STER Committee Report

Anti-terrorism Act Dissenting Opinion

Introduction

The Anti-terrorism Act (ATA) is the main piece of legislation passed in Canada after the horrifying attacks that destroyed the World Trade Center on September 11, 2001, killing 2,973 people and leaving thousands injured.

When such a shocking and devastating event occurs, everyone in authority feels the need to act, in order to show that they are doing something to prevent a repetition of the tragedy and also to prevent any similar though smaller-scale tragedies from prolonging the insecurity into which the whole community has been plunged.

Legislators therefore feel obliged to legislate.

They do it hastily, to show they are responding to the emergency as the new situation demands. In this case, our Parliament’s haste matched the horror of the tragedy that sparked it. In just three months, Parliament pushed a 170-page bill through all the stages for it to become law.

Reading the ATA is remarkably difficult. Without a solid university grounding in law, and wide experience with federal legislation, it is almost impossible to grasp all its implications. Even with such training and experience, it takes hours and even days of efforts to begin to understand all aspects of it.

The arcane nature of the ATA has significant consequences for the public debate that should surround such major legislation. Because few people have both the training and the time needed to understand it sufficiently to reach an informed judgment, the public debate comes down to trust.

Either the public trusts the ministers who claim that despite their haste a fair balance has been struck between the requirements of fighting terrorism and respect for fundamental freedoms, and in the police who assure us that in any event they will not abuse the new powers that they have been given; or they trust the civil liberties organizations and the academics who devote their lives to studying the legal conditions necessary for respecting our rights.

The verdict of these latter groups is disturbing, to say the least.

Apart from a few provisions necessary so that Canada can meet its international commitments, they call the ATA “useless and dangerous”.

The ATA and its hasty passage may have achieved the goal of reassuring the public about our leaders’ willingness to confront the threats this new kind of terrorist organization represents. But it was at the cost of serious violations of a number of fundamental rights that constitute the very core of our democratic societies.

In this sense, passage of the ATA was a partial victory for the forces of terrorism that today threaten societies based on laws and liberty.

Our rights and freedoms have been acquired over the past few centuries and we have fallen into the habit of considering them the product of our accumulated wisdom.

We have just lost some of that.

Some preliminary remarks are needed.

We have already pointed out in our interim report that:

Terrorism cannot be fought with legislation; it must be fought through the efforts of intelligence services combined with appropriate police action.

There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for pre-meditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.

Moreover, when judges exercise their discretion during sentencing, they will consider the terrorists’ motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.

We must also consider that, when it comes to terrorism, deterrence has limitations. First, it will have very little impact on someone considering a suicide bombing. Second, those who decide to join a terrorist group generally believe that they are taking part in an historic movement that will have a triumphant outcome in the near future and that will see them emerge as heroes.

Therefore, one cannot expect that new legislation will provide the tools needed to effectively fight terrorism.

Legislation can, however, be amended if police do not seem to have the legal means needed to deal with the new threat of terrorism.

Consequently we must ensure that the proposed measure does not unduly disturb the balance that must exist between respect for the values of fairness, justice and respect for human rights, which are characteristic of our societies, while also ensuring better protection for Canadians and for the entire world community.¹

The Canadian Bar Association, in the brief it tabled when the Anti-terrorism Act was being reviewed, pointed out that that “[t]he government currently has many legal tools to combat a terrorist threat” and that “existing provisions of the Criminal Code provide an impressive arsenal to combat terrorist organizations”.²

The Association’s brief included the following examples, which were put before us again by the Civil Liberties Union:

·        Section 2 of the Criminal Code: definitions of “criminal organization,” “criminal organization offence” and “offence-related property” (proceeds of crime);

·        Section 7: extraterritorial offences on aircraft, ships and fixed platforms, offences involving internationally protected persons and offences involving nuclear material;

·        Section 17: removal of “compulsion” as a defence for certain offences, including piracy, causing bodily harm, kidnapping, hostage-taking, etc.;

·        Section 21: participation in an offence by persons who aid or abet, conspiracy;

·        Section 22: participation by persons who counsel the commission of an offence;

·        Section 23: accessory after the fact;

·        Section 24: attempt.

Among the offences against public order in Part II of the Code, we would note:

·        Sections 74 and 75: piratical acts;

·        Section 76: hijacking;

·        Section 77: endangering safety of aircraft or airport;

·        Section 78: taking an offensive weapon or explosive substance on board an aircraft;

·        Section 78.1: various similar offences committed on board a ship or fixed platform;

·        Sections 79 to 82.1: offences relating to the handling of dangerous substances;

and offences relating to firearms and other weapons, set out in Part III:

·        Section 430(2): mischief that causes actual danger to people’s lives, subject to life imprisonment;

·        Section 431: attack on official premises, private accommodation or means of transport of an internationally protected person, subject to imprisonment for 14 years;

·        Section 433 et seq.: arson and other fires;

·        Section 495: the power of peace officers to arrest without warrant, where there are reasonable grounds to believe that the accused has committed or is about to commit an offence.

Obviously we could also add all the provisions involving any kind of homicide.

Because the Criminal Code already contains this “solid arsenal” of provisions for combating terrorism, the ATA has simply added two that no police force has yet seen the need to use.

These were the provisions dealt with in our interim report.

As for the provisions creating new offences, they have been used only in conjunction with other charges that already existed in the Criminal Code and covered the same acts. Judges could certainly have handed down appropriate sentences even without the supplementary charges under the ATA.

So the ATA is useless, apart from some provisions stemming from Canada’s international commitments, and these could have been drafted much more simply.

But the ATA is also dangerous, because it is a frontal attack on a number of fundamental principles that underpin our system of law, the system that distinguishes us most sharply from the ideology motivating the terrorists who confront us.

The Civil Liberties Union³ and the Canadian Association of University Teachers ⁴drew up a long list of such principles, including:

-        the presumption of innocence;

-        the right to privacy and to be secure against searches and any kind of invasion of privacy;

-        the right not to be stopped, questioned, arrested or detained based on mere suspicion or on racial, religious or ethnic profiling;

-        the right of every individual to a public, just and fair trial, and the right to appeal;

-        the right to make full answer and defence;

-        the right to be secure against arbitrary imprisonment and torture;

-        the right to bail while awaiting trial, and to have the validity of detention reviewed by way of habeas corpus;

-        the right of asylum;

-        the right to information and to freedom of the press.

We must also learn from our overreactions in the past when faced with danger. As the danger recedes, we feel obligated to compensate the innocent victims of useless measures taken out of fright.

Not only did these measures do nothing to increase our security, but we devoted a great deal of energy to them that could have been better employed in fighting the real danger more effectively.

One example is the way we treated Canadians of Japanese origin during the Second World War. In 1942, 22,000 people of Japanese origin were arrested and detained, and their property confiscated. 75% of them had been born in Canada. And yet, government documents finally made public in 1970 revealed that both the Department of National Defence and the Royal Canadian Mounted Police were convinced that Japanese-Canadians in no way threatened the country’s security.

In 1988, the federal government agreed to make an official apology, in which it recognized that these people had been treated unjustly and their human rights violated. The apology was accompanied by symbolic redress of $21,000 for each eligible Japanese-Canadian. The sum of $12 million was allocated to creating educational, social and cultural activities and programs. A further $12 million was spent on setting up the Canadian Race Relations Foundation, whose mandate is to promote racial harmony and transcultural understanding, and to help eliminate racism.

During the First World War, some 5,000 Ukrainians were interned and 80,000 others were required to report regularly to the police. A number were forced to endure harsh living and working conditions and more than a hundred died during their internment.

During the Second World War, 17,000 Italians were detained for varying periods, 700 of them for the entire four years the war with Italy lasted.

More recently, over 450 people were arrested during the October Crisis of 1970, almost all of them needlessly. They included a popular singer (Pauline Julien), a widely-admired poet who later became Quebec’s Minister of Immigration and Cultural Communities (Gérald Godin), and almost all the candidates of the FRAP, a municipal political party that opposed Montreal Mayor Jean Drapeau. In 1971 the Quebec government decided to pay compensation to them.

All these futile arrests were sparked by events that were deeply traumatic for Canadian society. Wars are obviously the most traumatic of all such events. But the kidnapping of a diplomat and then of a provincial cabinet minister, who was later assassinated, caused an uproar similar to the one we lived through after September 11.

While fear may be a natural and understandable feeling, it can be a very poor adviser.

Respect for our values is an important element in the war against terrorism. At the plenary closing session of the International Summit on Democracy, Terrorism and Security in Madrid on March 10, 2005, United Nations Secretary General Kofi Annan declared once again, “[T]errorism is a threat to all states, to all peoples.” He added,

[Terrorism] is a direct attack on the core values the United Nations stands for: the rule of law; the protection of civilians; mutual respect between people of different faiths and cultures; and peaceful resolution of conflicts.

But he then went on to say,

[T]errorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we will be handing victory to the terrorists… I regret to say that international human rights experts, including those of the UN system, are unanimous in finding that many measures which States are currently adopting to counter terrorism infringe on human rights and fundamental freedoms… Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element.

Before we examine in greater detail the provisions of the ATA that pose the greatest danger to the fundamental principles characteristic of free and democratic societies, it is necessary to say a few words about the work accomplished by the Subcommittee of which we have been members for over two years.

We wish to acknowledge the extensive work by the other members of the Subcommittee on Public Safety and National Security. We agree with a number of their recommendations, both those which resolve drafting problems with the original Anti-terrorism Act (ATA), but more importantly where the recommendations would have the effect of curtailing or eliminating the potential excesses of the ATA.

However, we have come to the conclusion that the ATA is fundamentally flawed. We believe that the philosophical and jurisprudential underpinnings of this Act are incompatible with the values of Canadians who wish to live in a country that prizes human rights and civil liberties. We believe that the ATA does not reflect those values.

Analysts constantly speak of the need to balance freedoms with security. We view the two as going hand-in-hand; it is not possible to have liberty without security and it is not possible to have security without liberty and freedoms. We do not believe that the Subcommittee’s recommendations allow the Anti-terrorism Act to achieve the necessary balance, that there remain breaches of many freedoms and that it does not achieve any increase in security to Canadian citizens.

It is the absolute responsibility of every democratic state to provide protection to their citizenry. It is this fundamental truth that should have been the guiding principle in drafting legislation of public safety nature; instead of reacting to a crisis, as we did in 2001.

Specific Critique of the Anti-terrorism Act

We have in our interim minority report set out our position on the sections that authorize the use of Investigative Hearings and Preventative Arrests and affirm that position to have these sections sun-setted at this time.

Even though a terrorist organization fits the definition of a criminal group in the Criminal Code, they still have specific methods of obtaining funding. It is therefore necessary to set out provisions designed to interdict the funding and provisions against freezing. However, the measures provided for in the Anti-terrorism Act are so broad that they authorize numerous abuses, as the Canadian Association of University Teachers points out on pages 28 and 29 of its submission:

Under the new financing terrorism offenses that the ATA adds to the Criminal Code, the problems of overbreadth, vagueness, and incomplete offenses being piled on incomplete offenses are only compounded.

Under ss. 83.02 to 83.04 of the Criminal Code as amended by the ATA, it is a criminal offence to provide, collect, use, possess, invite a person to provide, or make available property (and in some of these cases, financial and other related services) intending or knowing that it be used in whole or part for various purposes. Depending on the provision, the prohibited purposes range from the commission of the terrorist offenses listed in s. 83.01(1) a of the Criminal Code: to “facilitating or carrying out any terrorist activity,” to “benefiting” a “terrorist group” or “any person facilitating or carrying out [terrorist] activity”. “Terrorist group”, it should be recalled, is defined in s. 83.01 as an entity (including a person) that has as one of its purposes or activities facilitating or carrying out any terrorist activity”, or a listed entity under s. 83.05.

Read together, with their various verbs and purposes, the provisions are complex, and confusing in their overlap since they all carry the same 10 year maximum penalty. But more disturbing than this, is the “broad brush” approach that they take. Any economic connection with so-called “terrorist activity”, however remote, is caught by the provisions. The provisions catch a corner store that sells milk to a “person facilitating terrorist activity”, a barbershop that gives a haircut to a such a person, and a restauranteur that serves meals to a “terrorist group” – regardless of how minimal the material contribution to the aims of the person or group, and regardless of whether the accused desired to further these aims. In this regard, the provisions are broader than aiding and abetting and conspiracy in the criminal law, and than the new “participating and contributing” offences in ss. 83.18 and 83.19 of the Criminal Code as amended by the ATA. They also go beyond the requirements of the International Convention for the Suppression of the Financing of Terrorism which they are supposed to implement. That Convention only requires states to criminalize the provision or collection of funds, not any economic activity. Notably, the provisions also make having an intention alone criminal. Under s. 83.04(b) one commits a criminal offence just by possessing property and intending it be used to facilitate or carry out a terrorist activity. No act towards carrying out the intention is required. Again, this goes beyond the requirements of the Financing of Terrorism Convention.

Under ss. 83.12 and 83.08 it is a criminal offence to have virtually any kind of dealings, or to provide any financial or related services in respect property on behalf of, or at the direction of a “terrorist group”. Under ss. 83.12 and 83.1 (1) it is a criminal offence to fail to disclose to authorities the existence of any property in one’s possession or control that relates to a terrorist group, or any transaction in respect of such property.

Glorification of Terrorism

We believe that the existing Hate Propaganda Section of the Criminal Code is sufficient in protecting Canadian society from the promulgation of hate speech or writings. In addition, it is our belief that legislation such as this would infringe on freedom of expression, a fundamental democratic right that was moreover entrenched in the Charter of Rights and Freedoms in the first place to protect against excesses provoked by a traumatic event.

Financing of Terrorist Activities, Listing of Terrorist Entities, De-registration of Charities

One of the goals evident in many of the provisions of the ATA is secrecy. Secrecy for the government of the day, and its corollary: power concentrated in the hands of the Executive branch of government at the expense of that owed in a democracy to the legislative and judicial branches.

Amendments to the Canada Evidence Act

Part 3 of the Anti-terrorism Act, amending ss. 37 and 38 of the Canada Evidence Act, gives broad powers to government officials to control proceedings and gives the Attorney General virtually unfettered power to prohibit the disclosure of information in proceedings. These new powers apply in civil, criminal and administrative law proceedings, commission of inquiry proceedings and even parliamentary and provincial assembly proceedings. They replace the common law doctrine of public interest immunity codified in the Canada Evidence Act, doing away with the need for government to show that there is any public interest in non-disclosure. They override the open court principle making court proceedings, court records and even government representations secret whenever the government argues for non-disclosure. In the case of Attorney General “secrecy” certificates, they suspend the operation of the Access to Information Act, the Privacy Act and the Personal Information Protection and Electronic Documents Act -- important regimes which protect the citizen’s right to know and her right to privacy and control over personal information.

These powers are unjustified in our legal system and they invite abuse. With them, any government of the day could keep secret from Parliament, the public, or an individual complainant whether it be a corruption scandal, a controversial program, a serious environmental threat, a miscarriage of justice, an operational fiasco, or any other kind of government wrongdoing.

Terrorist Listing with Secret Evidence

Under s. 83.05 the government can list an entity (defined in s. 83.01 as a person, group, trust, partnership or fund, or an unincorporated association or organization) if there are reasonable grounds to believe the entity has knowingly engaged in terrorist activity or is knowingly acting on behalf of an entity knowingly engaged in terrorist activity. After the fact of listing, the entity may make an application for judicial review but the judge must examine any criminal intelligence reports about the entity in private and hear the evidence of the government ex parte if, in the judge’s opinion, disclosure would injure national security or endanger the safety of any person. The entity receives only a summary of the evidence without the information that would injure national security or endanger the safety of any person. If the judge finds that the listing is reasonable it becomes final and the entity can make no further application absent a material change in circumstances.

We question the necessity of creating a terrorist list for Canada. Listing reduces complex historical and political situations to a simple “black and white” category of terrorism, which rarely serves to solve such situations. As English Members of Parliament have shown in respect to its terrorist list, it can be an extremely politicized process. Governments often bow to the political pressure of foreign regimes, listing the opponents of those regimes for no other reason than political expediency. Listing can disenfranchise populations and impede peace and reconstruction processes. Groups which are listed but also have a legitimate political wing or social welfare wing, which are constructive or at least crucial players in such processes.

For these reasons, as well as the requirements of due process discussed below, we contend that if the government insists on creating a terrorist list for Canada, the persons or groups proposed for listing must be afforded the opportunity to know the allegations and evidence used to support the listing, as well as the opportunity to respond. Further, in order to comply with Canada’s obligation under the Convention Against Torture, no evidence which may have been obtained through torture can be allowed to support a listing. Individuals and groups must, therefore, have sufficient disclosure to determine whether any evidence on which the government relies may have been obtained through such means.

Deregistration of Charities with Secret Evidence

Part 6 of the ATA enacts the new Charities Registration (Security Information) Act and consequential amendments to the federal Income Tax Act. It allows the government to sign a certificate on the basis of secret reports, denying or revoking an organization’s charitable status, where there are reasonable grounds to believe that the organization has made any resources available directly or indirectly to an entity that engages or will engage in terrorist activities, or activities in support of terrorism.

While the certificate can be reviewed by the Federal Court, the security or criminal intelligence reports on which the certificate is based is most often reviewed in private. The ordinary rules of evidence are waived and the charity receives only a censored summary of the information available to the judge.

These provisions are unnecessary given that the individuals knowingly providing aid to a terrorist group through a charity would be guilty of ordinary criminal offences which Canadian criminal courts could claim jurisdiction over, as well as the new terrorist offences enacted by the ATA should the government insist on retaining them. The provisions are unwise because they will choke off the valuable work done by Canadian charities in the conflict zones of the world, since no charity has the ability to absolutely control who their resources benefit, or the clairvoyance to predict who in a complex political landscape might be deemed terrorist.

Throughout the review process we heard repeated evidence from long-standing respected charitable organizations such as World Vision who are experiencing an “operational chill” out of fear that when involved in foreign development in response to humanitarian aid they may be working with groups who are on a terrorist list. In addition, these groups have indicated that there is also some significant impact on fundraising activities in Canada.

We believe that if the “terror listing” continues and charitable organizations are faced with the threat of de-registration, then respected and long standing agencies should be given limited and/or specific exemptions based on the need to deliver humanitarian relief in areas where they are forced to deal with groups that may be “listed”. The government could look to the example of the Red Cross, which is permitted in a “war zone” to provide aid to enemy combatants, as a model for a humanitarian aid exemption.

Loss of Due Process Protections

“Due process” is a cornerstone of our common law system. In a democracy it mediates between state and individual interests, ensuring transparency and fairness. We maintain that the ATA abrogates well-established due process standards in a variety of ways.

Terrorist Listing

The entire concept of Terrorist Listing is one area where due process is abrogated. While United Nations Security Council Resolution 1267 creates a list for members and associates of Al Qaeda and the Taliban, and calls on states to freeze the assets of persons and entities on that list, Canada bears no international obligation to create its own separate terrorist list.

What is required by due process depends on the interest at stake for the individual or group subject to listing. Under the ATA the consequence of listing is criminalization of membership and, due to the vague and very broad inchoate offences introduced by the ATA, of almost any kind of association with a listed “entity”, once listed, a person or group is presumptively a terrorist group for the purposes of the new terrorism offences.

If the government insists on creating a terrorist list, there should be a regular review mechanism by which those listed can seek delisting and call new evidence. In addition, an automatic delisting, after a reasonable period of time, subject to renewal through the same processes used in the initial listing, should be put in place.

Attorney General “Secrecy” Certificates

The Attorney General’s power to prohibit the disclosure of information in proceedings will have foreseeable and egregious effects on due process in criminal, civil and administrative law cases.

A secrecy certificate issued by the Attorney General overrides the rights of the accused in the criminal justice system to full disclosure by the Crown of exculpatory as well as inculpatory evidence, and the right to make full answer and defense. While courts might throw out cases where they found the Attorney General’s secrecy certificate affected the accused’s right to a fair trial this is a situation in which the legislature has a responsibility to ensure its legislation will have a constitutional effect. It is untenable to leave this responsibility solely to the courts.

In civil cases, citizens with valid claims against the government may have those claims frustrated when they are unable to get the disclosure they are entitled to because of an Attorney General’s secrecy certificate.

In administrative hearings, the due process rights afforded by the doctrine of natural justice and the duty of fairness may be overridden by a secrecy certificate issued by the Attorney General. Reduced powers should be given to the Attorney General of Canada, while powers should be increased for the Courts.

Unjustified Surveillance

Amendments to the National Defense Act – CSE Domestic Spying

Section 273.65 of the National Defense Act allows the Minister of Defense to give the Canadian Security Establishment a blanket authorization to spy on Canadians’ international communications. The Minister must articulate an activity or class of activities that the interception is to relate to, but this is a completely open-ended requirement. He might designate “terrorist activities”, but he might also designate “illegal activities”, “business activities”, or “religious and NGO activities”. The term “relate” requires only a very loose connection between the designated activity and the interception.

In his annual report for the year ending in March 2006, CSE Commissioner Antonio Lamer indicated that Department of Justice lawyers were interpreting these authorizing provisions differently than his own independent counsel, and that there were ambiguities in the legislation that should be addressed by Parliament. He also noted that the lack of clarity in documentation provided to him by the CSE to support Ministerial authorizations made it difficult for his staff to assess compliance with the legislation.

In reality, there is nothing in s. 273.65 or any other ATA section that prevents the CSE from trawling through Canadians’ emails and telephone calls with artificial intelligence in the same way the National Security Agency is doing in respect of Americans’ telecommunications in its highly controversial domestic spying program.

If the government insists on allowing the CSE to turn its powerful gaze to communications within Canada, it should be on an individual case by case basis and on terms at least as restrictive as those which govern CSIS access to domestic communications under the Canadian Security Intelligence Service Act and only after independent judicial authorization.

Security of Information Act

We need to examine and make changes to the Security of Information Act, (SOIA). As a result of the Anti-terrorism Act this new Act was created to address changes to the Official Secrets Act. While the SOIA incorporated most of the components of the old Official Secrets Act including Section 4 which deals with “leaks” or communicating secret information, there were changes which broaden the scope of information that can be withheld or for which charges could be laid. The SOIA replaces the “classified information” terminology from the Official Secrets Act and replaces it with the broader language, “information that the Government of Canada or of a province is taking measures to safeguard”.

While the entire Act needs to be reviewed, it is Section 4 which has received perhaps the most attention. It was under Section 4 that search warrants were executed upon Ottawa Citizen reporter Juliet O’Neill in January 2004 by RCMP officers in an attempt to find evidence that one of their own officers may have leaked information in the Maher Arar case.

In October of 2006 the Ontario Superior Court of Justice ruled that sections 4(1) (a), 4(3) and 4(4) (b) of the SOIA were unconstitutional as they violated sections 7 and 2(b) of the Canadian Charter of Rights and Freedoms. Section 4(1) (a) makes it an offence to communicate, unlawfully, secret or official information to persons not authorized to receive the information. The companion sections 4(3) and 4(4) (b) create offences for unlawfully receiving secret information and for transmitting secret information to someone not authorized to receive it.

In light of the Ontario Superior Court ruling and the expanded scope of material that is to be excluded from public dissemination, it is critical that a review and changes to the SOIA needs to be concluded at the earliest possible opportunity.

Parliamentary Oversight Committee

Canada is unique among western nations in its lack of a Security oversight committee. Over the course of the review we heard testimony from individuals and organizations who stressed the importance of creating a mechanism for overseeing disparate national security activities. In 2004 an Interim Committee of Parliamentarians on National Security was set up to make recommendations to the government of the day, it presented a report to Parliament in April of 2005 and on November 24, 2005, the government tabled a bill (C-81) to establish a National Security Committee of Parliamentarians.

We would support recommendation 58 in the majority report. We would, however, further strengthen the recommendation to ensure that any Committee has authority to oversee all security agencies. In the examination of the Air India tragedy and the events surrounding the deportation and torture of Maher Arar, to cite but two examples, we have seen and heard of too many problems created when information is improperly shared or withheld from one agency to another.

The National Security Committee must in addition to providing a review function, be empowered to oversee current polices and conduct to ensure their adequacies. We have throughout the course of the review heard that vast amounts of information are deemed of national security interest and therefore inaccessible to the public or judiciary. Therefore, the proposed National Security Committee must be able to examine this information and where appropriate provide a graduated scale for the release of previously classified information.

Security Certificates

The authors of this report having a different opinion on security certificates, you will find this section after the recommendations.

Recommendations

While the purpose of the ATA review was to examine the existing legislation and, while we cannot write an entirely new law, we would recommend that the existing ATA be terminated. However, if a new law were to be drafted, the following considerations should guide the process:

That new legislation seek to provide the utmost protection to, and not oppression of, our citizens;

That the new legislation be guided by the spirit and principles of the Charter;

That new legislation would prohibit “evidence” garnered from torture domestic or international, in our courts or tribunal;

That there be an absolute ban on sending people back to their country of origin or any other country where there is a reasonable risk of torture or death.

We recommend that in sentencing we consider intent and use organized crime sections of the Criminal Code to increase penalties where the motivation for the offence is terrorism against the state or individuals.

We recommend increased resources for judicial training in intelligence matters and would further reinforce the importance of independent judicial oversight to provide greater confidence amongst our citizens in the rule of law.

We recommend the immediate creation of a Parliamentary Oversight Committee to oversee and provide proactive direction to our security services.

We recommend that the Charities Registration (Security Information) Act and the sections of the federal Income Tax Act which can arbitrarily de-register charities be extinguished.

On the basis of the foregoing, we recommend that Canada meet, but not exceed, its international obligations, particularly with respect to interdicting the funding of terrorist groups.

Security Certificates

Opinion of Serge Ménard

MP for Marc-Aurèle-Fortin

Security certificates can be thought of as the accessory to a deportation order. That is why they do not apply to Canadian citizens. Banishment does not exist in Canada. Canadian citizens who represent a security risk are dealt with by our judicial system.

This mechanism for deporting an immigrant for security reasons has thus been part of Canadian legislation since 1978. It was, however, amended on June 28, 2002, and certain protections were eliminated at that time on the pretext of speeding up the removal process: the most important amendment was unquestionably the elimination of the right of appeal.

The current security certificates procedure is set out in the Immigration and Refugee Protect Act (IRPA): the ministers of Citizenship and Immigration (CIC) and Public Safety and Emergency Preparedness (PSEPC) can sign a security certificate attesting that a permanent resident or foreigner is inadmissible to Canada for security reasons.

Once the security certificate is signed, it goes to the Federal Court, which holds in camera hearings without the accused’s lawyer and the accused when the Court deems that the disclosure of certain evidence or testimony would be injurious to national security or the safety of any person.

The judge may hear the person against whom the certificate was issued. The Judge summarily informs the individual of the grounds for the application for deportation, but must not reveal the grounds or the evidence that it would not be in the public interest to make public. The individual therefore does not know completely either the charges to which he or she must answer nor what he or she must explain.

It is not properly speaking a judicial procedure. Moreover, at least one Federal Court judge has expressed unease at having to make a decision that involves an individual’s freedom under such circumstances.

Justice Hugessen writes:

I can tell you because we [the judges of the Federal Court] talked about it, we hate it. We do not like this process of having to sit alone hearing only one party and looking at the materials produced by only one party and having to try to figure out for ourselves what is wrong with the case that is being presented before us and having to try for ourselves to see how the witnesses that appear before us ought to be cross-examined. If there is one thing that I learned in my practice at the Bar ... it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition judges do not have that ... We do not have any knowledge except what is given to us and when it is given to us by only one party we are not well-suited to test the materials that are put before us.⁵

He notes as well that there is an essential difference between the provisions of the amended CEA and the IRPA regarding the hearing and the absence of one party and those that are held to obtain search warrants and warrants for electronic surveillance:

[P]ersons who swear affidavits for search warrants or for electronic surveillance can be reasonably sure that there is a high probability that those affidavits are going to see the light of day someday. With these national security affidavits, if they are successful in persuading the judge, they never will see the light of day and the fact that something improper has been said to the Court may never by revealed …⁶

It may not be a judicial proceeding, but for immigrants who have fled their country fearing for their life or safety, and who thus fear returning to it, the deportation order, if confirmed, is tantamount to an indefinite prison sentence.

These individuals are condemned without knowing all the reasons for the decision and without knowing all the evidence presented against them, thus, without being able to respond fully to it. They are incarcerated following partially secret hearings that neither they nor their lawyer attended.

For human rights advocates, this procedure incorporates the worst violations of the basic rights that are the main characteristic of fair and democratic societies. Section 10 of our Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Section 11 states:

Any person charged with an offence has the right:

a) to be informed without unreasonable delay of the specific offence

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal

Obviously, he or she is not “charged,” since he or she is not accused of anything. Nevertheless, he or she risks indefinite incarceration, which is reserved for the worst criminals.

Some proponents of these certificates derive some comfort from the fact that, in order to escape from this indefinite imprisonment, the person need only return to his or her country. They talk about a three-wall prison.

That is true for those who can return to their own country or even to another, but some cannot because they fear torture or death, or both, if they return to their native country and because no other country wants to accept someone that Canada has deemed a security risk.

For these people, the three-wall prison is bordered by a precipice on its fourth side.

So what was supposed to be the simple exercise of any sovereign country’s prerogative — the right to prohibit someone it considers dangerous from entering or remaining in the country — has become the symbol of a drift away from our system of laws towards practices that we normally considered characteristic of totalitarian regimes.

This is particularly true when the security certificates are issued against people who have been in Canada for a number of years, have started a family here, held down a job and lived a blameless life.

Here in Canada, we all feel that this procedure is not worthy of being applied to Canadian citizens. It must be remembered that the rights that are being violated are basic human rights, not privileges of citizenship.

The least that can be said is that this procedure must be seriously revised.

At the time we had to give our opinion on security certificates, the Supreme Court of Canada had not yet made its decision in the cases of Charkaoui, Harkat and Almrei, where it must rule whether this procedure complies with the Charter of Rights and Freedoms.

Before being made public, our opinion has to be translated and submitted to the Committee on Public Safety and Emergency Preparedness so that it can be discussed before being tabled in the House of Commons.

If the Court rules that the expulsion order issued pursuant to a security certificate is unconstitutional because it contravenes the Charter, it will render our reflections moot. If the ruling goes the other way, we feel, as do most of the members of our subcommittee, that these reflections could be useful. They will also be useful if the Court’s ruling is more nuanced.

We should then consider certain principles.

First, we acknowledge that it is a fundamental right of every country to refuse entry to a foreigner who presents a security risk.

If this right is exercised at the time, or shortly after, such people arrive in Canada, if their return to their native country does not pose a problem for their safety, or if they can be removed to another country willing to accept them, both the expeditious procedure and a decision based on a reasonable belief that they represent a security risk are more acceptable.

Recently, a Russian citizen who was travelling under several identities and carrying considerable sums of currency from several countries was deported without raising any concerns among human rights advocates.

It is after a person has been allowed to settle here as an immigrant for a certain amount of time that the question of respecting human rights arises. It becomes increasingly worrisome if a number of years have passed since his or her arrival in Canada and he or she has started a family here, held down one or several jobs and always led a blameless life.

We therefore feel that this deportation mechanism cannot be kept without a thorough revision in order to re-establish the appropriate balance between what is needed to fight terrorism and respect for basic rights. To that end, we are proposing six measures.

Abolition of arrest without warrant

First, the IRPA, which provides for arrest without warrant for foreigners, should be amended. It does not seem excessive to require that a warrant be issued for the arrest of foreigners, as is done for permanent residents. Let us remember that many foreigners live like Canadian citizens even if they have not yet obtained their citizenship. If it were necessary to arrest them to prevent the imminent commission of a criminal act, it could be done pursuant to section 495 of the Criminal Code, which states:

(1) A peace officer may arrest without warrant:

(a) a person … who, on reasonable grounds, he or she believes has committed or is about to commit an indictable offence;

In all other cases, it is normal that they not be arrested in an arbitrary fashion and that they benefit from the counterbalancing effect of the warrant.

The burden of proof

We also feel that the Federal Court judge should be convinced beyond any reasonable doubt that the individual represents a threat to the safety of Canadians before ordering his or her deportation. Since the individual cannot be charged with a formal offence, he or she at least deserves the benefit of reasonable doubt.

Restore the right of appeal

We also feel that there is no valid reason for having abolished the right of appeal. We think it is risky to leave a decision as important as returning an immigrant to his or her native country where he or she may be tortured in the hands of a single judge without the possibility of appealing that decision. Under the former Immigration Act, moreover, the individual had the right to appeal the removal action.

Secret hearings on the evidence

Some of the security information that is used to decide whether an individual represents a security risk is secret and it is important that it remain so. It could be because, if its source were revealed, it would endanger the lives or safety of our agents. It could be because it comes from our allies, who provide it to us on condition that it be kept secret. It could also be because we do not want to reveal the investigation methods that were used to obtain it so as to prevent the terrorists from learning how to elude them. That is what justifies not revealing part of the evidence and, sometimes, even the grounds for the deportation order.

We have already mentioned that judges are very uncomfortable having to decide as if it were a trial without the benefit of hearing the other side. On the other hand, if there must be a lawyer before them challenging the claims of the government’s lawyers, then that lawyer must be bound to secrecy if the judge decides that certain information must remain secret.

We are thus in complete agreement with the recommendations in Chapter Ten of the majority report regarding the amici curiae, those independent lawyers who have received security clearance and can serve as the legal representative of the accused during secret hearings. This institution was not found to be completely satisfactory in England, where it was tested, but it definitely represents an improvement over the current situation.

The risks of torture

At present, the Federal Court has no mandate to ensure that there is no risk of torture before confirming a security certificate. The Federal Court may very well therefore render a decision that will lead to an individual’s deportation to a country where he or she risks being tortured, in contravention of Canada international obligations as a signatory of the Convention Against Torture. Canada has moreover admitted before the UN that its security certificate procedure violates its international commitments.

We feel that this violation of Canada’s international commitments is unacceptable. When it analyses the merits of a security certificate, the Federal Court must absolutely decide, based on the evidence submitted to it, whether the individual risks being tortured in the country to which he or she is to be deported. If the Court decides that there is indeed a risk of torture and it further concludes that the individual represents “beyond any reasonable doubt” a threat to the safety of Canadians, it should then give the Attorney General a short period in which to bring formal charges against the individual under the Criminal Code.

A period after which security certificates could not be issued

Security certificates cannot be issued against Canadian citizens. Those that argue the need for them tell us that this is a privilege of citizenship. Except that the rights affected in the procedure initiated by these certificates are not citizenship rights but human rights. The right not to be deprived of one’s freedom without a fair and public trial, the right to be informed in a specific and complete manner of the reasons for which we are to be deprived of that freedom, the right to know the evidence against us and challenge it, and the right to a full and complete defence are basic rights of every human being.

It may be understandable that we agree to infringe on these rights for important security considerations when a foreigner enters the country, or shortly after, but the fact remains that, after a certain time, that individual must be treated, in matters of justice, like the other human beings who inhabit this country.

Conclusion

As we explained earlier on, this opinion will probably be made public after the Supreme Court’s ruling on the security certificates’ compliance with the provisions of the Charter.

That ruling may make this a moot point. If not, we continue to believe that the measures we are proposing are best able to re-establish the balance between individuals’ basic rights and public safety. If there is no risk of torture, we will always be able to deport an individual to his or her native country when he or she represents a real threat to the safety of Canadians and Quebecers and yet still respect human rights as much as possible.

Serge Ménard

MP for Marc-Aurèle-Fortin

Member of the Subcommittee on the Review of the Anti-Terrorism Act

Member of the Standing Committee on Public Safety and National Security

Security Certificates

Opinion of Joe Comartin

MP for Windsor—Tecumseh

We concur with the description of the character and use of the security certificates as represented in the majority report. Subsequent to the initial drafting of the report, one individual, Mohammad Mahjoub has been ordered released; however, two individuals remain in detention and are well into the third month of a hunger strike at a new detention centre in Kingston. It is apparent that the system was unprepared to deal with the Security Certificate detainees and with the substantial expenses that were incurred in building the Kingston facility. The governments’ lack of a clear plan to deal with the security certificate process has been demonstrated throughout the entire detention process, first in a provincial facility and now in a federal centre.

Because the security certificate procedure set out in the Immigration and Refugee Protection Act (“IRPA”) is a judicial proceeding [presided over by a Federal Court judge], and because the serious consequences facing those named in certificates [loss of liberty, a deportation order, and the possible removal to torture], strong procedural safeguards are required. However, under the current legislation, those strong procedural safeguards are severely lacking or non-existent.

One well-recognized aspect of fundamental justice is the right of full answer and defence - the right to know the allegations against oneself and the opportunity to respond to those allegations. In the present certificate process, that right is, for all intents and purposes, non-existent. Critical evidence may be presented to the presiding judge in the absence of the detainee and his/her counsel. Not only will this evidence not be disclosed to the detainee or his/her counsel, it cannot even be described in a summary. Nevertheless, the judge can consider this evidence in determining that the certificate is reasonable. Such a finding cannot be appealed or judicially reviewed and results in a deportation order against the detainee which also cannot be appealed. Under the current scheme, the detainee may never know the reasons why he is being deported from Canada, let alone have a meaningful opportunity to challenge those “reasons”.

The government has not shown that the protection of national security requires that individuals’ right to fundamental justice be compromised through the use of secret evidence. On the contrary, the fact that no such measures are applied to citizens, despite the fact that citizens could pose as much of a security threat as non-citizens, strongly suggests that the measures are in fact not necessary and represent unfair discrimination against non-citizens.

One proposal that has been made to better safeguard the rights of the individual named in a certificate, while at the same time protecting Canada’s security interests, is the use of an amicus curae or “special advocate”. The example of the United Kingdom is often cited by those who support modifying, rather than abolishing, the security certificate system. However, these proceedings, where security-sensitive evidence is not disclosed, and a “special advocate” who has the right to attend and participate in in-camera sessions, have been subject to several court cases that have ruled against the arbitrarily imposed limits.

Given, that the UK Lords of Appeal have ruled against provisions of the process and that Ian MacDonald, QC, a Special Advocate with over 7 years experience quit over the failure of the government to address the problems with the system, it seems hardly an ideal proposal. It also, strengthens our contention that a system that denies the right of full answer and defence cannot be corrected through mere procedural adjustments.

Another area where the security certificate scheme fails is the distinction between foreign nationals and permanent residents for the purposes of detention. Once named in a certificate, foreign nationals are automatically detained, without warrant. Unlike permanent residents named in certificates, who have a right to an immediate review of their detention, foreign nationals have no right to have their detention reviewed until at least 120 days after a finding that the certificate is reasonable, if by that point they have not already been removed from Canada. Although the law contemplates making distinctions between permanent residents and foreign nationals in certain circumstances, there is no rational reason for this distinction, as the risk one poses to national security is unrelated to one’s immigration status. As a consequence, the security certificate procedure deprives foreign nationals of their right not to be arbitrarily detained under section 9 of the Charter and under international law, including article 9 of the International Covenant on Civil and Political Rights. With respect to having their detentions reviewed, foreign nationals and permanent residents ought to be treated equally.

Over the course of the review of the ATA, (almost two and a half years) the Committee has heard from many witnesses who have presented a number of proposals as to how to build in safeguards into the Security Certificate process. However, at the end of the day it is our belief that despite the recommendations, it is not possible to adjust the existing process so we have a system that provides for a full defence and full hearings.

We would recommend that because it is fundamentally unjust and because it is not essential to protect security, the certificate process should be abolished.

We recommend the immediate abolishment of Security Certificates under the Citizenship and Immigration Act.

We would like to acknowledge the valuable input and contributions made by the International Civil Liberties Monitoring Group. Their advice and expertise over the course of the review of the ATA made our work in writing this report much easier. Thank you.