Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 19 - Evidence - Morning meeting
OTTAWA, Monday, November 14, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:34 a.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is the forty-first meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act.
For the benefit of our viewers, I will explain the purpose of this committee. 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, and we agreed. The deadline for the passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short period of time. 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 special committee represents the Senate's efforts to fulfil that obligation.
When we have completed this study, we will make a report to the Senate that will outline any issue that we believe should be addressed, and allow the results of our work to be made available to the government and, of course, to the Canadian people. The House of Commons is undergoing a similar process at this time.
The committee has met with government ministers — as we will today — and officials: international and domestic experts on the threat environment, legal experts whose involvement in enforcement and intelligence gathering has been helpful and representatives of community groups. We have also done our foreign travel by video conferencing, except in the case of a committee visit to Washington in September. We returned from a visit last week with hearings in London, England.
This morning, we have the pleasure of having with us the Honourable Joe Volpe, Minister of Citizenship and Immigration. He is accompanied by Anne Arnott, Claudette Deschênes, and Daniel Therrien. Mr. Therrien has been here before, during this study, and we thank him for returning today.
Senators, a few remarks before the minister begins: first, to say how pleased we are that you are here, Mr. Volpe. We tried to get the Minister of Citizenship and Immigration here before us for the original bill. We were not successful.
Honourable senators are aware that immigration is not addressed precisely in Bill C-36. However, this committee has heard day in and day out of our hearings about security certificates. The Minister of Citizenship and Immigration is the second signature on a security certificate and a number of senators are interested to hear your comments on that role.
The minister's role on these certificates is what is called a second set of eyes. The policy of the certificates is within the Department of Public Safety and Emergency Preparedness and we have heard from that department before and Minister McLellan will be with us again this afternoon.
Mr. Volpe, please proceed.
The Honourable Joe Volpe, Minister of Citizenship and Immigration: Thank you for that clarifying introduction. With one caveat: You did not say that when you were looking to have the Minister of Citizenship and Immigration here previously, the Minister of Citizenship and Immigration was not me.
The Chairman: I should have said, that is why we are so pleased that you are here in good spirits today.
Mr. Volpe: It is a pleasure to be here today. I wish to commend the work of this committee and the important contributions that I know it will make soon in the final form of that report that you have indicated. I know, as do those who follow the work of the committee, that your work has touched on many issues, but perhaps none more important to those related to ensuring that the Government of Canada continues to maintain our strong track record of upholding individual rights while at the same time also protecting the safety and security of Canadians everywhere in the country. All of us can be proud of your work to date and look forward to your recommendations on how we can and should move forward in the months and years ahead.
[Translation]
Today, you have asked me to talk about security certificates and the role of Citizenship and Immigration Canada in particular. Security certificates, of course, have attracted a fair amount of interest in recent years, as well as a considerable amount of misunderstanding. I would therefore like to spend my time with you this morning clarifying some points around how and why they are issued.
I also want to briefly talk about my role as minister and explain how Citizenship and Immigration Canada works with the Canada Border Services Agency. That is why Ms. Deschênes is with us this morning.
I will be happy to answer your questions after that. If, however, some of my answers require more detailed information, Ms. Deschênes will be pleased to answer.
[English]
Let me begin with the observation that the security certificate process was put in place prior to the passage of Canada's Anti-terrorism Act and has remained a component of Canada's immigration laws since 1991. The creation of this instrument was not related directly to the tragic events of September 11, 2001 and it is not reflected in the provisions of the act. Indeed, security certificates have been in use since 1977 and today they allow the Government of Canada to meet its objectives under the Immigration and Refugee Protection Act, IRPA.
These objectives include protecting the health and safety of Canadians, while promoting the international justice and security concerns by fostering respect for human rights and by denying access to Canadian territory to anyone who is a criminal or a security risk. Parliament has made these objectives a key component of Canada's immigration law on two separate occasions. As well, it has confirmed twice the security certificate process as a legitimate way for the Government of Canada to achieve these objectives.
Security certificates are about maintaining the integrity of Canada's immigration program by upholding our international obligations and by ensuring that certain individuals who are a threat to the security of Canadians are removed from Canada according to a process that is fair and balanced.
[Translation]
The Supreme Court of Canada has ruled in the Suresh decision of 2002, that the Government of Canada has the right and the duty to take such an action if it considers it necessary. The security certificate process itself has also been validated by the courts over the years and has withstood a number of Charter challenges. The courts have repeatedly ruled that the current process strikes the right balance between protecting the rights of an individual and the need to protect national security.
[English]
A 1996 decision of the European Court of Human Rights cited the Canadian security certificate model as an example of a process that accommodates legitimate security concerns, while according the individual a substantial measure of procedural justice. I wish to emphasize that the security certificate process is an exceptional measure used only in exceptional circumstances. Only 27 security certificates have been issued since 1991, 20 of which have been found to be reasonable by the Federal Court and only 3 of which have not been upheld by the Federal Court. The remaining 4 are currently under review.
Much of the responsibility for security certificates today, of course, rests with the Canada Border Services Agency, CBSA, following the transfer of enforcement, intelligence and interdiction functions from Citizenship and Immigration Canada at the end of 2003. Again, because that falls under the direction of another minister, some of the questions may be dealt with by Ms. Deschênes.
Citizenship and Immigration Canada will continue to issue visas and develop admissibility policies for immigrants, refugees and temporary residents. The CBSA will focus on its border management functions. This means that the CBSA plays a part in helping to prevent people who would abuse Canada's hospitality from reaching our borders, detecting individuals who are in Canada but in contravention of the IRPA and, subsequently, ensuring that these individuals are removed in a timely manner.
[Translation]
In proceeding with the new distribution of responsibilities, the Government of Canada has carefully listened to the views of individual Canadians as well as those of stakeholders and non-governmental organizations. After the creation of the CBSA, some expressed a desire for the Pre-Removal Risk Assessment Program to remain with Citizenship and Immigration Canada.
[English]
This is now the case. Others expressed a desire for changes in the security certificate process. Each certificate requires the signatures of two ministers rather than only one minister. As the chairman mentioned earlier, my signature is the second one.
I will turn my attention to the role of the Minister of Citizenship and Immigration in this process. As I mentioned, mine is one of two signatures on any certificate issued. The role of the minister is to review carefully the information on which the certificates are based. As Madam Chairman indicated in her introduction, the Ministry of Citizenship and Immigration provides a second set of eyes. My role, therefore, is to provide that second set of eyes to ensure that the information is factual and that the conclusions drawn by a certificate are reasonable based on the evidence provided.
[Translation]
No security certificate is issued without the signatures of the Minister of Public Safety and Emergency Preparedness Canada as well as the Minister of Citizenship and Immigration.
[English]
The decision by two ministers to sign a certificate is based on security or criminal intelligence information and on other information obtained in confidence. The Canadian Security Intelligence Service, CSIS, plays a key role in preparing the classified summary of information that is used to support the reasons for the certificate. The supporting documentation must contain sufficient information for both ministers to conclude that an individual is inadmissible to Canada on the grounds of security, violating human or international rights, serious criminality or organized criminality as defined by the IRPA. At the beginning of the security certificate review process, an individual is notified of his or her entitlement to apply for a review of the pre-removal risk assessment, PRRA, before a specially trained delegate of the Department of Citizenship and Immigration. This delegate decides whether there is risk of torture or cruel and unusual treatment in the event that the individual in question is returned to the country of origin. The certificate is then reviewed by the Federal Court judge to determine its reasonableness. The PRRA ensures that Canada meets a high standard of international protection and upholds the Charter of Rights and Freedoms.
[Translation]
If the Federal Court judge agrees with the assessment contained in the certificate, then a removal order is issued. But before the person can be removed, there must be a determination that the nature and severity of the acts committed by the person or the degree of danger to the security of Canada that the person presents, are such that the person should not be allowed to remain in Canada.
[English]
I point out that Canada has never returned an individual under this process to a country where that individual faces a risk of torture — never. The Supreme Court of Canada has affirmed that we may do so in most exceptional circumstances. Generally, that would mean when the danger posed to Canada's security by allowing an individual to remain in Canada would outweigh considerations of the risk to the individual's safety in their home country.
[Translation]
In cases where PRRA might be refused, the Federal Court will review the decision concurrently with its review of the reasonableness of the certificate. Thank you for your attention.
[English]
Senator Andreychuk: Minister, thank you for coming today. We certainly knew we had a new minister and not the previous minister.
Mr. Volpe: I thought it would be nice to reinforce that in view of the fact that I am in the habit of assuming responsibility for everybody's sins, including my own.
Senator Andreychuk: That is what happens when you join a political party, is it not?
You were saying that since the security certificate process was started, it has been invoked 27 times; 20 of these have been found to be reasonable by the court, 3 have not and the rest are under review.
Of the 27 security certificates, could we have an idea of how long people have been held pursuant to those certificates — either a listing of the 27 and the time they have been held or an approximate time as an average?
Mr. Volpe: This being a technical question, I will hand that off to our colleagues from CBSA to give you a precise answer.
Claudette Deschênes, Vice-President, Enforcement Branch, Canada Border Services Agency, Citizenship and Immigration Canada: Honourable senators, I am not sure I can give you a precise answer but we can get that information for you. It has varied according to the case. Some have been held for as little as six months, and some for two or three years or more. When applicants choose to return to their country, it is a speedier process.
Senator Andreychuk: You have said that you have never returned someone where there has been a possibility of torture. Could we get a listing of where the 20 have been returned, or the others?
Ms. Deschênes: Yes, we will submit that to you at the same time.
Senator Andreychuk: It would be interesting to know which countries these were. What basis has Canada used to determine that countries have not used or will not use torture?
Anne Arnott, Director General, Case Management Branch, Citizenship and Immigration Canada: This is done through the pre-removal risk assessment or through the danger opinion process for those who are in Canada as convention refugees. The decision is made through trained senior managers in Citizenship and Immigration Canada. We use information available in the public domain, such as information from the U.S. State Department, Amnesty International and a variety of other sources.
We also look at all the submissions the client makes. During this process, the client has two different opportunities to make submissions: at the outset, when he or she is advised that this process will begin; and, again, once he or she receives the documentation that the department will place in front of the decision-maker. At that point, the client has another opportunity to make submissions as to risk or as to the danger that he or she may face.
Senator Andreychuk: That is not my question. Canada indicates that you do not send people who would be at risk of torture in another country. I would like to know how you make that assessment.
Mr. Volpe: I think what Ms. Arnott has given you already is an indication of the process we go through to arrive at decisions about whether someone is at risk or not. Prior to any removal, we also have an elaborate system of ensuring that the country from where the individual originates signs an agreement with our own that the individual will not be subject to torture or cruel or unusual punishment.
Senator Andreychuk: Are you saying that you negotiate with countries where these people may be going back?
Mr. Volpe: I do not think the word ``negotiating'' is an appropriate term to use. I wanted to give you an indication that Foreign Affairs Canada and other government departments are in constant communication with other countries, engaging the United Nations agencies as well to ensure that any returned individuals are not returned to an environment where they face a danger that is a threat to their life or well-being.
Mr. Therrien might be able to give you a clarification on that.
Daniel Therrien, Acting Assistant Deputy Attorney General, Legal Services, Citizenship and Immigration Canada: Until now on the question of diplomatic assurances from countries where we would remove to, in some cases — not systematically, but in some cases — it has been felt necessary to seek assurances from the other state. These assurances, once obtained, are weighed by the delegate that Ms. Arnott has referred to. In some circumstances, that weighing has resulted in removal based on these assurances. However, these assurances are not used systematically. For instance, when it is possible to determine, based on other information, that the individual is not at substantial risk of torture, Canada will not necessarily seek assurances from the third state.
Senator Andreychuk: You may not be able to answer this question, but would you seek assurances from a country such as Syria, Algeria or North Korea?
Mr. Therrien: Before seeking assurances, there would be a determination of whether what would be sought might be reliable and credible. I will not answer specifically with respect to countries, but the process of seeking assurances, even before they are sought, requires an assessment of whether the document received will be reliable.
Senator Andreychuk: Is it a cabinet decision, a ministerial decision or a department decision to (a), seek assurances and (b), deport someone to a country?
Mr. Therrien: The decision to seek assurances is made, in the first instance, by a committee of a number of departments, including Foreign Affairs Canada, the Canada Border Services Agency and Citizenship and Immigration Canada. When the assurances are received, they are assessed by the delegate of the Minister of Immigration.
Senator Andreychuk: The Immigration Act, the last act that was passed, talked about protecting Canadians from security risks and terrorist activity. Is there anything in your act today where you have defined ``terrorist activity?'' Do you define security today under the Immigration Act as part of terrorist activity?
Mr. Therrien: There is no definition of terrorism or terrorist activity in the Immigration and Refugee Protection Act.
Senator Andreychuk: Is the definition in the regulations?
Mr. Therrien: It is not in the regulations either.
Senator Andreychuk: Is there a power to do so — to define how you will remove and how you will define?
Mr. Volpe: You are asking two different questions there — first, the definition of ``remove'' and then what we would remove. I gave you an indication in my introduction of what the process would be for both. The initiative begins with CSIS and concerns that may be public or may be received in a confidential fashion. The process then involves CBSA and my department. Then, the concern goes to the federal court for an assessment of the reasonableness of even our own assessment.
Senator Andreychuk: Under the act, have you attempted to define terrorist activity that would lead you to believe the activity is a security risk and, therefore, have you moved against someone who has applied for immigration or refugee status in Canada?
Mr. Volpe: Senator, at the risk of giving you an incomplete answer, I will indicate what I said earlier, that this is probably a good opportunity to ask the minister responsible for public safety and security later in your hearings this afternoon. I believe the Minister of Justice is also accompanying her so you will have the two front-line ministers to whom you may address that question.
Senator Andreychuk: I want to know how you define security today and my agenda is not hidden. We have not used the Anti-terrorism Act in the way it was contemplated three years ago. Instead, we have linked the security certificates more and more to terrorism. Therefore, how do you assess security within the immigration field and determine that it is reasonable to move in that sphere?
Mr. Volpe: I appreciate your desire to get a precise indication and you know that under paragraphs 34(1), (a), (b), (c), (d), (e) and (f) of the Immigration and Refugee Protection Act, there is a reference to that. Even as I read through them you may not be satisfied with the decisions. It is important to note that the Supreme Court has deliberated on this. A definition of terrorism is still a reasonable condition given what the Supreme Court of Canada considered to be the duties and authorities of the initiating departments. Generally speaking, anyone who is engaged in an action that may be violent, anyone who may be considered a danger to the security of Canada or anyone who is a member of an organization already held to be same, could be the subject of an initiation of a security certificate. The definition of terrorism is circuitous taking into consideration all those items but greater legal minds that my own resident in the Supreme Court of Canada have already made that determination.
Senator Andreychuk: I am asking as a public policy, not as a legality. Is it fair and just that a country such as Canada have the immigration act be the vehicle by which we deal with terrorism? Is it fair to use the immigration act for those who come to our shores to become immigrants or part of the refugee status, and then use another vehicle for those who are Canadian citizens?
Mr. Volpe: In terms of public policy, I think it would always conform with the Charter and the decisions of the Supreme Court, which would be the final arbiter of the validity and legitimacy of public policy. I think we should find some comfort in that. Second, we have an obligation to all Canadians to ensure that those who would join our fold do not present a security risk, a criminality risk, to those who are here. That is one reason, not the main reason, why we have security and clearance issues before we issue visas for temporary or permanent residents in this country. Of the cases that are before us now, only two after the Anti-terrorism Act were initiated as a result of the issues you have raised.
Senator Andreychuk: We have heard a lot of testimony in this committee that under the security certificate system people are being held for a long time, in some cases an unjustifiably long time. We also heard that we do not have a process that assures Canadians or the people who are being held that we are moving expeditiously. This committee has come from London where there has been a great political debate as to what is an appropriate length of time to hold someone before you charge them or move. The Prime Minister's choice was 90 days but Parliament chose 28.
Mr. Volpe: Is this in Britain?
Senator Andreychuk: Yes, this is in Britain. I am wrestling with the type of process we will use on what the government has said is a global terror initiative. It is not a Canadian problem, it is not a particular sphere; it is a global problem with terrorism. I am trying to find consistent rules or philosophies that the government is using toward terrorism. We seem to have used the process of immigration, which is one, and then we have the Anti-terrorism Act. Has the government thought about changing the way we approach terrorism in Canada?
Mr. Volpe: The fact that this committee is consulting with the Canadian public is an indication that the Government of Canada takes seriously the issue of revisiting all its legislation. I think that the British model looked at citizens and noncitizens. In Canada there is a distinction between citizens and noncitizens. If citizens are engaged in acts that one might define as terrorism — I do not want to divorce the legality from the policy because the two must be confluent — they are subject to the Criminal Code. A remedy is available to the Canadian public concerned about security issues, which is not available for those who are not in possession of Canadian citizenship. Whether people are held for a long time or a short time is an appropriate discussion to have. At the risk of appearing to be objective, there is nothing that prevents any of those individuals from leaving.
Senator Andreychuk: I find that baffling but I will have to get more specific answers from the other ministers. Perhaps the minister can answer then, what criteria do you use to develop the degree of danger to security when you assess these cases of security certificates? You have put in your brief that you look at the degree of danger to the security of Canada. Can you define what that means and how you go about assessing it?
Mr. Volpe: I will have our two officials take you through that process.
Senator Andreychuk: I just want the criteria.
Mr. Volpe: They are long criteria and security is not assessed willy-nilly. You are asking a question of about 27 since 1991 when the departments handle removals of 10,000 to 11,000 per annum. I wonder if Ms. Deschênes could take the senator through the process?
Senator Andreychuk: I would appreciate getting that in written form, but I want to know what the minister, who makes these decisions and issues these certificates, believed the criteria to be, because this is a power he exercises.
Mr. Volpe: We cannot divorce the process from the ultimate decision. We take great pride in this country in having procedural fairness. Understanding the process is the first step in establishing that fairness. I think it would be appropriate to have some of the individuals who are delegated to do this give you the facts. I realize that the ultimate responsibility lies with parliamentarians, but the policy put in place is implemented by those who are entrusted with having the expertise to ensure that the procedural steps are followed, because we find safety in the process.
Senator Andreychuk: I am a great advocate of the process, but I am also a great advocate of having criteria when I make determinations. I would like to know how the conclusion is arrived at when we look at the degree of danger to the security of Canada. I understand you use a process, and I am not arguing whether that is legitimate or fair. I simply want to know what criteria you use.
Mr. Volpe: That is a good and valid question and I would like to answer it. It could very well be answered with all the decision makers at the table. A couple of them will be at the table this afternoon, particularly ones who initiate the process and who established the framework under which decisions are made. You will be able to begin at the beginning.
The Chairman: If you have material about the process, we would appreciate receiving it.
Senator Smith: I want clarification of some statistics. I believe you said that since 1991 there had been 27 certificates issued. Of those, 3 were found not reasonable, and 4 are still under some stage of review. How many of the other 20 were challenged?
Mr. Therrien: The process requires that all be reviewed by the Federal Court. They were all sanctioned by the Federal Court.
Senator Smith: They were all reviewed, so no challenge is required. You are talking about the automatic review?
Mr. Therrien: That is correct.
Senator Smith: Of the three that were found not to be reasonable, is there any pattern? Is there anything to be learned from those three?
Mr. Therrien: We can try to give you information, but they were fact-based.
Senator Smith: Do you recall the countries?
Mr. Therrien: No, I do not.
One of them is currently the subject of a certificate. Mr. Jaballah's certificate is currently before the Federal Court. He had one issued previously. It was set aside by the Federal Court and a new one was issued with regard to him.
Senator Smith: To the extent that these things are a matter of public record, any details would be interesting. I know that the Arar inquiry is not directly relevant, because presumably there are no certificates in that case, but torture was a reality there, as it was in the case in Saudi Arabia.
Has any wisdom been gleaned from the evidence led at the Arar inquiry that might cause you to massage things a bit to achieve the result that everyone would hope for, being that the process is only initiated when the case is strong and clear? Have you reached any conclusions or are you waiting to see what they say?
Mr. Volpe: It is desirable to await a complete report when an inquiry is ongoing to help you through the process.
Senator Smith: I understand.
Mr. Volpe: We are in a completely different environment than we were less than a generation ago. Many hold the view that the world has progressed, that mobility is an integral part of our human rights and we want to apply that value to everyone in the world. Many countries have recently gone to dual citizenship, and that presents difficulties when individuals move to a third country, because the third country has to decide which citizenship they will deal with.
Due to that, we find ourselves in the position of awaiting the results of an inquiry that will give greater clarity on how to deal with this. I do not pretend to have that answer. I have only one citizenship and could be dealt with only on the basis of that passport and no others.
It is a delicate balance. I personally believe in greater freedom of mobility through as many passports and citizenships as one can get. The European Union now provides a European passport as long as you are a member of one of the many states. That is interesting. I would love to have a European passport, but I am not sure that will help answer your questions today.
Senator Smith: Senators are particularly aware of the dual citizenship issue for reasons that we will not get into today but that are unique to this place.
Senator Andreychuk referred to several countries. North Korea would probably top any list. Are any countries automatically suspect, or do you wait and review when things happen?
Mr. Volpe: I would be surprised if there were a blanket view. Because this is such a serious issue, we would approach it only case by case. We would not want to condemn by association. If you hold Canadian values dearly, you would say that it does not matter where anyone comes from, that what happens there has nothing to do with the individual's case before us.
Senator Smith: A North Korean case has been in the media. Is that one of the four?
It is not one of the four? Thank you.
Senator Joyal: Mr. Minister, I listened to you carefully and I read your text. Has it been reported to you what has happened in this committee for the last eight months?
Madam Chairman, have we heard 60 witnesses or so?
The Chairman: There have been more than that.
Senator Joyal: I have the impression this morning that we are listening to Presentation 101 of the Immigration and Refugee Protection Act. There have been serious issues raised here. Unfortunately, I believe you have not been briefed by the public servants of your department who attended our meetings. Those meetings were broadcast. There were minutes of our meetings; there were no meetings held in camera.
We are wrestling with two main issues in relation to the immigration act. The first issue is the length of detention, which has been a serious issue considered by other courts, such as the British court. In other words, the issue is the number of days a person can be detained before bringing his or her case to court. That is a serious issue related to human rights. How long can a person be detained in jail incommunicado before he or she is brought to court to be heard? That is the first issue.
There is another issue. Once a person has been pronounced a security risk, how long will that person be detained before being brought back to court? This issue is now in the Supreme Court of Canada. I am surprised that your text at page 7 does not mention that one of your cases is being appealed to the Supreme Court. After eight months, we expect something more precise from your department on this issue.
Another issue was raised in the Ottawa Citizen this morning, page 1, which is essentially how can the proof brought together by CSIS and other information agencies be brought to the judge in a way that we assure the fair balancing of proof versus the rights of the person to be informed. The article this morning on page 1 says that the federal government may introduce a legal watchdog into closed court hearings involving suspected terrorists who are being held indefinitely without trial. The article refers specifically to the immigration procedure.
We have raised this issue here in the form of amicus curiae. It has been mentioned many times by witnesses and by senators on both sides of the table. This issue is serious. Since this is our concluding day, I thought, perhaps naively, that you would come with a precise analysis of the points that were raised to us and that we would get the department's position on them. What we get, rather, is a general explanation of how the system works. It is fair and fine, but it does not provide the committee with what it needs to make recommendations in the weeks ahead.
Could you address those issues? How do you react to the idea that you cannot divorce the process from the objective of fairness? Two elements are at stake in the fairness of the process. The first is the length of time that the person is detained without being brought to court or back to court after a period of time. There should be someone in the system to balance the information better so that the second pair of eyes, as you mention in your paper, is not essentially signing on the same information base. Something in the process must balance the interests of CSIS and the interests of the person, to protect the security of the file. We all agree that the security of the file has to be protected, but that should not be a scapegoat or an argument to prevent the balance of fairness in the system.
Those issues are not new. They have been raised here many times in the last ten months. This morning we are back to square one, at a time when we are to conclude and make recommendations to Parliament.
Mr. Volpe: I appreciate the position that you take, Senator Joyal. If it seemed to you that you were getting again an indication of Immigration 101, in part it is because you are asking the immigration department for answers that are now addressed by two other departments. I do not wish to diminish the issues you raise, and you have great concern over. I am happy that my colleagues responsible for those two questions will be here before you this afternoon. I do not want to pre-empt their response, either in their detail or in their policy, from giving you the satisfaction that you may seek, but these issues have to do with the public security minister, CBSA and Justice Canada. It is by no accident that I have both senior officials from CBSA and Justice Canada here to address those issues, should you want them addressed, but your question probably will be more amply responded to by my colleagues who have agreed to come before you and address those two issues.
With respect to the question of whether there is fairness, as I indicated, the Supreme Court has examined the process and commented on its fairness. One can agree to disagree, but it has pronounced on it. With respect to the position of amicus curiae, the Federal Court in 2003 indicated that it would not be advisable to adopt an amicus curiae mechanism. It is not for me to argue that case for them again. You are free to hold a different view and to advance it. As I said, we used to be the singular department involved in this. We are no longer the singular department. We are not even the lead department. That situation does not absolve us from any involvement, but it would be reasonable to expect that we would address questions that relate to the functions we discharge and not the ones in someone else's jurisdiction, if for no other reason than that we would not do justice to your questions.
Senator Joyal: Let us stick to your department. What measures did you take to ensure that your public servants at borders are trained to prevent what we call racial profiling, which we have discussed on many occasions?
Mr. Volpe: At the borders, again, the Canada Border Services Agency officials do that. We no longer do that. The mechanics of the government decision of a year ago have completely divorced us from that exercise. Because many of those officials were part of our department at one time, I can only assume that they have the same ethic and culture we promote today. There is no such thing as racial profiling. I did not want to answer a question relative to country. I said it is case-by-case, which is indeed what happens. All our officials deal with issues on a case-by-case basis. We are truly colour-blind.
Senator Joyal: Did you change any of your procedures then since the anti-terrorism legislation has been adopted, to inform your public servants, immigration officers or other Canada Border Services Agency personnel that are under the responsibility of Ms. Deschênes to ensure those people are trained to respect the objectives that we have tried to express around this table in the last eight months?
Ms. Deschênes: The Canada Border Services Agency takes this issue seriously. We have challenges now in terms of putting our training together. One key thing we want to ensure is more cultural diversity and sensitivity training. We have launched a fairness initiative to provide better context to clients as to what we expect from them and what they can expect from us. We will consult with major stakeholders on that to add again to the work we have already done in terms of ensuring that our border officers understand their accountability for treating each individual as an individual and not looking at racial profiling as an issue.
The Canada Border Services Agency does not condone racial profiling and is taking measures.
Have we done everything we want? I think we are building on blocks that we continue to build on.
Senator Joyal: What is the major problem you face in relation to that?
Ms. Deschênes: In terms of training?
Senator Joyal: That is correct.
Ms. Deschênes: One key thing was incorporating new training from a customs perspective, an immigration perspective of food inspection. That is one key priority. Another priority is ensuring that throughout the training material we talk about these issues of dealing case-by-case and being aware that some people may answer questions differently because of cultural backgrounds and so on.
Senator Joyal: In terms of manuals, did you review your manuals of training when that issue was raised after September 11 as one of the key issues that would bar the efficiency of the security objective?
Ms. Deschênes: We continually update and review manuals to ensure that the tools are there for our officers and that the cultural sensitivity is also there. One key thing with the machinery changes between Citizenship and Immigration Canada and CBSA is we had to go through the manuals to see who was accountable for which issue. As that is done and the manuals are updated, we continue to add material to that.
Racial profiling generally has never been an accepted process both at Citizenship and Immigration Canada and certainly not at the Canada Border Services Agency.
Senator Joyal: The problem is not that it has been a policy. The problem is that people have a perception that it is happening. I do not know if you have been briefed about the testimonies that we have heard here in the last eight months but there is an embedded perception that people are treated differently at the border by an immigration officer or a security officer depending on the country they come from or where they were born, especially if they happen to be Arab or of Muslim faith. They are submitted to a more thorough investigative hearing or questioning.
That perception is pervasive. It is not only in one town, city or section of the border in Canada, but it seems to be all over the place. It is fair for us to ask, if that is the perception, how do we fight it? If we fight it, how much more efficient do we have to be? What do we have to change in our procedure or capacity to relate to the community to ensure that we have a world where people are not only treated fairly but have the impression of being treated fairly?
Ms. Deschênes: I am sure the minister will want to speak more this afternoon on this. One key issue with launching the fairness initiative is to try to address some of those perceptions. It will give an opportunity for clients who feel that they have not had the respect that they are due, a place where they can talk to us about that and complain about that. That is another step that we are taking at the Canada Border Services Agency.
The Chairman: Honourable senators, our agreement with the minister was 11:30, and I believe he has something that he needs to attend. I do not know whether there would be an opportunity for any of the officials to stay for a bit, but as far as the minister is concerned, we thank him for coming and wish him well in a difficult portfolio.
Mr. Volpe: Madam Chairman, thank you and all your colleagues around the table.
My official is prepared to stay. I think her colleagues from the other departments may as well. I do not wish to give them any kind of direction. That is a strong suggestion.
Senator Joyal: On the Immigration and Refugee Board of Canada that is under the responsibility of the department, how do you manage the security issue when it is raised at the board?
Ms. Arnott: Senator, I cannot give you an effective answer, I am afraid. The Immigration and Refugee Board reports directly to the minister but not to the department. Thus, I cannot answer that. I know that board officials are well trained. An enormous amount of effort goes into ensuring their training. They have a significant amount of resources available to them. Beyond that I cannot answer. The minister could bring with him officials from the Immigration and Refugee Board if you wish to address that further.
Senator Joyal: In other words you are not in a position to comment on the procedure followed at the board?
Ms. Arnott: I am not, I am afraid.
Senator Joyal: The other issue I wanted to raise is the issue of torture raised by Senator Andreychuk. In his presentation this morning, the minister indicated you rely on the Suresh decision of the Supreme Court in relation to torture.
However, you cannot ignore that even former Justice Louis Arbour, who is now High Commissioner for Human Rights at the United Nations, has commented clearly on the decision in her capacity as UN High Commissioner that, in fact, torture should always be banned. Did this comment trigger some reflection in your department about the definition and importance of banning torture?
Ms. Arnott: Did it trigger reflection in the department? To return to what the minister advised you, each of these cases is looked at on a case-by-case basis. In making a pre-removal risk assessment decision, we look at the risk to the client and the risk to the country and try to balance them. We look to the Supreme Court decision in Suresh for guidance. We are mindful that two of the current security certificate cases have received leave to appeal to the Supreme Court and a third has requested leave.
We have been aware for some time that the Supreme Court was likely to look at this again. The small window that the Suresh decision has given us is undefined and we have reflected on this in detail. Mr. Therrien, do you wish to add something to that?
Mr. Therrien: Obviously Suresh speaks to exceptional circumstances. There are comments from Ms. Arbour but in any event these cases are looked at for their exceptional circumstances. The threshold of national security in decisions that you will find based on exceptional circumstances is high.
There is no question that the decisions being made currently by delegates of the Minister of Citizenship and Immigration Canada will be reviewed again by the courts from the perspective of defining exceptional circumstances. We look forward to that.
Senator Andreychuk: Has the department attempted to determine what they believe to be reasonable as a definition or criteria?
Mr. Therrien: As the minister stated a few minutes ago, it is difficult to give a definition in these cases, and the Supreme Court said so in Suresh. The reason why the Supreme Court said there might be room for exceptional circumstances where, despite the rule it might be possible to remove the torture is that it is difficult to predict and assess these cases ``à priori.'' You have to weigh the importance of the risk to society and to the individual.
There is some reference to the level of risk in Suresh that is being looked at when decision makers make the so-called balancing decision but no hard and fast rules have been defined and the Supreme Court suggests that it might be close to impossible to have hard and fast rules in this matter.
Senator Andreychuk: Again, it is not the rules. Has the department wrestled with this problem and said, ``What do we think is an exceptional circumstance,'' to assist the minister, to assist the government and then to translate that to the Canadian people? It is not a hard and fast rule, quite the contrary. We cannot get a hard and fast rule. Are we looking at case scenarios that might fit that? My frustration is trying to get at how we make these decisions. Is it just as they arrive, case-by-case?
Senator Joyal: Either we accept that the principle of torture should be banned, and it is clear, or we say, ``Yes, but....'' I want to know in what context the ``but'' takes place. I am sure the department, when it reviewed Suresh on the basis of the comments made by Madame Justice Arbour and other leading experts on this issue — and I do not pretend to be one — would try to circumscribe those cases because one day you might have to address one of them. Part of the responsibility of the legal services of the department is to review previous precedents and international law, the decisions taken south of the border in relation to torture and so on. I raise that question because that seems to be an important principle. We are not concerned here with the mechanics of the system but more with the principle that the system is trying to implement in its daily operation and the balance that it must have. That is essentially the way we try to approach those issues.
Ms. Arnott: As my colleague mentioned, we look at these decisions on an exceptional basis, as the Supreme Court instructed us to do. Each case is looked at on its own merits: on the risk individuals might face in returning to their country of citizenship, all the documents they have put forward to attest to that and all the information we can find on our own that would give us information on the risk they would face.
We then also look at the danger the individual poses to society on an individual basis, what is unique about this individual and the danger that he poses to us, to Canada and to our neighbours. Then we try to balance that to come to a decision on what is, in this case, more critical, more prevalent and more important, I suppose.
The Supreme Court decision told us that removal to torture could be done only in the most exceptional circumstances. Thus, we will try to view these extremely few but difficult cases through that lens of the Supreme Court's exceptional language and see where the case falls.
Senator Joyal: If I may go to another question on the same basis, when you send back a person to their country of origin that you have concluded constitutes a security risk to Canada, does it not strike you that, in fact, you are setting free a risk for the rest of the world? The risk is still present to Canada because we are responsible for creating world conditions to ensure that terrorism is on the fall and not on the rise. We give make sure our garden is safe but we throw the risk over the fence for the neighbour to take care of.
Do you not think there is a hole in world security when, as a country, we do not raise that issue in international fora where security is supposed to be item number one? Does it not strike you that we are only halfway in the process to a world with better security?
Ms. Arnott: You may wish to address that with Ms. McLellan. I will ask her delegate if she has comments on that.
Ms. Deschênes: For us, the certificate process and removing is just one of the tools that the Canadian government has at its disposal to deal with these cases. I believe the minister would be better placed to answer in terms of the overall security of the world. We all know that terrorism is an international problem.
From the perspective of CBSA, we believe that the removal of certificate cases is one of the tools the Canadian government has, and we should continue to use it.
Senator Joyal: I am not saying that security certificates per se should be abolished. I am saying that the procedure needs to be improved as other witnesses have said in the course of our hearings, so that the certificate is pronounced on and tested in court and due process is completed. Just deporting the person does not solve the international problem of security.
If we are convinced as a country through our court process that the person is a serious security risk to be deported and banned from Canada, the security risk does not disappear for our neighbour who is concerned about security or for any other of Canada's partners on the world stage. The person remains a security risk. Instead of being within our borders, the risk is outside but the person is free now.
Is there some initiative that the country should take internationally to address such a problem? The United States and some European countries may have it, too. In our reflection on how to improve the worldwide condition of security, we must be preoccupied with the future of those risks that remain part of the landscape.
Ms. Deschênes: I will not give my personal opinion on that, but I believe the minister would probably have some opinions or comments to make.
The Chairman: Thank you all very much for being with us this morning.
We will hear from the Minister of Transport at 12 noon.
The committee suspended.
The committee resumed.
The Chairman: I am pleased to welcome the Honourable Jean Lapierre, the Minister of Transport. He is accompanied by Jacques Pigeon, the departmental general counsel, Legal Services; and John Forster, associate assistant deputy minister for safety and security.
[Translation]
The Honourable Jean Lapierre, Minister of Transportation: Honourable senators, although Transport Canada is not directly implicated in the Anti-terrorism Act, I appreciate the invitation to speak to you today.
I would like to take this opportunity to talk about one of my most important priorities as minister of Transport: the security of our transportation system. If we do not have a secure transportation system, people will be concerned, since this would impact their quality of life, but it would also affect the economy.
I also wish to place things in their proper context. Canada's network of roads, railways, transit systems, ports and airports is vital to our way of life.
As an exportating nation, our economy depends on an efficient transportation system. Canadians depend on a safe and secure system to get to work, to school and to live.
More than ever before, in recent years, the security of our transportation system has become one of the most important issues in transportation today. But it is not just about having more security — it is about having the right security. Security that protects Canadians, while allowing for the efficient movement of goods and people and protecting the right to privacy of all Canadians.
Unfortunately, as we have seen, transportation systems are an attractive target for terrorist organizations who want to cause profound harm.
Canada is no stranger to this reality, having suffered a terrorist attack on an Air India flight in 1985. That was our first alert. And recent events remind us that terrorist attacks involving transportation systems can have devastating consequences — the September 11 attacks in the United States, the bombing of Spain's rail network, and the recent attacks on the public transit system in London.
That is why, as Minister of Transport, I have made security one of my top priorities. It is also why the Government of Canada developed Canada's first ever National Security Policy in 2004. It is also why we have committed over $3 billion to improve transportation security since the September 11 attacks.
And it is why, earlier this year, I announced that we are developing a national Transportation Security Strategy. The strategy will build on our work to date, assess risks across the transportation system and develop clear priorities for the future. Our partners in industry, labour and government will be involved in the development and it will be completed next year. But as we are developing our blueprint for the future, we are not standing still.
I would like to take a few moments to talk about what we are doing to strengthen transportation security in the surface, marine and aviation sectors.
[English]
The attacks in London this summer and those in Madrid last year highlight the vulnerability of mass transit systems to attacks. It is an area where more progress must be made. Our transit systems are open, diverse and complex. They include public and private operators of intercity passenger rail and bus, commuter rail, light rail transit, subways and municipal bus systems. Thus, rail and mass transit security requires an effective partnership involving the federal government, provinces, municipalities, transit operators, law enforcement agencies and the public.
Following the attacks in Madrid, we developed an information network with major rail companies and rail-based transit operators across Canada to share intelligence and best practices. This network proved invaluable in the aftermath of the London bombings. By 5:30 a.m. on July 7, the network alerted transit and rail operators across the country to exercise increased vigilance and take additional security measures. Again on July 21, we relied on this network to communicate quickly and share best practices.
We also launched a review of rail and transit security. Over the past year, we have worked with rail and transit authorities to complete a comprehensive threat and risk analysis and identify further enhancements. This work will be completed next year.
In the interim, we are accelerating the pace of our efforts. We have created a rail and mass transit security task force in Transport Canada to look at immediate actions to accelerate transit and rail security.
I have met personally with operators across the country to discuss the issue with provincial colleagues in September at a federal/provincial conference. We have consulted extensively on what immediate steps can be taken and how the federal government can best assist.
[Translation]
I would now like to talk about marine security. Since 2001, the government has committed more than $930 million to take steps against potential threats to the marine industry, including vessels, their passengers, cargo and marine infrastructure.
Transport Canada worked with our international partners and the International Maritime Organization to introduce a new International Ship and Port Facility Security Code, which has been accepted by all countries involved in international maritime trade.
To implement this new international security regime in Canada, we introduced the new Marine Transportation Security Regulations, which came into effect July 1, 2004. We certified over 400 marine facilities in Canada to ensure they met the standards of the new regime, including approving security plans. And we also established a three-year, $115-million Marine Security Contribution Program, in May 2004, to help Canada's ports modernize and strengthen their security systems and meet new security requirements.
In addition, we also increased the use of aerial surveillance to better track vessels entering and operating in Canadian waters, improved screening of passengers and containers and enhanced RCMP capacities, and established, under the National Security Policy, three Marine Security Operations centres in Halifax, Victoria and the Great Lakes — St. Lawrence Seaway to bring together key federal marine security agencies in one location.
Last, we also increased the on-water presence of the Canadian Forces, the RCMP and the Canadian Coast Guard.
But our work to improve marine security continues. Transport Canada, the RCMP and the Association of Canadian Port Authorities are undertaking a detailed study of the complex issues involved in enhancing waterside security.
In the meantime, we are consulting extensively with labour and industry on a new program to require security clearances and background checks for workers with access to sensitive areas at our ports. In fact, there have been wide consultations with the unions on that matter.
[English]
Turning now to air transportation, Canada made major changes to civil aviation security concerning the protection of airports, aircraft and passengers following the tragic Air India attack in 1985. Canada was the first country to introduce background checks for airport workers and to require that baggage and passengers be matched on all flights. In the aftermath of the September 11 attacks, the government quickly introduced a number of initiatives to strengthen considerably aviation security. For example, the government responded by requiring that cockpit doors be fortified and locked on passenger airline flights. The government provided up to $35 million to help cover the costs of security modifications, including the reinforcement of cockpit doors on existing passenger aircraft. We created the Canadian Air Transport Security Authority, CATSA, to assume responsibility for screening passengers and their belongings. We committed more than $1 billion to purchase and deploy explosive detection systems to screen baggage at airports across the country. We extended screening to non-passengers, such as airline personnel, airport employees and ground crew. We placed specially trained RCMP officers on board selected domestic and international flights.
However, our work in aviation is not finished. Under the Aeronautics Act, as minister of Transport, I have the responsibility to protect the safety and security of Canada's aviation system. We are undertaking several new initiatives to strengthen aviation security further in Canada, including completing pilot protects and implementing a new system of biometric passes for airport workers needing access to restricted areas; introducing new security regulations for airport buildings away from the main terminal; and working with shippers and airlines on a comprehensive program to improve the security of air cargo.
[Translation]
Finally, I would like to speak about the work that is underway on the passenger assessment program to enhance aviation and public security that the Deputy Prime Minister and I announced in August. This program, called Passenger Protect, is aimed at stopping people who pose a threat to aviation security from flying in Canada.
The Public Safety Act, 2002, which received royal assent on May 6, 2004, made several changes to the Aeronautics Act. These changes give the Minister of Transport the authority to enhance aviation security in a number of areas. Specifically, the act authorizes the minister to take action to prevent persons who pose an immediate threat to aviation security from boarding an aircraft. This is the focus and basis of our program.
It is not aimed at general concerns, or even people with a criminal record. It is focused only on those who pose an immediate threat to aviation security.
We are proceeding under two tracks. The first, in the short term, is to provide airlines with a list of persons who pose a threat to aviation security. Airlines will verify their passengers against this list.
The second and longer-term track will be under section 4.82 of the Public Safety Act which permits passenger information being provided to CSIS and the RCMP for aviation and national security purposes. In this case, the list would remain with the government and airlines would submit passenger lists for verification.
Public Safety and Emergency Preparedness Canada is the federal department leading this initiative. They have launched a feasibility study to determine options for potential program development. Since there is a lot of software involved, we would not want to end up with a firearms registration program.
In August of this year, the Deputy Prime Minister and I announced the government would begin consultations on the details of the first track, the Passenger Protect program.
We are consulting extensively with airlines, airports, the public, civil liberties groups, the Islamic and other cultural communities, and the government's Cultural Round Table on Security. Of course, we also spoke with the Privacy Commissioner.
Our discussions are progressing throughout the fall. Based on these sessions, we will develop the details on the operation of the program. We will then draft regulations for the program, which also will be consulted on.
We are proceeding responsibly and transparently to develop a made-in-Canada program. Some key features of our approach include a well-defined and targeted list focused only on persons who pose a threat to aviation security. We do not want to look like idiots, as the Americans did when they included the names of people like Senator Kennedy on their list. In fact, the name of our Minister of National Defence, or of someone with the same name, is also on the American list.
A case-by-case consideration of each individual proposed for inclusion on the list, sufficient information on individuals to minimize false matches to people with similar or the same names, easy and quick access to a reconsideration mechanism to allow individuals to seek a quick review of their inclusion on the list if there were to be a mistake.
[English]
As you can see, much has been done in the field of transportation security. However, our transportation systems remain an attractive target for terrorists, and more remains to be done. My goal is to ensure that we provide a balanced approach that protects Canadians, allows goods and people to move freely and efficiently, and respects the rights and privacy of Canadians.
I welcome your questions.
Senator Austin: First, minister, it is a bit unusual, but it happens in the Senate from time to time that one minister asks questions of another minister during committee. I know it does not happen in the House of Commons.
Thank you for your presentation. It is a most important subject. I wanted to ask along two lines.
First, with respect to marine security, I understand that more and more of the containers carried on ocean-going vessels have electronic security devices and the breaking of those devices can be detected. This is terribly important, of course, in preventing terrorists and others who are intent on doing harm to Canada to put biological, atomic or other weapons in these containers. Can you tell us how these containers are loaded and secured, and how they are handled when they arrive?
Mr. Lapierre: I am not the minister responsible for containers. That has to do with the Canada Border Services Agency, and they have a service that tries to identify the containers before they come to Canada. However, I have seen those little gadgets. When I was in Hong Kong recently, they told me about the devices that can be traced by satellite. They know where all those containers are all the time. The technology is there, but I do not know how widely it is used. Perhaps John Forster can assist.
John Forster, Associate Assistant Deputy Minister, Safety and Security, Transport Canada: I do not know the specifics and how widespread it is, but they are looking at electronics fields that will detect via satellite and be tied in with GPS systems.
Senator Austin: I am curious to know how widespread the practice is. I too have been in Hong Kong and have seen how these containers are packed and sealed with devices that would indicate if they have been penetrated, including electronic types of paint. It is an important way of providing us with security.
I realize that your responsibility is vessels rather than cargo. With respect to tracing vessels, do we have a comprehensive overview of vessels approaching Canada? Do we know what those vessels are and how to intercept them if they have not been pre-cleared as they approach our coasts?
Mr. Forster: Under the new international rules, vessels are required to pre-notify countries. They have to register with the country they are coming into 96 hours before they arrive. We then have information and will track them. If there are areas of concern or risk, we work with the Canadian Coast Guard and the Department of National Defence on whether to interdict or not.
Senator Austin: Do we intercept them if they are not pre-cleared?
Mr. Forster: There is no pre-clearance at an airport or port but we know where the ship is coming from and what ports it has been to. A set list of information is provided so that areas of concern can be addressed.
Senator Austin: I am curious about our method of handling unauthorized persons landing on our coasts. We have experienced that before and some people coming to Canada today might be less benign than others in terms of security issues.
Mr. Lapierre: Border security handles that. We had such concerns in Trois-Rivières, Quebec. The people were found through the efforts of police, border and other services but not through Transport Canada.
Senator Austin: The other line of questioning is on the subject of Canada-U.S. exchanges of people. You referred to biometric passes. We are aware of the U.S. laws that might come into force January 1, 2007, with respect to passport requirements that contain electronic strips. As well, we are aware of enormous concern with respect to the impact of those passports on the economies of the two countries. Has any progress been made in areas other than passports that would enhance our exchange of people and the security of the two countries?
Mr. Lapierre: We are still making representations because we would like to have an exemption from that new law. We know that it would affect many border cities. Even if more Canadians have passports such a law would prevent Americans from coming to Canada for a day or two. We are still making representations to that effect. If I had not agreed to appear here today, I would have travelled to Washington last Friday to make direct representations. I will send them a note instead.
Mr. Forster: Foreign Affairs Canada and the Canadian Embassy in Washington are active in making representations to the U.S. on that issue. On the transportation side, we are trying to work on mutual recognition of a credentialing system. For example, for drivers of hazardous materials, the U.S. will require background checks. We are trying to develop a system whereby Canada would do that using the fast card at customs. In that way, drivers would not be required to have separate U.S. and Canadian cards. We are working with the U.S. to ensure that we recognize each other's clearances.
Senator Austin: Would that be done under an expansion of NEXUS?
Mr. Forster: It would be more akin to the Free and Secure Trade initiative, FAST, for freight.
Senator Andreychuk: I will follow up on the issue of transportation services across Canada. We have returned recently from London, England, where they experienced subway bombings. We learned that the most important thing is how such an incident is handled on the ground. It is not a matter of how many rules and practices you have but rather how skilled and coordinated local services are. Of course, in Canada we have provincial and municipal systems. To what extent have you revised your processes because of the incidents in London and Madrid?
Mr. Lapierre: I must report the good news on that. We had a federal-provincial conference of transport ministers, to which we invited ministers of public security. Minister McLellan attended. If there is an area where we have no problem with federal-provincial-municipal relations it is mass transit security. Everyone wants us to take the lead and that is why I presented proposals at cabinet that would help in this respect. Every authority, from Halifax to Montreal, Toronto and Vancouver, say that they need training for personnel at all levels. They also want to hold practice sessions so they are better prepared. However, practice sessions are costly because so many people are involved. We will have to help them with that. They are in bad need of equipment and that is why we are in the process of getting approval for a contribution program similar to the one in the marine sector. Such a program could be utilized in the mass transit sector because the needs exist and all transit authorities are broke. If we do not do something at this end, it will never happen. I was in Montreal. As an example, the computers in Montreal to run the system are bigger than the tables on which they sit because they were bought in 1966. They have less capacity than my Blackberry and so many systems have to be upgraded. We have consulted a great deal and we are hoping to announce a program as soon as possible. All of them are begging for leadership on this issue, and that is our responsibility.
Senator Andreychuk: I am glad you are zeroing in on that because the idea of practice had a short window of opportunity in London. Following the subway incidents, London officials determined that if they had not had the training and practices beforehand, they would not have been able to respond as quickly and find those responsible for the bombings. Officials knew that there was more than one incident site. They were able to contain it quickly and understand it in a way that I question our capacity to emulate.
Mr. Lapierre: Their camera system helped tremendously.
Senator Andreychuk: Yes, they have 5,000 cameras in London. Is that an option for Canada? Have you explored that kind of invasion of privacy, which we have not looked at or had a dialogue with the public about? Much of this kind of success is based on the creation of a balance.
Mr. Lapierre: That is our problem, and I have explored that area. Public polls tell us that 72 per cent of Canadians want to have cameras set up because they would feel more secure. It has to do with not only terrorism but also security. I have been told that on the basis of statistics, for which I cannot vouch. After cameras were installed in London, the crime rate went down 58 per cent, and people feel more secure about using public transit. In every city in Canada with a transit system where I have travelled, people say that they would feel more secure at night if there were cameras. However, we must measure that need against the privacy issue. Most provinces have a good system to protect privacy. If we are to develop a program of contributions, the respect of privacy guidelines will be part of that. As well, what would be done with the tapes from these camera units? How would they be disposed of and who would have access to them? All those questions must be answered first, and we are cognizant of that.
Senator Andreychuk: Once a camera is installed, those who wish to avoid detection will be clever at avoiding the cameras. Hence a more sophisticated process will be created for that purpose. As well, cameras create a comfort zone such that some people will not think to act in defence of their own safety. A balance must be struck and privacy issues must be considered.
Under the Public Safety Act we share information about air passengers. I appreciate that you would want to find the perpetrators but that will not happen with merely a list of passengers. Rather, that will come about through good and effective intelligence long before the people even board a plane. I reinforce the point again that if we rely on those lists only, then we will be in trouble. It is good, effective intelligence that gets to those people long before they are in an implementation mode.
We will have these lists. In the Public Safety Act, there is the possibility that they will be shared with the United States, even on travel within Canada. Where are we now? To what extent are we vulnerable that our material will be in the hands of the American authorities, and do we know what they will or will not do with it?
It is invasive information you are getting, not just for security purposes. It can be used for other purposes if you give out what airlines conceivably could be collecting under the Public Safety Act.
Mr. Lapierre: I must first tell you that we have to be conscious of the right to privacy. That is why our list has to be limited. However, security goes by layers. I agree with you that Osama bin Laden will not go to the Air Canada counter to ask for pre-boarding assistance. Obviously, it has to be done through intelligence.
The list is not a panacea. It is one other layer of protection. In regard to information gathering or sharing, maybe Mr. Forster could respond.
Mr. Forster: To add to what the minister said, we do not have a list at this point. We are consulting extensively with groups and the Privacy Commissioner of Canada to create a program. We want to learn from the American experience.
The Americans have not requested that if and when we have a list, we share it with them. The point is that we would have a made-in-Canada program and a made-in-Canada approach to this. At some point, if they have persons of concern that they would like us to include, we would look at it. However, there is no list at present that is being shared.
Senator Andreychuk: The law that was passed gave the minister authority to share that kind of list. Are you saying, as a government, that you will not share that list — or that you have not gotten to that stage yet?
Mr. Lapierre: We are not there at all. We do not even have the list. Obviously, we will limit that list to immediate threats to civil aviation. We will not go to the government to ask for a list and then put together a list of 38,000 names that has been compiled somewhere else. Right now, if we believe the experts, we are talking about a list that would have probably not more than 1,000 names. Still, we must go through the process to ensure that we do not make the same mistakes.
We are learning from the American experience right now. We are not there at all. We have not even established the parameters of that list. We are consulting right now. Compared to other countries, here we have a Charter and we have to be conscious of it. We have a Privacy Commissioner that we have to deal with and we want to ensure that she is comfortable with our process as well.
[Translation]
Senator Joyal: Your findings deal with two aspects of transportation security. I would like to get back to the first, cooperation between various levels of government. The most important recommendation made by the American Senate, following its investigation of the events of September 11, concerned the fact that American agencies involved in air transport security operated independently from one another. They used the word ``silos,'' and it has become a somewhat popular expression since.
This morning you are saying that the consultations you held at the federal-provincial level, even with Quebec, have shown that there is a coordinated approach to some extent. Have you signed an agreement with the provinces? Or have you come to some agreement on a specific protocol to implement emergency measures if there is a threat to air transportation or marine security, or in some part of the country where Canada is responsible for port facilities, or even to rail transportation systems covering the entire country?
Do you now have formal protocols in place with the provinces that are responsible for municipalities — as ruled on by the Supreme Court — to ensure that in the event that the Government of Canada needs to respond, there will be no delay in implementing emergency measures?
Mr. Lapierre: Indeed, there are agreements being managed by the minister responsible for public safety. We have seen good cooperation in the past whenever emergency measures have been required. I was referring to implementation when I mentioned federal-provincial cooperation. It is easier when it comes to airports and ports because they fall under federal jurisdiction.
It is rather complex in the case of mass transit because, for instance, the municipality of the City of Montreal is responsible for the Montreal metro, whereas the Department of Transport is responsible for commuter trains. All orders of government are involved.
In this regard, ministers have asked us to take the lead and keep them informed. Take for instance contribution programs; we would not offer the Montreal metro a subsidy without apprising the Province of Quebec of it. We have asked provinces what they feel comfortable with. We did not want to get involved in joint contribution programs. Since the London bombings, I have felt a sense of personal responsibility. We cannot simply allows ourselves to get lost in federal-provincial-municipal negotiations. They have told us that when it comes to national security, that is our responsibility. We have decided to work together in the name of national security.
Everyone else felt the sense of urgency. So, there was no conflict. The silos in the United States were also within federal administration. It has been helpful for us to work with the cabinet committee on security. During the federal- provincial transport ministers' meeting, my colleague and I deliberately invited public safety ministers, in order to make the point that we are all working together. There is no turf war, as was the case in the United States.
The appointment of a minister responsible for public safety in Ottawa means that I take no security initiative without her, and the agencies reporting to her are also made aware of it. It has forced us all to work together. I have felt no resistance from the provinces. On the contrary, we have received unanimous support. I must say I had consulted them all individually before hand. The other thing is that at the end of the day, it is a money matter. It is fine if we are paying for it. In that regard, municipal authorities have told us we would have to help them because when it comes to mass transit companies, if they have a choice between the purchase of five new buses or security cameras, they will choose the buses. That is why I feel we have a responsibility, if we want to reach the lever other countries are at. But in terms of the enforcement of emergency measures, if there is a crisis, we already have agreements with all of the provinces.
Senator Joyal: So it is already stated within the existing agreement on emergency measures or disasters that the Canadian government would intervene, either through the Royal Canadian Mounted Police, or even, the Canadian Armed Forces.
Mr. Lapierre: That is also how we advise police. If something happens in Montreal, Montreal police will take the lead, and it can ask for support from the Sûreté du Québec. There is an information-sharing protocol in place. The culture surrounding the sharing of intelligence is beginning to change. In the past, security intelligence was jealously guarded; the RCMP kept its information carefully under wraps, National Defence did the same and so did Transport Canada.
In this regard, there is a cultural shift. We get the sense that the various agencies are now sharing this information, which is leading to better safety for Canadians.
[English]
Senator Joyal: The Standing Senate Committee on National Security and Defence produced a report two or three years ago.
The report was critical, especially in the area of harbour activities or port activities about loopholes in the system.
[Translation]
Has your department reviewed the report's main findings since? And what priorities have you acted upon?
Mr. Lapierre: We did indeed take note and act upon the report. We focused a great deal on security within our port facilities. All ports throughout the country had to develop a security plan. Under these plans, they could request funding from the Government of Canada for fences, surveillance systems, et cetera, because the ports were too easy to access. We still have some work to do.
At the moment, background checks for workers are a priority for port security. I would like to work with the Americans on this. Given the international character of unions and labour groups, I want to act in cooperation with the Americans in order to avoid being taken for boy scouts, and having our ports threatened by all sorts of measures. This is why we are constantly in contact with the Americans on this front.
At this point we are developing security-zone-ID programs, based on individual security needs. It has created a great deal of apprehension amongst port workers. There has been some resistance and we have held several consultations. We now get the sense that they understand what we are looking for. We did security checks on airport workers, and that was well received. There is a different culture in the ports. We are trying to ease their concerns, and at their request, explain the process for appeals. They found family history questions a little much. But we must forge ahead with this program, and do so with the Americans, because even if the Halifax port is perfectly safe, if people can do whatever they like in Boston, it is of no use. So there is still some work to do.
Regarding the physical infrastructure, safety programs and contribution agreements are in place. But we have to continue, and of course other services must get involved, including customs and security people. For our part, we are mainly concerned with physical protection. We are currently working on the identification program.
Mr. Forster: To add to what was said on cooperation, our marine sector is an excellent example of cooperation between the various agencies. For instance, a group of 17 federal agencies is working on marine security, involving cooperation between Transport, the Coast Guard and National Defence. This group is contributing to federal policy. It is a good example of cooperation in the security field.
Senator Joyal: On the issue of security checks, we have heard testimony from public service employee unions specifically. We had concerns around the table regarding employees who may not get promotions or may be demoted because they held a position they can no longer hold following the results of an investigation. Our concerns revolve around the employees receiving due process so that they can appeal a decision and be heard, and for principles of natural justice to be respected.
I see that you are accompanied by Mr. Pigeon. What stage are you at in developing an appeals procedure and a process for reviewing decisions for these workers?
Jacques Pigeon, General Counsel, Legal Services, Transport Canada: I believe this is one of the department's concerns. When the minister implemented the measures we mentioned, reconsideration was a major factor in the decision. We are working on developing a process whereby those who feel they have been wronged have an opportunity to be heard, so that there may be quick redress in the event of a mistake.
This procedure will apply once regulatory measures take effect. And as the minister mentioned a few moments ago, I think it may take some time before the regulatory measures take effect.
This is one of the things we are working on so that when regulations come into force, there is a procedure allowing those who feel they were treated unjustly to be heard and to seek redress if need be.
Mr. Lapierre: By the way, senators, I am delighted that your committee shares the same concerns, because I was told workers could appeal to the Federal Court. But before that happens, it may take so long that an individual may lose his home, his car and his wife. And in that regard, it was not realistic.
Therefore, we are trying to expedite the process so that workers do not lose their livelihood in the case of mistaken identity. Aside from the formal procedure before Federal Court, individuals should have an opportunity to be heard. I had suggested perhaps hiring a retired judge who could consider the file objectively and make an immediate decision. I am sure 95 per cent of cases could be settled in this manner. We need to find a flexible, quick, and especially, inexpensive solution.
Senator Fraser: Regarding the no-fly list, have you considered a way to remove the names of people who may have appeared once on the list, but may not be a threat later on? One of our concerns is that once a name is entered into a security system, it is practically impossible to remove it. A 20-year-old would certainly be less of a threat 10 years later, if he is married, has children, a mortgage. He would not pose a threat. Would this be a crucial aspect of your system?
Mr. Lapierre: Yes, but I would go even further than that. It is of course possible to remove names from the list, as individuals will quickly realize they are still on the list because of the fact they can never board planes.
However, I am even more concerned and I want to expedite the process even more so in case of mistaken identity, common names or similar names such as Joe Smith. It is even more important then to have a quick process so as not to disadvantage or penalize someone. The problem we are currently having with people on the American list, is how nearly impossible it is to remove them from that list. It is an endless process. I feel that if we have to have a list, those people who feel penalized must immediately be able to advise us of it and appeal, and the process has to be quick. That is fundamental, and it is something we have learned from our neighbours.
Senator Fraser: My second question is on security cameras. I was also in London, and we were very impressed by the security system that the British have implemented.
However, it seems to me that security cameras are only useful in the aftermath of an attack. Video footage of the suicide bombers was found after the July bombings.
There is something that I do not understand. Is it a case of security cameras being desirable, but not a priority, or are they indeed a mid-ranking or high-ranking priority?
Mr. Lapierre: We shall be using the security plans developed by the various public transport authorities. We have no intention of turning up with a myriad of made-in-Ottawa measures.
We have agreed, for example, that the Société des transports de Montréal will draft its own security plan. Many tools, such as communications tools, may be deemed necessary, and in some cases, the authorities will opt for security cameras. We view security cameras as being one tool amongst many others; we know that, across the world, security cameras have proved to be far more useful in the aftermath of an attack. Although security cameras may prevent petty crime, they do not prevent terrorism. They are one of the various technological tools available for sale.
No technology, however, is a match for the power of the human eye. That is certainly true when it comes to airport security. I went to Israel to learn about their system; they are known to be experts in the field. The Israelis have not made the mistake of relying exclusively on technology. The human factor makes all the difference. We cannot assume that technology will protect us. We have to bear in mind that people offer a better quality of surveillance than machines.
[English]
Senator Rompkey: I have questions in two areas. The first is with regard to breaking down the silos and bringing the jurisdictions together. I was pleased to hear that the various jurisdictions want cooperation. You mentioned a couple of areas in which you thought you should take leadership. You mentioned infrastructure, for example, and you also mentioned trains. Could you elaborate on that? Has any thought been given to that? Are the jurisdictions buying into it? Would you do it? If so, how would you do it? More important, where would you do it?
Mr. Lapierre: First, people are begging for training and exercises. In my travels across the country I have heard that the RCMP has an incredible program. They have been training people across the country. We hope to put together some type of training. Currently, we are trying to provide the means for training, which is expensive.
Transit authorities tell me that it is nice to have a security plan, but we need proper consultants. Every retired policeman becomes a security expert. They are begging for know-how and resources. The RCMP is one resource, but there are many others. Israel has offered to give us a hand. There is a lot of international cooperation in that field. However, we do not currently have a formal course except for the RCMP. I have heard great things about the RCMP course.
Mr. Forster: In London we learned the importance of exercises and drills that involve all first responders and all levels of government. The federal government does this and wants to do so in transit as well with either tabletop or live drills with simulated events to which we respond and manage. There have been some of those as well.
Senator Rompkey: The training would be done in various jurisdictions across the country rather than in one place?
Mr. Lapierre: That is correct.
Senator Rompkey: Has any thought been given to that?
Mr. Lapierre: That is a good suggestion.
Senator Rompkey: I could go even further, if you want.
Mr. Lapierre: We are currently working on those programs. I have heard many good things about the RCMP program, but I am sure there are other ways. We are starting almost with a blank sheet, so all suggestions are welcome. The provinces are open to this.
Senator Rompkey: I want to ask about coastal security. We have a long, highly indented coastline with many communities spread along it, which makes it easy for people to penetrate.
Could you elaborate on the steps we have taken to prevent landings by ships that should not be landing? We have talked about how we screen vessels — reporting and so on.
How do we detect vessels at sea? There is satellite and fixed-wing surveillance and a coordinated effort among the federal departments. I understand that the Canadian Forces is the chief operator, but there are various other entities beneath them, including the Canadian Coast Guard. There is also land-to-sea surveillance. Have we upgraded that? Do we have a system in place now that is adequate to monitor who is out there that could penetrate such a vast coastline?
Mr. Forster: It is a large coastline and we must bring a variety of tools to bear. The navy plays the key role in terms of coastal monitoring with the Canadian Coast Guard. In the marine security operation centres on the East Coast, the West Coast and in the Great Lakes, all agencies involved in marine security will be integrated: the navy, the Canadian Coast Guard, Fisheries and Oceans Canada and Transport Canada. They will make decisions and respond together. Those plans are currently being developed and implemented. Good improvements have been made and we will continue to make more.
[Translation]
Senator Joyal: You made reference to a list of passengers who pose an immediate threat to security.
[English]
Those are the words of the Aeronautics Act. In English the words are ``immediate threat.''
[Translation]
How do you define a passenger who poses an immediate threat?
Mr. Lapierre: That is exactly what we have to determine once we have received information from the various sources, be it CSIS or the RCMP. We have to judge each case on an individual basis. Our plan is not to draw up endless, haphazard lists. There has to be a reason for including each of the names that appears on the list. Basically, each case has to be weighed up and evaluated on an individual basis.
Mr. Pigeon: The concept of immediate threat, a little like the concept of public interest, is subjective. At the end of the day, it is up to the Minister of Transport, who is the minister accountable to the House of Commons, to carry out a risk assessment and determine whether, in light of the information provided by intelligence agencies such as CSIS and the RCMP, the person constitutes a risk warranting his or her inclusion in the list.
Senator Joyal: I assume that these decisions will be based on specific criteria.
Mr. Pigeon: Yes.
Senator Joyal: A given individual may pose a threat in some circumstances, but not in others. What are the parameters? Could you give us a more precise overview of the system in order that Canadians can have a general idea as to whether they are likely to be considered a risk? You must have criteria. For example, would a person who has committed a criminal offence know that they are likely to be turned away at check-in? You cannot just say to people: ``Go to check-in, and we will let you know whether you constitute a threat.'' Our system has to offer more certainty than that.
Mr. Forster: We are in the process of developing the criteria. Yet, at the same time, you have to bear in mind that we are talking about a judgment call, an opinion; there is no checklist. It is also important to underscore that we are interested in threats within the context of aviation. These are threats which exist as soon as the person buys a ticket or boards the plane. These are immediate threats. The list, therefore, comprises the names of those people who constitute a threat to aviation. A person who has had run-ins with the law relating to drugs will not appear on the list. It is perfectly possible to have a criminal record but not feature on the list. The list only relates to security in an aviation context.
Mr. Lapierre: That is an important point; it is not a matter of investigating whether somebody has a criminal record. Having a criminal record does not render a person ineligible to fly. We have to ensure that those who appear on the list are suspected of being members of a terrorist group. The list does not only include Canadians. It includes the names of all people who have been identified as constituting a danger to international aviation in general, and, in particular, to Canadian aviation. People of all nationalities, and not only Canadians, will feature on the list.
Senator Joyal: You mentioned an appeals mechanism, which will allow anybody not allowed to board an aircraft to be apprised of the evidence and rationale underpinning your decision.
Mr. Lapierre: It will also allow people to tell their side of the story; people may challenge a decision on all sorts of grounds. Furthermore, as silly mistakes are often made, it is important to have an expeditious process. In refusing somebody the right to travel, we are subjecting them to a very serious sanction, and therefore have to be sure that we have the right person. A process is required. I imagine that in some cases, on security grounds, all of the evidence will not necessarily be provided. The bottom line is that we have to be able to justify the decision not to let a given person board a Canadian airplane.
Senator Joyal: When do you plan on publishing these draft regulations?
Mr. Forster: We are currently holding consultations with the relevant parties, and wish to complete the exercise before making proposals.
Mr. Lapierre: We are aiming for it to be in place by 2006.
[English]
The Chairman: Thank you very much. Clearly, minister, you can see we could probably have you for the whole afternoon and still not run out of questions. However, you have stayed longer than expected. We appreciate that and we appreciate you and your officials coming today.
Colleagues, we have to be back at 1:45 and we will hear the Canadian Air Transport Security Authority witnesses and then from 3:30 to 5:20 we will have Minister McLellan and Minister Cotler with us. We will have a good stretch there. I suggest that everyone get their thoughts together so we can be as crisp as possible.
The committee adjourned.