities listed by the government as terrorist groups will be forced to disclose confidential information about them to the RCMP and CSIS and thus become witnesses against their clients. Failure to comply with these provisions will subject lawyers to fines of up to $100,000 or up to 10 years in prison.

The Supreme Court of Canada has, on more than one occasion, recognized solicitor-client confidentiality as a principle of fundamental justice. To preserve it as such, the federation respectfully recommends that confidential solicitor-client information be specifically excluded from any mandatory reporting measures.

The final substantive anti-terrorism measure the federation wishes to address is the security certificate process provided for in the Immigration and Refugee Protection Act. I will not describe in detail the procedure used for determining whether a non-citizen presents a threat to Canada's security as you have heard a great deal of evidence on that matter.

However, I do wish to deal with the nature of the hearing before a designated judge of the Federal Court to determine whether the security certificate is reasonable. I use the word "hearing" advisedly. The government presents its case to the judge ex parte and in camera. The person affected is not present, nor is the person's counsel. No counsel independent of the government is present to cross-examine witnesses or otherwise test the reliability or accuracy of the information presented.

The nature of the evidence presented at this secret hearing is not normally disclosed. The person concerned may receive a summary of the case, but it will not include the source of the evidence or any other information the disclosure of which would be, in the terms of the legislation, injurious to national security or the safety of any person. This effectively renders reviewing, challenging and testing the validity of the information presented impossible. The security certificate procedure currently in place violates an individual's right to two of the cornerstone principles of natural justice — the right to know the case one must meet and the opportunity to do so. This situation is intolerable in Canada, a country that values human rights.

The federation recommends that individuals subject to security certificates have the right to be represented by counsel of their choice who will have access to all material submitted to the court and the underlying files, subject to first undergoing a security clearance. If this option is not practicable in the opinion of the court, the individual must have the right to choose a special advocate from a roster of lawyers who have already undergone security clearances.

The federation recommends that the counsel or special advocate be permitted to retain experts such as security-cleared translators or experts in national security investigations to assist in reviewing the evidence.

If the committee were to recommend the establishment of a special advocate system — and, in the opinion of the federation, this is the minimum required to restore any notion of justice to this process — it is critical that the special advocate be permitted to communicate with the individual's counsel even after reviewing the secret evidence. To prohibit such communication, as I understand is currently done in Britain, will prevent the special advocate from being an effective advocate and fulfilling any meaningful role in the process.

We have already seen an excellent example of how well the system can work in the Arar inquiry. Commission counsel, who is independent of Mr. Arar and the government, has complete access to the government's files. He meets with counsel for Mr. Arar, who is able to suggest questions he can pose during the in camera, ex parte hearing. In this way, commission counsel is able to vigorously test the reliability and accuracy of the government's information.

Finally, the federation urges your committee to recommend that all legislative provisions used to combat terrorism be reviewed at five-year intervals. Many of these provisions that reshape important and fundamental legal concepts were drafted and made in law in just three months. Many of them expand state powers in very significant and arguably disturbing ways. They deny Canadians the right to independent counsel and intrude on the confidentiality of the solicitor-client relationship. They weave these extraordinary powers into the fabric of our criminal and other laws, making them permanent features of our legal landscape.

In the respectful view of the federation, Canadians must be given a regular opportunity to evaluate the effectiveness of these measures and to reassess their willingness to accept infringements of their rights and freedoms in the name of national security.

On behalf of the federation, thank you for the invitation to attend and we are available for questions.

Senator Joyal: Ms. Russow, when was the Green Party registered with the Chief Electoral Officer of Canada as a legal and party in Canada?

Ms. Russow: I believe it was 1983.

Senator Joyal: Have you always complied with the requirements of the Canada Elections Act?

Ms. Russow: I am not in the Green Party anymore.

Senator Joyal: You have been the Leader of the Green Party before.

Ms. Russow: Certainly when I was the Leader of the Green Party from 1997 to 2001, we complied with all the requirements for a registered party.

Senator Joyal: I want to establish as a principle that to be a member of the Green Party is a totally legitimate and legal activity in Canada.

Ms. Russow: I have only mentioned the RCMP list, but honourable senators may remember that after the incident in Somalia there was an inquest. The former Deputy Minister of National Defence, Bob Fowler, asked one of his junior officers to compile a list of groups to which the military should not belong. Included in that group was the Green Party, the only political party listed. I found this out in 1998. I expressed concern about this and asked where these lists had been circulated. I was told they had been circulated. I asked if there was any way of addressing this issue. Green Party members have had problems. They have been on no-fly lists in the United States and so forth.

You may be aware of the DND secure-op list — I think that is what it is called. On that list were mainstream religious groups engaged in social activism and I believe the Green Party was the only political party listed.

Senator Joyal: There is no doubt that a Canadian citizen whose name is on a list like the one you described would see his or her mobility rights affected when they tried to board a plane to the United States, for example. Have you ever tried to enter the United States?

Ms. Russow: I have strongly opposed George Bush in his various interventions in Afghanistan and Iraq. As a result, I was hesitant about going to the UN. I often go to UN conferences. I felt the only way to cross the border was to revert back to my maiden name. I had great trepidation when I came to the border, but I was allowed in. I do not know now whether I will be allowed in because they are doing facial recognition. One issue for facial recognition is where they would find the database. I presume that they would look to lists in various countries to begin to establish a database.

It will be increasingly difficult for citizens who have been listed to go to the United States or even to fly over the United States.

Senator Joyal: That is my second point. The United States has requested that when a Canadian moves from one city to another, east-west or west-east, and the plane flies over American territory, the names of the passengers be provided to the United States. For example, if you board a plane in B.C. and want to go to Toronto, you might fly over American territory. You would be prevented from flying there. You could be refused to board the plane. My point is that this could affect the mobility rights of Canadians to have their names on that list.

I read your recommendations in detail, and what you did not outline in recommendations 24 to 32 is a redress mechanism. As you said, to have your name removed from that list is a lengthy and costly procedure. You would have to hire a lawyer, go to court and so forth.

You have not told us if that process is an obstacle to the reinstatement of citizens in their mobility rights or capacity to offer their names for a special job.

There are security checks for certain jobs at Transport Canada. That would probably be the same in some provincial departments. You might find that your name would be refused, but it is difficult to know. A representative from the Public Service Commission testified here some weeks ago about this subject.

The implications are very important for a person's right to get a public job if his or her name is on that list. If a person is on such a list, how could they remove their name so that they could exercise their full rights?

In your brief you go into more detail on this subject. It is a problem we have been hearing about recently in this committee. We have seen that citizens might have to face various steps if they wish to exercise their rights just because their names are on that list.

Ms. Russow: That is why I mentioned going through privacy requests. Under the Privacy Act, there is the right to correct. However, the government may choose to not reveal that information. In all of the documents that I have, certain information is either redacted for national or international security reasons. If they do not reveal the information they have — going back to a point you were making about the right to know the reason for being a threat — is it because I protested against the nuclear ships coming in? Is it because I called for the banning of genetically engineered food? What have I done? Possibly it is because I have criticized Canada internationally for not fulfilling its international obligation. I have no idea why they put me on the list. This provision in the Privacy Act is not available to me.

It is possible to go through the court. I believe there was a case recently where Bhupinder Liddar applied to be an ambassador and through hiring a lawyer learned that there was a way of finding information that had been used to prevent him from obtaining that position.

I thought about filing a case of defamation of character in the Federal Court, and I was up against the Attorney General's office. The judge said, "Well, you do not have sufficient information to file a defamation case." I said, "You have caught me in a conundrum because it is the government that has the information, and the government will not release it." This happened in 2002. The judge ordered that I go through Access to Information to find out why the information would not be released, so I have been going in circles.

There is a provision that I mentioned in my brief. Canada also signed and ratified the Optional Protocol to the International Covenant on Civil and Political Rights. This is an important document. It allows citizens who feel their rights have been violated under the covenant and have exhausted all domestic remedies to go to the UN committee in Geneva. I am in the process of doing that.

I may finally be able to get redress through international pressure on the Canadian government.

Senator Joyal: As a result of your experience, should we amend the Access to Information Act to streamline the procedure and make it easier for citizens to contest the fact that their names appear on a list and get a proper hearing?

It comes back to what Mr. Hunter said earlier. You cannot deprive a citizen of his or her rights without a due process. It comes back to the same principle of fundamental justice.

It is strange that both of you came to the same conclusion concerning the problems with this act. There is no question that a state must have security measures. We know terrorism exists. We cannot deny that. We must devise a system whereby the fundamental principles of the system are maintained when we deprive a person of their rights.

Your problem is the same point Mr. Hunter is making on behalf of lawyers: There must be a system in place that is clear for Canadians. Canadians must know the rules of the game. If they are to be submitted to security measures, they must have the capacity to test them in court, in a fair way.

We have to come forward with practical recommendations for this act. If we want to maintain the five-year review process, it is important that CSIS, the RCMP and all other bodies involved with security in Canada be notified immediately that they must recognize a minimum number of principles that will be entrenched in the system and applied to their daily operations.

They cannot hide behind the security motive and say it is off limits to anyone. Both your statements essentially address the same problem.

Ms. Russow: That is why I raised the concern that was expressed by someone from SIRC that the RCMP needs to be trained to determine what constitutes a threat.

Also, the RCMP must be independent. I was on a threat assessment list because there was a directive from the Prime Minister's Office. This came out in the APEC inquiry. I was never allowed to testify even though I was one of the complainants.

It is people like me who engage in lawful advocacy that are deemed to be a threat. There must be some educational program available for CSIS, the RCMP and Access to Information.

When I talk to Access to Information, I often find they are very willing to allow for government exemptions. In many states around the world, governments are not that free to have exemptions. That is the first thing to look at. Are they justified in hiding behind these exemptions?

That concern is certainly surfacing in the Arar case where the Attorney General indicates that for national security reasons something can not be revealed.

There must be an examination of what truly constitutes a threat. I read the list of threats under CSIS earlier. CSIS is not supposed to target those engaged in lawful advocacy, but we all know it happens. When there is an antipoverty rally, the RCMP is there videotaping everyone. Activists have had to go through this for years, and they are the ones being targeted.

I have seen demonstrations in British Columbia against a corporation destroying the forests, and the company there is telling the RCMP who to videotape. They always look for the one who looks the least credible.

This has been going on for too long. We do not know how this has affected the lives of many activists in this country. There are the few who know they are on a list, but there are many that may be on a list and do not know. How has that impacted on their lives?

It was just by chance during the APEC inquiry that I found out I was on a list. There are many that could be on this list whose job opportunities have been impacted over the years and who may find when they travel they are searched and do not know why.

I know many activists who do not even want to file a privacy or Access to Information request because they are afraid that it could generate a file. There is a lot of fear. There is legitimate fear as a result of targeting and racial profiling, but there is also great unease among the activist community in Canada, and around the world.

Senator Munson: My question is directed to Mr. Hunter of the Federation of Law Societies.

For Canadians watching this hearing, how do they understand the consequences of what you are talking about, particularly on security certificates? If nothing changes and everything stays the same, where do you see this leading us as a nation?

Mr. Hunter: Let me start off with a general observation and then bring it down to the context about which you have inquired.

In this country, citizens believe in our democratic institutions and the fundamental rights and the rule of law and so forth that derive from that. Those are relatively amorphous things for most citizens. They do not mean much until they come into a practical context.

To a citizen considering this I would say, "How would you feel if your name appeared on a list unbeknownst to you, created by government behind closed doors, and you ended up subjected to a judicial process in which neither you nor your counsel could know what the case was that the government was making against you, could not effectively address that case, knowing that the prospect at the end of it would be that you might have your civil liberties seriously affected?" I think most Canadians would find that offensive to the principles of our country.

Let me say one other thing. You are engaged here as parliamentarians in a very difficult process. You all know the importance of our fundamental freedoms but by virtue of events occasioned in the United States and elsewhere around the world, you also have to address the integrity of our nation. Those are the two realities that you have to come to grips with and, in large measure, they are contradictory in a practical sense.

They are very important. We cannot have a nation where, in effect, we act like ostriches and ignore the realities of terrorism. That would not be a prudent course. By the same token, if we take the fundamental values that define us as a nation and we throw them out in the exigency of the moment to deal with terrorist acts, then we say something about ourselves and our values.

It is not that we do not have or should not have mechanisms to deal with the practicalities of terrorism, but they must be mechanisms that in their processes reflect the values that we share as Canadians.

Senator Munson: Under the security certificate, does the person who is being detained have the right to talk to his or her family?

Mr. Hunter: I think they do, but I am not sure of the details.

Senator Munson: I will move along to the Red Cross. Who in the name of heaven would ever charge the Red Cross with anything? When one thinks of the Red Cross in this country and around the world, one thinks of goodness. I know you have doubts, Mr. Pratt, that anyone would bring charges, but who would specifically step forward and say, "We see where money has been filtered to the Taliban somehow in Afghanistan through the good work of the Red Cross work?"

Mr. Pratt: The issue for the Red Cross really comes down to the broad wording of the Anti-terrorism Act, as it relates to the Charities Registration (Security Information) Act and the Criminal Code. We see our exposure as being less with respect to the amendments to the Criminal Code. However, the Charities Registration (Security Information) Act is of concern to us.

When a piece of legislation comes forward with some potential exposure to our organization, it would be irresponsible of us not to bring those concerns to the attention of legislators, which is what we are doing today.

It is not really up to us to speculate on whether or not a prosecutor might come forward, working with intelligence officials, et cetera. Suffice to say that our lawyers feel there is some exposure here and we are hoping to address that by amending the act to provide an exemption for the Red Cross, or for charitable and humanitarian organizations that are operating on the basis of the principles of the Red Cross — the most fundamental of which is the principle of impartiality.

Senator Munson: Dr. Russow, are you aware of any negative consequences that have happened to you personally, or formerly with the Green Party, as a result of being placed on these security lists?

Ms. Russow: I did fly from Seattle to New York not too long ago and was taken aside for a secondary search. Fortunately, I did not have any of the usual material that I take to the UN with me so I was able to go ahead.

I have been searched over the years and have gone back to travelling with my maiden name. So far, I have not had repercussions but it is hard to say.

When I attended a Green Party meeting in Ecuador in 1998, I was taken aside and completely searched, with dogs and so forth. I had mentioned I was at a Green Party meeting and am not sure what they were presuming. When I asked who had initiated the search, they said, "oh, it is very important, it is routine." Then I found out it was the U.S. government that was initiating searches of people who had been in Ecuador for a short period of time. I do not know whether it had anything to do with the Green Party or not, but it was very disconcerting.

Senator Munson: Senator Joyal was referring to access to information. Journalists seem to be quite successful at finding out things through access to information, but you have to be very precise in going about getting information on some of these government files.

In recommendation number 25, you talked about access to information and privacy commissioners and their agents being required to be better informed about what would be legitimate exemptions under the acts.

Can you tell us how Canadians can go about accessing information and how that can be better facilitated by government and their agents? People really do not know where to go, what to do and how to get information about themselves.

Ms. Russow: I have been successful over the years as well in obtaining information, but not in obtaining information related to myself.

There has to be complete reform. Let me give you an example. I keep trying to find out what I have done that might have justified putting me on the list. In 1992, I was at the UN and was very concerned that Canada was arguing internationally that the "s" should not be put on indigenous peoples. I spoke out very strongly against Canada at that time. I contacted Environment Canada access to information and asked for some background information on this issue. They sent me a bill of $25,000 to do the research because they would have to go through all the documents and their charge was so much per two inches.

Instead, the department could have asked who was involved with drafting policy at that time. There must still be people at Environment Canada who were around at that time who could give that information. It should not be up to someone who knows nothing about the issue going back and going through and treating files as being two inches thick.

There was a joke in British Columbia when freedom of information came into being that people were starting to say, "I am sorry, I cannot give you the information because of the Access to Information Act." What was accessible before no longer became accessible.

There must be a mechanism. This is not dealing specifically with my issue but with access to information in general. When someone asks for information, they should be able to go to relevant people with background and expertise in the departments, rather than going through box after box in the archives.

I just tested the system by asking for a 1982 document where Canada made a commitment to implement international agreements and if legislation was not in place then it would be implemented if there was a discrepancy between international obligations and so on. That document was sent to me in 1993 by Foreign Affairs Canada. I asked through access to information for a copy of the document and was told it does not exist.

I do not know how this could be done but I feel that generally, if the document exists, it should not be too difficult to get. Sometimes you have to know and you must be very specific.

When I asked Access to Information in B.C. for the consultation process that took place between the federal government and provincial government in 1992 as a result of the conference in Rio, they said there was no consultation. I knew there was because I was there and I saw the Minister of Environment in consultation with the federal government.

Then I found out from the former ambassador to the UN for Canada that, in fact, there existed a cabinet document that had endorsed both the Climate Change Convention and the United Nations Framework Convention on Climate Change. That is key because that means the provinces are bound. Full consultation would bypass the 1937 Labour Conventions Case that I have referred to as well.

I had to know the exact name. Often people go to seek information and talk about it generically, and the government says, "We do not have anything." Once they find out the exact name, they are able to get it.

Senator Stratton: Rather than getting specific about individual issues, I am more interested in the Anti-terrorism Act itself. I would like to hear your position on it. There was discussion this morning about whether a review should be every five years. My concern with the review is that, yes, you can go through a review every three or five years, but it is essentially a whitewash and nothing really changes. I would like your reaction to that fundament concern.

Rather than just a review, should it have a sunset clause? At the end of a period of time, it will expire unless new legislation is brought forward. Otherwise, I do not see that this law would ever cease to exist. It would just stay on the books forever. For me, that goes against the fundamental principle. This bill should only exist as long as it is needed. Could I have your reaction?

Mr. Hunter: Perhaps I could respond first. The brief of the federation talks about a review as opposed to a sunset clause. That really was not a talking point within the federation, but you make a good point.

You are saying that to the degree there is any invasiveness into our civil libertarian system and our heritage, there should be a good reason for it, and it should be apparent at some point in time. Otherwise, we should resort to where we were. That makes good sense.

On the other hand, you are going through a review right now. It is not a sunset scenario; it is a review process. I have had the privilege of appearing before your colleagues in the Commons and listening to some of the expressions here and watching your processes through CPAC and others. I am at least initially of the view that you are likely to recommend changes from the status quo, so I am not in any way negative about a review process. I think a review process can be very effective.

If your ultimate concern at the end of the day is that there has to be a clear and apparent justification for any continuing encroachment onto our tradition of liberties, then obviously a sunset clause is the way to do that.

Mr. Pratt: Over the last number of years, we have had some experience with the legislation. An understanding of that experience should perhaps cause amendments to the legislation to address those points of concern that are clearly problems. I hope that, both here in the Senate and in the House of Commons, people do not look at this as a pro forma exercise that is simply aimed at getting the review done and sealing the file. The experience over the last several years has pointed out a number of issues that should be addressed, the Red Cross being one of them.

Senator Stratton: My concern is that while we may listen to your concerns, in essence, nothing happens. We have these hearings and there will be recommendations brought forward from our report and the House report, but nothing will really happen.

There must be something in place. Should some of these key issues not be appropriately addressed and the government chooses to ignore them, what can you do?

Mr. Pratt: That is beyond anything on which I could comment.

Ms. Russow: I have something from Kofi Annan where he talks about the fact that terrorism is a serious issue. He says that, by the same token, the United Nations must continue to insist that, in the fight against terrorism, we cannot compromise the core values the UN stands for, and he talks about peaceful settlements of conflicts and about respect for the rule of international law.

He said we cannot compromise the UN's core values. In particular, human rights and the rule of law must always be respected. Terrorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we will be handing victory to the terrorists.

He goes on to say that there was always the debate about what constitutes terrorism. Is there such a thing as state terrorism? He said we do not have to address that issue any more because there are provisions for addressing state terrorism. Under international law, it could easily be argued that the U.S. is engaged in a form of state terrorism. We are not in a situation of public emergency that threatens the life and existence of the nation. This is the only justification for in some way restricting rights. We are not in that situation.

After September 11, 2001, Prime Minister Chrétien was criticized for saying that maybe we should be trying to do something positive for the world. I am probably not paraphrasing him correctly, but he gave the impression that perhaps what happened in the U.S. is a serious wake-up call. In the beginning, Americans were saying, "Why do they hate us?" Well, maybe people are concerned because there are 732 U.S. military bases around the world. Is that not provocation?

You have an opportunity to say that we should be charting our own course and that we are concerned not about targeting our citizens but rather ensuring that the rule of law is respected throughout the world, and that all the years of obligations relating to human rights, peace, environment and social justice are implemented. If Canada took that position, we would be respected internationally, but if Canada is perceived as being subservient to the U.S., we will not be respected.

Reviewing is not sufficient. In honour of the fifty-seventh anniversary of the UN Universal Declaration of Human Rights, I have said that the declaration should be repealed. I know that you have also advocated sunsetting the whole document and then each part has to be brought back. It is not necessary. Canada should move towards a new vision of what needs to be done rather than threatening the human rights of citizens in Canada.

Senator Stratton: A sunset clause is a legitimate question that needs to be asked if there is a review, and there should be a justification for not having it.

I am not necessarily an advocate of having a sunset clause but it needs to be appropriately addressed. For example, if a person is on a list, or can be put on a list, and his or her concerns are not appropriately addressed within the existing system then there is a fundamental problem. That is why I always wonder, when such a fundamental problem is not appropriately addressed, why this law continues as it stands. That strikes to the very core of human rights.

Senator Day: Ms. Russow, what happened that your name was placed on an assessment list and broadcast and published across the country?

Ms. Russow: The RCMP is required, unlike CSIS, to release information when there is an RCMP complaints commission hearing. Rather than release the information as they did for the Arar inquiry, they released it to the open inquiry that members of the media attended. I was contacted by the media to respond. I did not know what to do — it was hard to decide. I thought that it was probably better for me to go public with the media than to have them expose something against which I would then have to defend myself. I was on CBC Radio, television and in newspapers across the country. An award-winning series of articles on the criminalization of dissent were written by Jim Bronskill and David Pugliese of the Ottawa Citizen and broadcast across the country and on the Internet. It was about the targeting of a leader of a political party. The only time that the government was truly concerned about it was when the media became involved. The Solicitor General's department became concerned when it was broadcast across the country that CSIS might be targeting leaders of political parties and so officials prepared an aide-mémoire.

Senator Day: In your submission, you introduced a new term, "true security." You were differentiating between human security and the responsibility to protect. You also mention another kind of security that is a much broader concept of dignity and living in a state of peace, disarmament, social harmony and environmental responsibility. Do you recognize the role of CSIS as being in respect of human security under the terms of the Anti-terrorism Act?

Ms. Russow: This term was introduced by Lloyd Axworthy when Canada participated in the UN Security Council. It has raised a great deal of concern among those who are concerned about peace because it has been used to legitimize invasions, such as the justification of the humanitarian intervention into the former Yugoslavia. It is a concept that sounds good but if used to justify increases in military spending and increases in interventions into sovereign states then it is an unfortunate concept. It is the same for "the responsibility to protect," which Canada is pushing internationally rather than addressing the problems, which could be caused by corporate intervention, with states such as Sudan. Many problems have been caused by various international interventions and yet suddenly Canada states that it has a responsibility to protect and gives the military an increased role. Perhaps Canada should increase its overseas development aid. Certainly this has been raised in other committees because Canada sits at less than the .7 per cent of GDP. That has been an international commitment for years. Is not this what Canada should be doing?

Senator Day: That does not fall under the mandate of this committee.

Ms. Russow: You said that the committee's mandate is human security so you have to determine what constitutes human security. Perhaps it is the wrong concept and the committee should be looking at common security. That important notion was introduced by Olof Palme. Human security has been used to justify humanitarian intervention.

Senator Day: I would like to turn to Mr. Pratt's comments, specifically the proposed amendment. Rather than tie the proposed amendment to humanitarian activities conducted according to the principles of the International Red Cross, could it be tied to another piece of legislation? For example, you referred to the act implementing the Geneva Conventions Act and international humanitarian laws of the United Nations, as opposed to tying the proposed amendment to the Criminal Code and the Charities Registration to the activities of the International Red Cross and the Canadian Red Cross.

Mr. Pratt: It could be possible to link an exemption to the statute that created the Canadian Red Cross in 1909. However, a review of that statute would have to be done. Those of us who have looked at this issue with the Red Cross over a number of years feel that our act of 1909 should be updated to include a number of issues that have arisen over the intervening 100 years, not the least of the which is the Red Cross's activities in a variety of areas not exclusively related to armed conflict, either at home or abroad.

The suggestion made by way of the amendment is probably the easier and most direct route to go. It would recognize the special role of the Canadian Red Cross within Canadian society. As an offshoot to that is the concept of being auxiliary to government as well. The Red Cross generally is recognized internationally. I am looking at the International Convention for the Suppression of the Financing of Terrorism, wherein article 9 specifically singles out the Red Cross as a body that can be used to deal with issues arising from the application of the act.

From that standpoint, we are not asking for anything that is terribly unusual, given the special position of the Red Cross within the Geneva Conventions and within the entire body of international humanitarian law.

Senator Day: I took your proposed amendment to relate to humanitarian activities that were not necessarily, or specifically and exclusively, Red Cross activities. The Red Cross does humanitarian activities but other organizations do as well. I was looking for a more general amendment to that as opposed to tying it into your activities and legislation.

Mr. Pratt: That amendment that was suggested does tie in other relief organizations. At the end, it speaks to the issue of "other relief organizations conducting humanitarian aid in accordance with the Fundamental Principles of the Red Cross and the Red Crescent movement."

Senator Day: In accordance with the principles of the United Nations or the Geneva Conventions Act, there is a Canadian statute that incorporated these principles. That is what I was looking for. Maybe you would like to think about that and send a note to our clerk.

Mr. Pratt: Let us reflect on that suggestion and perhaps we can come back with an answer.

Senator Day: My final question for Mr. Hunter concerns your issue with respect to property and the importance of lawyers being able to receive professional fees and disbursements, et cetera and posting bail.

As a result of these amendments under 83.03 and .08 and 83.14 of the Criminal Code, have there been any charges or have lawyers' activities actually changed?

Mr. Hunter: I am not aware of any specific event or charge but my point is theoretical. The submissions that I make would become applicable or are applicable to lawyers if that is the law of the land. That eventuality may come to pass, but I am not aware of any particular instance. I can not speak to what individual lawyers may be doing insofar as their practices, but I suspect that lawyers who engage in a practice that engages this area are knowledgeable about these rules. I can tell you anecdotally that I have had lawyers speak to me about their concerns about this matter.

Senator Day: Are these points discussed at continuing education seminars for lawyers and are they an issue of concern?

Mr. Hunter: Yes, they are of concern to various elements that practise immigration and criminal law.

Senator Joyal: Mr. Pratt, to your knowledge, did any representatives of the Canadian Red Cross have access to the Canadian who was detained at Guantanamo?

Mr. Pratt: The International Committee of the Red Cross has jurisdiction in that area. It is the responsibility of the ICRC to report to the government that is detaining individuals at Guantanamo.

Reports by the ICRC are done on a confidential basis with the government involved. That information is closely held by the ICRC and typically, that is their modus operandi. They deal individually with governments on a confidential basis to raise concerns in terms of conditions of detention or other items that come up when a person is detained.

Senator Joyal: Since the Canadian government is not the detainer, is it possible to know whether the International Committee of the Red Cross has made any recommendation or comments about the condition of the Canadian citizen being treated there?

Mr. Pratt: My understanding is that is closely held information between the ICRC and the country that is doing the detaining.

My colleague Sylvain Beauchamp has come back as an ICRC delegate from Hebron in the West Bank and he assures me that I have answered your question comprehensively.

Senator Joyal: I want to make sure I have understood. If a Canadian citizen is detained by a foreign country and the Red Cross has access to that person to evaluate the condition in which he or she is detained, the state where that citizen has citizenship can not have access to the report describing that person's condition. For example, if the conditions of the detainee contravene the UN Convention Against Torture, the government with responsibility for that citizen can not make representations to the government of the country detaining the person because they are not aware fully of the conditions under which he or she is being treated. Is that correct?

Mr. Pratt: I think it is possible for any government to contact another government that is doing detention of the sort that exists at Guantanamo on behalf of their individual citizens.

I am suggesting that the ICRC is not a repository of information for governments who have citizens detained. Those issues are best dealt with on a bilateral basis between the countries involved.

Senator Joyal: Does the Red Cross maintain a list of conditions under which some prisons operate in certain countries so that if a person is returned to a foreign country under the rendering policy, the Red Cross could signal to the government in question that there is a risk that person could be tortured or detained against the rules of international law? Can the Red Cross inform governments if they request this information?

Mr. Pratt: I will ask my colleague to give you an answer.

Sylvain Beauchamp, Senior Policy Advisor, International Humanitarian Law, Canadian Red Cross: I am the senior international humanitarian law advisor with the Canadian Red Cross. I have just returned from Hebron as an ICRC delegate, as Mr. Pratt pointed out.

One of the most fundamental parameters of the work of the ICRC in the field is the principle of confidentiality. I would like to point out that this principle is in no way the goal the ICRC is trying to attain but simply a means of having access to the victims. It is the way that the ICRC conducts its humanitarian activities in the field.

There are a number of exceptions under which the ICRC would exempt itself from that rule of confidentiality. Under those exceptions, you could eventually reach a level where the ICRC would appeal to the state parties to the Geneva Conventions to have the laws applied in a certain country.

Senator Joyal: Through the Geneva Conventions, Canada could ask the Red Cross if it has led any investigations in country X, Y or Z. Can the Red Cross answer such a question?

Mr. Beauchamp: The answer would probably be no for very practical reasons. If the ICRC releases or is believed to release public information about the way it conducts detention visits, or the information gained through those visits, it would probably be kicked out and not granted any further access to the detention places. As a result, the ICRC would not be able to carry on its humanitarian activities in those places. This is a very practical matter because the law, the Geneva Conventions, do grant a right for the ICRC to access the places of detention in cases of international armed conflicts. Practically speaking, releasing information that it sees in detention places may lead to being kicked out of those places so this is something that is not desirable.

Senator Joyal: In other words, the only way for Canada to know about the general condition of detention would be to address itself to the country where the Canadian citizen is being held or where the person would be rendered. For example, if a person was the object of a security certificate and expelled from Canada, the government could only get information about the conditions of the possible detention by asking the country where the person will be sent if that country wants to release the information.

Mr. Beauchamp: I agree and would specify as well that there are two parallel mechanisms that could possibly help Canadians held in detention places around the world and in areas of armed conflict. The first is this mechanism of the Geneva Conventions and the right given to the ICRC to access those places of detention. That serves one purpose, which is basically to address the conditions of detention in general in those places and make recommendations for making the laws of war applicable.

The second system, which is a parallel system and to a certain extent is a bit more ancient than the Geneva Conventions system, is what we call diplomatic protection. This is basically the right of a state to act on behalf of one of its citizens abroad. That system has been and is being used extensively by all governments in all countries in the world, and with some efficiency as well. We see that on a daily basis.

These two parallel systems serve different purposes and goals as well, and both should be maintained and used in order to correctly protect citizens held abroad.

Senator Joyal: Can you recommend improvements to the present system because of the situations we see happening now?

Mr. Beauchamp: I can only speak for the Red Cross, and would feel uncomfortable recommending any change or global amendment to the system of diplomatic protection of Canada around the world. Personally, I feel that the system works reasonably efficiently, but you should ask my colleagues from foreign affairs for that recommendation.

Mr. Pratt: I am going from memory here but I believe the Vienna Convention of 1962 or 1963 on the right of consular representation covers this issue as well.

Senator Joyal: I was also thinking about that when your colleague was referring to diplomatic protection as expressed in the Vienna Convention.

Mr. Hunter, you made an important recommendation in relation to due process. Are any of your recommendations covered in the cases that the Supreme Court will be reviewing in December in the Charkaoui case?

Mr. Hunter: I do not know what the Supreme Court will address in the context of those cases but it raises these very issues and I expect my organization will seek to intervene in those cases when they are articulated before the court to make the same submissions.

Senator Joyal: One point about the fundamental principle of justice that you have not covered is unlimited detention time. One of these principles is a person's right to be heard in court and not be detained indefinitely without the capacity to come back to court regularly. There was a Law Lords decision in December, 2004 which I am surprised you have not included in the principles you would like reviewed under the Anti-terrorism Act. To me it is important for a person to go to court regularly and be tested there, and with the assistance of a lawyer as you suggested earlier. It is also important because we are coming back to the habeas corpus situation when the king could detain someone indefinitely in a dungeon and no one could ask questions. This is a very fundamental principle of justice. It is one of the first ones. I am surprised that you have not included it as one you would like to see us review in the bill.

Mr. Hunter: The emphasis of the organizations I represent is the core values under which lawyers articulate their work on behalf of clients.

You are talking about a due process and substantive right of people and I agree with you completely. To translate what you are saying, it is unacceptable that someone should be in limbo as it were for an indefinite period of time and not have the advantage of habeas corpus. That strikes fundamentally at our sensibilities about freedoms and what they mean, so I agree wholeheartedly with what you say. The reason it is not in our brief is the ambit of our brief was not so much to look at the substantive law but to look at the solicitor-client relationship and the difficulties in that context. Having made that caveat, I agree completely that that state of affairs is unacceptable and that habeas corpus as a principle should apply to people in those circumstances.

Senator Joyal: I would like to raise another point with respect to your recommendation about the special advocate. We heard recommendations here last spring to consider special courts where judges would be trained specifically to hear those kinds of security cases. You have put the emphasis on the lawyers more than on the court.

Do you think that those security cases are so particular that there should be, especially at the Canadian Federal Court level, judges specifically trained to hear them? This would make it easier to get disclosure of confidential information if the security agency felt it was dealing with people, either the special advocate or judges appointed to hear those cases, who understand all the intricacies of security?

Mr. Hunter: I believe the creation of a specialized court would be a mistake. One of the great hallmarks of our system of justice is that jurists by and large hear cases broadly and thus are influenced broadly. I think, more than that, it is a transparent process. We want to encourage that. In fact, at least one member of the Federal Court has spoken publicly against the processes with which we are now faced. I would not recommend that we have a special court.

Having said that, it makes good sense that judges be educated in the realities of the types of cases they are going to see. There is nothing new about this. We have in this country a national institute that assists jurists in understanding the specifics of their various areas, and it does not occur to me that there is any problem in that regard as long as the process takes place publicly, notwithstanding that that education may have taken place.

Therefore I have no problem with the proposition that it would probably enhance matters were jurists to be informed, not only about the technical aspects of security but to be reminded of our great traditions of civil liberties, but that they would operate as I would have it in a normal court setting.

The Chairman: I thank all of you on the panel. You have given us lots to think about and a few suggestions. We do appreciate the time you have put in to come here and help us out with your views and your experiences.

The committee adjourned.