Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 16 - Evidence - Evening meeting
OTTAWA, Monday, October 17, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 7:05 p.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is the 36th meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act. For our viewers, I will explain the purpose of this committee.
In October of 2001, as a direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of that legislation and we agreed. The deadline for the passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short time. For that reason, it was agreed that three years later, Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and in a less emotionally charged situation with the public.
The work of this Senate committee represents the Senate's efforts to fulfill that obligation. When we have completed the study we will make a report to the Senate that will outline any issues that we believe should be addressed and allow the results of our work to be available to the Government of Canada and, of course, the Canadian public. I should say the House of Commons is also undertaking a similar process.
Thus far, the committee has met with government officials and ministers, international and domestic experts on the threat environment, legal experts, those involved in enforcement and intelligence-gathering, and representatives of community groups. We have travelled to Washington to exchange views there and will probably end our hearings by talking to people in London, England.
This evening is a special one. We are fortunate to be joined by Anu Bose, Executive Director of the National Organization of Immigrant and Visible Minority Women of Canada, as well as Marie Chen and Royland Moriah from the African Canadian Legal Clinic. We are pleased that you have joined us tonight.
As always, colleagues, I would ask that questions and answers be as concise as possible so we can have the best dialogue in the time available to us. We will be going to 8:30 p.m., or even a little longer as our discussion grows.
Marie Chen, Acting Director of Legal Services, African Canadian Legal Clinic: Honourable senators, we welcome the opportunity today to address this committee on the important work that are you doing on the Anti-terrorism Act. We have prepared a written brief, but I do not intend to read from it. It sets out quite extensively the clinic's position on the impact of the Anti-terrorism Act.
We would like in our oral submission to highlight particular areas and give you an idea of where the clinic is coming from, what our mandate is and why we are saying the things that we are.
You can tell from the brief that the African Canadian Legal Clinic is an Ontario Legal Aid clinic. We are part of the Ontario Legal Aid system. Our mandate is to address systemic racism; in particular, anti-Black racism. We have developed expertise through our test case litigation activities as well as our law reform activities. In our test case activities we have appeared in front of several levels of court, including the Supreme Court of Canada, on cases involving equality rights issues as well as anti-discrimination issues.
The clinic takes a community-based approach to its work. It consults with community organizations and its membership is representative of the African-Canadian community. We are speaking today from a community focus and are providing a community perspective, particularly from the African-Canadian community.
We intend to raise the issue of racial profiling as it relates to the impact of the Anti-terrorism Act. I am sure that other organizations that have appeared before this committee have raised that very issue. We are raising it from the perspective of African-Canadians. We will also speak to the efficacy of racial profiling, whether or not it works and whether or not it furthers the goal of the Anti-terrorism Act, or any other goal. If we have time, we would like to touch on the security certificate provisions of the Immigration and Refugee Protection Act.
In terms of the experience of racial profiling, the clinic has developed extensive expertise in this area. Certainly for African-Canadians, the issue of racial profiling is not new and predates the events of September 11. We have been involved in the main cases in Ontario dealing with racial profiling. As well, we have worked with other community organizations and coalitions on the issue of racial profiling of African-Canadians, focusing on but not limited to issues of policing, and looking at issues within the education system.
In an overall sense, the clinic has concerns about the act. We think that the powers under the act are very broad and in the long run will undermine Canada's democracy. We would like to see some recommendation from this committee looking to long-term goals and strategies to combat terrorism. Certainly, the clinic believes that Canada's security is important to its democracy, but at the same time, we share the view of the United Nations High Commissioner for Human Rights, Louise Arbour, that in the long run we must protect our democratic values if we are to combat terrorism effectively.
As I mentioned earlier, racial profiling is a pre-existing problem for African-Canadians. Post-9/11, with the Anti-terrorism Act, we have heard reports of increased searches and stops of African-Canadians, particularly at border crossings. Pre-9/11, it was a problem. The clinic has been involved in many initiatives relating to that aspect of law enforcement. Currently, we are working with Canada Border Services Agency on a data collection pilot project on people who are sent to secondary inspection.
We have also commissioned studies, in particular, one from Professor Scot Wortley on African-Canadians entering Canada. That study, which was based on a survey in 1998 and is referenced in our report, clearly showed that African-Canadians were disproportionately stopped, searched and questioned by Canada Customs officials.
It is not a new phenomenon. Post-9/11, we have had increased reports of stops and searches of people from the African-Canadian community. We are not surprised at that. We found that because African-Canadians are considered the usual suspects — we have coined the term — increased surveillance and security powers have a collateral effect on African-Canadians as well.
I believe that the Canadian experience mirrors that in the U.K. The U.K. actually keeps statistics on a regular basis with respect to police stops and searches. They found that during the period after 9/11, 2000-01 to 2001-02, the number of searches of Black people rose 30 per cent as compared to 8 per cent for White people. We see that mirrored in the anecdotal accounts that we have received through our clinic.
Particularly, though, we found that certain communities have expressed increased concern. Those are the Somali and the Rastafarian communities. The Somali community is targeted because they are Muslims. There are an estimated 50,000 to 60,000 Somalis in Toronto. Most are Muslims. Rastafarians have always been considered a fringe religious group. We have heard increased accounts of Rastafarians being stopped and searched at border crossings.
Somalis constitute a significant percentage of the Muslim community in Toronto. Almost all have come to Canada as refugees in recent years. Islam plays a central role in their culture and way of life. For Somali people, discrimination is experienced on multiple levels: their race and colour, their religion, and, often, newcomer status. We often hear that described in the Somali community as having three strikes against them.
For Somali women, there is a fourth strike: They experience discrimination on the basis of gender. We have received anecdotal accounts from Somali women who have experienced added humiliation at border crossings, who have been asked to remove their hijab during searches and who also have endured the pat-down when you go through the airport. It is important to note that because of the particular vulnerability of this community, this kind of action has an added impact.
We are talking about a transnational issue here with terrorist activity. What happens in the U.K. and in the U.S. also impacts what happens in Canada. We are concerned that the July 2005 bombings in London will increase suspicion of Somalis and other African-Canadians. We have seen that happen in London.
In the recent operational order, as reported in The Independent newspaper, issued to British transport police, terrorist suspects were specifically identified as of Asian, West Indian and East African origin. It is already happening in London, and for us it is a question of time as to when it will happen, if it is not happening already, in Canada.
Our problem is that we do not have statistics. We are in a Catch-22 situation. We know this is happening. We hear stories about increased searches and scrutiny, but we have no basis upon which to prove it. One of our recommendations is data collection. That is an important role the government can play. That is an important recommendation that this committee can make.
Other areas of concern within the Somali community have been with respect to the provisions of the Anti-terrorism Act on financing. We have heard stories of people having problems sending money home. As you know, Somalis have to rely on informal channels of remittance because of the situation in their home country.
We have heard stories relating to the monitoring and reporting of crime under the Anti-terrorism Act where innocent people have been identified or told that they are on the OSFI list and their money confiscated. We are not talking about the high-profile cases. We are talking about the day-to-day problems that people are experiencing. We know that perfectly innocent Somalians are being told that their money will not get through to their families because their name is on a list or the name sounds like someone who is on a list.
When you are talking about a particularly vulnerable community such as the Somali community, there are language issues; there are refugee-newcomer issues. They are afraid. The fear of stigmatization, of being labelled a terrorist, prevents people from taking it further. They would rather lose the money than seek recourse or try to clear their names. People retreat. It has created a climate of fear and restricted and curtailed their ability to remit money home.
This committee must be cognizant of the fact that racial profiling does not work. It is completely ineffective. The African-Canadian experience illustrates that clearly. We have seen that the racial profiling engendered by the war on drugs did not reduce crime. In the same way, we do not see racial profiling under the Anti-terrorism Act and the war on terrorism as able to achieve greater security in Canada. This is because racial profiling has extremely detrimental effects, both at the individual and societal levels. As a tool it is very ineffective. It causes false positives and false negatives and distorted policing.
The experience of African-Canadians can be drawn on to show how ineffective racial profiling is. If you just focus on one characteristic of an individual, without looking at others, you will not solve the crime. You will not root out the security problem. In effect, racial profiling is extremely counterproductive because it stigmatizes entire communities. When you stigmatize and criminalize entire communities, they become alienated. They lose trust in government institutions. They will not engage state authorities in any way. Reliable intelligence, which is a tool by which greater security can be achieved, will not be obtained when entire communities are afraid to speak out, even though they want to. They feel that if they do they will be targeted and nothing will be done anyway. There is no trust. This erosion of trust in government institutions undermines completely anti-terrorism measures.
What do we do about this situation? In our written brief we listed a number of recommendations at page 11. We draw from various studies that have been completed in Ontario, particularly studies by the Ontario Human Rights Commission as well the Commission on Systemic Racism in the Ontario Criminal Justice System. The studies within that report showed that African-Canadians were disparately impacted by the criminal justice system.
The Ontario Human Rights Commission conducted an important inquiry on the impact of racial profiling in the last two years. They did not question the existence of racial profiling. They accepted that it occurred because of all the stories they had already heard from the community. They came out with a list of recommendations for an institutional response. The name of the report is Paying the Price. Recently the commission also released their policy guidelines on racism and racial discrimination. Again, in those guidelines they reiterated the importance of the recognition of racial profiling and of organizational efforts to combat it.
Looking at page 11, we have stated that, given what this committee has heard from various communities with respect to stories and accounts of racial profiling, it is time that the federal government acknowledged its existence. To combat racial profiling we recommend that an explicit provision prohibiting it be included in the Anti-terrorism Act, declaring that it cannot be conducted or condoned in any way.
It is also critical that a procedure be put in place to collect race-based data on a disaggregated basis to monitor whether or not racial profiling is occurring. Only then can the government move on in its responsibility to ensure that legislation does not impact on communities in a discriminatory way.
As I mentioned earlier, it is doable. The clinic is already working with Canada Border Services Agency officials on a pilot project to do that very thing — collect disaggregated race-based data on people who are referred to secondary searches. This has been done in several states in the United States with respect to policing. It has also been done with respect to the practices of their customs officials. It is not new. It has been done in other jurisdictions. It is done in the U.K. as well. It is important, given the accounts that this committee has heard, that a recommendation be made to implement this kind of data collection.
Our other important recommendation is that a public complaint system be instituted. We have also referred to the private member's bill introduced by Ms. Libby Davies in the House, Bill C-296, to eliminate racial profiling. The bill is a good example of what can be done legislatively to set out a process through which racial profiling can be monitored and combated and victims of racial profiling can seek recourse.
I do not know what my time limit is. I was told that I had 10 minutes. I am not sure whether the committee would prefer to leave time for questions. I can stop now or I can go on to other issues.
The Chairman: Can you wrap up fairly quickly, Ms. Chen, with anything in particular you would like to say and then we could proceed?
Ms. Chen: I was planning to proceed to the security certificate process. I will touch on it and say that that is also an important aspect of Canada's anti-terrorism measures. It is an indication as to who is being targeted in this war on terrorism.
To our knowledge, the Anti-terrorism Act has in fact been rarely used. Most alleged terrorists have been dealt with under the security certificate provisions of the Immigration and Refugee Protection Act. We see that as raising equality and non-discrimination issues. These are people who do not have citizenship status. The lack of due process inherent in that security certificate process and the secrecy surrounding it, the inability of people who are alleged to be terrorists to launch a full defence, and the automatic deportation that occurs as a result of the judge's finding are hugely problematic issues that would infringe on precious rights under our Charter of Rights and Freedoms. Our position is set out in our written submission.
I will welcome questions.
The Chairman: Mr. Moriah, do you wish to say anything or wait for questions?
Royland Moriah, Policy Research Lawyer, African Canadian Legal Clinic: Thank you. I am here to assist with questions.
Anu Bose, Executive Director, National Organization of Immigrant and Visible Minority Women of Canada: Honourable senators, I note with some trepidation that I am not prepared with my brief in French today.
The Chairman: That is quite all right. Everything is translated.
Ms. Bose: There is no need to torture you with my French, then.
The National Organization of Immigrant and Visible Minority Women of Canada is a non-profit, non-partisan and non-sectarian organization. Its mission is to ensure equality for immigrant and visible minority women within a bilingual Canada. One of our prime objectives is to act as an advocate on issues dealing with immigrant and visible minority women. The chairman may remember that we were one of the few immigrant women's groups to appear here in 2001 when the Anti-terrorism Act was Bill C-36.
The Chairman: I do remember, and that is why we have asked you to come back.
Ms. Bose: We have also been an active member of the International Civil Liberties Monitoring Group, who we note with great pleasure have also appeared before you.
In 2003, NOIVMC, along with the Canadian Research Institute for the Advancement of Women, won a bid under the policy research funds of Status of Women Canada to study the impact of the Canadian security agenda on the lives of Muslim women in Canada. Focus groups were held in Somali, Arabic, Urdu, Hindi, English and French; in Toronto, Montreal, Calgary, also in Regina and Saskatoon. We hope to be able to quote from some of those women's voices because these are not women who usually have access to people like you.
Let me state at the outset that NOIVMC condemns all forms of terrorism and terrorist activities. We support all legitimate and appropriate efforts to eliminate terrorism. We also stand by our 2001 position that the Anti-terrorism Act must be repealed.
We say this knowing that many of our members and their families are themselves victims of terrorism and have found a safe haven in Canada. At the same time, they are concerned at the steady erosion of their rights and freedoms as citizens as Canada's security agenda develops "function creep."
It is our firm belief that Canadian criminal law is more than adequate for the task of apprehending and bringing to book all those presenting a security threat to the state.
We said earlier that "terrorism" as a legal term is almost impossible to define. No Canadian statute defines terrorism, although the Supreme Court has made an attempt in the case of Suresh. According to Roach, the definition in the legislation was broader than that found in similar legislation then enacted in the U.K. and the U.S.A., and even, in certain aspects, than that in the regulations promulgated in response to the October crisis of 1970.
One issue we would like to touch on today is the difficulties of cross-border travel. I would like to be able to quote directly from what some of the women said.
In December 2001, then Deputy Prime Minister Manley signed the Smart Border Declaration and the companion 30-point action plan to enhance the security of the shared border while facilitating the legitimate flow of goods and of people. The women in our focus groups had a vague notion of these regulations. They had often never heard of the Smart Border Declaration, but they had plenty to say about the difficulties they and their families experienced when travelling to the U.S.
I quote from a focus group participant from Montreal, speaking in 2003:
Last April was the first time I travelled since 9/11. I never had difficulties crossing the border before 9/11... this time the train stopped and they approached my friend and I, asking me many questions when they saw my name. They took our passports and disappeared for 20 minutes. When they came back, they told me, "take your things and come with us." I was very scared because I thought I would be detained... It was like a nightmare.
Fortunately, it was much ado about nothing.
Again, a participant from Toronto said:
Once I was going to NY. I was going for a meeting and I missed my flight because I was being questioned for three hours.
A woman told about her husband being roughed up at Pearson International. They did not report the incident for fear of repercussions.
An elderly, non-Muslim NOIVMC member wearing a sari was subjected to a strip search at Pearson International while in transit on a domestic flight. She never got a satisfactory explanation from the airport authority, since an outside contractor supplied the security personnel.
The Smart Border agreement had made travelling arduous for women who were pregnant or travelling with babies or small children or, as my colleague Ms. Chen said, wearing the hijab. The enhanced security meant longer queues and often intrusive questioning.
To a woman, they were convinced they were victims of racial profiling, though they did not use that term, because of their names, their appearance and their mode of dress. Thus, they self-restricted their travels to the U.S.A. and beyond. For communities that fled armed conflicts and civil war, this is a terrible hardship.
Many reported that visitor visas became very difficult to obtain in the aftermath of 9/11 and the ATA. I quote again from a participant:
My mother-in-law applied to visit us recently, just three months ago, but Canadian immigration and visa services said the documents weren't complete. She is 70 years old... she is not a terrorist. She is from Pakistan and that's why she can't come here.
My own sister, consultant to the UN, was denied a visa to visit me. Two months later, the same official at the Canadian High Commission gave her a visa, since she was coming to Canada on an official delegation, and even wished her a good time in Ottawa!
Ms. Chen has already commented on racial profiling, but these incidents and many others were recounted to us by the women in the study. It leads us to believe that racial profiling is alive and well in the aftermath of 9/11.
Many of the focus group participants were traumatized by the publicity generated around Operation Thread, or as some wags termed it, Operation Threadbare, in the summer of 2003, when Pakistani and Indian men were arrested and formally named by Citizenship and Immigration Canada as suspected terrorists on the flimsiest of grounds based on racial stereotypes. The charges were soon dropped, but no formal apology was ever issued. These men were forever damaged by these baseless allegations. Many faced certain persecution on return to their country of origin.
NOIVMC believes racial profiling is a lazy person's idea of police work and no substitute for intelligence gathering. One of the recommendations from the study put forward by the women themselves was that the Department of Justice take action to severely restrict racial profiling as a routine security measure and recognize that it causes immense damage to people's lives. NOIVM agrees with this.
In our brief, we have also touched on security certificates. We support the recommendation of the Canadian Council for Refugees that the definition of "security" and "inadmissibility" in the IRPA be narrowed.
My last point is on charities, money transfers and the Anti-terrorism Act. The Anti-terrorism Act has had a chilling effect on charities, especially those that work in hot spots such as Afghanistan, Somalia, Palestine, Sri Lanka, even Pakistan, and on their donor base within the Muslim community. If an organization is declared a "listed entity," that is, under suspicion of being terrorist, by the Government of Canada, this is put on the government's website, and it behoves would-be donors to search the site every time they wish to make a donation.
Under the Anti-terrorism Act, the onus is on the person making the charitable donation to be absolutely sure that their funds will not be used for terrorist purposes. For some women, this is a denial of their right to practice their faith, because Muslims are required to donate between 2 and 5 per cent of their income annually to those less fortunate than themselves under the practice known as Zakat.
I quote from a focus group in Saskatoon:
About the donation, yes, I am very careful where I am giving my money, many charities, I don't give them anymore because I am worried that later on I have to trace back and saying that, because you know, one of our faith is to zakat and zakat money has to go to Muslims...
NOIVMC believes, based on anecdotal evidence, that the presence of the Anti-terrorism Act may have had an adverse affect on fundraising for Sri Lanka and Somalia after the tsunami, and possibly will affect fundraising for the effects of the earthquake in Kashmir and Pakistan. We recommend that in the interest of fairness, CCRA inform a charity about its reservations before the denial or revocation of charitable status and provide the latter with a reasonable opportunity to appeal or justify its work.
Almost none of the women in the focus groups were aware of the Proceeds of Crime (Money Laundering) Act, but they became wary of even using Western Union to make remittances to aged parents in their countries of origin. It would be interesting to study whether remittances made through the informal money transfer systems had indeed suffered in the wake of the Anti-terrorism Act. I quote from the same focus group participant in Saskatoon:
Now I am sending to my own family back home, but I still have a fear in the back of my mind you know one day they will come back and say why are you sending so much money to...?
There is a feeling among some citizens of Canada that human rights may be traded away in order to make Canada a safer place. As early as 2001, Daniels, Macklem and Roach, three prominent professors of law, asked whether the enhanced powers sought by the state are congruent with our core democratic traditions and values and consistent with bedrock ideas of the rule of law. We urge members of this committee and of both Houses of Parliament to remind themselves of this profound statement as they examine the Anti-terrorism Act and write their final report. Thank you.
Senator Stratton: We appreciate your attendance here. I notice that in the submission by the African Canadian Legal Clinic, and in a quote from the National Organization of Immigrant and Visible Minority Women of Canada, both organizations would like the act repealed. Is that right? I see a nod in both instances.
I tend to agree with you for the reasons that you have given, particularly since I believe that everything that needs to be done to protect our security already existed under the law prior to the anti-terrorism bill.
However, if we are living with this — and it is not likely that it will be repealed — we have had discussions about the fact that there should be a definite term or sunset clause introduced. Would you agree with that?
I have a problem with reviews. They are only successful where results are attained and concerns are addressed properly. If your concerns and the concerns of others are not properly addressed, then what is the point of having the review?
Would you support a sunset clause? We have finished the review now, the bill is still in existence and the law will be reviewed in another three years. Would you support that if it was a positive review in the sense that something was actually accomplished?
Ms. Bose: Senator Stratton, we would welcome a sunset clause, and the sooner the better. NOIVMWC feels that three years is a long time in our lives and in the lives of elected politicians.
Should we not have a repeal of the act, we would very much support an ongoing review, maybe yearly, but a sunset clause would be ideal.
Ms. Chen: You have accurately described our position, in that we are asking for a recommendation that the act be repealed. As an alternative, we would like to see an independent oversight mechanism put into place.
From the work of this committee and the witnesses that have appeared before it, it is quite evident that there are serious problems with this act. People have spoken to issues of human rights that have arisen. Much more than this type of a review needs to be put in place. As important as it is — it is better than nothing — I think there must be a more formal approach that provides mechanisms by which people can present their concerns on a regular basis as opposed to depending on a three-year review.
If there is to be a review, the sooner the better, the more regular the better; however, we would like to see a more formal process put in place.
Senator Stratton: We could have a regular review every three years but couple it with an independent oversight committee that would monitor on a regular basis.
My next question concerns racial profiling, a topic that I am having a great deal of trouble trying to understand. I know it exists because we have heard hearsay evidence to that effect. The RCMP claims they do not do racial profiling, yet the anecdotal evidence shows otherwise.
My concern is that it is a natural inclination for those dealing with law enforcement. If the terrorist acts have been performed by one sector of society and they are identifiable, visibly or otherwise — and that seems to consistently be the case — how can we logically manage the protection of society without the label of racial profiling?
I do not believe we should have racial profiling, but I do not see how you can decouple the two. If one sector of society is carrying out terrorist acts, I do not see how we can logically apply — and I need help here — the law without racial profiling.
That means I did not understand your explanation, Ms. Chen, of how we can enforce the law, recognizing that the terrorist acts are carried out by a particular segment of society, without being accused of racial profiling.
Ms. Chen: When you say one sector of society, that sector is not Muslims, Arabs, South Asians or Somalis. You cannot make a blanket statement identifying an entire community based on the acts of a few within that community. That is the crux of racial profiling; entire communities become suspect based on the acts of a few people.
From the African-Canadian experience, that has been hugely problematic. A few people in the community are committing crimes, but the entire community is targeted, scrutinized and looked upon with suspicion. That is not fair. It is discriminatory. That is the definition of racial profiling: substituting one characteristic, whether race or religion, as a proxy for criminality or security threats, when other factors or other characteristics should be reviewed.
We are not saying that race is not to be used or described at all, but it must be used in conjunction with other characteristics that are relevant to the crime or the security threat at issue. Should a few people in the community commit crimes or pose security threats, it does not mean the entire community should be targeted.
A good example is the Timothy McVeigh case. Prior to 9/11, that was the biggest terrorist crime in the United States. Was the entire white community targeted because this man was white? No.
However, if he had been a Muslim or an Arab, as the people who perpetrated the World Trade Center bombings were, it would have been a very different response.
In terms of understanding racial profiling, the experience of African-Canadians in the criminal justice system has been that when there is discretion, and when there is pre-existing and, often, systemic racism, that discretion lends itself to discriminatory actions. It is not surprising, given how unconscious and embedded racism is.
Our Supreme Court has talked about the depth of racism in our society, how it is buried within the human psyche, how people in their everyday lives do not even realize that they are being racist or applying racial stereotypes.
We have seen the impact of that, which is what is important in human rights law. In looking at whether or not racial profiling occurs, it is the impact that is important, not so much the intent, because then it personalizes it. We need to understand it is a systemic issue and how racial biases are filtered through discretionary decision-making that results in racial profiling. We need to get away from a pointing-the-finger exercise and the bad-apples excuse, look at it as a systemic problem and address it.
Senator Stratton: I wanted to hear that, because if you are the average person sitting around watching this, I think you want to clearly understand what is meant by racial profiling and what can be done to eliminate it or reduce it. If Canadians have a clearer understanding of what racial profiling is and what we can do to alleviate it, I think it helps everybody. Getting that understanding is critical.
Mr. Moriah: A couple of the recommendations that were discussed earlier helped in terms of moving in that direction. One of the things we have found has happened in the U.S. and in the U.K. is the importance of taking time to study the phenomenon, gather statistical evidence and monitor people who have this discretion and are able to make decisions about people just on the basis of their race.
Thinking about a recommendation to monitor these practices and keep disaggregated data not only addresses the fact that everyday people can see there is a problem, but it also affects other people who are in a position to exercise that discretion. It allows them to think twice about how they are exercising their discretion because they realize they are being monitored. In that sense, it could be very useful. Gathering disaggregated statistical information can be important in curbing the problem.
Senator Hubley: I would like to follow up on the subject we were discussing, gathering that information to demonstrate to Canadians that racial profiling is happening.
You mentioned that the U.K. has been doing this and they have been able to demonstrate that it rose 30 per cent after 9/11, I think you said.
Do you know why this information is not being gathered or monitored? Would you like to comment on that?
Ms. Chen: Through the work of the clinic, we have seen various reasons why this has not taken place. It stems from a denial in Canada that racism even exists. Every time we raise the issue, there is defensiveness. People are offended because they say, "We are a multicultural society, so how can there be racism?"
We found that multiculturalism masks racism. The reality that our community has experienced is denied. Certainly, in the racial profiling debate in Ontario and the issues of policing, there has been that denial — not just from the police authorities, but also from our political leaders.
Acknowledgment at certain levels still has not occurred. We have been pushing and pushing with stories, with anecdotal evidence, with the studies that the commission on systemic racism undertook and the study that the Ontario Human Rights Commission undertook. We have been pushing on that and nothing has gone further than what the two commissions have done. It stems from a denial. People in Canada do not want to believe that we can be racist.
Senator Hubley: When the United Kingdom moved to do that, was it an effort of the government?
Ms. Chen: They have always collected statistics. At the Stephen Lawrence inquiry, which was precipitated by the murder of a young man, it emerged that there was extreme racism within the metropolitan police forces. That is when they started disaggregating data; that was part of the recommendations of the Stephen Lawrence inquiry.
The police authorities and the Home Office took it very seriously. They put their political money behind the inquiry and committed to collecting disaggregated race-based data. It has provided a very accurate picture of who is subject to stops and searches in the U.K., a picture post-9/11 of the increase in stops and searches of people from the Muslim community and of Arab and South Asian descent — and also Black people, as I referred to in the statistics.
In Canada we have heard the argument that collecting race-based data is illegal and against the human rights code. That is erroneous. The Ontario Human Rights Commission — and I have excerpted a quote from their report — talks about how data collection can further the purposes of the human rights code and alleviate discrimination through identifying it and taking steps to counter it.
We have definitely heard the argument that we cannot collect race-based stats because that would be racism. Those are some of the obstacles we have encountered.
Mr. Moriah: While it is important to collect statistics to understand the depth of the problem, one of the things the Paying the Price report was clear about, which is noted in our briefs, was that whether or not there are particular statistics that address the issue of the existence of racial profiling, the fact that there is a perception of racial profiling is also important.
When you are trying to address a problem such as terrorism — or even a problem such as crime, as occurred in the African-Canadian community — it is important to ensure that people's perceptions are also addressed, because this can have an important impact on how they view public institutions.
While it is important to have those statistics, and we would encourage that a recommendation be made to collect them, it is also important to recognize that even the perception that you are being treated in a discriminatory manner can affect the way you perceive public institutions.
Ms. Bose: I think Ms. Chen has said it all, and said it very well.
Senator Mitchell: My questions will start with Ms. Chen and Mr. Moriah. I am interested in your recommendation on page 11 that an independent, accessible public complaint system be implemented under the ATA.
First, how would you see that structured, who would sit on it, how would it be made accessible to people across the country; second, how would it complement or parallel human rights commissions?
Ms. Chen: We drew that recommendation from our experience in the policing context, where the debate on racial profiling, in terms of the remedies available to victims of that, has led to discussions about an available public complaints system. While people knew that the Charter and the human rights process were available, this was a mechanism tailored specifically to the issue at hand — in our situation, policing.
With the operation of the Anti-terrorism Act, we need a complaint system that is also specifically tailored to the issue at hand, that is, the way that security measures are implemented by security and enforcement officials. That is where the premise comes from.
In regard to how it could be structured, the Ontario government in the past year commissioned former Justice Patrick LeSage to look at how an independent complaints process could be set up. His report was finalized earlier this year and has been sent to the government. This is in relation to policing. I can see how that could be useful in providing a framework by which a complaints process under the ATA could also be formulated.
Ms. Libby Davis's private member's bill has provisions to set up this kind of complaints process. It leads to disciplinary action against officials who are found to have used racial profiling.
There are certainly models out there that we can draw on — the police complaints process in Ontario, and at the federal level, the private member's bill that Ms. Davis has proposed.
Certainly fine-tuning can be done, but the underlying premise is that a complaints process tailored to the needs of people who are impacted by this act needs to be put in place.
Senator Mitchell: Both presentations this evening made the point that it is often difficult for people who are affected by this issue to come forward and make their case. The presentation of the National Organization of Immigrant and Visible Minority Women of Canada made that point explicitly.
If there were a body like this, what steps could be taken to make it easier or possible for people in these circumstances to make their case, to come forward without fear of reprisal or retribution of some kind?
Ms. Chen: We found from our experience in policing issues that there is that same kind of fear, fear of reprisal and of coming forward to make a complaint against a powerful arm of the state.
We have also found that if the complaint system is legitimate, transparent and truly accountable, people are much more prepared to come forward to make the complaint, make it a public record and get their day in court. If people feel that they can get a fair hearing, that someone will listen to them, it decreases the barriers to coming forward. It does not detract from the fear that they experience; it is a huge step for people to make these complaints. In our experience, many people do not take these things lightly; they know the process is long and that their credibility will be undermined.
We found that people believe that what has happened to them is so wrong that if they feel that the system is able to vindicate them, they will come forward. In the past, we have asked for support from community organizations for a particularly vulnerable community, such as women and newcomers, where there are language barriers and all kinds of other barriers, to assist such complainants to come forward.
Ms. Bose: Along with fear, there is also distrust of the authorities. Part of this is cultural because many immigrants come from coercive societies where the state is not to be trusted. That said, in the post-9/11 era, Muslim, Arab and "Muslim-seeming" immigrants especially feel that they cannot trust the Canadian state to guarantee their rights and freedoms. We are dealing with more than fear; we are dealing with distrust.
I agree with Ms. Chen that we need to reduce the barriers to access. We need language supports, not just at the level of the complaints agency, but across the board so that immigrants can represent themselves, and people like me can then retire happily.
NOIVMWC believes that parliamentary oversight by both Houses of Parliament is ideal. Any independent complaints process should be through a watchdog for the RCMP and for the border services. These must have teeth to be able to investigate and, if necessary, mete out discipline.
We do not particularly wish to create any more bureaucratic agencies. We wish to see the strengthening of those that exist, but most of all, we wish to see our representatives in the House and honourable senators having oversight.
Senator Mitchell: When you say "access to language," are you referring to English as a second language programs?
Ms. Bose: English and French as a second language, yes, definitely.
Senator Mitchell: In relation to a recommendation on page 11, again from the African Canadian Legal Clinic, that the federal government amend the ATA to include a provision banning racial profiling and stating that racial profiling by enforcement and security forces is not to be condoned, that seems to be relatively straightforward, one would think, at face value. What arguments are you are hearing in opposition to that? Is it that we would somehow be admitting something that we do not want to admit or that some would argue does not exist? What are you hearing as arguments against that?
Ms. Chen: That returns to the point I was making about denial. Certainly, the clinic knows that racial profiling is a reality. The resistance to even referring to it or acknowledging it has been an obstacle. That is why the Ontario Human Rights Commission has made it an explicit recommendation in their report, that acknowledgement is the first step. There is resistance to putting an obvious and, on its face, non-problematic provision consistent with our Charter of Rights and human rights codes in this legislation. People see it as an example of backhanded racial profiling, but we know it is a reality. It returns to the denial issue.
Mr. Moriah: I would not add anything. That is what it does come back to. My colleague talked earlier about the issue of multiculturalism and of denial of racism in Canadian society. There is a fear of acknowledging that this might actually be a problem, and people do see the link between racial profiling and stereotypes, discrimination and racism.
As we have seen in Toronto from various levels of government, from institutions that we deal with on a regular basis at the clinic, people are afraid even to acknowledge that there is such a thing as racial profiling. To put it in writing and say that somebody wants to ban it is another step all together.
The Chairman: I have a couple of comments. I thank you for this discussion tonight. As we hear around this table, but also from the communities across this country, although certainly the federal government does not have a policy of racial profiling, it is a question of acknowledging that this is taking place nevertheless; it just is. With that acknowledgement must come, as you have been discussing and we all have been discussing for quite some time, the ability to face the subject head on and see what mechanisms can be put in place to alleviate it on both sides.
First, I do wish to tell you that I will get the private member's bill of Libby Davis and make sure that it and any discussion around it — if it has gotten that far in the other House — will be distributed to members of the committee.
After all of the legal discussions we have had, this probably remains one of the most difficult and critical of the issues surrounding what has happened to the legislation once it hit the ground.
I appreciate that you believe parliamentary oversight is important to have. I would agree with that, primarily because we have the opportunity and the tools to do that here, while sometimes out in the private sector it is difficult.
We will take your thoughts on all of these aspects to heart. Given the variety of testimony we have heard, this particular issue is probably the most difficult. Yet, if we can manage to work together, work around those words and create a reality in which people can sense an element of trust in their government and their police force, as far as the public is concerned, and particularly in the communities, we will go a long way toward reducing the levels of fear and anger that we know are out there.
One final question: When we put out our report back in 2001, we had a couple of recommendations that we rather liked. One was that a review of the legislation be conducted in, as it turned out, three years. That is what we are doing.
Secondly, it was quite evident then that before any system had been put into place, some type of vehicle should be established that would try, before all of this went out the door, to play a role in working with the community through a round table setup at the federal level. This would involve working with the community, with their representatives, and connecting with the police and security organizations so that there could be some kind of common ground.
It took a long time to set up the round table. When we began this review a little more than three years later, last February, it had been appointed one week before.
However, leaving that aside, have you had any connection in your work with that process that is now in place or the people on that committee? If so, even though it is fairly new at the moment, do you have any suggestions as to whether this is a helpful vehicle and how to make it more helpful?
Ms. Chen: Just for clarification, is this the advisory committee, or is this the community consultation that was held some time this year?
The Chairman: No, this was a group of people asked to serve on a committee, and it was not a one-time event. It was established within the government. It was called the cross-cultural round table.
Ms. Chen: We are aware of its existence. To be frank, in terms of African-Canadian representation, not a single organization that we have dealt with knows who represents that particular community.
As far as we know within anti-racism and equity-based organizations, the membership on that committee is not particularly representative. People are not sure what the community involvement of those members with issues has been on the ground. That is to be frank and honest.
Our organization has participated in a community forum organized by the Department of Justice. That is the one I was thinking of. I believe that was earlier this year. Those are important fora and I think they need to be set up on a regular basis.
We find that we are asked to come to these meetings, we are asked to speak, and then we do not know what the outcome is. If it is a forum to vent, so be it. I think people expect some kind of outcome, some result, which so far has been quite lacking. A fundamental problem with the cross-cultural advisory committee has been the representativeness of people serving on it and their community involvement, or lack thereof.
Ms. Bose: Madam Chairman, some of us are suffering from consultation fatigue.
The Chairman: We can understand that.
Ms. Bose: Especially a small organization like NOIVMWC. I was at the Minister of Justice's consultation, and I would say that that was one of the good ones. Between when we first met on this bill and now, I have been to innumerable consultations on the subject and have come away with a sense of hopelessness.
Also, on the question of this community round table, immigrants and visible minorities are a fractious bunch.
I do not think we all sing from the same song sheet at any given time. We certainly do not sing from the same song sheet when the Anti-terrorism Act is mentioned.
That said, I too, like my colleague, speaking frankly, would say that some of us do not even know who these community representatives are. Maybe the website should have included a photograph so that we could collar them should we ever run across them. You are more familiar to us than they are. That is saying something.
The Chairman: We try.
Ms. Bose: Thank you.
The Chairman: Thank you very much. I raise that because we will be having a session with the gentleman who is the chair of that round table. I believe it is useful to hear the views that you have expressed and that we have heard from elsewhere. It certainly was intended to be a positive and helpful tool, and perhaps still can be. It is useful to have this on the record. Thank you for it.
I thank you for coming out this evening and explaining your concerns with all of the many technical and judicial issues that fall within this entire area. Your concerns are extremely important to us. In the end, that is where the solutions will be found. They will not be found in books; they will not be found around this table. They will be found within the relationships that can be built with your community and with all of the communities, including governmental and police communities. That was what we were aiming at three years ago. We are still aiming at it. I am a stubborn Scot; I do not ever give up the notion that together we can overcome and we will do our bit.
The committee adjourned.