Proceedings of the Special Senate Committee on the
Issue 16 - Evidence - Afternoon meeting
OTTAWA, Monday, October 17, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1:32 p.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.
The Chairman: Honourable senators, this is the thirty-fifth meeting with witnesses of the Special Senate Committee
on the Anti-terrorism Act. For our viewers, I will explain the purpose of the committee.
In October of 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, Parliament was asked to expedite our study of the legislation, and we
agreed. The deadline for the passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in
such a short period of time, and 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 committee represents the Senate's efforts to fulfil that obligation.
When we have completed the study, we will report to the Senate and outline any issues we believe should be
addressed. We will allow the results of our work to be available to both the government and the Canadian public. The
House of Commons is undertaking a similar process at the same time.
So far, the committee has met with government ministers and officials, international and domestic experts on the
threat environment, legal experts, people involved in enforcement and intelligence gathering and representatives of
community groups. We travelled to Washington for meetings and we will be traveling to London in the near future. We
have connected with others around the world through video conferencing.
This afternoon we return to the issue of civil liberties. From the International Civil Liberties Monitoring Group we
are joined by an old friend, the Honourable Warren Allmand, a member of the steering committee, and Roch Tassé,
the National coordinator. From the British Columbia Civil Liberties Association we are joined by Murray Mollard,
Executive Director. Finally, from the Faculty of Law at the University of Montreal, we are joined by Professor
I encourage senators to keep their questions crisp and to the point, and I ask that the answers be concise so that we
can have a very good dialogue in the next two hours.
Hon. Warren Allmand, P.C., Steering Committee Member, International Civil Liberties Monitoring Group: Madam
Chairman and honourable senators, I am here on behalf of the International Civil Liberties Monitoring Group, which
is a coalition of more than 30 NGOs, trade unions, faith groups, environmental organizations, refugee organizations,
and so on. These organizations came together after September 11, 2001, to monitor the impact of any legislation on
civil liberties and to take appropriate action where necessary.
We prepared and sent to the clerk a complete brief on all aspects of Bill C-36, which I hope all members have a copy.
I am also making this presentation on the basis of my experience as Solicitor General for four years, as a member of
Parliament for over 31 years, and as president of the International Centre for Human Rights and Democratic
Development for five years. Since you have already heard considerable testimony on this matter, I will not go over all
the points in our brief, but rather refer to certain selected paragraphs and emphasize some main points.
To begin, I would like to cite the Sofia Macher of the Truth and Reconciliation Commission in Peru. She said:
We cannot defend our democracies if we abandon respect for due process and fundamental rights. When
public order is put above the civil liberties of citizens, then that democracy has adopted the tactics and principles
or lack of principles of its enemies and has been partially defeated.
I want to make clear that we support all legitimate and appropriate efforts to eliminate terrorism in all its forms.
Indeed, to this end, our organizations are deeply committed to eradicating the roots of terrorist responses, whether in
economic hardship, political repression, fundamentalism and intolerance, or social marginalization.
Among the points I wish to emphasize today are the following: First, the rule of law must be restored and reaffirmed
domestically and internationally. Terrorism, like any crime or violence directed at civilians, is abhorrent. However,
terrorism is not a new phenomenon, and the pre-existing criminal laws and international agreements in place prior to
the Anti-terrorism Act, if used properly provide an adequate legal framework to address the issue.
In the name of fighting terrorism, we must not forfeit the very democratic values and freedoms we are supposed to
be protecting. Indeed, draconian measures can only destroy the fundamentals of a free and democratic society and
contribute little to address the root causes of terrorism.
This view was echoed by Louise Arbour, the UN High Commissioner for Human Rights and former Supreme Court
of Canada justice, who cautioned that national governments should be wary of undermining personal liberties in their
fight against terrorism lest it helps terror groups recruit more members.
The incremental implementation of Canada's anti-terrorist agenda is intrinsically linked to a global trend. Instead of
continuing relentlessly in this direction, we must address terrorist acts for what they are — criminal acts.
While it is essential to protect Canadians against terrorism, the Anti-terrorism Act should be repealed because it
undermines democracy and human rights. It is legislation that was badly conceived at the time in response to
misperceived risks and fomented public fear. It has always been proven to be unnecessary since already-existing laws
have been more than adequate in dealing with subsequent cases related to alleged terrorist threats.
I wish to point out that your review should be carried out with respect to all anti-terrorism measures. The measures
set out in the Anti-terrorism Act and in other legislation such as the Public Safety Act, and in non-legislated measures
such as the Smart Border Action Plan, form a complex web of far-reaching incursions on civil and human rights that,
taken as a whole, threaten to undermine fundamental principles of law to radically and permanently alter the
relationship between the state and its citizens.
Any serious review of Canada's anti-terrorism legislation must address Charter rights, including the right to life,
liberty, equal treatment and security. A review must take into account the rights of non-citizens and ethnic and
religious minorities. It aught to take into account the right to a fair hearing, the right to be protected from arbitrary
detention and the right under international law not to be sent or returned to countries where there is a risk of grave
violation of fundamental human rights.
The review of the Anti-terrorism Act must be holistic and take into account that any impact of Bill C-36 is assessed
in relationship to all the other measures that form Canada's anti-terrorism response.
We maintain that provisions contained in the various pieces of anti-terrorist legislation and other non-legislated
measures augment and expand the scope and scale of police and government monitoring and control over Canadian
citizens far beyond measures necessary to respond to the potential risks of terrorism.
Terrorism is not new, and states have historically dealt with it as a national or international law enforcement
problem. "Terrorism" is not the name of an enemy. It is any criminal act of violence carried out against civilian
populations to generate terror and to dominate by fear, whether committed by civilian, insurgent or terrorist groups or
by governments, their police and security apparatus and regular armies. Such acts of violence are already captured
under domestic and international laws and conventions.
Terrorism is not actually defined in any Canadian statute but the one presently under review, although the Supreme
Court proposed a definition in the Suresh case for the purposes of the Immigration and Refugee Protection Act. Even
the International Conference on Security, held in Saudi Arabia, in which Canada participated in February 2005, could
not reach a consensus on the definition of terrorism. Nonetheless, Canada's Anti-terrorism Act provides a vague,
imprecise and overly expansive definition of terrorism and terrorist activity that could be interpreted arbitrarily to
encompass forms of dissent and/or violent behaviour that have little to do with terrorism, thus threatening civil
liberties and the right to legitimate political dissent.
Another problem with such a sweeping definition of terrorism is that it fails to distinguish between criminal terrorist
entities and freedom fighters or liberation movements whose legitimacy can shift depending on the time period and the
dominating political interests at stake.
Under the current definition, Nobel Prize recipients Nelson Mandela and Rigoberta Menchú would be considered
terrorists and members of the French resistance who fought against the Nazi occupation would have fallen into the
Several provisions of the Anti-terrorism Act allow for the ministerial issuance of security certificates, or ministerial
orders, and for secret judicial reviews amounting to secret trials for listing entities, deregistering charities and detaining
individuals suspected of terrorist links. Under these provisions, individuals can be indefinitely detained until a single
judge determines in camera and ex parte whether a ministerial certification that a person is a security threat is
reasonable and the person can be deported.
The Anti-terrorism Act, the Public Safety Act and the Immigration and Refugee Protection Act and other measures
adopted by Canada not only pose a major threat to human rights, civil liberties and due process, they also contribute
to the erosion of the power and authority of our democratic institutions including Parliament. Taken as a whole, they
provide for an unprecedented delegation of judicial and legislative powers to a handful of ministers and officials. Such
delegations of authority facilitate an arbitrary and potentially abusive application of secret powers through Orders-in-Council, regulations and security certificates that are not subject to adequate oversight and parliamentary approval.
The listing of terrorist entities by ministerial decision is unjust because it entails insufficient notice and a lack of
procedural fairness in the absence of an open and transparent appeal mechanism for redress. Furthermore, the listing is
done on the basis of a definition of terrorist activity on which there is no international consensus and with disregard for
the social and political context in which such activity might take place.
This brings us back to the problem of definition. This concern also applies to the provision for deregistration of
charities, which creates a chilling effect on international development, NGOs and humanitarian organizations.
The Anti-terrorism Act grants police expanded investigative and surveillance powers, including a much lower
threshold to obtain warrants for wiretap, surveillance and search and seizure operations. By introducing a motive-based definition of terrorist activity and adding new terrorism offences to the Criminal Code, the act, de facto,
reinstates the RCMP in intelligence and national security operations along with CSIS and the CSE, without any
civilian or political oversight. The Anti-terrorism Act thus overrules the conclusions of both the Mackenzie and
McDonald Commissions that concluded respectively in the mid-1960s and in the mid-1980s that the RCMP lacked the
training, sophistication and analytical capacity to carry out such activities.
The Canada's incremental adoption of these measures is deeply troubling when viewed in the context of U.S. plans
to impose upon the rest of the world a draconian infrastructure of global registration and mass surveillance. Under this
grandiose scheme of Orwellian proportions, the personal information of Canadians will soon be collected, stored,
linked, data-mined, monitored and shared with other countries in an unprecedented way. More than privacy is at stake
here. The fundamental principle of presumption of innocence is reversed where every individual becomes a suspect and
data profiles are created on everyone.
Since 9/11, there have been numerous high profile cases of Canadian Arabs and Muslims stigmatized as terrorists
without public evidence or due process. The cases of Maher Arar and the 23 mostly Pakistani individuals arrested in
Toronto as part of Project Thread, in addition to half a dozen other Canadian citizens of Arab or Islamic origin, have
demonstrated the divisive and discriminatory pursuits of the security agenda.
One of the basic issues with respect to all of these cases is the reliability or lack of reliability of the information that
comes from the police and CSIS, which information forms the basis of all these anti-terrorist measures. The manner by
which this information is collected can be unreliable and inaccurate, based on speculation and hearsay, and guilt by
association, or as the result of racial profiling. Not only do we have the recent case of Maher Arar, but also the case of
Bhupinder Liddar and the October 5 incident where a Muslim infant was put on a no-fly list.
I could also refer to cases when I was Solicitor General. I came across several cases of error by the security services
that were documented before the McDonald commission in the 1980s. I want to make it clear that this was not an
everyday occurrence, but it occurred often enough to be of concern and enough to change the system.
When I was president of Rights and Democracy at the International Centre for Human Rights and Democratic
Development, in August 2000, the security services issued a threat assessment list that included our organization,
Amnesty International, Greenpeace and several unions. I wrote to Solicitor General MacAulay requesting an
explanation and did not receive a suitable answer.
As a result of these methods and procedures, we have innocent individuals held in prison for years without knowing
the reasons and without trial. Even after their release, their lives are often left in ruins. Of course, all of this is made
much easier with laws like Bill C-36, which remove many of the safeguards and much of the oversight.
With respect to the Arar commission, it should be noted that Judge O'Connor has been hearing evidence and
conducting research on these matters for almost two years. It seems to me that Parliament would benefit from Judge
O'Connor's report before they completed their review and made their recommendations under the reference that you
have before you.
Now, I also want to refer to certain international law provisions. In the International Covenant on Civil and
Political Rights, which Canada ratified in 1976, it states in article 4 that there can be derogation from the provisions in
that convention. It says:
In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations
under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Then they go on to say that there can be no derogation with respect to certain articles of the covenant. They go on to
say the state that does such derogation must advise the Secretary-General of the United Nations and other states
parties not only that the derogation has been made, but when they intend to terminate that derogation; in other words,
they should announce some sort of sunset clause.
We also have, of course, the provisions of the Convention against Torture. This past summer, the treaty body under
that covenant condemned Canada for some of its behaviour with respect to the convention that Canada ratified.
Resolution 2004/87 of the UN Commission on Human Rights,
Reaffirms that States must ensure that any measure taken to combat terrorism complies with their obligations
under international law; in particular, international human rights, refugee and humanitarian law.
The Human Rights Committee under the International Convention on Civil and Political Rights is reviewing
Canada's record this very week. Several NGOs are in Geneva to present shadow briefs to the committee with respect to
Canada's abuse of human rights under the anti-terrorist legislation.
This past summer the UN working group on arbitrary detention in a statement of June 18, 2005, condemned
Canada for some of the measures under this legislation.
In conclusion, the events following September 11, 2001, have made some people think that weakening legal
safeguards and trampling on human rights will make us feel safer. In fact, we are made safer by laws and processes that
guarantee respect for human rights.
While we urge you to repeal Bill C-36 and Bill C-7, we argue that these are not necessary to deal with terrorist acts
such as murder, hostage taking, bombing and the use of explosives, which are all covered by the Criminal Code and
can be dealt with by effective police and intelligence operations. In emergencies, I would like to suggest that you refer
to the Emergencies Act of 1988, which contains a provision right in that act that says it is subject to the Charter.
Madam chair, you do not enhance security when you dispense with due process, disregard the rule of law and
suspend human rights contrary to international obligations. What message does this send to new democracies and
states in transition; states in Eastern Europe, Asia, Africa and Latin America?
In fact, with the provisions of Bill C-36 and the use of security certificates, we argue that you undermine security
because you are setting a precedent of disrespect for the rule of law. If we can suspend the rule of law and due process
for reasons we think are right, then we cannot complain when others do the same for reasons they think are right.
We are asking you to repeal Bill C-36 and to attack terrorism by respecting due process and respecting the rule of
law and human rights instruments with a more effective use of the criminal law and proactive policing.
The Chairman: Thank you very much, Mr. Allmand. We will now go to François Crépeau.
François Crépeau, Professor, Faculty of Law, University of Montreal, as an individual: Honourable Senators, I am
neither an expert in criminal law nor an expert in privacy law. A number of individuals have made some very learned
presentations on these subjects to the committee. My humble area of expertise is international migration law,
specifically, the rights and freedoms of foreigners in our societies.
No doubt you have received a copy of the paper I presented in conjunction with last spring's Breakfast on the Hill.
If not, I can leave a copy of the text with you. This paper focused on the very issue that brings us together here. I also
have with me a copy of a recent article that will appear shortly in the Immigration series of Montreal's Institute for
Research on Public Policy. I was not formally authorized to distribute this article, but I will nevertheless leave a copy
for you. This is more or less the final version, barring a few corrections.
The climate of fear in the wake of the September 11 attacks adversely affects everyone's rights and in particular, the
rights of foreigners in our societies. The most glaring example remains the treatment of foreigners at Guantanamo Bay
which highlights the chasm in U.S. law between the rights of American citizens and the rights of foreigners. I would
like to reflect with you at this time on how our various responses to the threat of terrorism impact the rights of
The fight against international terrorism is important. We have to fight it by all legitimate means, and our laws
provide for such means. They can be improved for sure, but we have the tools at our disposal.
The fight against international terrorism is as important as the fight against international drug trafficking,
international arms trafficking, international trafficking in persons, all activities that cause casualties worldwide, as well
as in Canada.
This fight against international terrorism, as well as the other fights, cannot be legitimately conducted outside the
bounds that we have set for all government activities; that is, the protection and promotion of human rights and
freedoms for all. Yet, we have seen a trend in recent years to distinguish the foreigner from the citizen in many ways.
To give just one example, which is not completely related to this topic, in the fight against those who perpetrate
crimes against humanity, in the early 1990s we failed to prosecute people who had committed crimes against humanity.
Our government decided to tackle that issue through immigration procedures as seen in the ongoing Mugesera saga.
Although criminal provisions exist for these actions, we have decided to use immigration proceedings because the
evidence and procedural requirements are lower.
This means that in the end, we do not have the level of certainty that results from the criminal proceedings and we
risk releasing individuals who may have committed grave crimes. We certainly have expelled them from Canada, but
they are still at large.
This would be okay if that was part of an extradition procedure under an extradition treaty, as this judicial
cooperation would lead to judicial proceedings against the individual, proceedings that we think equivalent to ours.
However, it is not proper if the individual's life is shattered, if the person's rights and freedoms are threatened without
the proper procedural safeguards.
Our Charter protects the rights of all, not only of citizens. Only four rights in our Charter are expressly restricted to
citizens: the right to vote, the right to be elected, the right to receive education in a minority language and the right to
enter and remain in Canada. All other rights are guaranteed to all, including foreigners.
The absence of a right to enter or remain in Canada does not mean the right of Canadian authorities to treat the
foreigner as they see fit. There is a right to fundamental justice, to take only one, when freedom, security or life is at
stake. There is also a right to equality. Both these rights mean that in proceedings where freedom, security or life is in
balance, foreigners and citizens should be treated alike and afforded similar guarantees. This goes also along the effect-base interpretation which has been promoted by the Supreme Court of Canada; in similar circumstances, people
should receive similar treatment.
This means that we cannot send someone back to their country of origin without fair proceedings, which may vary
according to the situation, but these proceedings cannot be arbitrary. We cannot send them back to torture or to cruel,
inhuman or degrading treatment or punishment. In that sense, Suresh set a standard — a little too low for my personal
appreciation, but set a standard nevertheless. We have to justify; at least, we have to do this.
Yet, we see how the law treats foreigners and nationals very differently. Consider this one example, aside from the
anti-terrorism legislation, which provides for similar measures. Under section 38.14 of the Canada Evidence Act which
provides for the issuing of security certificates to protect confidential information, the judge must respect the right of
the accused to a fair trial by, among other things, issuing an order to stay the proceedings.
There is no similar provision in the Immigration and Refugee Protection Act. A security certificate will be issued
and authorities will be required to serve the certificate, even if they may believe that justice will not be served in the
One can oppose the argument that section 12 of the Canadian Charter of Rights and Freedoms, which guarantees
the right to a fair trial, applies to criminal law, not to administrative law. Thus it would not apply to proceedings under
the Immigration and Refugee Protection Act. However, basic justice demands a fair trail. This principle was stated in
the Singh case. However, in matters of fundamental rights, this distinction is quietly becoming obsolete. Article 47 of
the recently adopted Charter of Fundamental Rights of the European Union, which may one day become Europe's
constitutional charter, states that everyone is entitled to a fair hearing by an independent and impartial tribunal, in
matters of administrative or criminal law or otherwise.
In anti-terrorism legislation up until now, we have assumed, either consciously or unconsciously, that those targeted
by such legislation would be foreigners. This is certainly true for proceedings under the Immigration and Refugee
Protection Act but this is also true under the Criminal Code and the Evidence Act. We deem all these intrusive,
invasive measures valid because we do not picture them being applied to "us."
We have come to consider that Mafia bosses must be protected by rules of procedure and evidence because we deem
it essential for our protection. We could be in their place and that is why we want them to be protected; we want to be
protected if we were in their place. We have not done that psychological process yet with terrorism. We see still the
terrorist as an outsider, as a foreigner.
The case of Maher Arar is a good example. Our apparent intelligence collaboration with American authorities and
our political hesitation in the early months of this case proved how much we considered him an outsider. Only after
several months did we recognize that he was one of us; only after his wife worked relentlessly for his liberation did we
recognize that he was one of us, that he was actually a citizen.
Even then, we can take other examples. We heard recently a Canadian official saying that evidence obtained under
torture in a foreign country should be admissible here because it could give us proper information. We would not agree
to that if this was done in Canada. Why should we agree to it if it is done elsewhere to other people?
Again, we hear opinions and sometimes very learned opinions — Jeffrey Simpson in The Globe and Mail writes
repeatedly that the Charter should not apply to several kinds of foreigners, including illegal foreigners, persons who are
in Canada on a clandestine basis. This helps to form public opinion.
Protecting security intelligence sources is essential, but that must be left for the courts to decide. The courts must
ensure that justice prevails, even for foreigners. To guarantee the moral and legal rectitude of our anti-terrorism
provisions, it is critically important that citizens and foreigners not be treated differently when the same rights are at
issue. Our constitutional principles should prohibit this. There is always the possibility that this type of anti-terrorist
action will carry over to other vulnerable groups, such as aboriginals or students. We cannot trust our authorities,
despite how we may feel about them. We cannot give them carte blanche to act. Foreigners personify vulnerability
because they rarely, if ever, file complaints against the authorities, for fear of having their status called into question.
That is one reason why foreigners deserve special protection.
For example, I would not have any problem whatsoever sending an Italian national back to Italy to be tried on
terrorist charges, even pursuant to very straightforward extradition mechanisms, such as the ones used in Europe. This
desirable form of judicial cooperation provides the necessary procedural guarantees. However, deporting a foreigner to
a country where he runs the risk of being arbitrarily detained, tortured or killed because his country of origin offers no
protection is quite a different matter. Canada has a special obligation to protect that foreigner.
Procedures like the security certificates are disturbing when applied to foreigners, but the information gathering is
more damaging for our collective freedoms if the intelligence agencies are not properly checked by appropriate
democratic and judicial authorities. The lack of appropriate oversight mechanisms can also be linked, at least in part,
to this idea that these measures will essentially apply to foreigners, not to us.
We should be on guard lest we become complacent because we see these measures as applying only to foreigners and
do not see that they might one day apply to us. A century ago, industrial workers were
"others." Fifty years ago,
women were legal "others." Aboriginals were legal "others" up to recently. We consider that they belong to us and
should not be subject to discrimination.
I believe as far as most rights and freedoms are concerned that foreigners, too, are
"us," and should be so protected.
I think that Canada should set that example.
The Chairman: Thank you very much. We will round off the presentations with Mr. Mollard.
Murray Mollard, Executive Director, British Columbia Civil Liberties Association: Madam Chairman, members of
the committee, thank you for inviting us here to talk about the Anti-terrorism Act.
Our association has been working on these kinds of issues since 1963. The gamut of civil liberties runs very long and
when we, and other groups, deal with issues like national security, we always bring freedom of expression, freedom of
association, freedom of religion and privacy interests' to the forefront in a difficult context.
We agree that our governmental authorities must have the ability to protect us in the national security area, both
before and after September 11, 2001, with respect to terrorism.
I want to start with the chapter in our brief on security certificates, less to talk about the procedural reforms we have
suggested than to start with something that is fundamental here. It goes to the very reason we are all here. It is always
fun, as lawyers, legislators and policy analysts, to talk about the details of legislation but, ultimately, it comes down to
the human impact, a very human element.
I was reminded of this human element when I gave a talk about the Arar case to a health union in Vancouver. We
have been involved as interveners in the case for well over a year now and I know the details fairly well, but I took the
time to go through the chronology of the case in further detail with the assistance of Maher Arar's website. When you
read his own words, the actual human experience that he endured, one begins to understand why this is so important,
why we have to get it right and why we cannot engage in certain kinds of activities that border on torture. I suggest the
same with the four individuals still subject to detention in the security certificate context.
This is a regime that is characterized by inhumane conditions, indefinite detention, secret evidence and secret trials.
Ultimately, the great prize after all of this is the risk of being deported to a country where torture is practiced.
I do not think it is far off to say — and I do not think it is hyperbole to say — that this is equivalent to concentration
camps in Canada and it is our own version of Guantanamo Bay. We do not have the photos from Abu Ghraib or
accusations of physical violence but we do have information and facts about psychological deprivation and deprivation
with respect to physical conditions that is taking us down a path we do not want to walk.
Before I talk about the inhumane conditions, our purpose is to urge you as a committee to do all within your power
to either demand for the release of these four remaining security certificate prisoners or demand they be charged in an
open court, faced with the evidence against them and given the ability to respond to that evidence.
By "inhumane conditions" we are talking about solitary confinement, inadequate food, little or no opportunity for
exercise, lack of adequate clothing to deal with such cold conditions in their cells, lack of shoes, and no family visits.
When you add these kinds of conditions together, it starts to look a little bit like concentration camp conditions. We do
not even treat the worst murderers to these kinds of conditions.
What about indefinite nature of the detentions? Let us make this personal. Hassan Almrei, arrested October 2001;
Mohammed Harkat, arrested December 2002; Mohammed Mahjoub, arrested June 2000; Mohammad Jaballah,
August 2001 and Mr. Charkaoui who is out on bail. My colleagues will attest to the reputation of Syria, Algeria, Egypt
in terms of international human rights and the lack thereof. These men all face deportation to these countries.
Regarding secret evidence and secret trials, in the context of national security, the government says we must have
confidentiality and everyone agrees with that general proposition. However, in the context of security certificates,
individual detainees do not see the evidence against them. They are not able to meet the case or effectively challenge
that kind of evidence. An important point to underline here is the distinction between
"intelligence" and "evidence." In
fact, I suggest there is not evidence in these cases. The legal standard to meet is that of
"reasonableness." That is the
highest standard, but it is not a very high one.
Ian MacDonald, a special advocate England, resigned because he said he could no longer prop up what he
considered a fundamentally unjust system. He made the point that in a security certificate context, where all the
authorities need to do is provide enough "intelligence" to convince a court that their decision to deport an individual is
reasonable and the court has a very low standard of scrutiny, they will give a lot of deference to the government. I
think that is the problem in terms of the test.
We have to remember that intelligence here can be half-truths. It can be not the whole truth. It is not the same as
taking intelligence and giving it to the criminal law enforcement authorities, who then undertake investigations to turn
intelligence into actual evidence that allows prosecution of particular crimes. There is a big distinction there.
Ultimately, individuals are subject to deportation to countries known to practice torture and other human rights
We are urging you, as senators, to do all in your power to remedy this problem, both on a procedural level and on a
very human level.
In our brief on the Anti-terrorism Act, we agree with Mr. Allmand's group that all the powers and authority needed
existed prior to the passage of the act. The political reality is that the act will be here, so we made a variety of
recommendations about what we seek to see as far as reforms go. It is such a large act, with so many powers and so
much impact on so many pieces of legislation that it is hard to sort through it. We focus on section 38 and the
provisions that deal with the secrecy provisions of the Canada Evidence Act, and we talk about political and other
forms of accountability.
On the definition, the act defines "terrorist activity." We will have something to say about that, but we urge you to
look beyond the Justice Act, the Security of Information Act and the Security Offences Act. There are other pieces of
legislation that define national security that I think are equally important because they provide authority for the law
enforcement and intelligence community generally to do their work.
We urge your committee to recommend the narrowing of the definition for six policy reasons. First, the ATA was
justified after September 11, 2001, on the catastrophic and morally irreprehensible and unparalleled way; and from
other crimes, for example, from the experience in New York, Bali, Istanbul, Madrid, London, and Bali again. It is the
crime that is two or three cuts above other crimes and it is justified on these terms. We say that the definition of
"terrorist activity," which is the focus of this kind of legislation, must focus on the morally reprehensible crimes that
bring universal condemnation and not just on criminal matters that might have a political motive.
Second, national security matters are shrouded in secrecy and are not the normal norms for transparency, openness
and accountability. There are no open courts in that respect, and we will urge changes to that kind of system. There
will be times when the public cannot have access to information on certain matters of confidentiality or other matters.
We suggest keeping the definition as narrow as possible in that context.
Third, by their nature, national security agencies will apply authority and discretion as broadly as possible. If you
provide an expansive definition of "national security" and "terrorism," they will push the limits. I do not suggest that
this is inappropriate or wrong because it is what we would expect from them. Their mandate is to protect public
security, and they will go as far as they have to, hopefully, within the rule of law to do so. However, they will push
those limits if you provide them with an expansive definition, as the Anti-terrorism Act provides.
Fourth, the term "terrorism" has been difficult to define for decades and is subject to all kinds of politicization, such
that your terrorist is my freedom fighter and vice versa.
Fifth, history teaches us that when societies fear harm from unknown enemies, fundamental freedoms suffer and the
targeting of political and religious activists occurs.
Sixth, you define terms narrowly because you want the public to have confidence in the work of our national
security agencies. We do not want MacDonald commissions or Arar inquiries and the intelligence and law enforcement
authorities do not want them either. Define terms narrowly and constrain their discretion, authority and power.
We suggest a revised definition of "terrorist activity" that reads:
Any action that is intended to or can be reasonably be foreseen to cause death or serious bodily harm to
persons not actively or directly involved in disputes with the purpose of intimidating a population or compelling a
government or international organization to do or abstain from doing an act.
That definition takes out a variety of elements from the current definition and narrows it, although there will still be
uncertainty in that definition.
We discuss RCMP integrated national security enforcement teams in part 3 of our brief. This is the new crack anti-terrorism unit created after 9/11. We have tried to track the publicly reported cases, most of which come out of British
Columbia. We did not find as many in the news from other parts of the country.
We tried to track these cases and to describe them, and we do so in detail in the brief. Those cases involve
environmental activists, animal welfare activists, aboriginal activists and a Muslim cleric. I will not say that the police
might not have a role to play in some of the activities, however, do you think that these kinds of activities that concern
the law enforcement and intelligence community reach the kind of terrorism and threat to national security that we had
in mind when we created the Anti-terrorism Act? I would suggest to senators that it does not reach that level. I cannot
blame the RCMP for undertaking this kind of work because Parliament has given them the authority to act so
expansively and inappropriately in our view, because the definition of the law gives them too much authority and
In part 4 we talk about section 38 of the Canada Evidence Act, which permits absolute secrecy. Even if the Supreme
Court of Canada examines evidence and decides that it should be disclosed because the public interest in disclosure
outweighs the public interest in secrecy because of a potential harm to national security, the government would retain
an absolute discretion to keep the information secret. We propose a variety of reforms to take away that absolute
discretion and give more power to the judiciary to review the conduct of the executive. We advocate a system of special
advocates, the details of which are in our brief.
Part 5 of our brief outlines the purpose of security certificates. We have made a variety of procedural suggestions
including bail provisions for these individuals. That has not been allowed to date, except in the Charkaoui case because
the legislation does not provide for it.
In respect of security certificates, we made an accelerated appeal to the Supreme Court of Canada. It is unusual but,
given the few cases, the importance of this matter and the problems that occur with indefinite detentions, we suggest it
would be an appropriate role for the Supreme Court.
In part 6 we talk about accountability mechanisms for national security agencies. Since 9/11, there has been a
massive investment in and reinvigoration of our national security apparatus through legislation, new agencies,
restructuring of existing agencies, in new money, in new people and, indeed, the political will to do something to
prevent terrorism. However, we have not seen the creation of new forms of accountability that will check and balance
the authority, the power and the resources that were given to the national security apparatus. We submit that is a
recipe for disaster. The time has come to change that and senators have an important role to play in making such
recommendations. We think that the judiciary needs more authority and power under the legislation to review
executive power in highly scrutinizing ways.
There should be a parliamentary review committee. I have read the information, the discussion paper and the
interim committee's report. I am not sure if any senators here today were on that interim parliamentary committee but
it made recommendations to the minister. The minister's response has been to suggest a committee that does not deal
with a human rights mandate at all. Rather, it would deal with the effectiveness of the national security apparatus. We
think that kind of parliamentary committee has nothing to add in terms of checks and balances of the system.
We suggest greater independent civilian review. We will meet with Justice O'Connor in November to discuss what
we see as appropriate independent civilian oversight mechanisms for the RCMP.
There are numerous new agencies in the anti-terrorism game. We suggest that there should be a national security
review committee to review all national security agency work and an office of the civil liberties ombudsman. This area
commands a "trust us" context. The government simply says that we will have to trust it on these matters. Even the
security intelligence committee says that. It would be helpful to have someone on the inside that is nothing but an
ombudsman for civil liberties and human rights.
Our final recommendation is for scrutiny through media and non-governmental organizations, such as ours, that
would occur through open courts.
Senator Stratton: Gentlemen, thank you for your very interesting submissions this afternoon. With something as
draconian as the Anti-terrorism Act that gives so much power, I think that if we do not follow up with the sunset clause
and limit its time, it will languish on the books used when it is convenient. I know Mr. Allmand agrees with that
Failing the sunset clause, which I believe in, do you think a review every three to five years would be sufficient?
As I said earlier, if you do a review every three to five years, the review might or might not deal with your issues.
There would be nothing to hold the feet of the government to that flame of meeting that standard. I do not think we
are dealing with the issue of individual rights very well at all.
Would you agree with a sunset clause in this bill?
Each of you has made your position quite clear with respect to individual rights. I believe in a sunset clause.
What recourse do we have if the government chooses not to implement our recommendations?
Mr. Mollard: Our position is that we do not need the bill at all. If you are not going to get rid of it entirely, then let
us add a sunset clause and make the government make the case that it did not really have to make at the time of moral
panic in the fall of 2001.
You are correct; you will make recommendations and the government may or may not listen to them. However, the
government will not have to make the case in the same way as it would if it had to reinstitute or pass new law from
In terms of a review every three to five years, I can understand that it might be frustrating to make the same
recommendations over and over again.
It is important to create ongoing national security accountability mechanisms at a variety of levels. In that way, each
level can deal with its own minutiae of details. There is a tremendous amount of information to digest. However, we
cannot overlook the human element and the facts with respect to individuals.
There is not a systematic scheme for oversight and review and not just of the RCMP or of CSIS. In fact, given the
recent comments of Shirley Heafey, Chair of the Commission for Public Complaints against the RCMP, we know no
such scheme exists. You need these oversight mechanisms so that they can report to Parliament and make public
recommendations. The minister is under a responsibility to respond. The media scrutiny is there. It is not a perfect
example. Of course, there is jurisprudence and courts. There will always be that opportunity.
We know the security certificate matter is going to the Supreme Court of Canada in the Charkaoui case. We will all
look with interest at that case. You need that ongoing accountability mechanism day by day, not once every three or
Mr. Crépeau: The important thing is to keep these issues in the public debate and there are many ways of doing that.
The regular review is necessary so that after three years, or after five years, we can come back on the issues and debate
them again in Parliament.
The judicial examination of the constitutionality of many of these provisions is crucial. The Supreme Court will
soon decide upon the issue of security certificates. There will be other issues coming up in the courts. The Federal
Court of Canada has already made a few decisions that have become part of public debate. Oversight mechanisms do
that as well.
As soon as the state of moral panic has passed, as soon as this makes its way into an important policy issue, albeit
one like many others, the shroud of secrecy will begin to disappear. That is where, perhaps, errors, such as cases like
Arar, will come up and they will tell the public that we need to do something in terms of oversight mechanisms. The
important thing is to keep that in the public debate. Our worst enemy is silence and secrecy.
Mr. Allmand: First, senator, you asked: What is the recourse? Of course, many of us were pleased when the Supreme
Court agreed to hear the case of Adil Charkaoui. A good number of us think he will be successful and that the court
will rule that many of the security certificates provisions are illegal.
The fact that the Supreme Court of Canada has agreed to hear that case and the fact that many of these issues will
go before the court makes many of us optimistic. I say that especially in light of last year's eight-to-one decision of the
House of Lords. The House of Lords ruled in accordance with the European Charter of Human Rights and determined
that their legislation, which is similar to ours, was illegal by virtue of that charter.
With respect to oversight, Justice O'Connor's inquiry has two mandates. The first mandate is the factual inquiry
into what really happened to Mr. Arar and who is responsible for those acts. The second mandate is a policy review to
come up with recommendations on policy.
The International Civil Liberties Monitoring Group submitted a brief with respect to the policy review
recommending one strong oversight body for all security and intelligence operations. Right now, we have four
oversight commissions and each has a different power and function. With respect to Shirley Heafey's commission, she
has said that it is very ineffective.
Justice O'Connor has been studying these things and conducting research for over a year. Your committee is doing
the same. I would hate to see recommendations by the House committee or this committee in isolation of Justice
O'Connor's recommendations because he has done a lot of work in this area as well.
With respect to the sunset clause, our first recommendation is to repeal the law, return to the drawing board, and
strengthen the capacity of the police and security agencies. In that way, we would not have cases like Mr. Arar and
infants on no-fly lists. I have other shocking examples. They should not throw the net so wide that it includes so many
With respect to a sunset clause, that would be our second-best approach. If we cannot repeal it that would certainly
The third best is to have a review every two or three years. You pointed out yourself, senator, the inadequacies of
that process. However, it is still better than having no review at all. That is because there are many pieces of legislation
that would just carry on otherwise.
Senator Stratton: That is the concern I have, and I think we should all have that concern.
Mr. Allmand: In Britain, with respect to the events in Northern Ireland, that legislation was in effect for 30 years or
more. Many innocent people were imprisoned under that law. They got some bad guys, but they also got some good
Senator Joyal: Mr. Allmand, I should like to review two issues with you. The first one, which is important to me, is
in the third paragraph at the top of page seven. It says the following:
Reid Morden says that the government `in its race to catch up went beyond the British and American
legislation, defining terrorist activities to include political, religious and ideological protests that intentionally
disrupted essential services. The overall effect is to lengthen the long reach of the criminal law in a manner that is
complex, unclear and unrestrained.'
For the benefit of the audience, please tell us about Reid Morden.
Mr. Allmand: Reid Morden is the former head of CSIS. I forget the exact time frame he was there, but he appeared
and testified before the O'Connor commission. He was the head of CSIS for a period of time. I think his mandate was
just up in the last year or so.
Senator Joyal: To my mind, this is an important statement. It comes from someone who had the responsibility of
managing the activities and operations of CSIS. He knows the system inside out. He is one of the highest civil servants
in the Canadian administration. If a person who has had such a level of responsibility comes forward with such an
overwhelming judgment on the Anti-terrorist Act, it deserves certainly a hearing in court, to use a legal expression that
you know very well. His testimony is of prime importance on the implications of the Anti-terrorist Act, at least
concerning the daily operations of CSIS. I read this important statement in the paper when it was reported, and I had
hoped that some witnesses would bring it to the knowledge of this committee, because I do not think we can ignore it.
Mr. Allmand: The point he is making is about the inclusion of political, religious and ideological protest in the
definition of terrorist activities. Some of our Muslim and Arab friends have pointed out that by just practicing their
faith in a proper way can lead to suspicion and brand them as terrorists under this definition.
It reminds me a bit of the problems we used to have back in the 1970s when people who believed in Quebec
sovereignty were considered terrorists. Some of the officers in the intelligence forces blurred the whole thing and
accused people of being terrorists while they simple stood for a certain political option. I did not agree with their
opinions but they were not violent and it was wrong to put their names on lists of suspected terrorists.
The same thing is happening with this definition and non-violent people are judged by their political, religious and
ideological positions. They are judged whether they are promoting violence or not.
Your point is well taken. I did not know whether or not Mr. Morden has been called as a witness to this committee
or whether he would be an appropriate witness. He did appear before the Arar commission.
Mr. Tassé: Mr. Morden said two years ago in a major report that the security agencies in Canada do not need the
Ant-terrorist Act to fulfill their functions. The ex-director of CSIS said that shortly after the adoption of the act. In
fact, it might have been during the public hearings when Bill C-36 was adopted. He is on public record as saying that
CSIS did not need this law to do its job to combat terrorism. If you do call Mr. Morden to testify, it might be worth
pursuing this line of questioning with him.
Senator Joyal: Mr. Allmand, I listened carefully to your arguments and the substance of your criticism of the anti-terrorist legislation, but I cannot resist asking you a broader political question. You have been in government. As you
stated in your opening remarks, you were Solicitor General of Canada. Now, those responsibilities belong to the
Minister of Public Security.
I have the perception that the government is more or less a prisoner of the dictum
"better safe than sorry." In other
words, better act, even though we fish wide, because at least there is an impression that we are doing something. Once
this impression is in place if something does happen we will be above reproach. That is certainly one of the general
contexts in which the government is still legislating.
As you know, having read the papers, as do I, there is now legislation in the mill that addresses the cable network
groups, Vidéotron and the other cable service providers, to access all your accounts with a cell phone and so on.
What happened in London last summer triggered a series of measures that the British government now wants to
introduce to expel those who make speeches or interventions in the public debate that seem to support terrorism. No
doubt there is still pressure in the political realm that maintains that political perception, as I say,
"better safe than sorry."
You were a member of Parliament for 31 years. How do we address that reality based on your first recommendation
that tomorrow we can announce that we will set aside everything in Bill C-36? Do you not think we have to deal with
that reality as a Parliament?
Mr. Allmand: Of course, you have to deal with it, but I also suggested that we need more effective police work and
more effective security work. Surely senators and people in the House of Commons should be concerned with some of
the cases we have seen. I gave the example of Bhupindar Liddar. How did this happen? They had a security report
saying this man should not be appointed counsel general of India and later they found out there was no basis for that
statement. We had the whole business of Mr. Arar. How did the United States get information that Mr. Arar was
tortured and imprisoned for a year?
While you might repeal Bill C-36 and go back to the drawing board, you could immediately improve the way our
police forces and security services operate so that, instead of casting a wide net, they are more effective in getting those
who may really threaten us. I have no objection to them getting those who threaten us.
You are right that is it very hard. This "better safe than sorry" attitude comes into political play every so often in
our history. There is another period when it does not play such a prominent role. It is difficult for a Solicitor General
or the minister who is in that situation, because you are presented with lists of names to approve surveillance or
wiretapping and so on for security reasons. You do not know them. You get reports and you may ask why this person
is under surveillance. You do not have an agency that checks on the police force, although previously SIRC had the
responsibility of looking at security certificates.
What happens, of course, is you are afraid to turn down a particular request because if the individual blows up a
building then it is your responsibility. During my period as Solicitor General, I just happened to know some of the
individuals on the list. When I saw some of the names I was absolutely shocked. One was a childhood friend who was a
professor at Laval, and I told them that particular man was the furthest from being a terrorist that I could imagine. I
told them to go back and check again. They went back, checked, and then said that I was right about him.
I can give other examples of where we happened to know the individuals, and they came to me as Solicitor General
and said a certain individual did not get security clearance. When we checked the methodology, we found people on
lists because in apartment buildings neighbours were finger pointing with very little reason. Good citizens ended up on
lists because of hearsay evidence, what I would call sloppy investigative work.
It just so happened that we knew those cases, but it puts the minister in a difficult position if he or she does not
know the individual personally.
We need more effective monitoring agencies and a beefed up SIRC that looks at all the security agencies in Canada,
whether it is the Communications Security Establishment, the military police or the RCMP.
The present INSETs, Integrated National Security Enforcement Teams, carry out intelligence comprised of
provincial police forces, municipal police forces, RCMP, CSIS, and so on. All of these agencies share information and
we run the risk that the information that they provide to the government is incorrect and has the potential to harm an
innocent person. We need a strong oversight body.
I was the minister leading up to the Olympic Games in Montreal in 1976, which followed the Munich Olympic
Games where terrorists murdered 11 Israeli athletes. We expected the worst for Montreal, yet we planned well and if
you recall we ended up with a system that not noticeable and we had the Olympics without incident. We did not
suspend civil liberties, but very effective procedures ensured our success. It is possible that the times had changed but
we did a good job without hurting civilians while observing their rights to attend the games and so on. Nothing
happened in Montreal following the terrible things that happened in Munich. We planned for four years to be sure that
the city was secure.
Senator Joyal: My point is that Parliament can perform a daily monitoring up to a point. As a minister, you
happened to know some of the names. Another person in your seat at that time might not know the name and the
system would go after that person.
The right approach of course is that Parliament is a public forum and it is important to signal the parameters or the
principles under which the system should operate. You mentioned the Liddar case and the public is well aware of all of
the particulars for that man and his family, but how many other cases go unknown?
We should concern ourselves with the unknowns because the well-known people such as Mr. Liddar, by the sake of
his reputation, can go to the media and make his case on his own.
We heard from Ms. Russow this morning and as past president of the Green Party, and as a public figure, she
sought redress. How many cannot seek redress by asking public opinion to intervene on their behalf?
We must preoccupy ourselves, as members of Parliament, with the unknown people to help them get fair redress or a
fair day in court.
Mr. Allmand: Mr. Mollard referred to people on security certificates who have been there for years and treated
worse than the worst murderers in Canada. Maybe Mr. Crépeau did as well. Here are cases of people who would like to
be charged in court and defend themselves against the evidence, but perhaps they could comment on that.
Mr. Mollard: You need to empower independent civilian agencies like SIRC but in a much larger fashion to cover
all national security agency work and proactive audits.
You are right, national security happens under a cloak of secrecy. People subject to targeting do not know it and
without a complaint system, they have no redress. The RCMP does not have a complaint system.
You need to empower and resource that agency to look at audits, to be proactive, so that the national security
agencies know people are looking over their shoulders at the minutiae of details that they work with to make sure they
are following the rule of law. The oversight system needs considerable enhancement.
At the same time, you need to narrow the definition, constrain that authority and discretion, so that they do not fall
out on the peripheries of cases that we would all agree are not terrorism or national security issues. I again suggest you
look at our submission because we talk about INSET work in it. Maybe the criminal investigation is legitimate, but
just does not involve the stuff we are talking about today.
Mr. Crépeau: The ultimate objective is to inform public opinion, to empower people to come and complain. All
these civilian agencies that should do the oversight work have to report, and the Parliament has to report after
committees like this and the courts will do their job. In the end, the public will suffer the consequences of this
legislation, rightly or wrongly, and it is the public who can complain. That is the important point.
The moral panic will fade and people will start asking questions and people will want to have information on what is
happening because cases like Arar and the others are bound to come up and people will start to get worried.
We have to accompany this education of public opinion so that the public begins to exercise pressure on the
government and the security agencies. The public will begin to want answers.
Senator Joyal: Mr. Crépeau, in your presentation on May 12, and probably in the article that you are circulating
today, you gave seven examples where the status of a non-citizen is different from a Canadian. You cite a persons' right
to immigrate and various elements of the anti-terrorist legislation.
What bothers me is that Canada claims that countries have a right to intervene when a government is violating the
human rights of its citizens. Mr. Lloyd Axworthy first put that position forward, when he was then Minister of Foreign
Affairs. That point was restated at the last meeting of the United Nations last month.
In the international theatre, Canada maintains that we consider human rights to be a fundamental element of our
society. We claim that we should have the capacity, through the United Nations, international consuls and so on, to
intervene in foreign countries because we believe that we treat all persons the same way.
You have told us that there are many examples in the Immigration Act and the anti-terrorism legislation — and you
have listed seven, at least — of how, in the fight against terrorism, we consider foreigners to be a very convenient group
of people, because they are not us; they are not Canadians. You write that they are of other religions and come from
easily identified groups and that immediately brings racial profiling to mind. In fact, the status of the law in Canada is
in full contradiction with what we claim as the international norm.
Is there something illegitimate in our position when we do not maintain the rights of non-citizens on the same level
as the rights of citizens when they have to have their freedom adjudicated under the rule of law of Canada?
Mr. Crépeau: You are absolutely right. The problem, historically speaking, is that since the end of the war, advances
in the field of fundamental rights have led to a narrowing of the gap between citizens and foreigners. Until very
recently, the gap was narrowing. The Canadian Charter of Rights and Freedoms confirmed this by identifying only
four rights reserved exclusively for citizens. All other rights are enjoyed equally by everyone because they are rights
inherent to every human being, regardless of where they live. All countries are responsible for these rights.
That being said, the emerging trend of distinguishing between foreigners and citizens is deeply disturbing. In matters
of security, this trend was observed throughout the 1990s, well before September 11. It was observed in cases of
migration security, a term which is beginning to come into use. For example, today Guantanamo is known for being
the place where Afghani prisoners from the war in Afghanistan and Iraq are being detained. During the 1990,
thousands of Haitian were plucked from the sea by the U.S. Coast Guard and held at Guantanamo, beyond the reach
of the American judicial system. Thus, it was easier to send them back to Haiti. That is one way in which foreigners
were systematically set apart from citizens.
This practice was already being observed and September 11 merely provided new opportunities. A distinction, albeit
subtle, was already being drawn and the public was led to believe that it could, in good conscience, accept these
measures for the sake of fighting terrorism.
We appear to be doing a lot on anti-terrorism.
That is the terminology that you used earlier. However, this practice comes at the expense of individual rights and
Clearly, this rhetorical argument is clearly accepted by the public which does not yet see itself threatened. But that
will happen in time. There are going to be other incidents such as the one involving Maher Arar. Other individuals will
find themselves threatened, not only by foreigners, but by Canadians as well. Such cases will gradually come to light. It
will take some time before lessons of this kind are learned. Today's moral lessons are very real.
The level of protection afforded our rights and freedoms is rather remarkable compared to other countries.
Nevertheless, the situation is somewhat similar to that in the United States in the 1950s during the era of the McCarthy
witch hunts. Although the rights and freedoms of Americans were genuinely protected, at the same time society was
fixated on communism, which resulted in one segment of the population be treated as communists or traitors,
regardless of whether they were foreigners or American citizens.
In some respects, history is repeating itself. It will probably take a decade before the number of cases leads to a
public outcry for more rigour on the part of authorities when dealing with such matters. It is indeed a case of history
Senator Day: Professor Crépeau, my question is along the same lines as that of my colleague Senator Joyal. Do you
feel that a foreigner in Canada benefits from and is entitled to the same rights as Canadian citizens? Whether that
person is in the country legally or not, does he enjoy the same rights?
Mr. Crépeau: The very clear answer to that question is contained in the Canadian Charter. Foreigners and Canadian
citizens on Canadian soil are entitled to the same rights, except for the right to vote, the right to hold elected office, the
right to education in the language of the minority and the right to enter or remain in Canada.
Obviously, these rights are tempered somewhat. Only citizens have the right to enter and remain in the country. Of
course, authorities are not allowed to torture anyone in Canada, be it a foreigner or a Canadian citizen.
Authorities can deport a foreigner to his country of origin, but not a Canadian. A Canadian can be extradited, but
cannot be sent to another country. A Canadian is entitled to remain in his homeland of Canada.
A foreigner cannot be deported in an arbitrary manner. A foreigner is entitled to the protection associated with the
fundamental principles of justice, the right to life, security and liberty. These rights are universal. A foreigner may not
have the right to remain in Canada, but he is entitled to the protection that flows from these fundamental principles of
In the case of a German tourist who has just arrived in the country, sending him back to Germany is not a problem,
at first glance. Germany is a democratic nation that protects individual rights and freedoms. The person has not been
in Canada long and there is little likelihood that he will face torture in Germany. However, there are many other cases
of people who have lived in Canada for a very long time and who have families and lasting ties here. As such, they have
acquired a certain number of rights, specifically the right to fair and equitable treatment given the life they have led in
Canada. Other people hail from countries where their life is in danger. These individuals have certain rights, not only
under section 7 in particular, but also pursuant to other provisions. In that respect, our response is tempered.
Aside from four exceptions, Canadians and foreigners have the same rights. The situation is somewhat different for
foreigners when it comes to the right to enter and remain in Canada. Certain safeguards flow from other rights.
Senator Day: Mr. Mollard, I believe you were discussing the four individuals who are currently under security
certificates. Am I correct that these individuals are not Canadians?
Mr. Mollard: That is correct.
Senator Day: Am I correct that they are free to leave Canada at any time if they chose to do so, but they do not wish
to do so, for whatever reason?
Mr. Mollard: That is correct. I have suggested that you look at the facts with regard to how they have been treated.
Their treatment borders on a system of torture. Canadians would be shocked if they understood the facts of those
Senator Day: Am I correct that they are detained because they are of interest to our security personnel?
Mr. Mollard: They have been deemed as a threat to the security of Canada. They are considered national security
risks, so there is a reason to ask them to leave Canada.
Senator Day: They can go back from whence they came or stay in jail. Am I correct that we feel they are a security
risk and if let free in Canada we might not be able to find them?
Mr. Mollard: I would suggest to you that if they were let free, I imagine that CSIS and the RCMP would have them
adequately surveyed especially given their powers under the Ant-terrorist Act. Presumably, CSIS and the RCMP
would be capable of preventing any particular threat that they might pose to the citizens of this country. All of the
detainees would be very interested in the actual intelligence if not evidence that exists with respect to the reasons for the
government's decision to deport them.
Senator Day: We have heard in previous testimony that there are literally thousands and maybe tens of thousands or
more non-Canadians, illegally in this country. We know our authorities are unable to find many of these people. Many
may not be here any longer; they may be in the United States, where they ultimately wanted to go. They come into
Canada and then they disappear.
Have you done any thinking about what would be an acceptable way, from a civil liberty point of view, using
modern technologies, to be able to track individuals until they can go through the due process without an excessive
invasion into their own privacy, but while still protecting the Canadian security base?
Mr. Mollard: That is a good question. We tend to react rather than propose security measures for the government.
The government is interested when individuals come to the country and present themselves as refugee claimants. The
government permits the refugees a temporary stay in the country until the case is determined. During that time, the
refugees remain subject to the authority of government. The devil is in the details. I believe it is the case that there are
"smart cards" with respect to these individuals.
We know that the U.S. standards are much higher in the sense of photos and fingerprinting, and identification
checks, et cetera. However, there are limits where we would say, "No, this
crosses the line."
I cannot say that our organization has undertaken any particular study on behalf of the immigration authorities to
tell them what we think is acceptable. We tend to react rather than otherwise.
Mr. Allmand: In answer to your question, one might ask, what do we do with respect to Canadians who might be
considered a serious security risk?
Recent reports have accused animal rights activists as going to the lengths of using violence and terrorist activities.
Certain reports have alleged that Aboriginal activists have done the same thing. In the 1960s we had certain Black
movements that were charged.
The police would keep a close watch on them to see if they were involved in a conspiracy to do something wrong and
then they would charge them.
One can say the same about the worst elements of organized crime where you cannot use security certificates, you
have to gather evidence and finally charge them.
Considering our Charter, why do we have a set of provisions for non-Canadians, some of whom have been here for
quite some time, with children, some married to Canadians, and who are being treated worse than the worst murderers
Other witnesses today spoke about not having the right to wear shoes, proper clothing, proper heating or medicine.
All that does not apply to the worst Canadians who might be security risks but our police forces and security agencies
still have to deal with them and in some cases they deal with them quite well.
Mr. Crépeau: We should treat these people as we would want to be treated ourselves in the same circumstances. We
should treat them as we would consider it legitimate for Canadians to be treated elsewhere. If we had Canadians in the
situation of security certificates elsewhere, our consular authorities would protest this type of treatment.
Senator Day: We would welcome them back to Canada; tell them to come back here. That would solve the problem.
Mr. Crépeau: If they were treated there, the authorities might not want to release them. These people do not want to
go home, because they risk something.
Senator Day: It is not that we will not release them; it is that they do not want to leave Canada.
Mr. Crépeau: They do not want to leave Canada for good reasons, maybe. We do not know the reasons. They do
not want to go home because they allege they risk something.
Canadians would not risk anything by returning to Canada, allegedly. However, if Canadians were treated abroad
as we are treating these people in Canada, we would protest it as unacceptable treatment. The standard is there for the
mechanism that we should use. I have no suggestion to make, either. However, if that was acceptable to us, then that
should be acceptable to them.
Mr. Tassé: Mr. Crépeau referred to the lower standard of evidence instead of the Anti-terrorism Act to keep those
people under security certificates. Through the Arar commission, we have learned that RCMP senior officials and
DFAIT officials have said that even if Mr. Arar had trained in Afghanistan prior to 1993, this would have been of no
consequence for the national security of Canada. Yet, this is one allegation used against some of the people presently
detained under security certificates.
What the RCMP and DFAIT consider of no consequence to national security in one context becomes an argument
to keep these people in jail in the context of national security.
Senator Day: I am interested in the report from the British Columbia Civil Liberties Association. I appreciate
receiving that, Mr. Mollard. I will read it with more detail. It has many interesting and pertinent recommendations.
The other reports are helpful, as well.
I wish to focus on the parliamentary review section of your brief because I am disappointed in your conclusion. My
view is that the interim joint parliamentary report was made to the minister creating a parliamentary oversight group
on national security that was going to be able to obtain security briefings. It would be able to delve into the operational
activity of all the security-related groups and I thought it was important. That was one of the recommendations.
That committee would have a long-term institutional memory. The senators on that committee could perform a
valuable function in balancing the importance of collective security and the importance of due process, the rule of law
and human rights.
That committee could do that better than what you have come down with here, a recommendation of creating an
oversight national security review committee made up of non-parliamentarians, outside of the system.
Mr. Mollard: I have a few comments. First of all, our recommendations with respect to various mechanisms for
accountability and oversight are not mutually exclusive.
If there was a properly constituted parliamentary committee, and I will make additional comments on that in a
moment, it should not preclude a committee of independent civilians to review the information. Indeed, in the interim
committee's report, they did not see the two as mutually exclusive, either. We want a national security review
committee of independent civilian oversight to go along with the parliamentary committee.
I will say something about the parliamentary committee. I read the reports closely: The discussion paper by the
minister in the spring of 2004, the committee's report from October 2004, and the minister's response in April of 2005. I
think that the minister's response of 2005 is at odds with what the interim committee's proposals.
I think the minister went a little way from her discussion paper in permitting some operational information.
Certainly the members of her committee will have access to classified information. It was not clear in the discussion
paper whether that would have been the case, but I think she came a little way. She made it very clear that her
committee will be a high-level committee that will review policy, administration and budget aspects but will not be
involved in operations or reviewing operations at all.
Second, the committee will only look at the effectiveness of national security agencies. She wants to set up a
committee that does not have a rule of law, human rights, civil liberties perspective, from my reading.
Senator Day: I agree that she did not go nearly as far as the interim committee's recommendation, which I prefer. I
am trying to get you to focus on recommendation as opposed to the independent layperson committee.
Mr. Mollard: What would I say if there was an interim committee the way it was proposed? I still think there is
tension there that I am not sure can be satisfied between effectiveness and being involved in operational matters. In
other words, it would not merely be a review of information after the fact but in advance of security agencies' activities
as they occur in the United States. You implicate yourselves into exactly what the national security agencies are doing
in ways that compromise your ability to review it after the fact. If there is wrongdoing, you are implicated in a sense.
That mix of mandates is very difficult.
Would I like to see an interim committee nevertheless? I think it would be an important advance. I would not do it
exclusive of an independent civilian review agency that had conducted a review after the fact.
I am not sure how long of legs this has, but one thing we have tried to pitch is an independent office for a civil
liberties advocate on the inside who would be subject to secrecy, et cetera, but who could always come to the table to
make the kinds of arguments we love to make; we never have any information or details to do it. We are always on the
Senator Day: Do you think you could accomplish that with a parliamentarian who has a strong interest in civil
liberties and rule of law?
Mr. Mollard: You could. I am not saying necessarily you would not. I am a little worried about partisan politics at
that level as well.
Senator Day: We should bring you to the Senate more often.
Mr. Mollard: Yes. It is a more collegial, deliberative exercise here, but I am a little worried about that, and the dual
mandates that I see. I would not do one without an independent review. It is critical to have that civilian independent
review, and I urge your committee to make recommendations to enhance that.
Mr. Allmand: We recommended both groups in our brief to the Arar commission. I see a place for both the
committee as suggested by the interim committee and the independent review body.
The independent review body would consist of people conducting reviews on a full-time basis. In the Senate, you
have a longer view and you are here for a longer period than members in the House of Commons who do not know
how long they will be here, especially in a minority Parliament, but you still have other responsibilities. The senators I
used to know not only served on one committee but on several and had other political responsibilities.
It is important that we have such a committee, and it can do certain things that an independent review body may not
be able to do. An independent review body could deal with individual cases in depth on a more consistent basis. I think
both groups could play an important role.
Mr. Mollard: A parliamentary committee would give a larger voice in Parliament than exists now. That would be a
Senator Day: Mr. Allmand, your recommendation for the parliamentary oversight review committee was along the
lines of the recommendation by the interim joint committee as opposed to what the minister has now suggested.
Mr. Allmand: Absolutely.
Senator Christensen: I have been listening to the discussion and it highlights the difficulties in Bill C-36. Terrorism,
we have pointed out, as an organization, whether it is large or small, certainly does not operate. We are dealing with
apples and oranges under the rules of a free and open society, which we in Canada and other places in the world enjoy.
To be successful, terrorists depend on our free and open society to be able to infiltrate and get the necessary
We are in this day and age a very global society. We are talking about us, but
"us" is not just Canadian, Americans
and other countries in the world.
When we are developing legislation, we have to be cognizant of what other societies similar to ours are doing so we
can mesh our borders with trading and everything else we are doing, such as free movement of people between
It is very difficult. We cannot become isolationists and create our own legislation and forget about everybody else so
we can continue with our freedom of transport back and forth. Sometimes we have to be stronger than we would like
It has been pointed out here and it is obvious: Terrorism is nothing new. We are not suddenly facing terrorism as a
new threat. It is something that has been present since the beginning of time. However, now it is present more on a
regional basis. With our new technology, terrorism is again global; it is widespread. As we have seen in the different
places in the world that have been hit, it can affect people very quickly.
We have to be very cognizant and protective of our sovereignty while at the same time drafting laws that comply and
mesh with our sister nations.
I agree with the suggestion of looking at sunset clauses. Day to day, month to month, year to year, things are
constantly changing, and we have to be able to move and make changes. That is probably something this committee
will be looking at; if not incorporating one, at least having mandatory reviews.
I am not a member of this committee and have not heard other witnesses. Sitting here today and listening, the very
complex issue we are trying to deal with has been brought up. You people can certainly see the problems on this side of
trying to find the answers. Finding the answers is much more difficult than seeing the problems.
Mr. Allmand: You mentioned how we have to be cognizant about what is happening in other countries.
Unfortunately, many of the other countries that were urged to develop anti-terrorist laws were countries that did not
have a great record for human rights and freedoms. This urging on to develop stronger rules fit them very well. I can
recall very well that after Musharraf took power in a coup d'état in Pakistan, the United Nations and the
Commonwealth countries told him to return to democracy soon in threat of a change in financing. I just give Pakistan
as one example. Once 9/11 happened and Musharraf was able to introduce even tougher measures against dissent and
so on, he was quite happy.
Someone mentioned Afghanistan. At one point, it was quite in line to oppose the Russian occupation almost
through terrorist means. Even now in Venezuela, you are almost a good guy if you oppose, according to some people
in the world, Mr. Chavez, but in other countries you are a terrorist for doing the same thing.
It is a complex subject. We have to be careful of this worldwide crackdown on civil liberties. In the example that we
give, I mention what kind of message do we give to the new emerging democracies in Eastern Europe and in Latin
America if we suspend the rule while we are trying to preach?
I was into democratic development at the international centre and it became difficult. They said,
"You are a
Canadian." It is not easy.
Senator Christensen: It certainly is not.
Mr. Mollard: Our motto is that we protect national security because we want an open and free society; we want a
vigorous democracy. We always have to be careful, if we are crossing the line such that we are creating measures and
details that impinge on those values, and creating the conditions for someone to object to us in ways that we just do not
want to see happening.
We have proposed some concrete suggestions in terms of answers, not just questions, in our briefs. We look forward
to your report.
The Chairman: Thank you very much. This has been a fascinating afternoon. Clearly, the committee is pleased to
have you all here, because you do bring a broader and, perhaps, a different slant on this difficult issue. We want to hear
Thank you very much for coming here today, and colleagues, thank you as well.
We will be meeting Senator Stratton at seven o'clock tonight.