Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 17 - Evidence - Morning meeting
OTTAWA, Monday, October 24, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:39 a.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: I would like to call this meeting to order. If our witnesses could be patient, we have a piece of important business to do at this point.
As colleagues will know, Senator Kelleher has retired from the Senate, much to our sadness. He is a wonderful gentleman, and he was the deputy chair of this committee.
Today we will elect another deputy chair. I would like to have a motion.
Senator Stratton: I nominate Senator Andreychuk.
The Chairman: Honourable senators, I would like a response to the motion of Senator Stratton that Senator Andreychuk, who has been a loyal and vigorous member of this committee since it began in 2001 and now has been reinstated, be elected as deputy chair.
Hon. Senators: Agreed.
The Chairman: We have a good group of witnesses that we look forward to seeing. Just before we get into the hearings, I would like to say a few words for our viewers about the committee and what it is doing.
This is the 37th meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act. In October 2001, as a direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation, which we did; the deadline for passage of that bill was the middle of December 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 a less emotionally charged public.
The work of this special committee represents the Senate's efforts to fulfill that obligation. When we have completed the study, we will make a report to the Senate. We will outline any issue that we believe should be addressed, and we will allow the results of our work to be available to the government and the Canadian public. The House of Commons is undertaking a similar process at the same time.
So far, the committee has met with government officials and ministers, international and domestic experts on the threat environment, legal experts, those involved in enforcement and intelligence gathering and, last week, representatives of community groups. Also, the committee has travelled to Washington to speak with colleagues there. In addition, we will shortly be travelling to London. Our other communications with people in other countries have generally been done by video conferencing.
Today, we are fortunate to be joined by representatives of the Canadian Labour Congress. I would like to welcome Hassan Yussuff, who is the Secretary-Treasurer of the CLC, and his executive assistant, David Onyalo.
As always, colleagues, I would ask you to keep your questions brief so that we can get brief but thorough answers from our guests. We are delighted that you could come this morning, gentlemen, and we will begin with Mr. Yussuff.
Hassan Yussuff, Secretary-Treasurer, Canadian Labour Congress: First, Madam Chair, I want to thank the Senate committee for agreeing to hear from the Canadian Labour Congress on this important issue of public policy.
If I may start by reading a quote from Kofi Annan, the Secretary-General of the United Nations, he said:
Compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates the achievement of the terrorist's objectives by provoking tension, hatred, and mistrust of governments among precisely those parts of the population where he is most likely to find recruits.
My understanding here is that we will provide a brief summary of our presentation and get into the questions and answers with honourable senators.
The Chairman: We have until 12:30 p.m. to engage in discussion.
Mr. Yussuff: I will highlight a few areas in our brief and attach the executive summary, which I have circulated to you. I will draw to your attention some of the recommendations we would like you to consider.
It is important to stress that the Canadian labour movement condemns terrorism and recognizes that governments have a fundamental duty to protect their citizens. We believe there are a number of domestic and international laws already in place to investigate, combat and punish terrorism. Hastily drafted and quickly adopted, the Anti-terrorism Act was a quick-fix, law-and-order solution to a complex and difficult problem.
There have been sufficient examples of serious incidents to confirm that we were right to oppose this legislation almost four years ago. It has created a legal environment where a number of our police and intelligence officers and other regulatory body agents feel free to harass, threaten or even spy on law-abiding citizens. This heavy-handedness is not necessary.
Canada's Anti-terrorism Act and other measures that limit our sovereignty, constitutional guarantees and civil rights cannot be justified by the need to address U.S. perceptions and concerns over security interests, let alone by concerns over market access.
The CLC is also increasingly alarmed by the escalation in the attack on the integrity of the Canadian passport and citizenship by the U.S. Customs and Immigration officials — in particular, for people of colour and of Arab origin. Maher Arar would never have been deported to torture in Syria by U.S. officials if the Canadian Security Intelligence Service (CSIS) had protected his citizenship rights.
The CLC has been concerned for several years about the use of racial profiling by Canadian security forces. Particularly in urban centres across the country, we are witnessing an ever-increasing targeting of people of colour, people of Arab origin and Muslim faith.
Another area of concern is the use of security certificates. These certificates predate the Anti-terrorism Act and have been part of the Immigration and Refugee Protection Act, IRPA, since 1991. They are, in fact, counterterrorism tools and an important part of the evolving system of secrecy and arbitrariness.
Additional areas of concern are in the transportation sector. Transportation security became a major concern in Canada in the aftermath of the Air India bombing in 1985. It led to hastily conceived and implemented clearance systems at airports. The CLC acknowledges that a program to control access at airports was needed, but the 1985 initiative was flawed from the beginning. According to the Air Transport Association of Canada, as many as 1,000 airline employees, some of them long-term workers with impeccable records, are unable to obtain the security clearances they need to work.
We also are concerned about part 6 of the anti-terrorism legislation, on the new Charities Registration (Security Information) Act, which allows Public Safety or Revenue ministers to sign a certificate denying or revoking the charitable status of an organization. Terrorism as presented in Canada's anti-terrorism legislation is so broad that it can capture civil disobedience, political demonstrations or work stoppages.
One of the most glaring shortcomings of the Anti-terrorism Act was a failure to create a broad and comprehensive accountability review and oversight mechanism to cover all aspects of the security agenda.
The CLC also wishes to comment on the disturbing trends that are contributing to the erosion of parliamentary responsibility and political accountability. Many sections of the security-related legislation, such as the Anti-terrorism Act or the Public Safety Act, clearly state that certain orders provided in these laws are not statutory instruments, and consequently cannot be reviewed by parliamentary committees mandated to review such decisions.
Here are some of the recommendations I would like to highlight today: Canada's Anti-terrorism Act must be repealed. Canadians must be protected against terrorism through existing domestic and international laws that, if properly used, are available to fight this type of criminality. Racial profiling is an abhorrent practice and must be made illegal in Canada.
The security certificate process in the IRPA must be repealed to end the secret trials in Canada. All individuals presently held under a security certificate should be released. If not, they should be charged and afforded the right to defend themselves in an open and fair judicial process.
A broad and encompassing review and monitoring mechanism covering all aspects of the national security function must be adopted and implemented to ensure not only oversight but accountability. These are just some of the points.
There are many more recommendations in our brief and I am prepared to answer any questions senators may have for us.
Senator Andreychuk: Some of the provisions in legislation that you wish to be taken out or amended are sections that the government has yet to employ. The government's position is they may need these sections, although they have not yet used them. Use of some of the more difficult sections has been avoided by using security certificates under the immigration process.
The government's position is that we need all these tools because it is a moving target. We do not know who might be the next terrorist. Many groups have said that they should not have these powers, and what is more, since they have other means, this act should be scaled back and changed. What is your position?
Mr. Yussuff: If you have legislative powers — whether the government thinks it is necessary or not — and you give security officials the legal authority to use them, they will use them. The fear is based on what we have seen to date; communities and, more importantly, workers, are concerned that they will be used against them.
There is no question that the government should have tools to fight terrorism. That is fundamental to a democratic society. I think, however, some of these tools in the legislation go too far. As Canadians, we have troubling questions as to why they are needed. We have a Constitution in the country that guarantees us fundamental rights. Most of the provisions in this act are contrary to the provisions in the Constitution. We have good reasons to be concerned. We have seen erroneous elements in the Maher Arar/Juliet O'Neill situation. We can see examples today of what is already in the act, how it is deployed, and how it is used to undermine our fundamental rights as Canadians across the country.
Senator Andreychuk: The Canadian Labour Congress has taken up this issue and has been vocal. How have you canvassed your members? Have members of the Canadian Labour Congress felt unease about this legislation and come to you? Do they know about this act? Are they worried about it?
Mr. Yussuff: We represent members in a variety of sectors across the country. We represent the transportation sectors, whether it is airlines or the ports, and workers in the trucking industry and freight transport, trains across borders. Similarly, we represent members who work in many manufacturing sectors in the country, where, as a result of this legislation, they have to get a security clearance.
We have been told loudly and clearly that there is a great deal of fear out there. We know members whose livelihoods have been affected as a result of the legislation.
There is a civil liberties monitoring group here in Ottawa, of which we are a founding member, which was formed as a result of the concern from our affiliates. This is a result of direct experiences that people have had to date.
The concerns are very broad. Our members are diverse. There are Muslims and Arabs in our membership. We frequently hear about the challenges they face in their communities and how they feel their fundamental rights are being compromised. We do this in the context of looking at all of our membership in the country, but based on their employment.
Senator Andreychuk: Could you give us an example of where it has had a direct effect, as opposed to what I call the ``chill effect,'' where you know the legislation is there. You change your behaviour and you read into what authorities have been saying. Where has there been a direct challenge?
Mr. Yussuff: We have members in a facility in London that has a contract in military equipment. As a result of 9/11, those workers felt a chill in the workplace. All of them were under suspicion. They had to go through security clearance, and if they looked like me or had names like me, they felt a sense of suspicion from their fellow workers. Members in the airline industry have been directly affected because their clearance has been revoked and trying to get clear answers at an appeal process has been difficult.
A member was affected at Chalk River. A scientist represented by one of our affiliates lost his livelihood and there was direct evidence it was because of mistaken identity. His livelihood was threatened. People were suspicious of who he was and what he was involved in.
Those are direct examples of experiences to date. Racial profiling is a serious issue, especially in urban communities. The anti-terrorism legislation heightens racial profiling of certain groups in our society, especially Muslims and Arab Canadians.
Senator Andreychuk: You recommended that there be no fallout, if I may use that phrase, on Canadians because of the American Patriot Act; can you elaborate as to whether that is generally, or specific to your workers at the border?
Mr. Yussuff: There is a recommendation, to which Canada has agreed, dealing with border security. We see this as essentially integrating into the U.S. security mechanism. We find this disturbing because, again, we have different norms. We have different laws in our country as to how we treat our citizens.
We feel the Patriot Act is reaching further into our country and will influence how we respond to concerns of monitoring and securing our borders. There is a perception that we will suffer economically as a result of not complying with U.S. demands.
Senator Jaffer: In your brief, and also in your oral submission, you have spoken about racial profiling. Would you expand on what you mean by ``racial profiling'' and if there are complaints from your members as to how racial profiling is affecting them.
In your brief you have talked about adopting the bill that Libby Davies, an MP from Vancouver, has put forward. How do you think that will help your membership?
Mr. Yussuff: While our members are employed in a particular workplace, they live in a broader society. The reality is, since the anti-terrorism legislation, there is a sense in those communities that they are now the target, especially being Muslims and Arab Canadians. There is a direct sense that this will make it more legal than it was prior to the anti-terrorism legislation coming into place.
We know that in places like Toronto — and to be fair, other cities also — racial profiling is a fact. Our police chief here in Ottawa says racial profiling is real; it is not something we talk about, it is real.
He underscores the need to struggle with how officers can be retrained to understand that people who may have certain religious faiths or certain names should not be subjected to unwanted intrusion in their lives. The Toronto Star did a broad exposé on who was being stopped by the police. The conclusion of their investigative report showed that racial profiling is at work within the police force. Similarly, the Muslim bar association surveyed the Muslim community and found that there is a real sense that people are targeted by the police force because of who they are and their faith. It is a real issue.
Ms. Libby Davies' Bill, C-296, to ban racial profiling, was an attempt to address the fact that this is fundamentally against our human rights tenets and, more importantly, our Constitution. It is also against the multiculturalist nature of Canadian society. We need legal mechanisms in place to state that the collection of data on and the targeting of specific peoples in our society are fundamentally against what Canada is all about. Unless we have a legal framework for advising police and security officials of this, we will continue to see the targeting of people. This has become more apparent since the anti-terrorism law was enacted.
Senator Jaffer: My question is further to Senator Andreychuk's questions on complaints from individuals. Have you heard complaints from your membership that they have been contacted at work by CSIS or the RCMP? I refer, in particular, to Muslims and Arabs. We have heard from witnesses that they were contacted at work. Could you tell us how such contact affects your membership? Senator Andreychuk talked about a ``chilling effect.''
Mr. Yussuff: I was the officer responsible for dealing with this part of our legislative work in the Canadian Labour Congress. When Bill C-36 was being implemented, I used myself as an example. My name is not John Smith, but rather Hassan Yussuff, and that is who I am. I am a Canadian and I am proud of my country and my participation in building this society. My title and responsibility in the CLC put me in a different light, but I know for a fact that quite often my name has initiated investigations as to who I am and what my background is.
Some of our members have brought to the CLC and to their unions information about their homes being visited by security people. Some have had their backgrounds investigated by their employers, and we know for a fact that as a result, some have lost their security clearance. This chill not only surrounds them but also their families. Once suspicion is cast over individual workers, fellow workers begin to see them in that light and think differently about them; and that goes against the fundamental value of our society. We want to tell Canadians that all of us need to be involved in ensuring that Canada is safe and that our security is protected, but to not cast specific segments of our society in a different light that can cause increased suspicions.
As senators are aware, most of the people incarcerated to date happen to be people of Muslim or Arab descent. That speaks volumes about what we are trying to say. Those communities are now under a great deal of suspicion. We are told that their children often face harassment by fellow students, not because they understand anything but because they hear stories repeated. This is a tremendous challenge for us. It makes people much more insular and inhibits their ability to try to build relationships and expand their networks within their communities. It counteracts our attempts to build on the sense that we are a melting pot of people and cultures in Canada in which we try to struggle with our differences, and which we deem to be one of the wonderful values of this country.
Senator Jaffer: You have been talking about Muslims detained under the security certificate. You also mentioned that some of your members had lost their security clearances at work. Could you elaborate on that? You said that there is a specific method of redress but that it was taking a long time. Do you have any idea how many members have lost their security clearance?
Mr. Yussuff: We highlighted the report by the agency that issues security clearances to airport workers. More than 1,000 workers lost their security clearance and they have to struggle to determine whether they can reclaim it. The mechanism for appeal is difficult, which I discovered when I was in another line of work servicing people who work in the airline sector. In addition, this will be broadened to include ports. For example, extensive background checks are required on people who drive forklifts for them to maintain their employment. That raises the question: Why is this necessary? We know that security clearances are necessary, but we also know that people in the trucking industry have lost their jobs. We know of one individual who was in a bar fight many years ago and now has lost the right to cross the border because he is unable to get security clearance. Thus, he is limited to trucking within Canada, and that has affected his employment. We have included numerous examples of this in our brief.
The system of regulatory agents for dealing with appeals is cumbersome. When people lose their security clearance, their ability to work is lost immediately. Failure to turn up at work means that people will lose their jobs, because employers naturally expect them to show up. For example, a flight attendant that we know of was out of the country for a time and when she returned, she had to re-qualify for her security clearance. She was in China, which could not provide the necessary information so that she could regain her security clearance. Her employment was directly affected as a result of taking a long trip out of the country. One part of this legislation allows the regulatory agents to do this, and it will affect many people. Quite often, innocent individuals are simply doing what Canadians are expected to do — travel, see the world and share their experiences when they come home.
These are but examples of the effects of this legislation, and we have highlighted the evidence in our brief in a more direct way.
Senator Stratton: My questions are similar to the questions that I have asked other witnesses who want the act struck down, although it would appear that it will not be repealed.
What would you find acceptable, knowing that to be the case? Do you believe there should be a sunset clause whereby after a certain period, the act would cease to exist and would have to be re-justified; failing that, would you support another review in three years? That could be fine but it would not appear to solve a number of the problems that the CLC has. As you have alluded to, would you want greater oversight by an independent committee on a continuing basis?
We would appreciate the answers to those three questions because I think it is critical that we recognize that the Anti-terrorism Act will continue to exist.
Mr. Yussuff: Senator, when we presented before the committee on Bill C-36 we said that there should be a sunset clause. As well, we called for a review, such as the ones here and in the House of Commons. We had serious concerns at the time about whether this legislation would erode Canadian values. Now, it has been confirmed that the bill has done exactly what we predicted it would do; and that is a terrible thing.
Whether or not senators and the other parliamentary committee repeal the legislation, if the legislation continues as is, it will erode our sense of solidarity with each other. As we have said all along, it may serve to undermine the sense of how Canadians build and struggle with each other.
We have made some specific recommendations. At the end of the day, if the government chooses not to repeal the legislation, senators must be more demanding about why we need some specific sections. We pointed out in our brief why specific sections have been so difficult to understand. Why must a journalist like Juliet O'Neill have cops knocking on her door and confiscating files? Had it not been for the public outcry, they were planning to drag her out and put her in jail because she may have had something that someone thought she should not have. What does that say about freedom of the press?
We maintain the argument that we have enough legislation in this country to serve our efforts to fight terrorism effectively. We must always see human rights as fundamental in our society and try to ensure we promote them in whatever piece of legislation we adopt. We do not believe that has happened. We called for this bill to include a sunset clause a long time ago. It does not. Whether or not the government will consider it, I do not know. We think the review is necessary. Ultimately, if you cannot see yourselves supporting putting the bill aside completely, then there must be some fundamental change to Bill C-36 and subsequent pieces of legislation.
We have made those points clear in our brief today. I am not trying to get around your question. We believe that it should have been ``sunsetted'' a long time ago. If we felt there was a need, it was certainly demonstrated on 9/11. We have had an opportunity to adjust some other regulatory mechanisms in the country to meet other challenges that we did not face at the time. We must have strong oversight of any piece of legislation. This legislation does not have enough oversight built into it to give certain segments of our society the sense that their privacy and their human rights will not be eroded. It is far-reaching legislation. Your colleague asked earlier about certain sections of the legislation that may not have been used. So long as security officials have those powers under the legislation, rest assured that they will use them. I work in an environment of collective bargaining. If you put something in a contract, rest assured that sooner or later, someone will access that in the collective agreement. If you are concerned about something, you had better make it explicit; otherwise, there is a likelihood that things will go in the opposite direction.
Senator Stratton: What is the status of the right to detain without any avenue of recourse? The British Law Lords struck down the British law regarding this. You would expect that something similar would happen here. Can you enlighten us as to where you think that stands with respect to Canadian law?
Mr. Yussuff: As we say in the brief, we believe that the law is unconstitutional. The Supreme Court has agreed to hear a case on the security certificates and we think that is good. They will make a judgment as to whether or not it violates the Charter of Rights and Freedoms.
We have cited enough examples. One was an operation in Toronto by security officials where 23 people were rounded up on the suspicion that they might have been involved in something. Subsequently, the majority were deported from our country under the suspicion that they were terrorists, which turned out to be false. When most people look to our country from outside Canada — and I do a fair amount of international travel — they see us as a beacon. There is something fundamentally right about our democracy. This reinforces the opposite, especially given our record of integrating immigrants into our society. When we look at the number of individuals today languishing in our jails under security certificates, the fundamental question we ask is this: Is that what we are all about as a nation? I do not think so. If people are suspected of being involved in criminal activity, we should have the courage to charge them, take them before a court of law, present the evidence and let the court make a decision.
There were periods in human history in which people went through these kinds of experiences and we said that is simply wrong. We are a democracy. This is fundamentally against the tenets of our democracy. It is so disgusting that, sometimes, you do not know what to do. We had our convention in Montreal this year and we invited a number of people to attend. We invited Maher Arar because we felt so affronted by what he went through and we were concerned about the broader impact on that community. It was the most moving and touching experience I have ever been involved with to hear the stories people have to tell — direct experiences — about aspects of anti-terrorism that you would not believe occur in our country. We know of a number of cases already under the security certificates where people have been held without trial. So long as that section is there — and this came into being long before anti- terrorism — then it will be used. It now has been used in a clear way. We have to call to get rid of that because it affronts our democracy. Hopefully, the Supreme Court will make that decision. Until such time, it is important that it be raised by a body like yours that this is an affront to our democracy.
The Chairman: It is now 20 minutes after 11, we have Senator Day and Senator Joyal on the list for the first round, and I am quickly building a second.
Senator Day: My first question is more of a comment, but you may wish to comment on my comment, Mr. Yussuff.
You may not have the time to expand on and give your basis for a number of these recommendations because of the structure of our committee. However, from listening to your presentation, I am left with the impression that it dealt with security certificates and with your position that we must do away with this anti-terrorism legislation. I would have thought that the Canadian Labour Congress had a broad, collective interest in its membership and that you would have been advocating the importance of the common good as opposed to leaving me with the impression that you are a civil libertarian organization and that individual rights are paramount. Is it only because of the structure of our meeting that you focused in on a number of aspects that you feel should be changed or are your recommendations reflecting a general mistrust of government and agencies that exist to protect the collective good?
Mr. Yussuff: I am responding today generally on our experience to date with the anti-terrorism legislation and the comments are both specific and broad in nature.
We are a family of 3 million members. We try to speak on behalf of that entire family. When one is injured, all are injured. We take the position that if one member's right is fundamentally abused, then all members need to be concerned. While it may be Muslims or Arabs today, tomorrow it could be any of our members. We never thought that anti-terrorism legislation would have such a far-reaching effect on people who work in the transportation sector, but we are seeing that, regardless of their nationality, background or religious faith, everybody has been affected in some way or another because of the need for security clearance.
In both a broad and a narrow context, yes, I am giving you examples of our concerns around our civil liberties, but they are the concerns of all our members, not just some. It may be a perception. It may be yours or it may be the way I am expressing myself; I am not sure. In general, we have tried to present a broad overview from direct experiences that we have had to date and, more importantly, why we think some changes are necessary to deal with the challenges we face.
More importantly, we have said clearly that as a country we have a fundamental responsibility to protect all our citizens, recognizing that we have a Charter and a commitment to human rights.
Senator Day: That is a nice way to end that line of questioning. You agree with us that the government has a responsibility to protect. The public generally has a right to expect a certain level of security and the government has a responsibility to provide that.
You say that the Anti-terrorism Act should be done away with. You say in your brief that it was ill-conceived, largely under pressure from the United States, and driven by fears of loss of access to the U.S. market.
Are you suggesting that if Canada did not take international terrorism seriously the United States and the international community would not notice and it would have no effect on our trade internationally and with the U.S.?
Mr. Yussuff: As a sovereign nation, we are responsible for the security of our citizens and of our borders. As such, we should decide what laws we ought to have to defend our self-interests. When I appeared before the committee, most members could not answer the questions put to them on why this law needed to be so comprehensive and far-reaching. They are the parliamentarians and it is their job to answer these questions. They said it was beyond them to know why the law was so comprehensive.
As I said at the time, we were under a lot of pressure to respond. On 9/11, our borders were shut down immediately. A huge amount of traffic and trade goes across our borders and we must have legislation to meet our self-interests. However, there was much political pressure at that time. We had to respond and show that we were doing as much as possible. I believe that the legislation went much too far in dealing with those concerns and that economic interests are still driving how our nation responds to terrorism.
Senator Day: Do you recognize the pressures and the international obligation under the United Nations resolutions for each member state to pass national legislation that would provide protection internationally?
Mr. Yussuff: There is an assumption that we did not have legislation to provide for the protection of our citizens with regard to terrorism, and I think that we did. Our Criminal Code is adequately structured to deal with any violations of our national laws and, for that matter, some aspects of international law. We have a number of other regulatory mechanisms to deal with airport security. There may be flaws in them, but we already had a number of provisions on the books to deal with security concerns in our country.
There was an assumption that we had no legislation, that we were sleepwalking, and that when 9/11 happened we were unable to respond. I do not believe that to be the case.
Senator Day: Since September 11, 2001, we have entered into the Safe Third Country Agreement, in relation to which much work has been done. You are aware that well over 50 per cent of the refugee claimants who came to Canada came through the United States. Under the agreement, refugees in the United States would not be entitled to come to Canada to seek refugee status here because they were already in a safe country, the United States.
Your concern, which is shared by most of us, is for the world's most vulnerable people, who are fleeing persecution by a government that has not treated them well. Are you suggesting that we should rescind this Safe Third Country Agreement with the United States because it would not get proper attention there?
Mr. Yussuff: We have experience in this, and we cited Maher Arar as an example. Mr. Arar, a Canadian citizen, was deported to Syria, with no concern for his safety. What does that say about other refugee claimants? I do not know all the aspects of the U.S. refugee protection services, but I know that we have a fairly extensive process for the documenting and fingerprinting of refugees, and if refugees do not meet our requirements, we have the ability to deport them at the end of the day.
We are simply saying that refugees are covered by the UN agreement. We ought to give protection to the most vulnerable and we believe that we may be putting some people at risk because they are not able to make a claim from the U.S. to come to Canada. Other organizations with which we have worked, including the Canadian Council of Refugees, have the same concern. We have legitimate reasons to believe that many people who would otherwise qualify may not because they cannot make their claim to come to Canada from the U.S., and so they will be deported. We believe that people who have legitimate claims under the UN convention should have the right to make those claims in Canada.
Senator Day: You believe that they should be able to pass through any other country they choose in order to get to Canada to take advantage of our system?
Mr. Yussuff: That is one way of putting it. However, I believe that although our refugee determination process may have some flaws, overall it has worked well to serve our international obligations as well as our own domestic commitments.
Senator Day: You are speaking on behalf of the Canadian Labour Congress, which has over 3 million members. It is the view of the Canadian Labour Congress that the anti-terrorism legislation and the Safe Third Country Agreement should be done away with? These are strong recommendations.
Mr. Yussuff: That is our view.
Senator Joyal: Welcome, Mr. Yussuff and Mr. Onyalo.
On page 28 of your brief, recommendation no. 5 reads:
Canada must refuse to deport any detainees to a country where there is a substantial risk of torture and possibly death in compliance with the UN Convention Against Torture.
You qualify the risk by saying ``substantial.'' Former Justice Arbour, in her capacity as High Commissioner for Human Rights of the United Nations, said that she wanted to eliminate the possibility of deporting a person if there is a risk of torture. She even cited a decision of the Supreme Court in Suresh. In other words, she said that Canada should not deport anyone to a country where there is a risk of torture.
In your brief you have qualified that by saying ``substantial risk of torture.'' At the top of page 15 of your brief you refer to a quote from Minister Cotler. Why did you include the word ``substantial?''
Mr. Yussuff: It is a matter of balance. There will be times when we will need to deport people from our country because they do not meet the criteria of a refugee. Our suggestion may not be in concert with Madame Arbour's position, but we want to ensure that our officials exercise due diligence in recognizing that persons being deported might be subjected to torture, prosecution or even death as a result.
It may be a question of language. I will have to double check to ensure we are not being contradictory in regards to the UN Convention on Refugees.
Senator Joyal: When we heard the brief of the Canadian groups monitoring international human rights, we had the former solicitor general, Warren Allmand, here testifying a week ago. There was a clear recommendation from that group, of which the Canadian Labour Congress is a member, on deporting a person to a country where torture would be practised.
Mr. Yussuff: Yes.
Senator Joyal: I would advise you to review the recommendation of the monitoring group. Paragraph 5 of your brief does not seem to restate that position.
Mr. Yussuff: We will review it again. We are part of that group. We are very much involved in that broad coalition, as we are a founding member, so we would want to be consistent with the position that we jointly take.
Senator Joyal: My next question is in relation to page 16 of your brief. You have raised an important issue that has also been raised by other witnesses from whom we have heard in the last three weeks, and it deals with security clearances. The new measures on security clearance apply equally to a person who holds a position within the public service and a person who seeks a position within the public service.
The concern we have expressed here around this table is that when the anti-terrorism legislation was introduced and adopted by Parliament three years ago, that aspect was not really the object of fair consideration, ``fair'' meaning outlining the implications of that obligation to submit to security clearance procedures.
The security clearance, as I see it from what is going on, would apply as much to federal employees as to provincial employees, because I saw the statement by the Minister of Transport this morning in the paper that the he wants additional funding ``to boost transit security.'' In other words, it would apply to employees involved in metro or bus or other commuter systems, which are normally under the responsibility of provincial governments.
If we are to extend security clearances to all employees directly or indirectly involved in the management of the transport system — in your brief at page 16 you refer to airports, to ports on page 17, and on page 18 to the trucking industry — we could add the train system to that, which was a fairly large employer, at least until recent years, with the shutting down of some of the lines.
It seems to me that we should be much more concerned about your recommendation at page 16 under the heading of ``Airports.'' I quote:
This can be a very slow process and, in some cases impossible, since police forces in some countries flatly refuse to cooperate. As well, if someone is refused a security clearance, there is no genuine appeal procedure.
I share the views of my colleague, Senator Day, that we need some security clearance measures. I would accept the principle that we cannot leave airports or train stations open to anyone who would want to deposit a bomb somewhere or do something illegal in relation to security. As such, we must ensure we have in place a mechanism by which a person who feels aggrieved can seek redress and have a fair hearing. It seems to me that is the way discretion should be implemented in relation to that aspect of security.
In your recommendation, however, that does not appear as a key element of your proposal, while it is an important emerging issue in relation to public security. Could you be more explicit about what you think would be a genuine appeal procedure? Would it be within the collective agreement? Do you think it should it be included? Should it be with an ombudsman, as you propose in your brief, that a person should file a complaint? Should it be with a different body within the administration? How do you define that? I am addressing this question to you because you are a professional in the public service, and you should know better than any of us here how to address this question. Could you expand a little on this?
Mr. Yussuff: I apologize that the brief is not comprehensive. Perhaps we should have quoted the specific section of the process you have to go through and outlined the mechanism for appeal. It is one of the areas of major concern because it has the potential for people to lose their livelihood.
The appeal process is not genuine, based on experience, and we do not believe it is comprehensive enough to say that if people will lose their livelihood, there is an opportunity for them to seek redress. You cannot address this through the collective agreement process because the collective agreement has little to do with the security clearances granted by Transport Canada through its regulatory body. They are the ones who issue them and they are the ones who revoke them, for whatever reason they may choose. They are the ones who have to, essentially, put in a mechanism.
We have been working with Transport Canada, as you know, on dealing with new regulations they are bringing in for airport, port, and also ground transportation security. This is something we are trying to address. I apologize that we do not have any specific recommendations on what needs to be done, but we think there needs to be a broad mechanism for dealing with the revocation of security clearances at airports and for a meaningful appeal.
You can lose your security clearance sometimes for bad driving habits. There are people who bring food onto the airplanes at airports. Should they violate certain procedures for how they should drive at the airport, they could lose their security clearance. The mechanism for appealing that is quite cumbersome. Once your security clearance is revoked, essentially, the employer does not have to pay your salary until such time as you are able to regain it and get access to the workplace. That is information we would want to forward to you in regard to our work on the security of transportation to date and what the recommendation might be there. I am surprised it is not in here. That is a good point. A committee of the various affiliates has been working on that issue within the congress.
Senator Joyal: The process, as I understand, and I am sure you would concur, has to be efficient. We are dealing here partly with an issue of management, and, of course, for the employees or potential employees, with an issue of human rights. A person who is barred from doing his or her job could have a real problem later in finding another job or in a competition for another position within the public service. There are a lot of implications to such a decision.
It is important that the mechanism be as close as possible to what I call due process; in other words, it should give people a fair hearing so that they have the capacity to answer the claims that are being brought against them.
Of course, since we are dealing with many members of the Canadian Labour Congress, it seems to me to be an important issue that you should address, because it is expanding, as I say, to the provincial and municipal levels. The objective of the mechanism should be effective at whatever level the employee concerned is, be it at the provincial, municipal or federal level.
I am not questioning the idea that there must be some security measures as much as I am concerned that they be implemented with the recognition that employees' rights are at stake and must be dealt with properly.
Mr. Yussuff: We have also said that in our brief. We recognize we must have some security measures at airports, given the Air India situation. However, it must be recognized that if people's livelihoods are to be taken away, there must be due process for them to appeal. We need to outline that clearly.
Senator Joyal: I would like to come back to the issue of substantial risk that you have quoted in terms of risk of torture for a person who is deported.
It was brought to my attention that article 3, paragraph 1, of the United Nations Convention Against Torture states the following:
No State Party shall expel, return...or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
It reads ``substantial grounds for believing.'' ``Substantial risk'' is not the same. There is a slight difference that might be important legally when this is implemented. I want to get that on the record so that I am not misunderstood when I raise that question.
Senator Smith: I want to touch on what I think is probably the most delicate and important issue, that of racial profiling. This issue has been of concern to our colleague, Senator Jaffer, for a long time.
Everybody is opposed to it in theory. Your second recommendation endorses the Libby Davies bill, which would make the practice illegal. What does that mean? How do you define that?
I will give some background for my thoughts. You seem to assume that what we have done was primarily because of the economic muscle and influence of the United States, whereas when Canadians talk to me about this issue — and there are not many, but certainly some — I never hear anybody mention that. They speak of their concern for the security of other Canadians.
Let us set the Americans aside and refer to the British. I was in England this past summer when the bombs went off; I was at King's Cross just before and just after. It was pretty eerie. I know, from listening to Brits over there, of their support for Tony Blair taking a strong line. I was at the Commonwealth Conference in September, where MPs from all sides were singing from the same page: Be more aggressive and expel those clerics who preach hate and violence.
If an official at a customs or immigration post pays a little more attention to someone who fits a pattern, should that be illegal? It is inevitable in Britain, where there are television pictures — and this is delicate — showing the terrorists were all from the Muslim community. Is it not inevitable that officials at the border will be paying more attention? Is that practice illegal and will it become an offence? How do you deal with the practical reality that Canadians still want to feel secure? I do not think they are worrying about American economic muscle. It is more of a security angle. How do you react to that?
Mr. Yussuff: I will use this as a way to respond: Criminals and terrorism come in all different colours, shapes and sizes. I do not know how you fit a profile. I will use myself as an example.
I have a name. If I grow a braid, would I fit a certain profile? This is a classic example. What does a profile look like? What do you have to do to fit the profile? Do I have to wear different garb and then I will fit the profile more closely? I think I am a good and responsible Canadian. I understand the fundamental right of Canadians to live in a peaceful and secure society, but I do not think that I should be unfairly targeted.
Many people are targeted — and it is not just their perception; their experience tells them so — unfairly because they fit the profile, because someone may think that is what a terrorist might look like. If the legislation gives officials the authority to exercise that power, they will exercise it.
I will give another example. In Toronto, as you know, there was a survey done about how many Black people have been stopped by police. The researchers looked at the situation over a long period and did a statistical analysis. There was a clear sense that Black people as a group, given their percentage of the population in that city, were unfairly targeted. Racial profiling was going on.
The police did not accept it. Many people spoke out and said that this should not be happening. Of course, the police said that they were not doing that now. However, how do you explain the evidence? Recently in Kingston, the police chief took the time to do a thorough investigation and observe how his officers treat fellow citizens there. He came up with similar clear evidence that certain segments in that city, given their numbers, were stopped far too frequently for this to just be random.
If the law casts suspicions, people will act on them. To a large extent, it is true that people in the Muslim and Arab communities commit terrorist acts. The reality is that many people in those communities do not commit terrorist or criminal acts, and they should not be subjected unfairly by police and other persons in authority to investigation and profiling. It is not a delicate balance; it is more about our values and principles.
Senator Smith: Is it profiling if an immigration officer asks a few more questions of somebody with a Saudi passport? Has he acted illegally? What does it mean?
Mr. Yussuff: Those who come back from travelling abroad have the right to go through the same process as other Canadians in regard to where they visited and what they did. To single out a group and subject them to far more interrogation is to reinforce different norms in our society. That is the point. If we have suspicions, we should acknowledge that it is not just Muslims or Arabs who commit terrorist acts.
Senator Fraser: Further to this issue, I am beginning to be concerned about the phrase ``racial profiling.'' It is coming to mean all things to all people. I do not think this is a frivolous difficulty. Everyone on this committee is opposed to the kind of practices that you talk about, and that most of us talk about when we use the phrase.
At the same time, there is coming to be a very fuzzy understanding of what that phrase means. Might we not be better off to confine our discussion to more precise language? It seems to me that the offensive conduct about which many complaints have been brought to this committee actually constitutes racial, ethnic or religious discrimination. People are singled out for particular attention on the grounds of race, religion or ethnicity — and perhaps travel patterns; I do not know. Let us confine ourselves to the racial, ethnic and religious area.
Would we be better off to drop the word ``profiling'' and come back to the old-fashioned word ``discrimination,'' which everyone understands and opposes without any hesitation at all?
Would you care to comment on that?
Mr. Yussuff: Only to say I respectfully disagree. If you look at the people who have come before your committee — I have not been paying close attention — they are saying that they as a community and as individuals are the subject of far more scrutiny. They are being profiled.
Many people face discrimination. All of us in this room, for that matter, can face discrimination at different times and on a variety of issues. It could be for a disability or something else. When a community has been targeted, it is fundamentally different. There is a sense among those who are targeting them that they have the authority, and more importantly, are subjecting them to a different norm than the rest of society. That needs to be recognized.
Senator Fraser: In what way is that different from the situation you were describing in some cities, where Black people, usually young Black men, get stopped by the police because of what used to be known as ``driving while Black?'' We did not call that racial profiling. We called that racial discrimination, which it was, in my view.
Mr. Yussuff: Senator, you may have a different concept of it. Those of us who do work in this area have a different understanding of what this is. When Black men are being stopped in a community more frequently than other groups, certainly something is at play.
Senator Fraser: Something very ugly.
Mr. Yussuff: What is at play is the understanding — rightly or wrongly, mostly wrongly — that they are involved in criminal activity and ought to be subjected to more scrutiny. There is no basis for that.
Senator Fraser: They happen to be there. That is the only ground for the police intervening. I understand that.
I am just talking about language. Maybe it seems like a small point to you. I am just becoming distressed about what strikes me as ever fuzzier discourse, not from you, but from quite a number of people about this phrase ``racial profiling.'' However, you do not agree with me. That is fine.
Senator Andreychuk: I just want to pick up on Senator Fraser's point. Do you understand racial profiling as something that those in authority believe, if they do it, it would help them in their job? In other words, they believe that if they target, for example, the Muslim community, they will be able to get at the terrorists, whereas discrimination is a bias by an individual or a group against someone else. Racial profiling, to me, carries a tacit approval, if not an explicit one, by the institution or the authority in question, generally the government.
Mr. Yussuff: It can be more institutionalized. In some cases, it is not sanctioned by anybody. Those who have the authority feel they are supposed to catch terrorists. That is their job. Who fits the profile? People that look like this, with this kind of last name and this kind of profile will, obviously, be subjected to more scrutiny than others. That would be my way of responding to that question.
Senator Andreychuk: In the portion of your report, ``Outsourcing,'' on page 21, you acknowledge that outsourcing has been done by governments previous to the Patriot Act, and that in itself may raise problems of confidentiality and protection of privacy of Canadian individuals. As you have noted, if a government, for example, in Saskatchewan, where I come from, has outsourced to the U.S., that could cause us problems because U.S. laws are different. Certainly, outsourcing to other countries is even more problematic.
You seem to acknowledge that outsourcing has gone on and is worrisome, but that the U.S. Patriot Act will make things worse with respect to privacy and confidentiality and, hence, the operation of businesses. We may be giving information that we are obliged to give in Canada, it may be outsourced somewhere else, and that outsourcing organization will be obliged to provide it to U.S. authorities. Am I getting your argument?
Mr. Yussuff: Yes, you are right on.
Senator Andreychuk: What leads you to believe that the Patriot Act would be more invasive than other pieces of legislation in the U.S.? Is it that phrase, ``the production of any tangible things'' to the Federal Bureau of Investigation?
Mr. Yussuff: That is exactly it. It is a concern, because I am not an American citizen. Again, we are looking at an interpretation of how their law could apply to sensitive information processed in the United States. If it is requested, I suppose, unless a company has reasons for not divulging it, it would be in violation of U.S. law. That is something we should all be concerned about. If legitimate business enterprises are processing that information and it is requested by the U.S. government, given that they reside in the U.S. and the materials are processed on U.S. soil, they may have to comply with U.S. law and subsequently compromise security and, more importantly, the privacy of Canadians.
Senator Andreychuk: You say that British Columbia, Nova Scotia, Ontario and Saskatchewan have outsourced information about Canadians living in those provinces.
Have you ever taken up that issue with those provinces and your concern about confidentiality and privacy? What were their responses?
Mr. Yussuff: We have taken it up with the provincial government in B.C., and the government feels it has a legitimate right to outsource that information. That is now being litigated by one of our affiliates in B.C. We raised it here because it was a concern for them. There have been similar concerns raised across other jurisdictions in Canada that we should be aware of.
Until the Patriot Act, we did not see that this information would be compromised, but with the structure of that act, it can be compromised in the context of its collection and processing.
Senator Jaffer: I just wanted to clarify something that Senator Smith said about somebody with a Saudi Arabian passport being stopped and questioned for a longer time than others. I do not think that is the person you are representing. You are talking about Canadians who have a certain ethnic background being questioned for a longer time. Am I correct?
Mr. Yussuff: Yes. As you know, senator, not all our fellow Canadians actually have citizenship. Some are still landed immigrants, and they may be travelling on other passports. Quite often they reside here, but maybe have not taken out citizenship; sometimes those members are also subjected to the same kind of issues we are raising.
Senator Jaffer: However, the people you are talking about are Canadian citizens and landed immigrants.
Mr. Yussuff: Yes, that is right.
Senator Jaffer: We recently had a teachers' strike in British Columbia, and thankfully, it has now been resolved. You have mentioned work stoppages being considered terrorism. Under what circumstances would they be considered terrorism?
Mr. Yussuff: Obviously, we would not construe it that way. However, the way the act has been drafted, we see this as a potential challenge.
For instance, in many events that have happened in our country such as the G8 and APEC meetings, had the law been in force then, we think it could have been used. Obviously, it has not been interpreted in this way to date, but there is a concern, given the broadness of the definition within the legislation, that those actions can be construed in that way. It is our interpretation; it is what our legal counsel has advised us. We have not experienced it but recognize it as a potential.
Senator Jaffer: Senator Fraser asked you about racial profiling and you had earlier mentioned Libby Davies' bill. Does the witness have a copy of it?
Mr. Yussuff: I did not produce a copy of her bill.
Senator Jaffer: We have it.
The definition here says:
``racial profiling'' means any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin, or a combination of these, rather than a reasonable suspicion, to single out an individual for greater scrutiny or different treatment.
Can you expand on that? Are you satisfied with that definition of racial profiling? Why would you say that is what racial profiling is? It goes further than discrimination.
Mr. Yussuff: It is the way she structured her private member's bill, because she is being specific in defining — at least, attempting to define — what is racial profiling. I think that is always a challenge, as your senator colleague raised, defining the difference between discrimination and racial profiling. It is critical for us to understand the concept, and more importantly, to speak to it, which is a challenge because we may have a different notion of how to describe it.
Based on experiences to date and the way we have seen racial profiling operating, we need a definition of it if we are to stop it. The Kingston police force's direct experience in trying to get at it gave us some clear evidence as to how to structure a piece of legislation.
The police chief was clear about what he wanted to find out — whether his officers were unreasonably stopping certain groups within Kingston — and he structured the survey to try to obtain that information. That may help us somewhat. Obviously, we think this bill might clarify what it is so that you can prevent it from happening.
I will use my own knowledge, which is that unless we define it, we cannot fight it. If we have something we can rely upon, then we can train officers to ensure that they are not engaging in behaviour that may result in the practice that has been described in Ms. Davies' bill.
Senator Stratton: A lot of us are concerned about racial profiling. My comment last week to another group was, to paraphrase — and it is not meant in an unkind way — if it walks like a duck and it quacks like a duck, it has to be a duck. That is a natural inclination on the part of our law enforcement officials; they see a skin colour and react accordingly. An educational process can be undertaken that would help immensely in the education of these law enforcement officers to ensure that racial profiling does not take place.
I am a firm believer that you have to question the need for another law. I am concerned even when a private member's bill is brought forward, which has been tabled here today — Bill C-296, an act to eliminate racial profiling. I have a great deal of trouble with that because I believe, in the first instance, that education is the route to take in educating law enforcement officers on how to avoid racial profiling. You can accomplish that, to a large extent. I believe it is inherent in human nature that that will occur — it has throughout our history; we can diminish it through education but we cannot totally eliminate it.
Would you not agree with that? Rather than enacting another law that is tough to enforce, would you not rely on the education process? If someone is accused of or is guilty to a degree of racial profiling, the individual can be dealt with in another way, through education or re-education. Could you respond to that, please?
Mr. Yussuff: Education plays a tremendous role in changing attitudes in our society. It is fundamental, I agree with you 100 per cent.
The fact is our country and our society will continue to be very diverse and representative of many different cultures, ethnicities and religious faiths. We know now from evidence and studies that racial profiling is a real problem. Only a certain segment of our society faces it and that segment is targeted often.
I assume most of our police officers are well-intentioned people. They are trying to do their best to carry out their responsibilities, but there are elements within our police force that go beyond that. Evidence has suggested that, for whatever reason, they believe they have the authority to do that. A law only reinforces our good intentions. Simply say this is wrong, and if you practise it, there is a penalty to pay.
We will also have to match that with education. People need to understand what it is they are doing wrong if they are to change their behaviour.
Our police forces should be respected. More importantly, the differences that we all have in our society should also be understood. They should be respected in the context of them carrying out their responsibilities.
We know this is a fact. Again, I would use the Kingston police chief as an example. He wanted to find out whether or not his officers were involved in actions that may be contrary to the broader principle of bringing all citizens together. I think he found out it is a reality. The question is how does he now struggle with this? I am sure education will be a large part of it.
However, for those people who are subjected to racial profiling, there is a real sense that they mistrust their police force and often lack the respect that should be given to them. We need to reinforce their right not to be subjected to this practice. We can always say that it is wrong, but if we do not have some legal authority to challenge the people doing it and hold them responsible, and wait until their behaviour actually changes, we could wait a long time. Legislation could reinforce what is a fundamental tenet of our society, in that the Charter of Rights and Freedoms is central to treating Canadians equally. If there is a loophole in the legislation, plug it. This is becoming a real problem in our community.
Senator Stratton: I am curious. You want to repeal the terrorism act because you believe that the government and officials can enforce anti-terrorism through existing laws. Then here you want another law on racial profiling, but I believe that you can deal with racial profiling through other means, through other laws. How do you marry the two? On the one hand, you want to repeal the Anti-terrorism Act, and on the other, you want a law on racial profiling. I do not see how you can marry the two together. If it is okay to have another law on racial profiling, why would the continued existence of the Anti-terrorism Act not be okay?
Mr. Yussuff: If there are other pieces of legislation that could prevent racial profiling, senator, we will gladly acquiesce to your point that it is already there and it is covered.
I am simply repeating that this experience has been going on for the last three or four years. In Toronto and other places, there have been incidents that point to the fact that we do have a problem and we need to find a way to address it.
Senator Day: When Bill C-36, the Anti-terrorism Act, was first going through Parliament, as result of submissions by the Canadian Labour Congress and others, an amendment was made with respect to the exception to the definition of ``a terrorist activity'' by dropping the adjective ``lawful,'' which goes to the issue that Senator Jaffer raised earlier, on the strike that some may describe as unlawful. You were worried that that kind of activity, which is a legitimate civil protest, might not be strictly lawful and would not have been exempted from ``terrorist activity.'' Are you not content now that the term ``lawful'' has been dropped and therefore there is an exception? Or do you feel that the entire definition must be looked at again?
Mr. Yussuff: To be honest, senator, we do not have an experience to which I can point to show the legislation has been used against us in regard to work stoppages. We are just raising a general concern about how one can interpret the legislation.
Senator Day: Parliament heard you the last time, four years ago now. We felt you were right and that the term ``lawful'' created some concerns. If you have some other specific changes you feel should be made, let us know. However, we feel that we satisfied your concern by removing the word ``lawful.''
The other point I would like to make, and have you react to, if you would, flows from a question of my colleague, Senator Joyal, regarding airport employees and security clearances. You are aware of the extensive debate with respect to the potential linkage between organized crime and terrorism and terrorist activities.
Mr. Yussuff: Yes.
Senator Day: You are also aware that there is strong evidence that prior to us looking, as a government and as a society, at the backgrounds of employees at ports, airports and in the transportation industry, a high percentage of those working in some of those areas had criminal records and were alleged to be part of organized crime syndicates. That is all documented and has been a matter of some concern, resulting in a higher level of retrospective security clearance and looking at existing employees. Some have lost their jobs because of it.
I agree with you that it is important to have a legitimate appeal process in this regard and to have oversight of this type of activity. I would like to focus on the oversight. Are you familiar with the recommendation of the Minister for Public Safety and Emergency Preparedness Canada to create a national security committee that would provide for oversight of this and much broader issues? This committee would allow parliamentarians to look at these activities and determine whether there is a proper appeal process and proper action occurring. Have you had a chance to think about that?
Mr. Yussuff: No. I have not looked at it. It is something we will look at. We have been making similar arguments regarding the broader question of what is going on. On the question of transportation security, there is a comprehensive review going on at every level. We have raised some concerns today about how our members are being affected, such as by losing their security clearance.
Regarding the point you made about criminal elements being involved in certain aspects of port security, which has been cited frequently, if we have evidence we should charge people and bring them before the courts rather than cast suspicion. Often, the entire workforce has a suspicion hanging over their heads that they are all criminals. We cited some specific examples of individuals who had a criminal record, some from 30 or 40 years ago. As a result, they have now lost their security clearance to work in the field in which they have been earning a living. There must be some balance to how we treat people and ensure that there is a mechanism to appeal issues that are not legitimately used to deny people an opportunity to continue to work.
People in the workforce involved in organized crime should be prosecuted without any hesitation. A statement was made that a lot of workers at the docks or the ports are criminals. Some people may have a record, but it has nothing to do with organized crime. It may be something from the past on their record. They survived and paid the price, and are now paying it again when they lose their security clearance. We need to have a balanced approach to security clearance and working in the transportation industry.
Senator Day: I agree with you, Mr. Yussuff, that the balance is important here. However, it is also important to have in mind that a lot of this anti-terrorist legislation speaks to prevention, rather than, as you suggest, charging somebody with a crime and then going through the prosecution role.
A lot of committees are looking into a lot of different issues. There are oversight commissions and committees such as SIRC, the Security Intelligence Review Committee, for CSIS; and there is oversight of the RCMP. It is believed that because of the interaction between these various groups in relation to security matters, there should be a review body that keeps an eye on the general activity. The issue is this: Should there be more oversight than is provided by the existing groups, the various pillars? I believe there should be. Should it be a parliamentary type of oversight or should it be lay persons; that is to say, a non-parliamentary oversight group? If you have done any studies of oversight, review, ensuring balance and proper application of the rules as they were intended, outside of a court system, and if you have any papers on that or any thoughts, they would be helpful to us.
Mr. Yussuff: We would be glad to submit what our transportation committee has been working on. There is a broad principle of oversight around the transportation sector that is comprehensive in terms of what happens when people lose their security clearance. As you know, people's livelihood is affected immediately. More importantly, in some cases people never regain it. It often takes forever to find out either what caused them to lose it or how to redress it. That is not adequate and needs to be changed.
On the second point, I believe that parliamentarians, who are responsible for legislation in this country, should be able to conduct an oversight process whereby people come before them to give testimony regarding their experience. There are other mechanisms for oversight. You can create specific mechanisms to deal with the more direct and day-to- day operations of such things as airport security passes, port security passes, or whatever, that need to be more efficient and expeditious. On a regular basis, you need the ability to have people like me, and others, come before you to testify as to our experience based on the legislation to date. That should happen more rather than less frequently.
It is four years since this law was put in place, and this is our first opportunity to speak of our broad experience since it was enacted. That is far too long, given the implications as well as the impact it is having on not only our membership, but society as a whole.
Senator Joyal: I would like to return to the issue of racial profiling.
As I see it, when, in the context of security measures, the United States listed a group of countries, the citizens of which are mainly of Muslim or Arab origin, it was almost inevitable that there would be racial profiling. When I enter the United States by land, as I regularly do, with a passport that indicates that my place of birth is Canada, the chance that I will be subjected to another check is minimal. If my passport indicated my place of birth as one of the countries on the United States' list, there is no question that I would immediately go to a second level of checking.
Even though we do not want to recognize racial profiling, it exists, and that is because those countries have been identified. It has nothing to do with belonging to a terrorist organization or to any kind of protest group. It is essentially a question of origin. When we establish that kind of security framework, it is almost inevitable that a racial profiling context will be established.
The question is how to address it. Anyone who reads newspapers or listens to the news can identify the place of origin of the people you quote in your brief who are the object of security certificates, and the entire group becomes suspect. When a minority is visible, as Muslims generally are because of the external signs of their religion, such as women wearing hijabs, it becomes easy for a society to single them out as the group responsible for the threat to the whole. When society is able to identify a group, there is a rupture between that group and general society because they become the suspects.
That reality exists. Racial profiling of Muslims and Arabs exists in people's daily lives, especially when mosques are singled out because Imams are teaching the Quran, and some of them seem to go overboard in terms of their interpretation of jihad and so on. The general population has that impression, and we cannot ignore that when we ask ourselves whether we are doing enough to prevent racial profiling.
Senator Stratton has a point when he says that we must educate society that not all Arabs and not all Muslims are suspect, that the majority of them are law-abiding citizens, as in any other group. However, it is easy for security forces to go to racial profiling, because that is where the bulk of those terrorists lie.
I am sure that exactly the same thing would happen if the bulk of those suspected of terrorism came from another group. Since the names and countries of origin of those suspected of the September 11 attacks were published in the newspapers, it has been clear that that group would be targeted as the one from which evil comes. When such a context is established, it is almost inevitable that there will be not only racial profiling, but discrimination.
In that context, Senator Fraser is right. Such discrimination exists not only in police forces but also in the private sector, because sooner or later, the security check that is established in the Department of Transport will be duplicated in the private sector because of related activities.
How do we address that issue? I am not against the idea of legislating on it, but the issue is broader than simply a bill about racial profiling. I do not say that it is contrary to the objective, but I do not think it is enough to address the reality in Canada in 2005, knowing what happened to Japanese Canadians, for example.
The Canadian Labour Congress has members right across Canada that include not only employees of the federal government, but also groups of unionized people in various other sectors of society. Do you believe that your recommendation no. 2 really deals with the situation that exists now in Canada?
Mr. Yussuff: I know that doing nothing will not solve the problem of racial profiling. We have quite extensive anti- discrimination laws in almost all the provinces and at the federal level, including the Canadian Human Rights Commission's definition of discrimination, but an issue we have not captured in legislation is discrimination by security and police agencies. As an individual, I could file a complaint with the human rights commission if I have been discriminated against in not getting a job because of my name, background or religious belief, but on the police side it is broader than simply discrimination because entire groups of people are affected.
Police and intelligence organizations target specific communities. The Japanese-Canadian example is a good one. The War Measures Act allowed the government to act as it did on the basis of suspicion. Had it not been for that act, I am not certain that we could have interned Japanese-Canadians and confiscated their property. We must recognize the legal authority we had to do it.
Racial profiling is distinct in terms of its effect on communities. We need new measures to deal with it. Education will help. It would certainly help police officers to be better at doing their jobs. We must go beyond education, however. Despite the fact that this issue has been discussed in many communities across the country, we have not come up with an adequate response to address the problem in the future.
I do not raise this to offend anyone. At one time we were dealing with terrorism by the IRA as a result of their vision of what should happen in Northern Ireland.
We neither drafted legislation to deal with that specific group of terrorists nor subjected Irish Canadians to additional harassment by the police simply because the IRA had widespread support from the Irish community around the world. We need to put something into context: This response to 9/11 is real because there is true terrorism at work. The legislation has a corrosive nature in terms of ``terrorist.'' Specifically, the Muslim and Arab communities have borne the brunt of scrutiny, more so than any other part of Canadian society today, although the legislation is not necessarily meant for them. Rather, it is meant to deal with terrorism, and I understand that. However, those communities have been the target of security agencies across the country, and it is problematic for us to address an appropriate response to this.
I will give senators an example of people's perceptions, which we will have to work to try to change because they are not legitimate. Despite the fact that we have an anti-terrorism law in Canada, I am not convinced about the number of Canadians who have been charged and convicted in Canada under this law. That is the fundamental question. If we have such a big problem, then we need to figure out whether we are making good use of the legislation.
Many people are being caught in this web of anti-terrorism. We need to respond to their fundamental questions about their rights as Canadians and how Canadians treat one another. This is not something that we can address easily and simply by adding to the legislation. However, it gives legitimacy to the treatment that people receive today. It is an opportunity for us to realize that a large segment of our society has been stigmatized and unfairly singled out because of their ethnic and religious beliefs, and that is fundamentally wrong. We have coexisted in society for quite some time and with strong values. It is remarkable that people can come to Canada from any other part of the world and find that Canadians embrace one another for their values. We are respectful of each other; we are multicultural in nature; and we coexist in peace and harmony, without threatening another's security. We have done it for quite some time. We need to remind ourselves that that is the foundation of the building of Canada and will continue to be the foundation for the future.
The Chairman: I thank our witnesses from the Canadian Labour Congress for their testimony this morning on such a fundamental but difficult issue, and on which we find ourselves struggling for answers.
The committee adjourned.