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Proceedings of the Special Senate Committee on

Issue 1 - Evidence - Meeting of April 2, 2012

OTTAWA, Monday, April 2, 2012

The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, met this day at 1:30 p.m. to give consideration to the bill.

Senator Hugh Segal (Chair) in the chair.


The Chair: Honourable senators, this is the second meeting of the Special Senate Committee on Anti-Terrorism, the name of which was confirmed by the Senate of Canada the other day, and we are in the first session of Canada's Forty- first Parliament.

Today we are very fortunate to have Assistant Commissioner Gilles Michaud, National Security Criminal Investigations of the Royal Canadian Mounted Police. He has appeared before this committee on prior occasions in discussion of aspects of the legislation we have before us today. He is in the position today to give us an opening statement and to reflect on some of the new provisions and issues that we face in Bill S-7, which is before this committee.

Inspector Michaud, please proceed.


Assistant Commissioner Gilles Michaud, National Security Criminal Investigations, Royal Canadian Mounted Police: Good afternoon and thank you for inviting me here today to discuss Bill S-7 from a law enforcement perspective. My name is Gilles Michaud, and I am the Assistant Commissioner of the RCMP National Security Criminal Investigations program.

My comments today will be focused on some of the aspects of the bill that, in my view, may impact on the ability and capacity of the RCMP to fulfil its national security criminal investigative mandate.


The RCMP is committed to a safe and secure Canada. The RCMP fully supports the Government of Canada's newly announced counterterrorism strategy, Building Resilience Against Terrorism, and recognizes that we play an important role within that strategy. Canada's national security remains one of the RCMP's key strategic priorities. We recognize that the greatest threat to Canada's national security is posed by the threat of criminal terrorist activity in Canada and abroad, and we will continue to do our utmost to prevent, detect, deny and respond to all threats to national security in cooperation with our domestic and foreign partners.

The threat to Canadians is real and present. The issue of radicalization of Canadian youth towards criminal extremism is a continuing challenge to Canadian society. Our successful prosecutions of Momin Khawaja and the Toronto 18, as well as our more recent arrests, which are still before the courts, have shown us that there are individuals in Canada who have embraced extremist ideology and are willing to act upon it.

We have also seen cases where individuals who were radicalized in Canada travelled to foreign countries to undertake terrorist training and/or to participate in foreign conflicts.

The RCMP supports Bill S-7 because it contains important tools that could enhance the RCMP's ability to prevent, detect, deny and respond to terrorist threats. With terrorism, even more so than with other forms of criminal activity, it is imperative that we prevent attacks before they occur wherever possible.

As proposed, section 83.181 in the bill would make it an offence in the Criminal Code to leave Canada to participate in the activities of a terrorist group. Similar, but with a distinct difference, is the proposed section 83.191, which would make it an offence to leave Canada for the purpose of facilitating a terrorist activity.

From my understanding, the primary difference between the two provisions is that 83.181 focuses on participating in the activities of a terrorist group, whereas 83.191 deals with situations where an individual leaves Canada to facilitate a terrorist activity.

For example, if we had evidence that a person was planning to leave Canada to attend a training camp operated by a terrorist group, then section 83.181 might apply. In a different scenario, if we had information that a person was planning to leave Canada to carry out a terrorist activity, even if they were not connected to a terrorist group, then section 83.191 could apply.

I believe that these two provisions bring more specificity to the offences of participation in the activities of a terrorist group and facilitating a terrorist activity, congruent with the evolution of the threat over the last few years.


On the question of investigative hearings, the reinstatement of the investigative hearing option would provide law enforcement with an additional information gathering tool that would be judicially authorized and supervised. Although the information obtained through an investigative hearing could not be used against the person who testifies at the investigative hearing, the information elicited may provide the crucial piece of information that could be used to prevent a terrorist act or investigate it further.

We recognize that this special tool is for use in rare situations where we know a witness has critical information but is unwilling to cooperate with police. In some cases, these potential witnesses may not want to be seen as assisting the authorities willingly, are part of the plot itself or are sympathetic to the terrorist group. Terrorist acts are crimes and we have a responsibility to prevent and investigate these crimes.

In many cases, while attempting to prevent a criminal act, we have learned more about past criminal activities. It would not make sense to arbitrarily limit our ability to use information about criminal activities, for example by restricting the investigative hearing to preventive purposes only.

It would be difficult to explain to the Canadian public that we had information about a past attack that went unprosecuted simply because it was obtained by an investigative hearing.


Now, with the recognizance with conditions, the recognizance with conditions provisions would allow a person to be detained for a maximum of 72 hours, which, in critical situations, may be necessary to prevent a terrorist activity from being carried out. It would also allow a judge to place conditions on an individual upon the release of that person from custody. It is the combination of these features that could make the recognizance useful in specific situations. The ability to arrest and then place conditions on a person are only foreseen in those rare situations where I believe this would prevent a terrorist activity from being carried out.

In most situations, where the police have gathered evidence to justify a charge being laid, the normal process of arrest and detention for appearance in court within 24 hours would be followed. Gathering evidence to this standard of proof is not always possible, leaving the RCMP possibly having to rely on this Bill S-7 option if no other option is available. This may result from the information in possession of the police not yet meeting the beyond-a-reasonable- doubt standard required for a criminal prosecution, possibly because it is too early in the criminal investigation, or if the belief is based on sensitive intelligence received from a domestic or foreign law enforcement or intelligence partner.

In cases like this, using the option of recognizance with conditions emphasizes the prevention of a terrorist activity first and foremost, and it is best thought of in those terms.

The RCMP had access to both those provisions from 2001 until 2007, and although each option was considered in select national security investigations, the fact that the RCMP never used them should be seen as our recognition that these were extraordinary measures for exceptional situations that we could not justify to ourselves at the time. It will always remain the RCMP's preference to try other investigative options first, and only when no other options are available to prevent a terrorist act would the RCMP seriously consider using the Bill S-7 provisions.


In conclusion, the threat posed by international terrorism remains a serious challenge to Canadian society and to the RCMP, which is mandated to conduct criminal investigations relating to Canada's national security.

The police need a flexible approach and a full array of investigative tools in order to provide a proportionate response. The provisions of Bill S-7 will help provide these additional tools that could be used under exceptional circumstances.

That being said, the RCMP remains committed to working closely with its partners to ensure the security of Canada and its allies within the judicial framework that has been provided through the government.


I thank you again for this opportunity, and I hope that I can assist you with your important work on this piece of legislation.

The Chair: Thank you, inspector. I would like to ask a general question about capacity.

We have existing laws that have certain criminal offences with respect to terrorist activity. The law before us adds new criminal offences about travelling — namely, planning to travel for the purpose of facilitating and/or participating in. It would strike me that every time you expand the amount of laws that one has to enforce, organizations responsible for enforcement, such as the Royal Canadian Mounted Police, the RCMP in its provincial context operating on contract to provincial attorneys general across Canada where that applies, and your sister police forces in Toronto, Vancouver and Montreal, have to deal with a requirement for more capacity, the ability to do more investigations, pursue more lines of inquiry based on legitimate and lawful suspicion.

Do you believe that the force, as now constituted, has the capacity to do all that it is now doing on national security and still have the ability to add on investigations around these prospective newly created criminal offences in Bill S-7?

Mr. Michaud: I will start by answering the last part about adding on.

The new piece of legislation being offered is not really an add-on because what we investigate are criminal threats. Having an additional offence does not add to our plate, especially in the case of the offence that is being proposed under Bill S-7. It is an offence that, from my perspective, brings more specificity to the already existing offences of facilitating and participating in a terrorist activity. Therefore, I do not see that as being an add-on to our plate.

The add-on to our plate is based on the additional threat. That is where we see an add-on. When it comes to capacity, the RCMP works with its law enforcement partners and other agencies within the federal government to address those threats. It goes from our mandate to prevent to the mandate to have criminal investigations for the purpose of prosecution. From that perspective, I believe that we are well set with the capacity that we have right now. We have demonstrated over the past few years our ability as an organization to be able to carry out our mandate and lay criminal charges against those individuals that pose a threat to our national security.

The Chair: Clearly, the use of undercover agents was of great value in the prosecution of the Toronto 18, and some of the other networks that were being overseen by the Royal Canadian Mounted Police and some other successful prosecutions. Do you not anticipate that you would have to expand your capacity in those areas to deal with the travel and planning to travel for the purpose of activities, or you are comfortable that the capacities you now have would be sufficient to address further investigations which these new criminal offences might necessitate?

Mr. Michaud: Again, from a capacity perspective, we need to do some adjustments internally not because of this new piece of legislation but because of the evolution of the threat. The fact that we now have more and more Canadians travelling abroad makes it such that we are trying to optimize the undercover investigative technique that you mentioned. We are looking at expanding the training that we offer to our undercover operators. Whereas they were usually used more within the organized crime type of environment, now we are developing and have already implemented some training for our UC operators to work within the environment of terrorism.

Senator Joyal: I was not going to question the witness on that aspect of his testimony, but I am almost compelled to ask the next question of you, Mr. Michaud.


Welcome; it is always interesting to hear what you have to say.


In the budget last week, I was surprised to learn that the RCMP will have to face $195 million in cuts within the next three years. It links with the question of the chair. I read the following in the budget document, which I will read to you, and maybe it will give you an opportunity to elaborate on the question:

The Royal Canadian Mounted Police will be pursuing administrative and operational support efficiencies, with minimal impacts on direct policing operations.

The amount is $195 million. That is fairly important, in my opinion, in terms of impact on the RCMP operations. With that kind of an important reduction in your budget, will you be able to maintain the same level of efficiency in terms of policing operations, the ones contemplated, for instance, in Bill S-7 and the other one that you have mentioned, which I will come back to, on the "evolution of the threat,'' to quote your own words?

Mr. Michaud: Yes, I believe so. We have been working hard over the last few months, and we have indicated to government where we could find efficiencies. You mention efficiencies as well, and that is what we are looking at, namely, finding more efficiencies not just on the administrative side but also on the operational side.

One of the premises of what we are looking at is ensuring that the front-line police officers and our policing capabilities on the front line are not affected by changes that will occur because of the reduction in our budget. I am quite comfortable in the work that I have seen so far that it will certainly not affect our capacity to be able to prevent and investigate criminal threats in relation to terrorism.

Senator Joyal: It might not have been the appropriate forum to pursue that, but I wanted to raise it on the basis of your own question, chair.

My first question was really about the "evolution of the threat,'' to quote your own words. What is different from the previous testimony you made at this committee in our previous incarnation when you testified about the nature of the threat that Canada is facing in terms of security? What has changed? What has evolved from the previous hearing that we had with you when you and your fellow officers explained quite well where we were in terms of the nature of the threat that Canada was facing?

Mr. Michaud: It was a year and a half ago the last time I testified. The radicalization phenomenon is now almost enshrined in some of our vulnerable communities. We are seeing more and more individuals travelling abroad.

The other piece around the evolution of the threat is that we have had significant changes since a year and a half ago. We have to think about AQ core, how AQ core has been affected and the impact it has had where some of its affiliates have taken a more significant role. It is a bit more of a complex environment around being able to track who is doing what and who is where.

The other piece around the situation around the globe in special areas like Libya, Syria and so on — the Middle East — makes it such that we are always on our toes regarding what might be the spill-off of those conflicts and how it might affect the security of Canadians both here and abroad.

The Chair: Did you say "AQ core''?

Mr. Michaud: Yes. It is the core piece of al Qaeda.

The Chair: Thank you.


Senator Joyal: In your testimony a year and a half ago, you mentioned that what was really new was homegrown terrorism, and no longer the clearly identified threat around al Qaeda. Now it is a cloud — individuals who make contact on their own, primarily via the Internet, with sources of information that may ultimately put them in touch, and I am thinking of Bill S-7 in particular, with training camps, meeting or discussion groups or bomb-making sites that are now completely accessible on the Internet.

Is this the context in which threats to Canada's security would be most common and present the most immediate danger? If not, is it more along the lines that what happens in a country experiencing specific political or civil unrest, such as Syria and Yemen at the time you testified, generates more new situations that you have to deal with rather than greater risk from the individuals you are following here in Canada?

Mr. Michaud: It is a combination of the two. Political conflicts in certain countries have grown since the last time I appeared before this committee.

When we talk about homegrown terrorism, we are talking about the radicalization of young Canadians who develop an affinity for an ideology and decide either to commit their crimes in Canada or to travel to the conflict zones to support some group there.

Senator Joyal: Are there still Canadian sources for indoctrinating young people that are as significant as the ones you identified when you testified a year and a half ago, or would you say that this part of the source of indoctrination has narrowed somewhat or has been circumscribed somewhat by your surveillance services?

Mr. Michaud: The source of indoctrination is not necessarily based in Canada. It comes from various parts of the globe. It is the accessibility of communication via the Internet that has meant that Canadians are exposed to the propaganda spread by individuals and groups. The source itself is not exclusively Canadian.

However, I can tell you that we have a source of individuals in Canada who do want to support these causes and do so either in Canada or elsewhere.

Senator Joyal: Can visiting these sites or sources of information via the Internet lead to you laying charges of associating with terrorist activities, as the President of France wants to do, according to the statements he made in response to the Mohamed Merah case in Toulouse?

Mr. Michaud: Absolutely not. In the infrastructure of Canadian law, visiting an Internet site that is spreading propaganda is not a crime. There have to be acts committed in relation to the ideology expressed on those sites. In Canada, it takes more than visiting sites of that nature for a crime to be considered to have been committed.

Senator Joyal: Under the bill, you would have to obtain information indicating that a person was regularly visiting a site or sites that promote terrorism and had the intention of leaving Canada. The offence is based on leaving, if I understand the amendment to be made to the Criminal Code correctly, section 83.181, stipulating that everyone who leaves or attempts to leave Canada is guilty of an indictable offence. It is the leaving that is to be punished.

So an individual who visits Internet sites that promote terrorism and decides to leave, as you said on page two of your presentation, for example to go to a training camp, in whatever country they choose, is the type of individual you would be wanting to charge. The reason would not simply be that they visited Internet sites that promote terrorism for "x'' many months, but solely that they had the idea of leaving Canada to go to a terrorist training camp.

Mr. Michaud: Viewing Internet sites and leaving the country, once again, is not sufficient. Criminal intent has to be proven, that is, an intent to go to a training camp outside Canada or to join a group that has been recognized as a terrorist group.

A portion of the evidence has to be collected in relation to the individual's criminal intent. Viewing Internet sites and leaving Canada is not sufficient in itself. You have to be able to show that the individual had the intent to travel to a terrorist group's training camp and support their cause. There is still an additional piece of evidence needed.

Senator Joyal: A piece of evidence that might be easy to show if the individual clearly expresses their intent in a discussion on the Internet. Now that there is to be a legislative provision that will punish this method of communicating, there will certainly be an effort made by these people to evade the intent of the law and leave the country without establishing a causal connection, directly in Canada, between the indoctrination and the act to be committed, of going to a training camp or meeting other people who might ultimately persuade them to commit a terrorist act.

Do you think that might make your work more difficult?

Mr. Michaud: No, I think the amendments to section 83 of the Criminal Code will mean that we have something more specific. Sections 83.18, 83.19 and 83.20 of the Criminal Code mean that we already have tools to show that a person intends to travel to a training camp or join a terrorist group that already exists.

However, the new provisions are more specific about the travel aspect. It does not complicate things; rather, it facilitates our work and helps our ability to investigate and lay charges.

Something else that is important is the message conveyed by the new provision. So if there were ambiguities in what was already there in the Criminal Code, that is, what contributing to or participating in terrorist activities or a terrorist group means, the new provision makes it very clear that if you have the intent to join a terrorist group, to travel outside Canada to join a terrorist group, or to facilitate a terrorist activity, that is an indictable offence in Canada.

Senator Joyal: So merely wanting to travel outside Canada to attend a training camp would be a criminal activity in itself, within the meaning of the law. But with the requirement of merely wanting to leave with the intent to attend, for example, a training school, would there not be more specific cases in which an individual will want, for example, to go to a religious school where the imams are well-known for advancing objectives that promote jihad? Will you not have to go beyond the simple interpretation of "go to a training camp''? There may also be "go to an indoctrination camp''. There is a subtle distinction between the two. Do you think this provision would be sufficient to deal with that situation?

Mr. Michaud: I do not think the provision covers people who go outside Canada to pursue religious or language studies, whatever school they might be offered in. The provision is aimed specifically at training given by terrorist groups; it is aimed specifically at terrorist activities, properly speaking. As I interpret it, the first case is not a terrorist activity, properly speaking.


Senator Frum: It is nice to see you again, Mr. Michaud. Just to follow up a little bit to Senator Joyal's line of questioning, you mentioned that a lot of the indoctrination can take place over the Internet, but the question began with how much of it is happening on a home-grown or local basis. While you were talking about the Internet, we swerved away from this topic.

To go back to that part of the question, it must be said that there is indoctrination happening inside the country as well. Can you address that a little bit?

Mr. Michaud: From that perspective, if the indoctrination occurs here in Canada and not via the Internet, that is always possible. I believe that the situation per se, if it were brought to our attention, would be investigated, from our perspective, but that is the extent to which I can comment publicly.

Senator Frum: Fair enough. There are those who quite rightly always become more anxious at what they perceive as the expansion of police powers. This is a renewal of existing powers that you do have, but I am wondering if you could address the point that gets made, which is that these provisions in this bill have never been used before. The question comes up, why do you need them renewed? Why do you think they are so important to have?

Mr. Michaud: From our perspective, these are tools we can put in our tool box so if we ever get to a point where it is the last resort, that we have used all the other tools in our tool box and we are still faced with a situation where the Canadian public is at risk, then we have these to use. Again, it must be mentioned that, first, we need to seek the Attorney General's consent before using these tools. We need to seek a judiciary type of act to allow us to use it. There is a lot of oversight that is brought upon the usage of these tools.

It is not a power given directly to the police to exercise whenever and how they want. There is oversight that comes with these tools that are being offered.


Senator Dagenais: Thank you for being here to meet with us, Mr. Michaud. It is always a pleasure to meet with colleagues from the police.

I am going to ask you two questions. First, is Canada now, more than in the past, a good place for fomenting terrorist plots? With everything going on at the international level, we know that people may sometimes feel like coming here.

Mr. Michaud: That is a somewhat tricky question. I think the present legal framework allows us to deploy the resources of various agencies that work jointly to ferret out plots that might develop in Canada. In recent years, that capacity has been demonstrated, with the arrests made and charges laid. To go from there to saying that it is or is not a better place for terrorist activity is difficult: if I say yes, on the one hand, I am saying that we are not doing a good job.

Senator Dagenais: I am satisfied that you are doing a very good job.

Mr. Michaud: I think it is really fairly balanced. People are always going to try to use Canada because of its proximity to the United States, which is really an important target for terrorist groups. But to go from there to saying that Canada is a good country for fomenting a plot, I would say no.

Senator Dagenais: Far be it from me to think that you are not doing a good job, and as you point out, what would prompt this situation would really be the proximity to the United States.

My second question concerns the reinstatement of the mandate in Bill S-7. Is reinstating it going to make it possible to keep individuals who are capable of acting, I would not say as they like, but you understand what I mean, away from Canada? I understand that it is going to facilitate your work, but is it going to keep them away?

Mr. Michaud: Indirectly, I would hope it will keep them away. If we are able to show that we have tools, that we use them effectively, within the framework of the law and with respect for the rights of Canadians, then that is going to send a very clear message to people who are thinking of using Canada as an operating base for their crime, but it would be indirectly.


Senator Peterson: I am new to this committee, so I do not know if my questions have been covered before or not.

Would I be correct in saying that the RCMP was closely involved in the development of this legislation?

Mr. Michaud: I would not say "closely.'' We were consulted with respect to the development of the legislation per se, but this was led by the OJ.

Senator Peterson: When you say you would only use this under exceptional circumstances, you remain committed to working closely with your partners. Who would your partners be?

Mr. Michaud: From the judicial perspective, the PPSC — the Public Prosecution Service of Canada — would prosecute the cases. From the law enforcement perspective, we have the other law enforcement agencies across the country. We also work closely with CSIS, with CBSA, Transport Canada, the military, DND. Those are the usual partners we deal with in the national security environment.

Senator Peterson: In developing this legislation, would the judiciary have access to the full level of intelligence that you have?

The Chair: By that, do you mean criminal intelligence?

Senator Peterson: I mean intelligence that they would use in developing the legislation.

Mr. Michaud: I guess they would have an awareness of the threat environment, but to what extent, I cannot say. I do not know what the process was. Personally, I was not consulted around the threat environment with respect to the development of this legislation.

Senator Peterson: I guess where I was going is would any parliamentarians, anyone on this committee, have access to the level of intelligence used to develop this legislation since they are being charged with passing it?

The Chair: My suspicion would be no. To the extent that the uniformed forces and police forces have access to criminal intelligence information, that would be classified by different levels of security access. While ministers of the Crown as Privy Councillors would have access and clearance, as some senior officials would, to the very best of my knowledge there would be no parliamentarians in this chamber or in the other chamber who would have that level of clearance to have access to that kind of information, which would not be the fault of the officials. They would be prevented by their oath of secrecy from sharing information with people who do not have higher levels of clearance, for better or worse.

Senator Peterson: That is fine. Would the oversight be at the Minister of Justice level? Where would it be?

The Chair: Operational oversight is with the minister of the Crown who responds to Parliament, and post factum oversight, if there is a complaint, would be within the complaints organization within the Royal Canadian Mounted Police or with respect to CSIS before SIRC, which deals with complaints and concerns and makes an annual report on a regular basis. That is my knowledge of the present system.

Senator Andreychuk: Thank you, assistant commissioner, for coming to the committee.

I want to follow up. You said that the two powers in Bill S-7 are for exceptional circumstances. The tool box was enlarged after 2001 so that there would be more capability, quite frankly, to prevent terrorist activity as well as act after the fact. At the time, there were two fears of expanding into these two very unusual powers that we have given since 2001. One would be whether you would reach for it quickly because it is so extraordinary and gives you powers you did not have before. The answer seems to be that you have not because there are not any documented cases. The reports filed in Parliament have not proven that.

The other concern was that it would be used as an incentive to give information or as a threat to use information. In other words, in your investigation, you may be going through the community or with a particular suspect saying, "If you do not tell us what you know, we could exercise these powers.'' It was a bit more difficult for the original committee to determine when it is or is not being used. I know at that time, the RCMP and CSIS said that they would disclose if it had been used in some way and that there would be protocols to prevent that kind of use of these powers. Where are you at now? Do you have protocols that say it is not an investigative technique to use these as a threat, incentive to testify or to give forward information?

Mr. Michaud: No, we do not have a protocol to that effect. I think it is a very valid concern that you raise. We do exercise oversight within the RCMP from Ottawa, from my chair, around all of the investigative avenues that we pursue. Within the scope of an interview of an individual and whatnot, if that is said or used to threaten someone to provide information — and I do not know if it has been used in the past — I would not have that type of detailed knowledge. I am not sure one would even disclose that if it were the case, to be honest with you. I would hope they do not. However, for me to sit here and say we have never done so, I cannot say that.

It is, however, something you highlight for me and my perspective around policy development. We have policies around bias-free policing, the way we deal with sensitive sectors, how we share information and so on. We are continually revamping our policies with experiences from past investigations, past public inquiries, past prosecutions and case law. You raise a very good point that I will definitely look at, to see if there is any way we should have something in policy around the non-use of such threats to get information out of witnesses.

Senator Andreychuk: It taints the process later on. That is my difficulty with it.

I know you have had changes in your policy dealing with minority communities and issues. One of the best sources of information about what is going on in Canada comes from the community itself. I am wondering if you can comment about how you work with the communities now to encourage them to come forward and give information. I know this is decades long. As new immigrant groups come into Canada, there is a question of trusting the police services, and when they came they would not. Your task is to encourage them to have trust in police services, to reach out and identify when things are not going well in a community. That, in addition to using undercover agents, I think would be your two best tools.

Can you comment on your policies and your extension programs with the community?

Mr. Michaud: It would be my pleasure. Our community outreach program is quite diverse. We have a lot of ongoing initiatives with communities at risk or vulnerable communities. In fact, our number one priority is to build that trust with those communities. However, it is not to build trust in order to extract information from them; it is to build trust for them to be able to work with us and other government agencies — whether it be federal or provincial — in developing programs that will assist them in addressing the root cause of the radicalization phenomenon that may exist. That is not just a judicial type of process; it is very much a social issue. It is building that trust with them so they know they have someone they can work with. It is part of our community-based policing that we have been doing for over 137 years in different forums. However, it is not done in a way to extract information or to develop sources to assist us.

There is the indirect effect that if they do trust the police — they understand what we do, how we do it and why — and if there is a problem in their community, they have someone they can turn to. However, the number one priority is not to extract information from them.

Senator Andreychuk: Thank you. You are extending now to overseas. If someone starts an act of moving out of the country — whether they go to an airport or into a car across the border — with the intent of going to a terrorist training base, are those the two issues that you think, from a policing point of view, are the new ones? There is an act of movement out of the country and it has to be to a target? As you said, not to a religious school, et cetera, but to a training base. How are you going to link those two in a policing sense?

Mr. Michaud: Very good question. It is not just to go to a training base because —

Senator Andreychuk: I just used that as an example.

Mr. Michaud: We are aware there are individuals that travel abroad and are part of a terrorist group. They join them in their fight and do whatever they do overseas. It is not just specific to a training base, but taking on a terrorist activity as well.

On the piece around proving that — because often times it is done in countries where we do not have any mutual legal assistance treaties with them — there is not necessarily a police organization where we can deal police to police and share information with them on a daily basis. It throws us into an environment where it brings us to the intelligence as evidence. Often times, the basis of the information we have is security intelligence around the presence of Canadians abroad and what they are doing abroad. It is working our way back from there, and with our security intelligence partners, to try to bring that intelligence to the policing world.

That is probably the biggest challenge we face with respect to Canadians going abroad and joining these terrorist groups.

Senator Andreychuk: Thank you.

Senator Joyal: My question is on the same ground as that of my colleague Senator Andreychuk. It is about Mohamed Merah, the young French terrorist who killed soldiers and Jewish kids in a school in France two or three weeks ago. There was proof that he travelled to Afghanistan, Pakistan, Jordan, and to many countries in the Middle East, and that he went to a training camp. However, when he was brought back to France and was questioned by the military police there, he mentioned that he went touring. After that, it became obvious that he was in a training camp.

In such a circumstance, would you not be faced with the same situation as your French counterpart in dealing with a Canadian leaving the country? That is, without clear proof, he goes to a training camp and then he comes back. You would not be in a position then to clearly come to the conclusion that he went to a training camp. The amendments to that section, as you mentioned, would be of little assistance if you could not prosecute that person once you had the proof that the person went to a training camp.

In other words, you can lay a charge if you have clear proof before the person leaves that that person is going to a training camp. However, once that person returns to Canada, and you have proof later that that person attended a training camp, you would not be in a position then to charge that person.

Mr. Michaud: I stand to correct you on that, respectfully. Based on my understanding of the proposed piece of legislation, either the person plans on leaving or has already left and returns. We can use this new disposition in order to charge them for travelling abroad to participate in either a terrorist activity or to support a terrorist group.

Senator Joyal: That is your understanding of the interpretation of quitte ou tente de quitter?

Mr. Michaud: He may have already left. If he has left and then at a later date we find this individual at a camp somewhere and he comes back to the country, from my perspective, we would be able to use that piece of legislation in order to charge that individual. If not, as I said earlier, the existing pieces of legislation that we have — that is, participation or facilitation in a terrorist activity or terrorist group — could be used.

Definitely, if we have usable evidence to demonstrate that an individual was in a training camp and has returned to Canada, that individual could be charged.

Senator Joyal: The way that the section is written or drafted, it says quitte ou tente de quitter; it is not quitter le Canada. It is for the immediate fact of leaving the country, not because you have already left the country and have come back. Two or three months later, when you are back in Canada, then the proof comes or other information is provided to you to the effect that that person attended a training camp.

Mr. Michaud: I may misunderstand the intent of the new piece of legislation, but that was my understanding. It was not just the fact of having the intention to leave or is leaving but someone has left and then come back.

Senator Andreychuk: My understanding is that there are existing ways in the existing act to get at people if you know they have been in a camp and they are in Canada and you can link that up. Whether you can prove your case is another thing. These sections specifically cover the imminent leaving and the imminent effect. My understanding is that you had the other powers; it was this that was lacking, namely, to get them before he does it and has had some preparation stages. That is how I understood the need for this.

Senator Joyal: That is also how I understood it because it is the presence tense. I might be wrong.

Senator Andreychuk: I think we have the powers already.

The Chair: Let me ask colleagues with a legal background. There is, classically in these circumstances, the development of an evidence share protocol. What constitutes evidence under the act? Is it email traffic back and forth laying out a plan? Is it evidence of a conspiracy to go abroad for the purpose of doing things that would be against the law if the bill passed in its present form? Is it travelling arrangements that have been made and subpoenaed for the purposes of gathering information for a prosecution? I assume that protocol would have to be developed for the new provisions, as is the case for the existing provisions of the old legislation, where there was evidentiary protocol. What constitutes sufficient evidence for a Crown attorney to feel they have the rationale to lay a charge?

Senator Andreychuk: It would not be evidentiary protocol. It would be past cases, precedents and good police work. It could be circumstantial evidence or solid evidence. That is the discretion of the prosecutor, based on the work of the police. I do not think it would be a protocol per se.

The Chair: There would be no specification in the law that would change that practice. That is a normative practice for gathering up criminal information for the purposes of laying a charge. I am sorry, senator; I interrupted you.

Senator Joyal: No, I think it is on the issue that we try to understand and share with you.

I might be wrong, but I share the interpretation that Senator Andreychuk put to you. That is why I asked you that question specifically.

We need to clear that up with Mr. Paulson or someone from the Department of Justice. Maybe you could write to him and send him the interpretation that you gave me. Perhaps you would like to check with your legal adviser on that. That is certainly something that we will want to understand if we want to vote on this bill.

Mr. Michaud: I am sorry if I confused things.

The Chair: Your answers have been quite helpful because it indicates the basis on which you would normally proceed. We are now asking whether the precise words give you the capacity, on an apprehensive basis, to move. The words seem not to be quite as apprehensive as your interpretation would suggest. I think that is what Senator Joyal is trying to nail down as precisely as he can.

Senator Joyal: On the implementation of those sections, will you have to develop new approaches for investigations on how you will gather the information to lay the charge? You will have to prove the intent, and proving the intent is important in the Criminal Code. It is more a gathering of a group of facts that you lay on the table and you say that those facts lead you to a conclusion. If you want to prove the intent, unless the person confesses directly, the level of the proof you have to make is very high.

How will you change the approach in the investigation that you presently lead to be able to prove the intent that is at the basis of that new offence or the new offences?

Mr. Michaud: That is a good question. However, I do not see that as changing our approach. Basically, with criminal investigations we have different approaches that we use, be it through human sources, or through the use of undercover operators, or surveillance, or the execution of search warrants to get access to information obtained by third parties, or through interviews or witnesses. It is still the same basket of approaches that we have. Certainly, we have to be creative in our approach because every time we bring a case before the courts and we have to disclose the approach that we use, they get smarter. We need to get smarter as well. Be creative, yes, but the techniques are the same.

Senator Joyal: I have another question in relation to that aspect. Among the countries with which you have a protocol of agreement to share information — for instance, with the U.S., Great Britain and Australia, we have what we call first level protocol of information. In other words, the information flows freely among the services of those countries.

Will you be able to rely only on that information to be able to lay charges? What kind of additional sharing of information with foreign countries would you need to have to be really fully effective in implementing those sections?

Mr. Michaud: We do not need any other authorities in respect to sharing information with other countries. It is more an issue of which countries we can share information with, those that we can rely on. It is always based on the credibility of the information. That is the starting point for us. We do have countries we have close ties with. You mentioned the U.S., the U.K., and whatnot. As for other countries, we basically assess, on a case-by-case basis, our capacity and willingness to share information with those countries.

The Chair: With respect, for example, to a potential training centre for terrorist activity that might exist somewhere in the mountains of Waziristan or Pakistan or in a place like Somalia, where diplomatic and normal police relationships are challenged for various reasons, I take it that you would have to rely on a broad range of intelligence sources to gather up data that was localized in that area to prove the presence of an individual who might be the subject of an inquiry or investigation? Is that the situation you find yourself in when there is not the normal sharing protocol as might exist between the five Is, for example?

Mr. Michaud: Exactly, and we would have to be able to corroborate that information with other pieces of information to lend it credibility so that we could use it.

Senator Joyal: That would make it more problematic because, as you mentioned in your opening remarks, most of the countries that are in turmoil in that region the chair mentioned do not have reliable security forces. The information that can be accessible might have to be checked because, of course, they are not at the same level of credibility as the countries we have mentioned, making it more difficult for you to lay charges on the basis of the information you might have received. Anyone would challenge the credibility of the proof gathered on the basis of information received from a country like, for instance, Yemen or — I do not like to mention countries — say Afghanistan or even some areas of the world where we know that there is a difficulty with governance in police forces whereby, as I say, the credibility given to any kind of information is questionable, to say the least.

Mr. Michaud: Yes, the quality of the evidence that is gathered, its credibility, is always a challenge. It exists not just in those countries but here as well. For information that we get from sources and cooperating witnesses and whatnot, that is always the challenge that we need to be able to surmount in order to lay, and be successful in, a criminal prosecution.

The Chair: I want to thank you for the time you made available to us.

Senator Joyal: I have just a small question, very quickly.

The Chair: Okay.

Senator Joyal: It is on another subject of the bill. In relation to investigative hearing, could a person who has been giving information under that section of the bill call upon the witness protection program of the RCMP to avoid the risk of consequences they might face because they gave information that might be sensitive?

Mr. Michaud: That could well be. We have never used it, so I do not know. However, it is a possibility that the person may feel, all of a sudden, that he needs to be protected, but I think that could only be assessed at the time when that situation —

The Chair: Would that classically, commissioner, be a negotiation between the individual, Crown attorneys, and agents of the Attorney General eager to be cooperative and helpful in the pursuit of national security but needing protection for herself, himself and family? That would be part of a normative discussion that might transpire. Is that what you are leading us to believe?

Mr. Michaud: Yes.

The Chair: Okay. Thank you, very much, commissioner. You have been very generous and helpful. This is a complex area. We appreciate your help. We may need more of your help before we were done, but we appreciate it very much.

Senator Joyal: As to the commitment that the commissioner would come back on the interpretation of the section that we have mentioned —

The Chair: He has undertaken to get some legal advice. We will do the same on our end and will share it with committee members as soon as possible.

Mr. Michaud: Can that be done in writing?

The Chair: By all means. Writing will be fine.

Honourable senators, we are gathered for the purpose of looking at the implications and content of Bill S-7. We are very fortunate to have, as a witness today, Dr. Martin Rudner, Research Professor Emeritus, Norman Paterson School of International Affairs, Carleton University. He has written many books and articles on terrorism, security, and intelligence, including Towards a Proactive All-of-Government Approach to Intelligence-led Counterterrorism in the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182. He has also provided advice and counsel to various committees of this chamber, the other chamber, the Department of Foreign Affairs, and the Department of Justice and is Canada's best-known academic in these areas. We are delighted to have you appear before us today.

We invite any opening comments you would like to make, and then I know we have a large list of questions we would like to put to you about the changing context around the terrorist threat. Dr. Rudner, we are in your hands.

Martin Rudner, Research Professor Emeritus, Carleton University, as an individual: Thank you very much, Senator Segal. Indeed, it is an honour and privilege to appear before the committee. I would like to begin my remarks on the evolution of the terrorist threat by situating it in the context of al Qaeda's own strategic planning. Al Qaeda had, and still has, a 20-year strategic plan, and they are currently in stage 4 of that plan, which they call the downfall of the apostate Muslim regimes. I call your attention, incidentally, to the poetry of Islamic writing generally and al Qaeda within that context. Please note, it begins with awakening, opening your eyes, arising and standing up, and then the fall of their enemy.

Al Qaeda's current operational emphasis is on targeting what they call apostate Muslim regimes. Those are governments of Muslim countries that are either secular, social democratic, parliamentarian, or even Muslim but not sufficiently extreme in their interpretations of Islam to satisfy al Qaeda.

We have just a brief list of places where the focal point of their violence is taking place as we sit here today. We have al Qaeda al jihad, but "al Qaeda'' means the base. What Assistant Commissioner Michaud called "core al Qaeda'' for them is the base of the jihad, al Qaeda al jihad, and then they also have al Qaeda in the Arabian Peninsula, which targets Yemen in particular. Yemen is, of course, right next to Saudi Arabia, which is the looming target of al Qaeda in the Arabian Peninsula.

There is al Qaeda in Iraq, or they call it al Qaeda between the two rivers, Mesopotamia. There is al Qaeda in Islamic Maghreb, which covers North Africa and Central Africa, West Africa, and I dare say we now have al Qaeda operating in Egypt. There was just a report yesterday of al Qaeda's activities in Sinai, where Egyptian control is limited, and of course it is very close to the Israeli border. You can see its strategic intent. There is no question that al Qaeda in Syria has a presence. We know also of al-Shabaab in Somalia. The main areas of combat by al Qaeda are against what they see are the apostate regimes. It is amazing how closely it fits into their list of stages of what they would call jihad.

In this present stage they see it as necessary to reach out to get human resources for the struggle for the downfall of the apostate regimes and to prepare, in fact, for the next stage, which is declaration of caliphate, to be followed by the total confrontation with the infidels. They see themselves reaching out to citizens of Western countries in particular in part to gain passports, their right to travel freely, in part to get local knowledge in networks, and in part to get skills. Let me just briefly review some of these phenomena and why they are reaching out to people, including people in Canada.

They are quite explicit; the kinds of people they target are young, single, physically fit people with higher education, especially in science and technology, people who have become highly motivated through radicalization and are committed to the jihadist ideology. In other words, they are fully focused on what they want to meet what they see themselves needing.

Next I will speak about the mechanisms they use. There is a public document on this by the late Sheikh Anwar al- Awlaki, an American citizen, who was a preacher of jihad and was assassinated in Yemen as part of the al Qaeda movement in the Arabian Peninsula. He published a report called "44 Ways to Support Jihad'' in English, targeting the kinds of people I just mentioned. He also, of course, used the Internet. He had what he called www.jihad, and social media.

What was the purpose? First was to recruit people. Second was to bring them to places for operational training in camps in northwestern Pakistan, or often enough now in Yemen or Somalia. Not only would these people be trained in knowledge and skills they did not have, but they would also be exploited for the skills they already had gained through their educations in Canada and in other advanced industrialized democracies.

In particular, they want to use their science and technology skills for things like fabrication of explosives. They want to use various aspects of their knowledge of information technology. I should mention that there is a study produced by the Department of Sociology at the University of Oxford, which examined the skill sets of terrorists who have been captured in Europe. The three most prominent skill sets were engineering, information technology and medicine. In other words, these are not uneducated, semi-literate people but superbly educated and talented people for the most part.

These people are also intended to be used for what we might want to call procurement, essentially of two things which al Qaeda required to meet their objectives. The first is passports. A Canadian passport gets you into most countries of the world without a visa and with only a glance by border controls. The second is weaponry, explosives, things that are highly sensitive, which, by the way, a Canadian could readily acquire without raising an eyebrow. These procurement items are very important, and then, no less important, reconnaissance and targeting, if you are going to reconnoitre your target, select your target and prepare the operation.

After they deploy your operational experience over there, ultimately you have the redeployment back to the homeland. People who are brought to these camps are exploited for their skill and redeployed back to the homeland for operational purposes.

Where do we have the experience? How do we know all of this? Let me just briefly summarize some of the things we know from cases that, in fact, have been brought before the courts for adjudication. They are not just speculation, for the most part.

Here in Canada we have had Canadian experience. There is Operation Darken, which Assistant Commissioner Michaud referred to, in which we believe two Canadians are still in the northwest area of Pakistan doing what I indicated people there tend to do. They have been charged here in Canada. When they come into jurisdiction, they can be charged.

There is also a group of 12 who went over with Jihad al-Islami, an Egyptian-based jihadist organization very closely related to al Qaeda. We know this from a highly reputable Pakistani investigative journalist who published their names and shortly afterwards, sadly, was assassinated. We also know of individuals who have been recruited for al-Shabaab.

Our allies have similar experiences. The Australians, for example, have had people recruited there for operations in Lebanon, Somalia, Iraq and Yemen. The Germans have had people recruited mainly for al Qaeda in Pakistan. The French for al Qaeda in Pakistan and also in Syria, just recently disclosed that there are French citizens fighting with jihadists in Syria, which is not to say, incidentally, that the Syrian uprising is an aspect or fomented by al Qaeda. It is al Qaeda that penetrates these types of movements precisely to try to subvert them and outflank them for their own objectives.

We also know that the British have had people of their nationality in Pakistan and with al-Shabaab in Yemen. We also know the Americans have had people in Pakistan and with al-Shabaab in Somalia and Yemen. This is not distinctly Canadian, but the Canadian element is there and being exploited by the adversaries to threaten friends, to threaten allies, and indeed to threaten us.

If I may, I have a last word on Canada's counterterrorism strategy, Building Resilience Against Terrorism. In my opinion, it is a very well-designed strategic document. My only complaint to the extent I would have one is I would have liked to see "prosecute'' in addition to the four main elements of prevent, detect, deny and respond. I must say I was very impressed by the report of the Air India Commission of Inquiry by Mr. Justice Major, specifically volume 3, where he paid a lot of attention to the challenges of adjudication of terrorism. I would have liked to see some of his recommendations, observations and ideas incorporated as part of a strategy that says, "Yes, we want to prevent; we want to protect; we want to deny; we also want to prosecute in a court of law to make sure that justice is not only done but also seen by all Canadians to have been done.''

Senator Joyal: I will take it where you left it, professor, in relation to the 2010 and 2012 national strategy and action plans.

In your opinion, what are the strengths and weaknesses of those documents? What do we have to watch for in relation to those documents? You seem to be generally supportive of the substance of the documents. Of course, as any expression of policy, it is the way they are implemented that allows you to measure their efficiency. In your opinion, what are the key issues where we should concentrate our attention?

Mr. Rudner: That is a very important question, and I could give you some of my thoughts. The major strength, as I see it, is that it gives, through policy, the intelligence and security community the mandate to be proactive. Terrorism is different than ordinary criminality, in the sense that ordinary criminality ultimately is a private risk — you injure individuals. Terrorism, by definition, is a social risk — you are out to terrify society. We do not want a situation where a terrorist act is committed; a proper investigation is done; the perpetrators are detected; arrested, tried and convicted; and the damage has been done but we cannot rebuild from that.

I will even go further. One of my fears of terrorism in a democracy, especially multicultural democracies such as Canada, which we saw in France and in the Netherlands, is that when a terrorist attack occurs, the ethno-religious community that for whatever reason the terrorists have identified themselves with becomes exposed and vulnerable to a xenophobia and vigilante actions. I do not want to see this happen in Canada. It happened in France just the other week; and it happened in the Netherlands a few years ago when Mr. Theo van Gogh was assassinated. I do not want a terrorist attack to break up our decency. In my point of view, the proactive element, provided it is supervised by proper oversight and is subject to judicial accountability, is appropriate for a democracy to prevent attacks designed to overthrow democracy.

The single weakness that I identify is in the area that we would call and reports would call "critical infrastructure protection.'' Frankly, it is a sloppy word in English. People think "critical infrastructure'' means you are criticizing the infrastructure; but no. The infrastructure is critical for our national well-being, and the problem there, of course, is that most of that infrastructure is owned by private owner-operators or by local or provincial governments, not the Government of Canada.

Critical infrastructure protection requires not only to be proactive, to prevent and to protect but also a high degree of collaboration and cooperation among the levels of government, departments of government — in Canada we have 10 sectors — and specifically the private sector. For the private sector, critical infrastructure protection is a cost. Needless to say, very few private owner-operators are eager to pick up additional cost. Yet, the infrastructure is vital and critical for our national well-being, which means it is in the national interest. We have a lot of thinking to do about how to reconcile private open owner-operators and stakeholders and the national interest to ensure that we have a comprehensive and robust policy to protect critical national infrastructure.

It is mentioned in the report as a one- or two-liner. I would like to see a much more elaborate evolution of the ideas in terms of where a weakness needs to be strengthened.

Senator Joyal: Generally, I understand that even though there is a changing context to the terrorist threat, as you mentioned in your opening remarks, the proposed strategy seems to address the basics of what you would expect all responsible governments in Canada — federal, provincial and municipal, to be able to counter the terrorist threat as it exists after 12 years of counterterrorism among democracies of the Western world.

Mr. Rudner: Yes. Let us put it this way: One has to look forward at the horizon, not backward through the rear- view mirror.

Al Qaeda now, as I assess by their activities, is in their stage 4. When they shift to the declaration of the caliphate, the total confrontation with us will not be determined by us but will be determined by them. I want to make sure that we are ready when that shift occurs. We must detect it at the horizon and prepare the appropriate responses ultimately to deny them the capacity to bring those attacks to Canada and Canadians.

The Chair: As a supplementary, we have heard from various authorities, our colleagues at NATO and our various allies, that al Qaeda capacity has been diminished, diluted, set back and degraded by a series of activities that have taken place, including the successful precipitous removal of the head of al Qaeda. Would you view that as reality or wishful thinking?

Mr. Rudner: It is a reality, without question, that they have suffered heavy losses at the top end. However, there is also no question that these losses have been replaced by a younger generation of highly committed people who are skilled and, in many ways, who will introduce new tactics from their experience to overcome what they would call "the failures of the past generation.'' If the past generation fell to drone attacks, they are taking appropriate tactical steps to avoid being targeted by drones, for example, in North Waziristan, as they did in terms of any other methodologies we used. That is why we have to be as forward-looking, creative and innovative in counterterrorism as they are in countering our counterterrorist effort.

Senator Joyal: You mentioned that our strategy should be prospective instead of merely reactive; and you made a parallel between a regular offence under the Criminal Code, which is against a property or an individual, and a terrorist offence, which is against society as a whole.

Would you say in that context, in terms of its prospective horizon, that the strategy is up to date, or should it be updated? For instance, the previous witness mentioned how the evolving situation in the Middle East, not to say the least, could change the context in which the threat could present itself through turmoil, for instance in Libya or Syria.

How should we be sensitive to the fact that the evolving international context could compel us to update our approach as we have labelled it in the strategies?

Mr. Rudner: The new strategy announced this year enables the Government of Canada to take exactly those kinds of forward-looking proactive steps to detect emerging threats, deny those threats the ability to operate in Canada and protect our interests against those threats.

Your point is well taken. As we speak, Timbuktu is being captured by Tuareg rebels who are not al Qaeda. I would put forward a wager that al Qaeda in the Islamic Maghreb, AQIM, are meeting and saying, "How do we get our people into the Tuareg movement to subvert and radicalize it to make it conform to our objectives?''

Canada has major long-standing international development interests and cooperation with Mali, so it is not irrelevant to us, in addition to any sensitivities we have about Canada. Yes, I think that our strategy enables us to anticipate change and respond appropriately and proactively.

That is the analytical capacity. It is mentioned in the strategy document that our intelligence services need to have a robust capacity to analyze. It must continue to be robust and have the capacity to feed knowledge and information from all sources. Many of them are open sources, like the al Qaeda documents I presented today, yet they are informative and they help us respond proactively.

Senator Andreychuk: Dr. Rudner, as usual, in addition to giving us a lot of information, you present it in a less technical and more practical way that we can understand.

You have touched on the Sahil area, which has been known to us for a long time, and you are saying that we are now doing something about it. It is obvious that we have to do something about it. We have the same problem in Somalia. Some of us were identifying that area and the spillover in piracy 10 to 15 years ago, and it is only recently we have done that.

How do we narrow the time frame for engaging our intelligence in this emerging area? As you point out, the terrorists move quickly. They are intelligent, they know where to go, and they profit from insecurity or vacuums. How have we improved in narrowing the time?

Mr. Rudner: You ask a very important and challenging question, and the answer is very complex, in part because Canada is a G8 country. We are a NATO member but we are not a super power, and we do not have the capacity to have a physical or an intelligence presence in every place that is vulnerable. Frankly, even the United States cannot afford that, and nor can the EU, certainly not in euros.

Part of the problem with Somalia was, of course, that NATO did not have the capacity to control the maritime passage through the Bab-el-Mandeb, the strait between Yemen and Somalia and, frankly, it was cheaper to pay the pirates the ransom they demanded when they seized ships than to send a fleet of ships to maintain maritime control. The problem was, of course, that the money paid to the pirates became a mechanism to finance terrorism. Terrorism blossoms when resources are fed to it, and Somalia became more than just a failed state; it became a terrorist state, especially in the south part, and in Ogaden as well.

I do not know if there is a solution. I do not think that the United Nations Security Council could ever achieve a consensus to deploy a United Nations force on issues as sensitive as that. NATO will be limited by the ability of NATO members, whether in euros or United States dollars, to afford a presence rather than pay, in effect, the ransom. However Canada sees the problem, we see it from a distance, and I do not think we have a capacity other than speaking to and persuading our allies. I do not see how we will bring our knowledge to bear so that we could prevent and deny.

Senator Andreychuk: We have new allies now, and we always did, if we reached beyond our traditional allies in those areas. I think we are finding them. My question is around how to get the time frames, but I think you have answered to the extent you can.

We have two changes that we are struggling with in Bill S-7. Are you in favour of those two pieces of reintroduced legislation?

Mr. Rudner: Yes, I am, because I think they enable a deny strategy or, in effect, they protect us and also protect the individuals concerned from embarking on an activity that threatens Canada, threatens friends and allies, and indeed puts them in jeopardy. We are talking about a legal process, so it is not going to be used improperly. It will be subject to judicial accountability. I am not concerned about the abuse side. I think it could be a valuable tool, as Mr. Michaud said, when it is needed to prevent something that could harm the individual, harm allies and harm us.

Senator Frum: Thank you so much for this very interesting presentation. You say that stage 6 of their strategic plan, total confrontation, starts, ideally for them, in 2013, which is soon. That includes the war on non-believers.

How does Canada fit into the war on non-believers? What is our priority on their strategic plan?

Mr. Rudner: We know the answer to that, not from speculation here in Canada but from actual sources with al Qaeda. Islamic jurisprudence requires an Islamic scholar to give permission for activities, so there has to be an open discourse. One cannot simply do things. From their point of view, you have to have religious jurisprudence legitimacy.

We know that Canada is explicitly a target. They say so. They target us for three primary reasons. One is the general targeting of infidels because we are a democracy. It may surprise people that being a democracy makes you a target. It is explicit by al Qaeda that democracies are idolatry. We privilege man-made law over divine law, and the penalty for idolatry is to be attacked and overcome.

Second, we are a multicultural society, and from their point of view we have subverted Muslims. In their view we have made Muslim men, women and children into apostates, because we have diminished their religiosity. We see that as integration into Canada and benefiting from Canadian values, including the right to practice your faith. From the al Qaeda point of view, that is subversion of the faith.

Third, explicit in their writings is our oil and gas industry. They are of the view that oil and gas production and exports enable the United States and Canada to prosper and gain economic strength, enabling us to resist jihad. To attack Canadian critical energy infrastructure is a way of advancing jihad and weakening the infidel, and therefore our energy industry is a target. That is explicit. There is a fatwa on this from 2007. It is cited in some of my publications.

Senator Frum: That is very interesting. You said that as a result of this we have to be hyper aware of clues on the horizon that they are advancing on their plan. When you talk about seeing signs on the horizon, what are you referring to?

Mr. Rudner: Let us put it this way, we will not see the operational side until our intelligence and law enforcement community — through the technical and human-sourced means that they have — determines activities that constitute a threat.

As I mentioned, al Qaeda is an organization given to open discourse. It has to be. It is the nature around which they operate. For example, when Anwar al-Awlaki was alive he published documents, including that 44 paths to jihad, with a lot of details of what they will be doing with Western young people to achieve this. I look forward — I do this every day from 6:15 in the morning until about 9, because the timing is good for Europe — to seeing what their discourse is on the jihadist websites. For example, recently there was a jihadist discourse on the websites on attacking drinking water. Is it permissible to attack water? From our point of view in Canada, water is one of our 10 critical infrastructure sectors. I read that with particular interest.

The answer was, incidentally, that those who were consulted by the jihadists say no, it is not legitimate. If you attack water, the consequences would be felt by women and children, and the Quran forbids operations against women and children deliberately targeted.

Here was a case where I looked and said that is good news for the Canadian water sector, at least from this threat. In that sense, we have to follow their discourse, which is open source. However, they also use words that are not necessarily explicit, such as Badr, which is the first battle of the prophet at Medina, to defeat the enemy. So you have to know what the terminology is.

Senator Frum: Do they not understand that CSIS members are reading this? Why is it open source?

Mr. Rudner: From their point of view, they also have to give warning. The Quran says they have to give warning. They do.

In the 20-year plan, by the way, warning was given by them. It was published in Arabic in France. I think al Qaeda would say that meets the warning requirement of Islamic jurisprudence. Of course, we know that very few people in France read Arabic, but still the warning was given.

Warning will be given, but it does not have to be emailed directly to your address in a language that you will understand.

Senator Tkachuk: To fight a war you need soldiers. From your readings and from court documents, when they talk about al Qaeda and all its auxiliary groups, how many people are involved? I know it is difficult to say.

Mr. Rudner: It is very difficult to say, though we have some numbers. It was said, for example, in the period before 2001 in Afghanistan that the number of people who went to al Qaeda for training then was in the order of 50,000. That is a lot.

Senator Tkachuk: Yes.

Mr. Rudner: We know that al Qaeda operated various localized training facilities, for example in parts of Britain, in the hill country in northern England. We know that because they were captured, arrested and convicted. They were also in parts of the Netherlands and sadly, in Ontario.

We do have not precise numbers today of how many people are being trained. We know there are a variety of training places. We know there is a constant flow. I refer you to a report by Paul Cruickshank called The Militant Pipeline, published last year, where he looks at the pipeline itself. According to him — he is a specialist in this area — the pipeline is full. Yes, there is a regular flow of people undergoing training.

I should mention for the most part the people being trained are not the foot soldiers. They do not need foot soldiers. There are enough of them out there. They are looking for what we would consider in Canada high-level skills — on the whole, people with university or college-level education in specialties they see as needed. If they get 50 or 60 IT specialists, that is a small corporation in most countries.

Senator Tkachuk: Absolutely. The infrastructure needed to support this would require a lot of cash. Where are they getting their money?

Mr. Rudner: On this we know a bit more than on other things. I have personally published on terrorist finance. I would be happy to send the committee two papers I have published on this topic.

Even in Canada, the estimate on the annual report from FINTRAC is in the order of $200 million per year.

Senator Tkachuk: From Canada?

Mr. Rudner: From Canada, not only to al Qaeda but to a range of terrorist organizations.

The Chair: I think there are tobacco trade links through Hezbollah and South America that help finance some of that.

Mr. Rudner: As well as drugs from the tripartite area of South Africa. I published a paper on that just last year. There is a large scale of what we will call financial mobilization and money laundering through direct charitable donations. Under Islamic law, Muslims are required to give charity; it is one of the five pillars of faith. A major effort by al Qaeda is to subvert charitable organizations, to divert humanitarian charities to operational requirements, and then criminality and then smuggling. Incidentally, this also includes counterfeit products. In Australia, a large number of counterfeit watches and things were being smuggled by al Qaeda to Australia.

Senator Tkachuk: When is it treason for a Canadian to be in training with al Qaeda? It seems to me if you are fighting against your own country and want to dispose of the government, it is an act of treason. You do not hear of people being charged.

The Chair: Rather than by democratic means.

Senator Tkachuk: Absolutely. That is what I am talking about; being charged with treason.

Mr. Rudner: That is a very interesting question. In Canada, this is not even brought on the table.

Senator Tkachuk: It seems to me that we should.

Mr. Rudner: In the United States it is very much on the agenda after the targeted assassination of Anwar al-Awlaki in Yemen. Just recently there were a spate of documents out of the White House and the Department of Justice making the point that if you join an organization that itself announced it declared war on the United States — this is al Qaeda 1998 — to fight with that organization is an act of treason. The United States is trying to deal with this now in policy terms. I believe there is also a lawsuit by the family of Anwar al-Awlaki, so it will also be adjudicated. In Canada, we have not yet discussed it.

Senator Tkachuk: Should it be discussed?

Mr. Rudner: I believe it should be, but personally I prefer to deal with it as a criminal act rather than a treasonous act, tactically. Mainly to say the word "treason'' opens up a political discourse. I do not want to give al Qaeda and its supporters a microphone on the political discourse here in Canada on the evils of democracy. I prefer it to be regarded as a criminal act and prosecuted accordingly. That is a personal preference.

Senator Tkachuk: Which is the safer preference? If we look at it at a personal level, the people involved in al Qaeda are interested in harming our children and our citizens. They are not interested in robbing a bank. They are interested in killing people and in causing disruption and in establishing some sort caliphate over these countries they are looking at. However, their means and ends are extremely dangerous.

It seems to me if a person joins an organization like that they have committed a terrorist act already. It seems to me that if they have joined that organization, then their intention is to kill us. It is easier to dispose of people like that when they are treasonous rather than through a criminal court case, and it is safer for our citizens.

Mr. Rudner: There is just one caveat, though, that you have to bear in mind. From their point of view, the concept of a caliphate is not, if you will, a radical or extreme effort; it is doing what God commanded them to do to bring to us. In fact, their paradigm is that we do not have to be killed; we should accept Islam. By the way, Muslims should accept that their Islam is corrupted; they should accept the true Islam. In other words, we should all accept the doctrine of al Qaeda.

This is why I do not want to give them the microphone. If we had a public case on treason, they would say, "We have not betrayed you; you have betrayed God. We are doing God's work. You do not have to be killed; just accept God.'' I do not want to have that discourse. I do not it think would be healthy in Canada.

Senator Tkachuk: They are having that discourse.

Mr. Rudner: Right now they are having it with Muslims in Egypt, for example, as we speak. It is interesting that even the Egyptian Muslim Brotherhood is rejecting them, on those grounds. That is why you have Salafists to the extreme end in the Egyptian movement. In other words, Muslims have to deal with this because, as I and they see it, it is a threat to good Muslims who want to be congenial to the rest of the world.

I just do not want to give a platform to the extreme.

Senator Tkachuk: I understand. I also know that Western democracies sometimes live in a fool's paradise. In the Second World War, how long did it take the United States to figure out that Hitler was a crazy person — a terrorist — who was out there executing people he had no interest in? How would that discussion have worked at the time? "Oh, I do not want to get into a discussion about that because it might feed the extremists.'' That is what we are facing in the end.

Mr. Rudner: The Americans were very fortunate in that Canada and Great Britain were doing the job earlier on.

Senator Tkachuk: It took Pearl Harbor to convince them.

Mr. Rudner: I will also mention that the existing process of dealing with terrorism as a criminal offence in Canada has been very effective. We have had prosecutions and every one of them was successful. That is no mean achievement because it is a highly difficult, sensitive area. Law enforcement, the intelligence services and the federal prosecutorial service have effectively persuaded judges and juries that it is a serious offence and that the people charged were guilty as charged. The system works.


Senator Dagenais: Mr. Rudner, you were present when Mr. Michaud testified a few minutes ago. He talked about investigative hearings and said they were a method we needed to adopt and reinstate in order to be able to detect terrorist groups and keep abreast of what is going on in terrorism.

Do you think the people who would take part in investigative hearings could be threatened by al Qaeda or other terrorist groups? We know these people may have family in the countries targeted by terrorist groups, other than Canada, and they could have threats made against them. Do you think, in that case, that Canada, or NATO, should consider protecting the families of the people who would be taking part in these hearings? Perhaps that would help them not to take part in the hearings, but to reveal information. We should be thinking about protecting families who are in the other countries. I would like to hear your thoughts on that.

Mr. Rudner: If you would not mind, I will answer in English.


The answer to the question, senator, is "absolutely yes.'' I say that for two reasons. The first is intuitive; if these people give important information about threats and plots, they become vulnerable to the people who wish to perpetrate threats and plots. Specifically for al Qaeda, we know in al Qaeda's experience and in their jurisprudence that if a person talks to the lawful authorities in an infidel country, they are considered apostates to Islam. The penalty in Islam for apostasy is death. It is explicit.

We know this not only from Islamic jurisprudence, but we have a document that is called, in short, "The al Qaeda Manual.'' This is an operational manual that was seized by the British police in Manchester from an al Qaeda suspect about seven or eight years ago. It was admitted in both British and Canadian courts of law as evidence. There is no question about its reliability and authenticity.

That manual explicitly says that they intend to punish by death individuals who betray Islam, who betray the jihad, and who betray them. Therefore, yes, in my opinion, individuals who give testimony as part of investigative hearings would be at risk. I would strongly encourage an arrangement that would enable them to benefit from a witness protection program. I think Senator Segal mentioned that this could be undertaken as part of the dialogue between the Crown and the individual. I think it should perhaps be regularized to give assurance to the individual and their family.

The Chair: Before I go to Senator Joyal, I want to describe two circumstances and ask for your best judgment. We are talking about critical infrastructure. Situation one: Private sector companies — the oil companies, the gas companies, the electricity companies — maintain reasonable surveillance, though with different sources and instruments being used. They share that information with government. Government maintains its own eye in the sky and other surveillance of what is going on. The information is coalesced and there is a critical capacity to anticipate, engage and respond with appropriate resilience. That is situation one.

Situation two: All of that is wishful thinking. Most of it is not happening. The vulnerability has expanded as opposed to being stabilized.

Which of those two situations do you think is closer to the truth, Dr. Rudner?

Mr. Rudner: I believe it is the second situation. Let me put it this way. The threat comes in three flavours. First, there is the threat of a physical attack, for example, on a pipeline. I do not believe anyone can patrol every metre of the Canadian oil and gas pipeline networks. You cannot do it. The same goes for offshore platforms. Second, there is the cyber component. It is complex in its own right. Third, which I think is very importantly — and we tend to understate this — is the so-called insider threat. That constitutes a person already working in critical infrastructure who through a variety of means — there is literature on this dating back to the Cold War problems of counterintelligence — is suborned to betray their organization and to betray Canada.

It is all very sensitive and, frankly, beyond the capacity of individual firms and enterprises to manage. I think one needs to have a more formalized structure that enables cooperation between private owner-operators; provincial governments, which are the authorities for most of the critical infrastructure at the local jurisdiction level; and the national capability of Canada's security and intelligence community.

The Chair: There was one that was shut down, as I recall.

Mr. Rudner: Yes. They were blended, so to speak, into Public Safety Canada.

Senator Joyal: I have two more questions, professor. You mentioned in your presentation proper oversight, to quote your own words.

In my personal opinion, the proper oversight would be, for instance, to allow a permanent or standing committee of Parliament to monitor policies and initiatives of the various agencies of government, be they provincial, federal or municipal, as you have mentioned yourself, in relation to the objective contained in the national strategy. As you are well aware, the strategy was released two months ago, but no levels of Parliament have the mandate at this stage to take it from what it is and put it in proper perspective and monitor the initiative that would normally flow from such a strategy.

Since this committee has been in existence from 2001, it has always recommended that a parliamentary committee be charged with the proper monitoring and oversight of the various initiatives of the government in Canada in relation to counterterrorism.

I think that the bill is a step forward in clauses 11, 12 and 24, that ask for the Attorney General of Canada and Minister of Justice to table an annual report, but with the thousand of reports that are tabled in Parliament, very few are acted upon unless there is the proper infrastructure.

I will give you the examples of the Auditor General of Canada, the Official Languages Commissioner or the Privacy Commissioner, whose reports are automatically sent to the proper committee. It is my opinion that the issue of Canadian safety and security is such an important issue that it should be sent annually to a parliamentary oversight institution. This is, to me, a key strategic one if we want to follow up, as you said, with the evolving nature of the risk that Canada is facing. That is my first question.

Mr. Rudner: You raised a very important point, which does need addressing. In my opinion, there are two dimensions to the issue. With one dimension I would agree fully, that there should be an expanded parliamentary role. One I would recommend not.

The one I recommend yes is the policy and strategy dimension. There is no question that on policy and strategy Parliament ought to have a capacity to review, monitor and evaluate governments and make appropriate recommendations precisely in order to deal with the emerging threats — in other words, to have a dialogue with government on how to meet the challenge. On policy and strategy, absolutely, I say yes, including recommendations of commissions of inquiry, of Attorneys General, of SIRC, et cetera.

On intelligence and law enforcement operations, I would strongly recommend no, and that recommendation comes from the experience of two of our allies, the United States and the United Kingdom.

In the United States, a Senate committee and I believe the house also have security clearances so they can actually conduct hearings on the U.S. intelligence community. The trouble is, they cannot speak to the public. What you hear, you cannot say. I do not think that is healthy for legislators and I do not think that is healthy for the legislature itself, because it is important for parliamentarians to have mouths as well as ears.

The British model is different. The British model is that the committee of parliamentarians does have security clearance, but it is not either of the House of Lords or Commons. It is a committee of parliamentarians, and that too is a weakness. They do not have a home. They cannot speak to the House of Lords. They cannot speak to the House of Commons. In that sense, secrecy is a constraint on the ability of parliamentarians to function.

For operational oversight, I much prefer, frankly, the Canadian model, where we have the CSE Commissioner on signals intelligence for the Communications Security Establishment in Canada. We have the Security Intelligence Review Committee for CSIS. I would like to see, and I do personally support the recommendations of the O'Connor commission for an expanded oversight of other components of the Canadian security and intelligence community, but those are specialized. They could get secret information, and they report appropriately to Parliament, so then a parliamentary oversight committee looking at policy and strategy could take the appropriate policy and strategic implications and make them actionable. That would be my personal opinion.

Senator Joyal: You mentioned the incident in France two weeks ago now. You seem to have had an opportunity to reflect upon it. Do you think that Canada, faced with the same situation, would have acted differently or would have been able to prevent, with our legislative tools as they stand now, what happened in France or do you think that there is something else we would have needed to be able to prevent what they lived through two weeks ago?

Mr. Rudner: That is a very interesting question, senator, which frankly I did not think of in the sense that I do not know the French law or French regulations that inhibited the French security and intelligence services from taking what we will call proactive preventive measures. Clearly, they had their suspicions and clearly they felt they could not lawfully act. I do not know their laws.

I believe in Canada our legal regime and our jurisprudence would have enabled CSIS and/or the RCMP to take appropriate measures in the case of that individual.

Senator Joyal: Would you have time to look into that and come back to us maybe in writing?

Mr. Rudner: Unfortunately, I am off to Europe on Wednesday, but not to France. I could undertake to do this, but I am not a lawyer. My problem would be that the French legal code would use words, terms and ideas that would be beyond my knowledge.

The Chair: Senator, we can take the question that you have put and do our own research with our own staff and produce some analysis for us to consider going forward. We will be glad to get Dr. Rudner's opinion on that when he is back from Europe.

I know that I speak for all of us on the committee in expressing our immense gratitude, Dr. Rudner, for your time, advice and insights. I know when foreign anti-terrorist officers and leaders visit this country, they all want to meet with you and get the benefit of your advice and counsel. I have had some experience in that circumstance. We are fortunate to have your advice as a committee. The Parliament of Canada is fortunate to have your advice and all Canadians are fortunate to benefit from your diligence, your academic rigour and your perspicacity on this issue. Thank you very much.

(The committee adjourned.)