Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 1 - Evidence - Meeting of June 12, 2006
OTTAWA, Monday, June 12, 2006
The Special Senate Committee on the Anti-terrorism Act met this day at 6 p.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Welcome. For our viewers, I will explain the purpose of this committee.
In October of 2001, in direct response to the terrorist attacks in New York City, Washington and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation, Parliament was asked to expedite our study of the proposed legislation, and the committee agreed. The deadline for the passage of Bill C-36 was mid-December 2001. However, concerns were expressed that it was difficult to thoroughly assess the impact of this proposed legislation in such a short period. 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 environment.
In December 2004 the Senate struck the Special Committee on the Anti-terrorism Act in order to fulfill that obligation. In the previous session of Parliament, the Special Committee held 47 meetings and heard from 141 witnesses, including government ministers and officials, international and domestic experts on the threat environment and legal experts. I cannot resist pointing out that we heard many more witnesses and had many more meetings than our colleagues in the other place, but I am sure they will be working hard to keep on schedule.
The special committee travelled to Washington, D. C., and to London, England. Among those we heard from were representatives of families whose loved ones were killed by terrorist acts. It was moving testimony.
Parliament dissolved for the last election before the committee could complete its work. The committee was struck again by the Senate in May 2006. In so doing, it referred all of the previous papers and evidence to this committee. When the committee has completed its study, its report to the Senate will outline any issue that we believe should be addressed. That will allow the results of the work of the committee to be available to Parliament and to the Canadian public. As I mentioned, the House of Commons is undertaking a similar process.
The most recent general election resulted in a change of government. We are fortunate this evening to be joined by two ministers who can provide the new government's perspective on the Anti-terrorism Act. We welcome the Honourable Stockwell Day, Minister of Public Safety, accompanied by Mr. William Elliott, Associate Deputy Minister; the Honourable Vic Toews, Minister of Justice and Attorney General of Canada, accompanied by Mr. Bill Pentney, Senior Assistant Deputy Minister, and by Mr. George Dolhai, Director and Senior General Counsel. Senators will recall that Mr. Pentney and Mr. Dolhai appeared before this committee during the previous session.
Ministers, I will leave it to you to decide who will present first. We eagerly await your comments.
Hon. Stockwell Day, P.C., M.P., Minister of Public Safety: Thank you, Mr. chairman.
[Translation]
Thank you, honourable senators and dear colleagues. I do appreciate what you have been doing so far.
[English]
Your work has been helpful and will continue to be so. We look to this committee for the expertise, the advice, and the proper challenge that you will present to us so that we can ensure that our country fulfills what I believe and our Prime Minister believes to be the first responsibility of any government — the safety and security of its citizens. To that end, we will read the comments and recommendations of the committee in respect of the Anti-terrorism Act.
The committee's review is mandated by section 145 of the Anti-terrorism Act. It is our view that the act remains a vital component of an effective security framework and is a key part of protecting Canadians and their families. It provides us with the necessary tools to combat terrorism and the necessary safeguards to ensure that these tools are used appropriately, always with the balance of considering safety and security along with preservation of vital, important human rights and individual freedoms.
The threat environment that faces Canada today has not diminished. On September 11, 25 Canadians lost their lives, as did thousands of Americans and others. Since then there have been terrorist attacks in more than 30 countries, including at a night club in Bali, where three Canadians were killed; four trains were attacked in Madrid; a school in Beslan; and the underground and bus system in London. These events remind us that the threat of terrorism is international. It is present, it is with us; it is not going away.
The international nature of the terrorist threat demands an international response, and Canada needs to collect and share information so that we can respond to and prevent attacks on Canada and on our allies. To that end, intelligence is the lifeblood of our efforts to detect and, hopefully, to prevent and disrupt sophisticated and global threats to our security. The United Nations recognizes the value of intelligence and called upon states to intensify and accelerate the exchange of information in resolution 1373 in 2001. The ATA has helped us to ratify and implement a number of other important international agreements, such as international recommendations on terrorist financing and other United Nations security resolutions dealing with actions against terrorism. The ATA has provided us with the means to stand up for Canadians and with our allies in this fight against terrorism.
However, we recognize that intelligence alone will not forestall an attack. We need the cooperation and support of all Canadians, of all backgrounds and of all beliefs. To that end, our security, intelligence and law enforcement agencies are reaching out to communities to more effectively communicate with Canadians and better explain their roles and mandates. These agencies adhere to the highest standards of professionalism in performing their duties while working within the framework of Canadian law and reflecting our democratic values.
I recognize that there might be a perception in some communities that they are being unfairly targeted by law enforcement, but I would state now for the record that I and the agencies under my direction do not support racial profiling in any way, shape or form. We receive positive feedback from those communities with whom we meet on these issues. The meetings are attended by RCMP and CSIS officials and we discuss the areas of concern. The Prime Minister, as recently as Saturday, had an extensive community meeting in Toronto. I had a most favourable meeting last night with members of faith communities in Ottawa. The work is appreciated, as is the ongoing cooperation.
We also have a cross-cultural round table under the auspices of the Department of Public Safety. It advises Public Safety and its agencies, and the government in general, on issues related to security and how they tie in with issues related to diversity in our communities. I met with members of the round table in Montreal in February and in Gatineau one week ago. I was encouraged by the ongoing support for an open dialogue between government and Canadians. Members of this cultural round table have held public meetings across the country and will continue to do so.
We recently heard from a fellow ally, the Honourable John Howard, Prime Minister of Australia. In terms of purposes and powers, he said:
...Terrorism will not be defeated by rolling ourselves into a small ball, going into a corner and imagining that somehow or other we will escape notice.
He is right: Wishful thinking is not a policy. Failure to act is not an option. Combating terrorism means giving ourselves the appropriate tools to defend ourselves. The ATA is one of those tools. It is an instrument. It makes it difficult for terrorists to operate, both domestically and abroad. It includes important preventive measures to stop attacks before they start and essential safeguards to provide for appropriate review, which we are doing. Without the ATA, we would not have the current ability to lay charges and to prosecute terrorism offences.
The charges against the 17 individuals arrested June 2 fall under the ATA. The individuals charged with such offences are now before the courts. While terrorism may be inspired by extreme ideology and hate, it is fuelled by dollars and cents.
In 2004-05, FINTRAC, which is Canada's financial intelligence agency, provided financial intelligence on 32 suspected cases of terrorist financing activity and other threats to the security of Canada. Providing these disclosures to law enforcement agencies and intelligence agencies is vital. It is a key instrument in efforts to cut off the supply of funding to terrorists.
As I have already indicated, being prepared, getting ahead of the dangers and preventing their occurrence is what the Anti-terrorism Act is all about. Its focus is forward looking. It is designed not only to prosecute terrorist activities, but also to prevent them.
Through its listing provisions, the Criminal Code, as amended by the ATA, provides another, ongoing means to curtail the ability of terrorist groups to raise funds, thereby reducing their ability to operate here in Canada. Our listing provisions are another part of the international effort spearheaded by the United Nations to deny known terrorist groups access to funds. It is a public means of identifying groups that might do Canadians harm. In this regard, as you know, we recently listed the Liberation Tigers of Tamil Eelam, the LTTE, or Tamil Tigers, as the terrorist organization that it indeed is.
By denying this group the ability to operate in Canada, we are making our communities safer. We know that the LTTE is committed to using a variety of terror tactics to achieve its objectives, including attacking political, economic, religious and cultural targets, as well as targeting civilians.
In other countries, terrorists have sought to abuse the generosity of others. In Canada, through the ATA, we protect the integrity of charities by preventing organizations that support terrorist activities from obtaining registered charitable status. Canadians can donate to charities with confidence, knowing that the money they give will not be used to support terrorists or their causes.
The ATA represents a meaningful approach that protects our safety and security but does not come at the expense of our liberties. Some may have questioned the necessity for the act. I do not. The threat of terrorism must be addressed here in our country as well as around the world. Canadians understand that terrorism is a direct threat to everything we hold most dear in this country and to our most fundamental right, the right to freedom and life itself. Public opinion polling shows that. Canadians know that the values we cherish depend on the security that we enjoy in our homes, communities and at our borders, and they rightly expect that their government will do all it can to keep them safe from harm.
Mr. Chairman, the government takes that responsibility seriously. We know that it is vital to the social and economic well-being of Canadians that they have the freedom to raise their children, pursue their dreams and live their lives without fear.
Some have pointed to the fact that many of the measures contained in the act have not been used, or have been used sparingly. Some would say that is evidence that they are unnecessary. On the contrary, I would suggest that the frequency of their use does not speak to the necessity of their inclusion. Many of our laws, in fact, criminal laws included, are used rarely, but that is not a reason for their abolition. I would suggest that civil liberties have not been sacrificed under the ATA and that many of the fears expressed at the time the law was drafted have proven to be unfounded. We appreciated those fears being raised at the time, and we have seen that there has not been an excessive use of these provisions. The police and other agencies are using the powers provided by the ATA in a careful, prudent and responsible way. Checks and balances are integrated into the use of all powers and provisions.
As I mentioned, the ATA is a necessary tool in the fight against terrorism. However, there are other tools at our disposal. Security certificates, which are gaining a lot of attention these days, are one such tool. While they are not part of the ATA, I recognize that that issue is one among many that the Senate has considered. The security certificates process has been used carefully and judiciously. The process itself has been in place since 1978. Since the year 2001, there have only been six instances where security certificates have been used.
When non-citizens arrive at our borders and are determined in a security check to be a serious threat to Canada's security, they are offered the opportunity to return to their country of origin. Should they not choose to do so, they can choose to access an extended process of appeals and can stay in the country for a number of years. What do we do?
At that point, a security certificate is issued, which says that the individuals will have the full range of appeals, but they will be detained while the appeal process unfolds. If the appeal process rules in their favour, they are free to be in Canada. Although this is not widely communicated, people who are detained under a security certificate are free to leave that detention at any time with the commitment that they are returning to their country of origin.
As you know, the Supreme Court of Canada is currently looking at the validity of that process. To date, the Federal Court has upheld the constitutionality of the process. We hope that the Supreme Court will continue to do so, but that will be up to the honourable justices.
To complement the mandate of the ATA and to further enhance the security of Canadians, our government has taken decisive steps to protect them and their families.
[Translation]
We increased the budget to preserve the safety of Canadians.
[English]
We will continue to do that. We have designated $1.4 billion over two years to protect Canadian families and communities, to secure our borders and to increase our preparedness to address public health threats and emergencies. We will invest $303 million over the next two years to implement a border strategy to promote the movement of low- risk trade and travellers within North America while protecting Canadians from security threats, and we are investing $95 million over two years to bolster security for rail and urban transport.
These investments represent an important commitment to the protection of the safety and security of all Canadians. They will produce real results by adding 1,000 new positions to the RCMP federal law enforcement capabilities and significantly strengthening the Canada Border Services Agency. There will also be provision for discussions with municipalities and provinces about another 2,500 positions at the municipal level related to policing.
Mr. Chairman, on June 23, our country will observe a national day to remember victims of terror. That date, as you know, was chosen because it marks the anniversary of the 1985 Air India bombing, the worst terrorist attack in Canadian history, when 329 innocent people lost their lives. It is a day to remember those who have felt terrorism's pain and to rededicate ourselves to fighting this scourge with all means at our disposal. It is also an opportunity to remind ourselves that our work is not done, that the threat is ongoing and that vigilance is necessary.
Honourable senators, you know this well.
[Translation]
You have examined the situation and the implications of our bill and you know that we are dealing with a serious situation and aiming to preserve the safety of our country.
[English]
You have done much work in this regard, and it is appreciated.
I thank you again for the invitation to appear before you today, for your continuing dedication to protecting Canadians, and for your international efforts to root out terrorism. I welcome your comments and questions and look forward to your report.
My colleague, the Minister of Justice, and I look forward to working with you all to enhance the safety and security of all Canadians and their families.
[Translation]
Thank you very much for your work and your support.
[English]
Hon. Vic Toews, P.C., Q.C., M.P., Minister of Justice and Attorney General of Canada: I thank members of the committee for this invitation. It is an honour to appear before you today to discuss the Anti-terrorism Act. As my colleague, the Minister of Public Safety, has observed, one cannot help but be impressed by the level of experience that you have acquired since 2001 on the Anti-terrorism Act, as well as the attention you have given the subject in many meetings, having heard from an impressive number of witnesses, both domestic and international. We, and Canadians, are in your debt.
The Anti-terrorism Act is designed to protect Canada from security threats, and it does so in many ways; for example, through novel methods of better disrupting and detecting terrorist activity, by supporting effective prosecution of terrorist crimes, and by seeking to cut off the funding to terrorist groups.
It is designed not only to protect the physical security of Canadians, but also other, fundamental Canadian interests under threat of terrorism.
The preamble to the act makes clear that the Anti-terrorism Act has two goals. We want to protect our security while not surrendering our human rights.
The question to be asked in this equation is how to reinforce the right of individuals to be secure. As Minister of Justice, I would like to emphasize the point that anti-terrorism laws exist for the protection of our most fundamental rights as human beings: the rights to life, liberty and security of the person.
In fact, the promotion of security is, fundamentally, the promotion of human rights. Security comes in different forms. It is our need to protect our lives and the lives of those we cherish. It is also the liberty that Canadians cherish highly. Indeed, section 7 of the Canadian Charter of Rights and Freedoms guarantees this right to life, liberty and security of the person.
However, section 1 of the Charter says that the rights and freedoms guaranteed in it are subject only to such reasonable limits as may be prescribed by law as can be demonstrably justified in a free and democratic society. Threats to our security, indeed to our liberty, come in different forms. We must protect persons not only from abuses by the state, but also from harm inflicted by criminals and external enemies.
What, then, are we to do in the face of such a terrorist threat? As Minister of Justice, I believe strong and effective anti-terror legislation is at the core of a set of comprehensive measures to protect Canadians and others against terrorist activity. The measures contained in the Anti-terrorism Act are a justified and proportionate response to the global threat of terrorism. They go no further than necessary but are needed to protect the Canadian public.
Canadians have expressed concerns about their security and support strong laws that deal effectively with terrorism. They also want assurances that safeguards are in place to protect their rights and freedoms. Throughout the Anti- terrorism Act, careful attention was paid to the requirements and guarantees of the Charter of Rights and Freedoms. For example, judicial review and appeals are incorporated into the measures. In addition, the consent of the Attorney General is required for prosecution of the terrorism offences and, as a general rule, to undertake preventive measures.
Further, the scope of the Criminal Code provisions is clearly defined so that they are targeted at terrorists and terrorist groups, and are not used for general law enforcement purposes.
The Anti-terrorism Act is a unique legislative approach to addressing the challenges posed by international terrorism. The act endeavours to prevent and pre-empt terrorist attacks. This can be seen in the range of offences that seek to disable and dismantle the terrorist network itself, and in tools, such as the recognizance with conditions and investigative hearings; the need to prevent, disrupt and, if possible, destroy the capacity of those who would do us enormous harm requires strategies that differ from the traditional, reactive, after-the-fact methods of ordinary criminal law investigation and enforcement.
The act's accent on prevention continues to be necessary. We see with increasing regularity that terrorists are prepared to give their lives in committing terrorist crimes. For those persons, after-the-fact punishment is no deterrent whatsoever. In addition, as Lord Carlile of Berriew, the independent reviewer of the U.K. anti-terrorism laws, has stated;
With organized crime, it is often possible for the police investigating the crime to leave arrest until very late. You cannot run that risk with terrorism. I could point to a number of operations in which the police and the security services in the U.K. have felt that they had to intervene very early because of the risk of frightened or nervous terrorists trying to bring an act to fruition much earlier than was originally intended.
At the same time, the Anti-terrorism Act does not only focus on preventing and disrupting terrorist activities. The criminal law has been recognized nationally, regionally and globally as an effective means to fight terrorism and to forge international cooperation in this effort.
In its amendments to the Criminal Code, as well as to other statutes, the Anti-terrorism Act allows Canada to join its international partners in the campaign against terrorism and to meet Canada's international obligations. These were all necessary enhancement to our laws, and I stress that they reflect internationally agreed-upon standards. In fact, the act continues to assist Canada in complying with UN security resolutions that have come into existence subsequent to the coming into force of the act.
I turn now to the question of the sunset clause. This clause applies to the investigative hearing and the recognizance with conditions provisions of the Anti-terrorism Act. It means that these powers will cease to apply early in 2007 unless a resolution is passed by both the House of Commons and the Senate to extend either or both of these powers for a period of up to five more years.
This review and the upcoming parliamentary debates on the sunset clauses are two important opportunities for Parliament to debate the complex public policy issues that the Anti-terrorism Act raises in this regard. The investigative hearing power is available, when necessary, to assist in the investigation of terrorism offences that have been or are intended be committed and to prevent the carrying out of terrorist activity.
A person appearing at an investigative hearing appears as a witness, not as an accused. He or she is provided with a right to instruct and retain counsel throughout the process and is afforded protections against self-incrimination. The power contains a number of legal safeguards that ensure an open and transparent process. For example, the witness has a right to counsel, the judge can impose any conditions on the hearing to protect the witness, third parties and the integrity of the investigation, and these hearings are subject to annual reporting requirements. The investigative hearing power was found to be constitutional by the Supreme Court of Canada in June 2004.
The recognizance provision brought into being by the Anti-terrorism Act was not a radically new concept. Prior to the Anti-terrorism Act amendments, restraints on liberty in the form of recognizance orders in order to forestall anticipated and even non-imminent criminal conduct already existed in the Criminal Code, and they have been found to be constitutional. I refer you to section 810 regarding personal injury and damage. We know how important those recognizances are, especially in the area of domestic disputes, where we have seen their repeated use.
The purpose of this provision is not to arrest a person, but to put that person under judicial — and I again emphasize ``judicial'' — supervision in order to prevent the carrying out of a terrorism activity. It is designed to aid in the disruption of the preparatory phase of terrorist activity. There are numerous safeguards built into the power to issue a recognizance with conditions so as to ensure that individual rights are protected to the extent possible.
It is respectfully submitted that both the recognizance with conditions and the investigative hearing provision should, at a minimum, be extended by resolution to enable Canada to continue to respond to the threat posed by terrorism.
This government is of the view that these provisions remain important tools in support of the prevention and prosecution of terrorism. The frequency of use of provisions like the investigative hearing or the recognizance with conditions is not necessarily the measure of their importance. Many of our most vital laws, as Minister Day mentioned, particularly in our criminal law, are used sparingly. I would point to our hate laws, for example, which are used sparingly, and yet are an important part of our entire criminal law milieu.
Canadians should take comfort from the fact that restraint and careful judgment have characterized our resort to these measures. I have heard the concerns expressed before this committee and elsewhere about certain aspects of the Anti-terrorism Act. I do not interpret these criticisms as a sign that we have failed in some aspects of the act. I see them as proof that our democracy is healthy and functioning and that citizens who believe that their rights and liberties are at risk feel free to speak out and seek change.
The importance of this law cannot be stressed enough. We need the tools to fight terrorist acts when they occur. Canadians want to be certain their government has done all that is necessary to protect them from terrorist acts while respecting their personal freedoms. Canadians are looking forward to the outcome of your deliberations in the weeks ahead. I wish you every success during your review, and I welcome your questions and comments.
Senator Jaffer: I would like to welcome you both and I look forward to working with you on this serious issue affecting our country and many other countries. I was most reassured when you both stated how much you were working with communities.
In March 2005 the Minister of State for Multiculturalism in the previous government unveiled Canada's Action Plan Against Racism. This document gave an overview of Canada's commitment to the elimination of racism and promised concrete action by various departments. Specifically, one of the promises made by the Department of Justice was to develop options to address concerns about racial profiling and conduct research. It says:
...develop options to address concerns about racial profiling, conduct research, collect data and develop policy options to remove race-based factors from key decision points.
We started to see the fruits of this plan by the previous government. For instance, Canada promised to become the first non-European country to sign on to an additional protocol of the European council on international cyber-crime prevention.
I would like to hear from both ministers as to whether you will continue to work on this plan. I know there has been some work done in both departments on racial profiling. I was most pleased to hear Minister Day stating that racial profiling was not acceptable within his department. I would like to know what proactive work you are doing. There is no doubt the communities feel they are being racially profiled. What are you doing to assure the communities that this is not something you will accept?
Mr. Day: Thank you. You are right; I made a point of raising that. I was not just speaking for my department, but for all of government. That is something the Prime Minister leads, taking a strong interest in this regard. I want to thank you also for your past work, not just related to racial profiling and minorities. You have spoken to the need for adequate training for law enforcement and security intelligence officers and for them to work within minority communities.
Your voice in that area has not gone unheard. I can tell you specifically — and I can send you actual times, dates and places — where members of the cross-cultural round table, an instrument that you are key in supporting and developing, have held meetings across the country. They make sure that the key individuals within the RCMP and CSIS tasked with this are in attendance. It is one thing to talk about an issue, but each agency must show specific steps in leadership.
When various communities have CSIS and RCMP representation present, it gives them a chance to hear what genuine security concerns are all about. It also gives those agencies a chance to have input and talk about the ways they will deal with it.
Another such event is being planned two weeks from now. I received a request from the Edmonton area. I have given instruction, again, for the RCMP and CSIS to be there.
At an important meeting on Saturday with cross-cultural groups, the Prime Minister made a point of listening carefully to the concerns. Just by his acting as quickly as he did, not only to the request that such a meeting take place, but by also staking out the priorities of government in that regard, he sent a strong signal across the country. That will strengthen the initiatives already undertaken in the area of racial profiling.
Mr. Toews: The government is committed to ensuring that the operation of the Anti-terrorism Act does not have a discriminatory and unlawful impact on members of ethnocultural and religious minorities.
The government takes the allegations of racial profiling by enforcement agencies seriously, and as part of the examination of race-based issues in the justice system, my officials continue to examine that particular issue.
The Cross-cultural Round Table on Security continues to provide input to the Government of Canada on the impact of the national security policies, or measures that could have impact on various communities, and has engaged and will continue to engage in that type of outreach.
However, I want to specifically bring the members' attention to the definition of ``terrorist activity.'' I know I raised this issue when I was in opposition. The definition talks about political, religious or ideological beliefs or opinions. Certainly I would be interested in hearing your comments on that particular definition. Does that assist us in defining what ``terrorist activity'' is, or is it not a relevant factor?
I believe Great Britain includes those types of criteria in the definition, whereas some of the American legislation does not.
I would welcome your examination of that. I have expressed concerns in the past about that, although I have not seen any direct evidence of a misuse of that type of definition.
Senator Jaffer: That was to be my next question. The fact that the act speaks of a political, religious or ideological purpose leaves the community feeling that this gives the authorities the right to question how often one goes to mosques, what one does there, and so on. This is a concern that this committee has heard. I have heard it from communities and ask whether you would consider whether the time has come to take that definition out and just call it terrorist activities generally. We have heard from the authorities that it is more difficult to prove the terrorist act if you have to show that the person is involved in mosques. I would like to hear about that.
Before that, I would appreciate it if both of you could say whether you are still committed to the action plan set up by the previous government to deal with racism.
Mr. Day: I can certainly comment to the affirmative, clearly. I talked about activities that have taken place that reflect that. CSIS has an active public liaison program committed to dealing with those types of issues. Both CSIS and the RCMP have independent review processes that look at what they do, and people who are concerned about any of their operations, but certainly about the questions that you raised, have those independent review mechanisms available to them. The RCMP itself has a Bias-Free Policing Strategy, in capital letters, which is a significant part of everything they do, and a number of other oversight bodies, not just the independent review process, that cause them to be open to, subject to, scrutiny and transparency in this regard.
Mr. Toews: All I can do at this point is echo the comments of Minister Day. I do not disagree in any way with what he has stated.
Moving on to your other question, you raised a good point. It does create a difficulty for prosecutors by having to prove this political, religious or ideological purpose, objective or cause.
The motive element narrows the scope of activities that can fall under the definition of ``terrorist activities.'' In that way, it distinguishes terrorist activity from other, ordinary criminal acts. Does it work at cross purposes to other goals that we might have — some of the goals that Minister Day has mentioned in terms of issues relating to race or culture? I have expressed some of those concerns previously, some years ago now. You can review my comments in that respect. I look forward to hearing what this committee has to say.
Senator Jaffer: Just to clarify, I much appreciate what both of you said, but are you open to considering it if our committee made suggestions about re-examining the definition of ``terrorist''?
Mr. Toews: I think we are open. It was a serious concern that was raised when the bill was first brought forward. There may be issues that I do not understand, or that I do not have knowledge of, which may necessitate leaving it in. However, I note that certain countries do not use that qualifier.
Speaking as a former prosecutor, my concern here would be, does this add an additional step that does not serve the interests of justice? Is it at cross purposes with some of the other values and policies that we share as Canadians?
Senator Fraser: I have two questions. First, I take it from what you have both said that, by and large, you believe that all the powers in this act are still needed. Are there any additional powers that you would like to see added? In other words, if I understand you correctly, you do not want the act weakened, but do you want it strengthened?
Mr. Day: I will pass the question to my judicial colleague for his judicious comments on the legislation itself.
While he is reflecting on that, I thank you also, Senator Fraser. Your concerns about the impact on civil liberties and on Charter rights have been well noted. That has been helpful. Your interest in oversight mechanisms has also been helpful and insightful.
Mr. Toews: In respect of the specific question you asked — are we looking for additional powers at this time — no. At this time, we are satisfied that the powers meet the interests of public safety and balance our concerns with respect to the rights and liberties of individuals. I would not point at any specific improvement that we can make in that respect.
The Chairman: Does that mean the status quo?
Mr. Toews: It essentially means the status quo. If what you are saying is do we want to see the Senate renew the powers that are subject to the sunset clause, we would like to see those powers continue. However, we are not talking about additional powers at this time.
I could go back to the conversation we just had in respect of the limiting clause, if one calls it that, if that is seen as adding powers because it is taking a restriction away. I would not view it in that way, but as for other powers, no.
Senator Fraser: I intend to take Minister Day up on his reference to oversight mechanisms. I will ask a question that I have asked various ministers since we found ourselves faced with the need to adopt a law like this. It deals with the listing of entities.
Besides deciding who should be listed and taking forward a recommendation to cabinet, two years later the same minister — or his or her successor, acting on the advice of basically the same officials — goes back to cabinet and says ``I think the list should be renewed.'' To the best of my knowledge, no name has ever been taken off the list, and so it goes on in perpetuity.
I was concerned at the outset and I still am. I would like your comments on the perfectly closed circle involved here. It is the same people who draw up the list in the first place who get to say whether it should be renewed, whether someone once on the list should stay there for all eternity — which is the easy thing for any official to assume. I just wonder if there is not room for some kind of outside participation in that renewal decision.
Mr. Day: I appreciate that question. Remember that in establishing the listing for entities, we are guided by the resolutions of the United Nations, the Afghan resolutions that motivated countries to move in this direction in the first place and gave them the ability to establish a listing process. Following that, there were more direct and specific UN resolutions regarding listing. Those are our primary guide.
To give increased capability under the Criminal Code, we looked at the Criminal Code listings. We agreed with the Liberal government of the day concerning many of the listings that they put in place. As you are aware, over the last few years we encouraged additions to that. In some cases, our encouragement proved fruitful. We have recently made another addition.
There is a two-year provision. However, any of those listed groups can request a review at any time. That keeps it from being a totally closed circle. In fact, it makes it quite open. Not only is there the two-year review, but any of those groups who feel that they have been improperly listed or improperly treated can request that review.
Senator Fraser: Minister, they can only request the review after the fact. My question was, is there not some way to get input at the time of renewal, before the fact of renewal, from somebody other than the same people who made the initial decision? I gather you do not think that is necessary.
Mr. Day: It is a good question to raise, but for security provisions, if a group is to be listed, it is a serious matter. To give them forewarning of the listing because they may be, for instance, involved in certain activities or raising funds in a way that would be inappropriate for security purposes, would not be prudent.
However, once they are aware that they are going through that process, they can immediately apply to the Federal Court for reconsideration and review. They can do that early on. It can happen again in the two-year cycle, and at any time when they feel they have other evidence that should be considered.
[Translation]
Senator Nolin: Good evening, gentlemen, and thank you for accepting our invitation. I would like to revert to the question Senator Fraser asked from both of you about improvements which in your opinion would be appropriate and should be introduced.
I would like us to a little more specific based on the British experience. As you know, our British colleagues have amended their anti-terrorism act to include new offences of incitement to terrorism and glorification of that activity.
Speaking of improvements, you must know also that during the last Parliament, two bills were introduced, one in the Senate and one in the House of Commons, to make it possible for Canadian victims of terrorist acts to sue foreign states and other entities for compensation in Canada. You have a couple of examples of improvements there.
I would like to have your views on the possibility of including those offences and those compensation methods in our Canadian legislation.
Mr. Day: First, I do not intend to have a bill similar to the U.K. bill on glorification, since our Constitution includes provisions to protect a number of freedoms. I would not recommend that type of system. I respect the right of our allies in the United Kingdom to have their own bill, but I am not contemplatinging anything of that kind.
We have enough rights and safeguards in our legislation to provide support to, and respect the freedoms of, individuals and communitiess.
Of course, we wish to improve our system if possible, but I will not be proposing another bill to improve it.
[English]
Mr. Toews: On the issue of incitement — specifically, that the British have addressed the issue of indirect incitement, it is my position that the Anti-terrorism Act adequately addresses incitement to terrorism as well as other preparatory conduct. For example, when you look at the definitions of ``terrorist activity'' and ``terrorism offence,'' they include inciting these activities. There are also certain other offences that include preparatory conduct, such as knowingly facilitating a terrorist activity.
My concern is when does discussion of an idea in the abstract become indirect incitement? In M.P. Ignatieff's work The Lesser Evil, he writes about where force is necessary in dealing with terrorists and that kind of issue. In writing that, is he inciting torture of captured terrorists? I would think not. I think it is a legitimate discussion to have. I would not want to see a legitimate discussion on issues related to terrorism be somehow curtailed by something called indirect incitement. For me, perhaps coming out of our legal system, that is one step removed. That is part of the balancing act: What is an appropriate security measure and what is inappropriately infringing on human rights?
I am concerned about the potential for overreaching. We would welcome your comments as a committee on that, to see whether a balance can occur. Certainly members of various religious groups have indicated that that type of discussion may take place in their places of worship. The extent to which we should have a criminal law impeding that discussion is a subject that we could debate for a time. Whether or not there should be observation of that rather than an actual criminal charge in order to ensure that that does not develop further goes into Minister Day's areas of responsibility.
I do not think I can help you on that. I am reluctant to say that we require that type of measure at this time.
[Translation]
Senator Nolin: As you know, with the present technology, criminal activities may be promoted through the Internet. Is your government planning to review, improve or broaden the involvement of justice regarding the use of Internet for terrorist activities?
Mr. Day: In a global perspective, senator, we have requested more resources to improve the technological capabilities of our agencies, in particular to help them monitor activities on the Internet but only regarding possible crimes against children and terrorist crimes, because organized crime groups and people who carry out terrorist activities have access to a vast array of technologies. This is why we need to prevent terrorist attacks and disable organized groups and we will keep trying to obtain resources to that end.
Senator Nolin: Here again, you will agree with me that the Canadian Charter of Rights and Freedoms restricts that ability to interfere with private human activities.
How far do you intend to go to ensure that such a basic legislation as the Canadian Charter of Rights and Freedoms does not get in the way of your governmental obligations?
Mr. Day: We have a different system than in the United States, and I gather from reading the newspapers that the Administration may take major steps regarding the Internet and telephone communications, which is not the case here in Canada. If our security agencies want to interfere with the Internet world or emails, they have to obtain that right and a Member of Parliament must to sign a certificate to that end. They also need to apply with the Federal Court for a permit to interfere with the telecommunications world.
[English]
Mr. Toews: In respect of the comment that the Charter of Rights and Freedoms may hamper our ability to effectively respond to terrorist or other threats, we must be mindful that the rights and freedoms outlined in that Charter are not unlimited. We have a powerful weapon in the Charter itself, section 1, which says that these rights and freedoms are subject to such limitations as are demonstrably justifiable in a free and democratic society. It is important for us as a government to build that case, so that when we bring forward legislation or take certain measures, we are always prepared to justify them as being one of those limitations. In my view, that does not take away from the rights and freedoms, but rather gives definition to them.
Abuse of freedom, abuse of rights, is not guaranteed by the Charter. We have to bear that in mind.
I think we can do a better job of justifying why freedoms or rights are to be found within certain parameters. Section 1 of the Charter gives us that opportunity.
In respect of your specific comment, while terrorism and criminal law are, generally speaking, two different areas, they are also closely related. When we come to the issue of technology and the Internet, as you have pointed out, we can learn from many of the lessons in respect of criminal law investigations and apply those to the terrorism and hate area. If we look at the strides that we have made with respect to child pornography, for example, whereby government, in cooperation with private agencies, have been able to identify some of these child pornography issues to local authorities, those authorities have been able to take measures. We do have some good laws. Can they be improved? Perhaps they can.
I would note the comments of Rabbi Cooper, of the Simon Wiesenthal Center, who recently stated that when it comes to keeping terrorism- and hate-related material off the Net, Canada can hold itself up as a role model. Coming from an authority like that, I take some comfort in it. Does it satisfy me entirely? Absolutely not.
I say that because one of the things we know is that for every step we take in keeping up with terrorists and those who spread hate and child pornography, they will also be taking one, if not more, steps. Thus, we need to be vigilant on an ongoing basis.
This is tied into the comment about the preventive measures within the act. They are necessary. Can I identify exactly when they will be necessary? Absolutely not. However, I think that every free and democratic society must retain an appropriate legal power, properly supervised by the judiciary, to investigate and to take preventive steps before the bombings occur.
[Translation]
Mr. Day: Mr. Chairman, I would like to clarify something I said a little earlier. When I mentioned the process, I believe I said that a Member of Parliament has to sign the document, but it is indeed the minister who signs.
Senator Nolin: We note that clarification.
[English]
Senator Andreychuk: Thank you, minister, for coming here this evening. Obviously, you have been well briefed. You understand the issues that we have been dealing with, and that makes it easier for us to question you.
First, one of the concerns I continue to point out has to do with the LTTE. I am pleased to see that steps were taken to list them for the benefit and protection of citizens in Canada. The intimidation factor was of great concern.
The other issue I have concerns security certificates. I respect the fact that that is now an issue before the courts. I believe our concerns have been well noted.
I should like to turn to the definitions section of the act. We were told this act was all about striking the right balance between the assurance of security for citizens and the protection of our civil rights, to the extent that two competing rights can be balanced. It seems to me that the definition of ``terrorist activity'' was arrived at shortly after 9/11, when this act was brought before Parliament. It concerns me that the issue of motive has been included in that definition.
Minister Toews, it seems to me we make it more difficult to prosecute when we should, and we target a community in a global way when we use the word ``motive.'' Since motive in not used in other parts of the criminal law, it causes me to ask why we are putting it in. If it is to help with prosecutions and our security, then it should be there. If that is not the case, then I think it is a type of racial profiling by virtue of definition. I am pleased to see that you are considering that point. Perception of justice is just as important as justice in that case. I am pleased you answered that.
I want to go now to the investigative hearings. Mr. Toews, you say there is certainly the right to counsel. You have talked about the role of the judge and the prosecution. It is a unique process. Over the years that we have discussed this matter in committee, we have talked about there being a role for someone to observe the system, not to be representative of it. The judge has a role to play, as do the prosecutor and the defence counsel. While they are curtailed in some cases, they are still part of the system. It seems to me that having someone scrutinize the system to see that it works as it should, with all the limitations on secrecy of information concerning the individuals concerned, would be of benefit. It would reassure citizens that this process is not somehow different from what we would expect in a justice system. Would you comment on that, please?
Mr. Toews: The investigative hearing power is unique in some respects. However, in other respects, it is not unique at all. I can point to investigations by coroners in Canada where this type of thing happens quite regularly, where a potential accused, or someone who has been accused, takes the stand and gives evidence. That is done in open court.
The other more parallel hearing, which has been found to be constitutional over and over again, is the American grand jury system. These hearings are completely in secret. As I understand it, they are not even supervised by a judge. There is no right to legal counsel. In fact, I believe it is the district attorney or someone from his office who runs the grand jury. You have to answer those questions.
We have seen other free and democratic societies utilize what I would say are much stronger measures, in secret, and they have been found to be constitutional.
In contrast, the situation here is studded with various safeguards for rights and freedoms, including the right to counsel and supervision by a judge. When we compare it to the grand jury system of the United States, when we look at coroners' or provincial judges' inquests, and when we look at some of the other processes where an accused is not allowed to have direct contact, even in the court, with the victim, I find this to be a well-balanced measure that does not in any way diminish the accused's substantive liberties. Yes, the individual is required to testify, but no less than any other witness is required to come to court to testify. I think the issue of secrecy has been balanced by the protection of right to counsel and supervision by a judge.
Senator Andreychuk: The point I am making is that it is balanced. I have every confidence that that is how it works, except there is a ``trust me'' factor. In other words, we have to trust that the system is working. We know that systems work better with double-checking. An amicus curiae, or someone who would analyze the system, as opposed to being a party to it, might provide the kind of reassurance that marks Canada, as opposed to some like-minded countries.
Mr. Toews: The issue of amicus curiae is an interesting one.
I could get back to you with some information, because I have had an opportunity to review that issue. Would an amicus curiae — a friend of the court — somehow help? It has been determined that it is not quite the panacea that people may believe it to be. The special advocates in the United Kingdom, in immigration removal matters before the Special Immigration Appeals Commission, are security-cleared lawyers appointed to represent those appearing before the commission. However, the amici curiae are not permitted to tell their clients about some of the evidence they have seen. That then destroys the client-solicitor relationship. Some lawyers have refused to participate in that kind of proceeding, asking, ``How can we properly advance our clients' interest with that information available to us but withheld from them?''
Given the fact that individuals are properly protected from having their statements as witnesses being used against them, and given the judge and the right to counsel, I do not see a need for another layer of protection in this context. We must look at what is the ultimate prejudice to the individual and weigh that against the benefit. Frankly, if there is prejudice to the individuals and their security, any impingement on their rights and freedoms is very small, if it exists at all, and, I think, falls well within the kind of scenario that section 1 of the Charter of Rights and Freedoms refers to, that is, a demonstrably justified measure in a free and democratic society.
Senator Andreychuk: We have studied this for a long time. It is a serious issue.
I am concerned that we have given powers under this act that we would not have given for criminal enforcement activity such as drug activity, but we deemed that, because of security and terrorism, these extra powers for the police, et cetera, were necessary.
The previous government indicated that they thought this would not spill over into other criminal law. In other words, once we legitimize it for terrorist activity, would it seep into the rest of the law? I would like an answer, but it could be in writing, if that helps the chair.
The Chairman: That would be helpful.
Mr. Toews: Generally speaking, when this went through committee in the House, there was agreement between the governing Liberals and the Conservatives about these measures. I have indicated some concerns about the definition of ``terrorist activity,'' whether it was necessary, indeed prudent, to include that additional phrase relating to political, ideological or religious motivation.
If you look through this act and compare it to the powers given to British security forces, for example, and the direct experience that they have had with terrorism in their country, the measures that we are taking are well within any constitutionally appropriate response. Indeed, our country could go further if we chose to do so.
At this point, I would say that I cannot demonstrate why we would need additional powers. These powers, properly used, are adequate for our purposes — again with that one caveat with respect to the definition of ``terrorist activity.''
Senator Kinsella: Ministers, certainly when this necessary legislation was first enacted by Parliament, all of us had deep concerns, because it was a new thrust for us as Canadians. As you kept saying this evening, this is about balance, and having robust security or anti-terrorist legislation while at the same time maintaining our tradition of civil liberties and human rights. Thank you for reminding us, in particular, of section 1 of the Charter.
It is not only the courts or section 1. There is a parliamentary protection. I wanted to turn to that because when this bill was enacted, the parliamentary protection, in my view, was indeed this section 145, authorizing this very committee and this house, as well as the committee in the House of Commons, to review the legislation. Many of our witnesses agreed with some of us that that type of provision should be maintained. This provision ceases to operate once this work is completed.
Would the government support maintaining this kind of mechanism in the legislation, whether it is three or five years, so that Parliament could again review where we are with the special anti-terrorism legislation?
Mr. Toews: I do not have a problem with this kind of review. It is healthy in a democracy to come before you and to justify this legislation. I must admit that I do have concerns about sunset clauses. I would not want to be caught in the middle of a debate about this. The sunset clause expires, powers that are necessary expire, and then we have very unfortunate activity. I would prefer to see those powers continue, and at the same time, a power of this house to review it on an ongoing basis. I have no problem with that. Indeed, there may even be a call to look at some of these issues in private. Speaking of privacy, we do acknowledge that sometimes, information should not be shared because it may prejudice ongoing investigations and so on. I have no problem with the review powers or extraordinary powers of this committee to hold meetings in camera. I point out, though, that I personally have a concern about a sunset clause that may put an end to a power that may be necessary in the fight against terrorism.
Senator Kinsella: I wanted to explicate a little further Senator Andreychuk's drawing attention to the case of the Liberation Tigers of Tamil Eelam. It came up many times before this committee, as Senator Andreychuk has pointed out.
It is my understanding, Minister Day, in case my research is not that good, that sometime in April, the government took the decision to list the LTTE as a terrorist organization, as the United Nations had done. I am curious as to whether, in your opinion, the listing of the LTTE jeopardized the peace process in Sri Lanka, which was one of the arguments we had heard for not to listing them?
Further, has the listing of the LTTE improved law enforcement's ability to monitor their extensive operations here in our own country?
Mr. Day: First, related to the peace process, we considered that, because views were expressed to us that this may have a negative effect. The view that we settled on was that this provision would cause those from the north and the east in Sri Lanka to see that other countries were serious about terrorist activity and fundraising, and that perhaps fundraising in Canada, which, it was pointed out to us, was significant, would be restricted, which would cause them to take it more seriously.
The peace process itself was signed, and at that point in our consideration, just over 3,000 violations of the peace process had taken place since the parties agreed to it. Of those 3,000, about 168 were violations by the Sri Lankan government. I say that to make the case that even though, clearly, that was not the preponderance of violations, the Sri Lankan government has to be careful of what they are doing and not be seen to be violating the rights of the Tamil community.
With 168 violations on one side and over 3,000 on the other, the LTTE was clearly not showing the proper respect for the peace process and was putting it in peril. Therefore, I feel — and I think time has demonstrated -—that we did the prudent thing.
In terms of assisting policing agencies, you are aware that we as a government do not direct police investigations, nor do we tell police forces whom to observe and what to do. You will notice, though, that not long after the official listing, there was a legally constituted raid on certain organizations related to LTTE. Whether policing forces felt that they now had more capability, should they come across evidence that would stand up in court with the provisions of the listing, we can only speculate, but it was a timely intervention.
Finally, we have received feedback from the community — the diaspora here in Canada, which has large numbers. The majority of the Tamil community came here under safety provisions provided under a Conservative government through the 1980s and 1990s, so I am not making a partisan statement here.
We have heard from the community that they appreciate what has been done. It does give them a greater sense of security. However, to be honest, we have also heard that they continue to be somewhat circumspect when talking to certain members whom they think might be involved in these activities.
Senator Prud'homme: To the ministers, I want to say that having followed these questions for 42 year in Parliament, they have my confidence. The burden of responsibility on your shoulders makes you, in my estimation, different men, because that burden is immense. I feel secure knowing that the two of you understand the gravity of the situation. However, I will not discuss the gravity of the situation; I would rather make some suggestions, and pursue that in debate in the Senate, since the rules are easier.
In 1984, I opposed the creation of CSIS and had long discussions with Mr. Trudeau on that topic. I wanted to modernize and beef up the RCMP. I am still of the same opinion today. One strong, well-financed, well-oiled and respected force — and I call it the RCMP — is better, in my opinion. You cannot have a very productive relationship between two organizations pursuing the same aims. I have too many reasons to believe that, at times, they did not cooperate with each other as I would expect them to do. That does not put into disrepute the work of CSIS.
Second, you are now looking for thousands of young men and women to help you in your task. I see that we have never thought of using thousands of well-trained young people who are being used at the moment, in a changing world, as provincial officers. I am talking about the RCMP, who are the provincial police in some provinces, and who are immensely well trained. These are the kind of people I feel we need now to reintegrate totally for international white- collar crime, drug trafficking and terrorism. I will look into that in the future, but I wanted to put that out there for you.
Finally, regarding Canada's reputation in the world, everywhere you went for the last 40 years, when you mentioned the word ``Canada,'' it was like an open passport. Now, we were almost defeated at the United Nations Human Rights Committee. We came last in the vote — a secret ballot. That means people are reassessing their view of Canada, and I do not want this to take place. We came last in the Western world of like-thinking people, followed by Portugal and, if I am correct, Greece, which was not elected.
That concerns me as a proud Canadian. I do not say as a Quebecer, but as a proud Canadian, it worries me. Therefore, if we really want to put people at ease, we must not be afraid to tackle the subjects that are supposed to be untouchable. We have to deal politically with what I know you pronounced to be a powder keg — I hope it is a good pronunciation.
I am of the opinion that Africa — with all due respect and sympathy for its poverty and everything we know about it because we study it here in our Standing Senate Committee on Foreign Affairs — does not put the planet in danger. I do not believe that Latin America, South America, Central America, Europe — both west and east — and Asia put the planet in danger. There is one place — and I have been saying this for 42 years — that is a powder keg, and that is the Middle East.
I was misunderstood, but I do not care because I work for the interests of Canada. Sometimes I think we lack sensitivity and understanding about that region, and today —
[Translation]
Today, we are witnessing the consequence of having refused to deal with that very delicate matter.
[English]
I ask you and your colleagues to be sensitive when you talk about the Middle East. I think we are unfair and biased. I may be biased too, but I do not think so. If I am, I want it to be proven in a public debate. However, I think we should be very careful. In the meantime, I would like to thank you both.
We have very few elected people here. My esteemed friend, Mr. Smith, and I are the only ones who were once elected as you were. Perhaps we could find a vocabulary that does not make older people scared.
We are supposed to know what the situation is all about. Yet we hear these wild statements by parliamentarians that the planet will explode, Parliament is not secure any more and terrorism is everywhere. I think we have a responsibility to calm the situation. I feel that Canada, in your hands, is in good hands. That is what you should say to Canadians: Sleep well — especially to the older citizens who call me because they still believe I am returning to politics. Maybe I will.
I count on both of you, especially. Please transmit that message to the Prime Minister. It would help the situation.
Mr. Day: You think you will go back into politics?
The Chairman: He is going for an eight-year term. We will take those as representations rather than questions.
Senator Fairbairn: My apologies for being late. I was chairing the Standing Senate Committee on Agriculture and Forestry, where your esteemed colleague, Mr. Strahl, was holding forth. This is a good day.
The question that I want to ask you has bothered us in the two rounds of hearings that we have had on Bill C-36. It is not within that bill but attached to it, namely, security certificates. That would involve Minister Day.
In the discussions we have had to date, many concerns have been expressed at the way it is done in privacy within the Federal Court and that the person who is at the heart of it is not allowed to be part of the discussion, not even the lawyer.
With your colleague in Immigration, would you again consider having a security-cleared counsel or amicus curiae involved in this process, which constantly comes under attack, partly because the person involved is usually kept behind closed doors for a long period? Have you had any dealings yet with this, minister? If so, do you have a concern about the secrecy of the certificate process?
Mr. Day: I will allow my colleague, the Minister of Justice, to comment specifically on the amicus curiae. I appreciate you were at another committee when that was addressed, but it is fair that you ask the question.
I want to thank you for your input related to the Anti-terrorism Act in general. You ably chaired the two Senate committees during its passage and contributed a factual piece on the review. I appreciate that.
To review the process, it has been in place since 1978. It is rarely used. Since 2001, the security certificate process has been utilized in only six incidents. It happens when a non-Canadian arrives at our borders and, upon being security- screened, is determined to be a very significant security risk. We are talking about ``very significant.'' At that point, people are offered the opportunity to return to their country of origin.
As you know, should they refuse that offer, they can demand the appeal process available to anybody who can get a foot on the Canadian shoreline. We know that appeal process takes a number of years.
Here we have a conundrum of people deemed to be a serious threat to Canadians, and now they will be here for a period of years appealing that decision. Therefore, at that point, the Minister of Public Safety — the Minister of Immigration and I, should we deem the evidence to be valid, sign a certificate, which then goes before a Federal Court judge who also looks at the information. At that point, people are detained pending their appeal. Should the appeal show that the courts do not find it justifiable that they were held, they are free to go anywhere in Canada. They are also free to leave the detention centre at any time during the appeal process to return to their country of origin.
The process to date has been upheld by the Federal Courts a number of times, and as recently as September 2005. It is now going to the Supreme Court, and the depositions will begin tomorrow. We understand there will probably be a decision in the late fall.
We support the security certificate process. It is a trade-off. In my view, when you are talking about security, but also individual freedoms, there is always a trade-off. If you want more security, you will have to give up some freedom. If people are concerned about the number of individuals who are in this room and request the security service to reduce it to 10, it could be done. Only 10 people could come in, but you would lose certain freedoms, one of which is the freedom to have more people attend the meeting.
Obviously, you know where the feelings of the government lie. We supported the process when the Liberals used it sparingly, and we continue to support it for the good of the country. It is like the anti-terrorism legislation itself.
[Translation]
The Anti-terrorism Act remains a vital element of an efficient safety framework and a key component of the various steps to protect Canadians and their families.
[English]
I am convinced of that. Not only do I support the act, I also support the security certificate process. We will wait to see what the Supreme Court says about it.
Senator Fairbairn: I raise the question mainly because it was a surprise to us the number of times our witnesses raised it, one after the other. Thank you very much. It is good to have that on the record, minister.
The Chairman: My one question is for the Minister of Justice, and it relates to his predecessor, Mr. Cotler. He was in Strasbourg at some point last year, and there were meetings with many other countries to address the issue of cybercrime. I am not sure it is fair to characterize it as commitments or understandings for multilateral action to deal with cybercrime, which has some relevance here.
Can we expect any domestic legislation in that field flowing from the consensus that seemed to emerge in Strasbourg on dealing multilaterally with cybercrime?
Mr. Toews: I understand some minor technical amendments are coming as a result of that. The previous government introduced legislation on the modernization of investigative techniques, and I understand the department is currently working on that issue. I would not see those amendments as substantive.
There were some technical issues to do with ensuring that our laws comply with the Charter and are effective. At this point, I am not able to share any more information.
The Chairman: That is helpful. Thank you for clarifying that.
Senator Jaffer: In the past we have adopted a practice whereby if we run out of time, we provided witnesses with written questions through our chair and the answers would be an appendix to the transcript.
Mr. Toews: Two of my senior officials can give you the detail in that respect. You can leave the questions with them, or you can forward them to me; you will get a response either way.
Senator Jaffer: We will forward the questions through our chair.
Mr. Day: Mr. Elliott will also be staying. His previous role was security adviser, and he is now Associate Deputy Minister of Public Safety. He will be able to address other questions related to the public safety aspect.
The Chairman: Thank you for your attendance and cooperation, ministers. Senator Jaffer, did you have some further questions for the officials?
Senator Jaffer: Yes, I will do that in writing, but I would like to have your assistance on the issue of security certificates and amicus curiae. In Britain, a number of amici curiae were hesitant to continue because of the challenges. We also face challenges in Canada, and I would like your input. We have an adversarial system whereby judges are not accustomed to looking after the interests of one side or the other. It does cause issues for them and many have openly complained that this is difficult. I would like to hear more from you as to the challenges that you envision. Can you provide additional comments on amicus curiae?
Bill Pentney, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: First, the issue is before the Supreme Court. The government's position has been made clear, the written argument will be made clear and the oral argument will be advanced in the Supreme Court. I would not want to say anything that would affect the government's position there.
If one reads some of the more recent decisions from the Federal Court, one will find that several judges have taken great pains to try to explain the role that they see themselves playing. I do not think anyone involved in these processes is happy because this is simply not a happy experience. National security is a difficult matter. With respect to the professionals, it is not an exact science, but rather a matter of trying to judge at what point the threat to the security of the nation is such that extraordinary measures must be invoked. It is not surprising that judges would not be happy. Most judges involved in dealing with serious crime — murder, rape and other offences — will tell you that it is not a happy experience.
Having said that, they have been writing about the role they play, the nature of the examination, of the summary, and the opportunity provided to the individual to bring forward evidence. I understand that you have read the summary that was provided from the earlier hearing. More interestingly, an academic conference was recently held at which a judge from the Federal Court spoke about trying to explain factually the role that the judges play. It would be fair to say that there are not unanimously expressed views coming from the Federal Court that it is impossible to work within this system. It was confirmed recently in both the judicial and extrajudicial pronouncements of the court.
However, everyone would acknowledge that it is a difficult situation. I can confirm what the ministers said: That the government looks forward to the considered views of the committee, which has wrestled with the issue. As well, we appreciate the input of this committee because you have heard a great deal of evidence and have thought long and hard to date, and will continue to do so as the report of the committee is finalized. You will give us more than most op-ed writers have in terms of serious, considered thought to the challenge that this poses. We could start from the proposition that the government cannot protect any information and must reveal all to anyone before it takes any administrative measure against people, civil or criminal. Unless we accept that the only way of defending Canada's security is through the criminal law and nothing short of it, we had better start asking what we are doing when we find people that we think are terrorists or criminals overseas. Should we claim the right to bar them from entering Canada? Is it only those to whom we would apply a criminal law standard and whom we should bar overseas? Those are the questions at play here.
Some judges have expressed some discomfort with the process, and more recently some have tried to explain in detail what they do under that process. No country has developed the perfect balance. We welcome the considered views of the committee if it finds ways in which it might be improved.
Senator Fraser: I have questions on two areas; first, the Security of Information Act, in particular section 4, which was used when the RCMP raided the home of Juliet O'Neil, an Ottawa Citizen reporter. It interests me because it does not allow a public interest defence. Could you tell us whether there have been any prosecutions under section 4 of the Security of Information Act? What safeguards are in place, if any, against inappropriate prosecutions?
George Dolhai, Director/Senior General Counsel, Strategic Operations Section, Department of Justice Canada: To date, there have been no prosecutions under section 4 of the Security of Information Act since it came into force. There were prosecutions under the former Official Secrets Act. The last case of any kind under the old act that ended with a conviction was in 1989. It was a spy case in which an individual who was part of a sting operation by the police was found by the court to have been attempting to sell secrets. The case began in 1986, he was convicted in 1989 and the sentence was nine years.
Senator Fraser: Are there any safeguards beyond the normal process surrounding the decision to prosecute?
Mr. Dolhai: The normal processes apply, including a full adversarial system and also the full disclosure obligations of the Crown. The Stinchcomb decision in the Supreme Court of Canada outlines that in great detail. The court has subsequently refined the test to make it clear to what extent the Crown must go to ensure that everything is disclosed, except that which is clearly irrelevant. The normal safeguards are substantial in criminal law, and if the federal act were to be used to lay charges, all of those would apply.
Senator Fraser: Under the ATA, the Attorney General has the power to issue certificates that halt investigations or proceedings under the Access to Information Act, the Privacy Act and the Personal Information Protection and Electronic Documents Act. Have any certificates been issued involving any of these acts? Have criteria been elaborated to try to ensure that this power would be used only in the rarest and most necessary of circumstances?
Mr. Pentney: There have been no certificates issued that I am aware of. The criteria set out in the act more generally relate to what is an extraordinary power — one that would be invoked when deemed necessary for the protection of Canada's security.
Senator Fraser: There are many powers that are never used. I do not know whether that is good or bad. I thank the committee and the officials for their patience.
Senator Kinsella: Our committee met with colleagues in Washington who were reviewing the Patriot Act, as the chair mentioned at the beginning of this meeting. We also visited London, where we met with our British counterparts. Subsequent to our visit to London, it is my understanding that at Westminster, the House of Commons and the House of Lords adopted an anti-terrorism law that legislates against the glorification of terrorism. I have two questions.
First, do you keep a watch on new amendments to anti-terrorism legislation, particularly in the United States, perhaps in Australia? If so, might you make that list available to us? Second, does the glorification of terrorism fit under the anti-terrorism legislation or is it separate?
Mr. Pentney: We are checking on the updated information binders provided to the committee to see whether that information was included. We know they were updated to take legislative developments into account. May I undertake that if they have not been included, they will be?
Yes, we have monitored developments internationally. I should also say that the Department of Justice, together with Foreign Affairs, on behalf of Canada, play an active role in international negotiations on new anti-terrorism measures. I believe that some of those are reflected in the updated binders. As senators are aware, this is an ongoing and dynamic field. The UN has been debating for some time the appropriate international definition of ``terrorism.'' It is my understanding that they have not resolved that nugget. The debate carries on and Canada is an active participant.
If it is not in the binder, we will undertake to provide updates on recent international developments.
Senator Kinsella: There was something on the glorification of terrorism, and it might be well worth looking at, given the events of recent days.
Senator Prud'homme: I would ask the two unknown witnesses to identify themselves for the record.
William Elliott, Associate Deputy Minister, Public Safety and Emergency Preparedness Canada: Thank you. I will introduce my colleague: On my left is Mr. James Deacon, Director General, National Security Policy, Department of Public Safety and Emergency Preparedness.
Stanley Cohen, Senior General Counsel, Human Rights Law Section, Department of Justice Canada: I have been asked to introduce myself. I am Stanley Cohen, Senior General Counsel, Human Rights Law Section, Department of Justice. I have had the pleasure of appearing before the committee previously.
The committee adjourned.