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STANDING COMMITTEE ON FINANCE
COMITÉ PERMANENT DES FINANCES
[Recorded by Electronic Apparatus]
Wednesday, May 16, 2001
The Chair (Mr. Maurizio Bevilacqua (Vaughan—King—Aurora, Lib.)): I'd like to call the meeting to order and welcome everyone here this afternoon.
The order of the day is Bill C-16, an act respecting the registration of charities and security information and to amend the Income Tax Act.
We have the pleasure to have with us the Hon. Lawrence MacAulay, Solicitor General of Canada; and the Minister of National Revenue and Secretary of State for the Economic Development Agency of Canada for the Regions of Quebec, the Hon. Martin Cauchon. Of course, you'll be introducing your officials as well.
Mr. MacAuley, welcome. I believe this is the first time you've appeared in front of the finance committee.
Hon. Lawrence MacAulay (Solicitor General of Canada): You're right, Mr. Chairman.
The Chair: We look forward to your comments, as well as yours, Minister Cauchon. We will begin with the Solicitor General.
Mr. Lawrence MacAulay: Thank you very much, Mr. Chairman.
First, I'd like to introduce my colleagues: Paul Kennedy, Senior Assistant Deputy Solicitor General; and Mr. Ward Elcock, Director of CSIS.
I'm pleased to be here today to talk about Bill C-16, the charities registration act. The legislation is an important step in Canada's fight against terrorist support activities, while at the same time preserving the integrity of Canada's charity registration system.
Undoubtedly, terrorist fundraising takes place in Canada. Every one of us has had the experience of being asked to financially support a worthy cause. The sad reality is that not all that money goes to charitable causes in all cases, although most of the money donated to charities in Canada is used as the donor intended. There are a few charitable groups that do provide support to terrorist organizations. It is these few groups that will be affected by this bill. By making sure that the money donated to charities in Canada is being used appropriately, Canadians can continue to have confidence in the charitable registration system. Canadians have always been a generous and compassionate people. This bill will ensure this generosity will continue.
There has been some criticism that the process proposed in this legislation is not transparent. It has even been linked to a star chamber situation. This is not the case at all. This legislation provides very strong checks and balances to ensure fairness and transparency in the decision-making process.
If on the basis of a file review CSIS and/or the RCMP possesses strong and credible information that an organization operates in the support of terrorism, the information would be referred to the Minister of National Revenue and myself for our consideration. If both of us conclude independently that there are reasonable grounds to believe an organization has made, makes, or will make resources available to terrorism, we would both sign a certificate to that effect. If both of us sign the certificate, I as Solicitor General would then provide the applicant with the notice of the certificate. Then the matter would be referred to the Federal Court for judicial review in no less than seven days.
The process includes a delay in the filing of the certificate. This provision is a direct response to the concerns raised in the consultations with stakeholders. It allows the applicant to have an opportunity to seek an order from the court directing that the organization's identity not be published or that the documents be held as confidential until the court has determined whether a certificate is reasonable or whether the documents filed with the court should be treated as confidential.
The judge would then determine whether the certificate is reasonable or should be quashed. Prior to reaching any such decision, the judge would first review all information submitted to my colleague—the Minister of National Revenue—and myself without the presence of the applicant or the applicant's counsel. Once the judge has finished the review, he or she would provide sufficient information to the applicant in summary form so that the organization is reasonably informed of the circumstances giving rise to the certificate.
The Federal Court would ensure due process and fairness by seeing to it that the applicant or registered charity is provided with a reasonable opportunity to be heard in a public forum and that it has the right to legal counsel and the opportunity to introduce evidence and to call witnesses.
Only after the certificate has been confirmed as valid by the Federal Court would the Canada Customs and Revenue Agency take action to deny or revoke the organization's charitable status.
I have heard criticism that this legislation does not go far enough, that it will not stop terrorist fundraising and does not criminalize fundraising. I want to emphasize that this bill is one element, and a very important one, in an integrated approach to combat terrorism both at home and abroad. The legislation will support the fundamental objective of deterring organizations with terrorist links from seeking registration and warning those that already have registration to reform their activities.
Action to counter terrorist activities must be taken on a range of levels, from greater cooperation and collaboration to joint programs and legislative initiatives.
This bill is a key tool designed to close the door on one means of fundraising. It should not be criticized for what it is not designed to do. The fact that we have not yet given full effect to the International Convention for the Suppression of Financing of Terrorism should not be used as a criticism against the bill before us today.
In 1995 Canada hosted a G-8 ministerial meeting that resulted in the development of a ten-point action plan. A key message in this plan called upon the participating countries to implement appropriate means to assist in depriving terrorists of access to funds. The follow-up G-8 ministerial meeting in 1996 set out 25 recommendations for action. All these recommendations were later endorsed by the United Nations General Assembly. Two of these recommendations deal specifically with the prevention of fundraising for terrorist activities through charitable fundraising. This government remains committed to fulfilling its international obligations.
Fundraising for terrorism is a complex activity. This fact was underscored in the report of the Special Senate Committee on Security and Intelligence, which was approved in 1999 by the other place. The committee noted that the problem of fundraising by groups with terrorist affiliations presents a public policy conundrum, to which the committee had no novel solution. However, the report did recommend that the government address the problem of organizations with terrorist affiliations obtaining charitable status.
The bill is not intended to cast a shadow over the charity system, nor in my view does it do so. It does not hamper the legitimate, necessary, and welcome work of many charitable organizations in Canada. It is intended to prevent the few organizations that do not abide by the spirit of the charitable endeavour from issuing charitable receipts for funds that are in fact going to support terrorism.
The bill does not include a definition of terrorism. Canadian courts regard terrorism as a concept that is well understood and unnecessary to define. In order to convey its meaning, it is the responsibility of all registered charities to know where the money received by donations or otherwise is being spent. It is also the responsibility of each registered charity to ensure that no support is provided to any terrorist organization. This has not changed.
There have been comments that this legislation will be politically or religiously applied and that various ethnic groups will be targeted due to the use of profiling. It has been suggested that this legislation will lead to more racial stereotyping. I can assure you that this legislation will be applied to any organization that supports terrorism. What has been targeted in this bill is terrorism, nothing else. Through this bill the Government of Canada is safeguarding the interests of all Canadians and has taken an important step towards eliminating terrorist fundraising. Our charitable system is something to be proud of. This bill will keep it that way.
The bill has been brought to this committee before second reading precisely because we want to engage interested Canadians in discussions on the bill itself and the process set out in it. I am very much looking forward to receiving your report on Bill C-16.
Thank you, Mr. Chairman.
The Chair: Thank you very much, Minister.
The Hon. Martin Cauchon (Minister of National Revenue and Secretary of State (Economic Development Agency of Canada for the Regions of Quebec), Lib.): Thank you Mr. Chairman.
Greetings to my colleagues, both from the government party and the opposition. I particularly wish to welcome the Parliamentary Secretary to the Minister of National Revenue, Madam Sophia Leung, who is with us today.
I would like to begin by introducing my colleagues: Mr. Bill McCloskey, Assistance Commissioner at the Canada Customs and Revenue Agency; Madam Maureen Kidd, Director General of the Charities Division; and Madam Donna Walsh, Acting Director of the Special Compliance Initiatives Division.
Mr. Chair, thank you for this wonderful opportunity to talk about Bill C-16. Today I would like to speak to the need for Bill C-16 and to address certain concerns that have been raised about the bill.
Terrorism is a complex worldwide problem. Bill C-16 is part of the solution. By making it more difficult for terrorist groups that want to use charitable donations to finance their activities, we will be helping to neutralize these kinds of activities before there is a need to deal with their consequences.
Recent media reports about the trials of people suspected of international terrorism have revealed that Canada, like every other country in the world, could well be a theatre of activity that supports terrorism.
Ours is a caring society, and among the many values that define our country and how we govern ourselves, helping one another and sharing responsibility for the less advantaged in society and in the world are perhaps some of the most fundamental. This is what gives strength to Canada's charities and this is what terrorist organizations seek to exploit.
There are currently over 80,000 organizations in Canada registered as charities under the Income Tax Act. The contribution that registered charities make to Canadian society is invaluable. We therefore want to ensure that public confidence in Canadian charities is not undermined because of the actions of a small minority of organizations. By creating this distinct scheme to protect the legislative framework already in place for registered charities under the Income Tax Act, we are making it clear that we see Bill C-16 as a special set of extraordinary measures that are not at all relevant to the vast majority of Canadian charities.
Around the world, the financing of terrorism is known to be a complex problem. One strategy or one measure alone cannot solve it. However, through co-ordinated efforts and partnerships, both at home and abroad, we can implement a wide range of integrated practical measures that will be particularly effective in coping with the problem.
That is why, Mr. Chair, we are here today. This legislation represents an important new tool in our fight against terrorism by putting in place a fair and open process to prevent groups with terrorist affiliations from obtaining or keeping charitable registration to support their acts. Its value as a deterrent against those who will attempt to abuse charities in our charities registration system should not be overlooked.
Mr. Chairman, it is essential to act now. The director of the Canadian Security Intelligence Service has told the government that a small number of international terrorist groups have for years been using a number of Canadian organizations that have the status of registered charities, or who have applied for such status in order to finance their activities. It is this system that Bill C-16 is aimed at eliminating.
The time has come, Mr. Chairman, to send a clear message to these organizations and other groups by taking action that will give the government an effective way of taking away from terrorist organizations their status as registered charities, and to prevent them from becoming registered as such in the first place.
There are some who have questioned why this legislation is required. They've argued that there is already a process in place to review applications and to revoke the charitable status of organizations that do not meet the requirements of the Income Tax Act.
Under the current registration process administered by the Canada Customs and Revenue Agency, Mr. Chair, information that is classified for national security reasons is not used to deny or revoke charitable status for organizations.
Basically, this means that in a number of cases, very important but also very sensitive information that could prove links between a charity and terrorist activities could simply not be used.
Without such a special statutory framework designed to protect information of this nature during the judicial review process, the information in question could be disclosed if the decision to deny or revoke registered charity status were appealed. Not being able to use such information is clearly harmful to the integrity of the system used to register charities.
That is why it is necessary to put in place a scheme that is specifically designed to allow the government to use and protect relevant classified information in its decision to deny or revoke charitable status. These are measures that are necessary even if changes are made to the Criminal Code to outlaw fundraising and other forms of support for terrorism in Canada.
The approach and vision under Bill C-16 mirrors provisions embodied in the Immigration Act, a model that has withstood the test of time and the courts. It is, Mr. Chair, important to know that the Federal Court has determined that the process in the Immigration Act respects the principles of fundamental justice and conforms to the Canadian Charter of Rights and Freedoms.
Mr. Chairman, contrary to what a number of people opposed to this project may think, it is not a secret process. The level of transparency is indicative of our commitment to maintaining an open and equitable system. We will take these measures solely with a view to using and protecting the relevant classified information needed for national security and to protect the public.
Mr. Chair, you will also hear criticism that this bill is unfair because it does not define terrorism. But as my colleague, Minister MacAulay, just said, the courts have consistently ruled to date that terrorism is a concept that is well understood and unnecessary to define in order to convey its meaning. They have held that even though the term “terrorism” is not statutorily defined under Canadian law, it is not a word that can be considered so vague as to be devoid of sufficient certainty of meaning.
It has been alleged that this bill denies organizations procedural fairness, that charities will have no chance to know the nature of the evidence against them and will not have an opportunity to defend themselves against unfair allegations. In fact, Mr. Chair, what this bill will do is assure that charities will have the protection of procedural fairness and due process in our legal system to assist them with an automatic and independent judicial review. This judicial mechanism includes both an obligation on the part of the Federal Court to provide the organization with a summary of the information available to the judge so that the organization is reasonably informed of the case against it and the opportunity for the organization to challenge that case in open court.
The organization has the right to legal counsel, to introduce evidence, to call witnesses, and to cross-examine.
Under this bill, the Canadian Customs and Revenue Agency can only deny or revoke the status of a charity once the certificate is upheld by a Federal Court judge. And even then, it can only be for three years. The certificate may be revised if the organization provides the department with new information to prove that the status of the organization has changed significantly.
Mr. Chair, this is, I do believe, a balanced and fair-minded process. Moreover, as has been done in the past, the CCRA will continue its current administrative practice of identifying concerns that could result in denial or revocation of registration to an applicant for charitable status or a registered charity to satisfy the need to be open and fair to these organizations.
This will continue to be the basis of federal efforts in cases where information of this nature could be disclosed without risk to Canada's national security or the safety of individuals, and indeed where the circumstances suggest that an organization will address the identified concerns effectively.
Canada is not immune to the terrorist threat. Activities that support terrorism, including financing, lead directly to the commission of fatal terrorist acts. This problem is a concern to all Canadians. It is therefore altogether normal that the people of Canada should want the government to do something about it.
Mr. Chair, Canadians want and deserve a charity system that works and is not open to abuse. We have an opportunity to show them that not only is this government taking action to ensure this, but also that this legislation will bring about improved public safety for Canadians and the world community.
Thank you very much, Mr. Chairman, and thanks to all my colleagues.
The Chair: Thank you very much, Minister. We'll now proceed to the question and answer session. We'll begin with Mr. Epp and a five-minute round. Let's keep our questions short, and the answers as well.
Mr. Ken Epp (Elk Island, Canadian Alliance): Okay, here's the first short question. Right now, when a charitable organization has their registration revoked, are the reasons given to that organization, and are the reasons made public?
Mr. Martin Cauchon: When we decide not to proceed with a demand for a charity organization, reasons are given to the organization—
Mr. Ken Epp: But they're not made public?
Mr. Martin Cauchon: They are given directly to the organization, but they are not made public.
The problem we have at this point in time is that there's an appeal process that exists within the framework of the legislation, so an organization tends to proceed to the appeal process. The problem we have as a government is that, if we have information obtained through an intelligence body, for example, we can't use it because it's a question of national security. The problem we're facing when going to court is that both parties have to make public all the information that they deserve to exercise, that they deserve to use.
Mr. Ken Epp: Okay. I'm thinking right now of an organization that is in no way connected with anything terrorist. They have had their status revoked by CCRA, so they cannot issue tax receipts, okay? They can still collect money, but they can't issue tax receipts. Can they go public with the reasons they've been given by the department? Or are they forbidden to do that?
Mr. Martin Cauchon: What happens normally is that.... We have to understand all this is managed under the Income Tax Act. Within the parameters of the act, information is deemed to be confidential with the organization. So when we take the decision not to register an organization, we just provide the organization with the essential information that made us take that decision. If they decide to proceed in court, of course, it's their decision, so documents or information will be made public once in court because it's a public forum.
Mr. Ken Epp: But you said you can't challenge it. Once it's decided it's closed.
Mr. Martin Cauchon: The problem we're facing here is very simple. If you take a standard case, normally our decision will be based on some components or some elements that most of the public knows. If they decide to go to court, of course they will make their point in court. Then afterward the department will have to answer them back. It's just a standard process—the standard proceeding that we all have to go through once in court.
The problem we're facing as a department is that, for example, if at this point in time we decided to take our decision based on the information we receive from CSIS, and we know that if that information is made public, it's a question of national safety, or national security, or the information made public could be harmful for some individuals here.... So when they decide to go to court in appeal of our decision, obviously we can't use that information in order to protect our information, as well as to protect Canadian society, to protect individuals.
So what we're seeing here is that in order to make sure that organizations—and very few of them.... We have to be clear here, and my colleague Lawrence MacAulay said it in his speech, that most of the charity organizations are using their right for legitimate purposes. There's no doubt in my mind that just very few of them, from what we know, would use the charity organization for illegal activities. So we just have to understand that there are very few of them.
What the bill is intended to do, first of all, is to make sure we will protect the integrity of the charity organization system and the charity registration system, and that we also will make sure that, based on the tests of the legislation and reasonable grounds, if we believe that one charity organization in Canada is using the money in order to fund terrorist groups anywhere in the world, then we're going to be able to use that information in order to deregister or to refuse the demand of registration, while at the same time protecting the information and keeping that information confidential, which is key to our society.
Mr. Ken Epp: How do you propose to ever persuade a judge that the certificate of deregistration is valid if you're not going to bring forward the connection that makes it invalid? Are you just going to go up to the judge and say, “Here, trust us”?
Mr. Lawrence MacAulay: We will. The fact is that it will be brought to the judge. All the information will be brought to the judge, but there's certain information that the judge will receive that cannot be made public, for security reasons or because it could cause harm to individuals in other countries. That's why this legislation is important—because we could have information through CSIS or the RCMP that would indicate that a certain group is sponsoring a terrorist organization. That information would be made available to the judge but would not be made available in an open court, because, if it was, then the individuals that sent the information or obtained the information...it would be harmful. In a number of ways, it could cause a security problem. That's why we need this special legislation.
Mr. Ken Epp: Okay. So what you're saying, then, is that this decision is going to be made by the two ministers. That's what I think this legislation says. Then they're going to take this to a judge, and that judge is in a closed room somewhere. He's going to look at what you've presented, and then he or she is going to write a certificate, which in seven days has to be given to the organization, and there is no appeal to that. It's the end of the matter. That's what you're telling us.
Mr. Lawrence MacAulay: What I'll do is let my assistant deputy minister explain the process, so you'll be clear.
The Chair: Mr. Kennedy.
Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, Policing and Security Branch, Ministry of the Solicitor General of Canada): Just to help you, we've had a process. We've taken this one; we've modelled it after a process that currently exists in the Immigration Act in section 40.1. That provision has existed since about 1989 or so and was amended slightly in the early 1990s, and that process deals with a refugee who comes to the country and whether or not the person is a member of a terrorist organization or organized crime. The judge or the administrator there can hear the same kind of thing—credible evidence, and so on.
We crafted a regime there because you're stuck with the same problem. You have to try to find some device that creates a balance between the need to protect national security or police information, which in this case could be human sources, ongoing investigations, or confidential relationships with other countries. Those things the courts have all recognized as being worthy of protection. On the other side, there is a strong tradition in this country for a fair process, where the person can know the charge they're facing and address it.
We've tried to craft a regime in both those pieces of legislation including this, where the ministers will get the full evidence. They will get the full evidence. That evidence, then, is given in its entirety to the judge. The judge then looks at all the evidence, and the judge is the one who makes the determination as to whether or not the disclosure of that information would cause prejudice to national security. The judge has to balance those two competing interests and has the power to draft a summary, and then, obviously, provide a summary of the evidence to the other side to make them aware of what case they have to meet. So the other side will in fact get a summary of the evidence.
If the judge feels there is a piece of evidence that is relevant and must be disclosed in its entirety in an open court to the other side, the state is going to have to make up its mind at that time—“Do we proceed with that piece of evidence, or do we withdraw that piece of evidence and and say we're not going to rely upon it?”—and the judge disabuses his or her mind of that piece and then you go ahead with that. So in some cases, the state is going to have to consciously weaken its case by withdrawing evidence.
That model is currently in Canadian legislation and has been used for over a decade. It is a model that has been commented fairly favourably upon by the European Court of Human Rights, which has recommended to other jurisdictions that they look at the Canadian model.
In addition, before the U.S. Congress right now is a piece of legislation that is modelled upon the regime we've crafted as well. So we've tried to craft a regime there that allows the judge to know the entire case, and for the judge, as an independent party, to craft a summary and make the appropriate case. In many cases, some of the evidence may be disclosed in its entirety because it is not problematic, but there has to be a safeguard for those portions that in fact are problematic.
The Chair: Thank you, Mr. Kennedy and Mr. Epp.
Mr. Ken Epp: Put me on the list for the next round, please.
The Chair: Pierrette Venne.
Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Good day gentlemen.
The purpose of Bill C-16 is to make it impossible for an organization that is involved in acts of terrorism to benefit from charitable tax status. Although combatting terrorism is the original reason for the bill, it does not have a definition anywhere, as the Minister pointed out elsewhere.
The absence of definitions nevertheless raises some concerns, Mr. Minister, because the procedure that could lead to the denial or revocation of charitable status is initiated on the strength of information provided by CSIS. As CSIS appears to have serious problems in making a distinction between legitimate protest activities and activities that could constitute a genuine threat to national security, these concerns are definitely justified.
To begin with, what, according to you, Mr. Minister, constitutes a terrorist act? In addition, what do you intend to do to ensure that the term is interpreted in the strictest sense rather than given a broad and liberal interpretation, both by you and CSIS? That is my first question.
The Chair: Who would like to answer that question?
Mr. Lawrence MacAulay: Thank you very much.
First of all, if you are aware, the courts have indicated that it's not necessary to define terrorism, but what you would look at is each case and the evidence that's presented or given to the Minister of National Revenue and myself.
The fact is, if an individual is trying to, let's say, bring down a government or achieve its own ends by violence against people or property, that would be an example of what terrorist activity could be. But it's a very wide scope. It's my understanding that even the UN hasn't officially indicated exactly what terrorism is. If you do, it's a very wide scope, as the courts have indicated.
Ms. Pierrette Venne: Don't you think that our legislative role involves legislating and hence defining?
Mr. Lawrence MacAulay: In this situation, when you evaluate around the world to find an exact definition for terrorism, it's about impossible. So for us to clearly define it, all that would do is weaken the bill.
We can't make a direct path for the bill. What we have to do is evaluate the situation that the Minister of Revenue and I receive, and if it's to achieve these ends by violence against persons or property, or it could be other means, too, then we would have to decide whether we feel this group is in fact supporting a terrorist activity or not.
Mr. Martin Cauchon: This is what is recognized by jurisprudence. We know that there is no definition of the word "terrorism", even in the Criminal Code.
Jurisprudence has had to consider the matter on numerous occasions. As my colleague said, merely coming up with a definition or defining parameters would basically, at the end of the line, end up taking away tools or options that we would like to have in this bill. Given what my colleague has just said, it is possible to determine whether an act constitutes terrorism by looking at the facts and the documents brought before us. There is not only one form of terrorism. Nor is it possible to come up with inflexible criteria. There is no single case that can be used as a precedent. It is a combination of the factors that we are called upon to review and analyze. If we look at the literature and the jurisprudence in this area, that is what jurisprudence appears to say.
Mr. Chairman, further to the relevant question from our colleague, it is interesting to note that while we will be called upon to decide on the basis of the evidence submitted, that a process has been set out for how to go about it. The charity would go before the Federal Court, and a Federal Court judge would also be required to rule on the case on the basis of his or her knowledge, judgment and experience.
In conclusion, Mr. Chairman, I think that there is a kind of unanimity on this: it would appear to be impossible to define the term “terrorism” on the basis of precedents and various cases of jurisprudence.
Mr. Lawrence MacAulay: If you'd like a more legal opinion from the assistant deputy minister, he can give it to you. Is that satisfactory?
Ms. Pierrette Venne: I'd be glad to listen to him, if he can succeed in convincing me...
Mr. Lawrence MacAulay: I hope you were convinced.
Mr. Paul Kennedy: I hope I'm here to inform; it's not for me to convince, but hopefully assist members in discharging their duties.
As the ministers have quite candidly pointed out, there is no internationally accepted definition of terrorism. There are hundreds of definitions in a variety of statutes.
I think the actual concept came from the French Revolution, a regime of terror. I think we all accept the fact that, at its core, it's the use of violence or the threat of violence against persons or property for an objective.
What we've all learned over that period of time is that the objective mutates and the nature of the threat changes. We've gone from a simple world of maybe assassinations, in one case, to, today, evolving concepts of cybercrime. So it is very difficult to actually craft a definition that would be all-inclusive and responsive to all the situations, because as the world changes, causes change and means change. As both ministers have indicated, the courts have had no difficulty themselves in recognizing a terrorist incident when they are confronted with it.
The other challenge that comes up frequently in cases is whether or not a term is vague or overbroad in its definition or terminology. The courts in fact have been very sensitive to that. They have been wary of the fact that in the state's actions to formulate policy, which is obviously what we're trying to do here today, in furtherance of a valid social objective—and I think the suppression of terrorist funding is a valid social objective—you cannot bring such a position to it if the subject matter does not lend itself to it. That's what you have here. You have a concept that people recognize when they see it, but it's also a concept that evolves.
The Chair: Thank you, Madame Venne.
We'll now move to Ms. Leung.
Ms. Sophia Leung (Vancouver Kingsway, Lib.): Thank you, Mr. Chair. I want to thank Minister MacAulay and Minister Cauchon for their presentation.
When you talk about charitable organizations, they involve many members and there are people who perhaps penetrate into an organization and utilize the means of the organization to meet their own purposes. So how can you differentiate between them and punish an organization because of a few people who want to fulfil their purpose? This could be dangerous and attack our democratic values.
Mr. Lawrence MacAulay: Sophia, what you're talking about is if a few people do something to support terrorism within a large organization, does that organization itself suffer?
Ms. Sophia Leung: Yes.
Mr. Lawrence MacAulay: What happens, of course, is, first of all, we would inform the organization that this activity takes place.
We would indicate that this is going on then, and in fact that gives the organization the opportunity, right there and then, to clean up their act. Should they do so, I would expect that the Minister of Revenue and myself, when we evaluated the situation again, would not issue the certificate.
This is just meant to clean up organizations that are supporting terrorists, or fundraising. There can be situations where a group needs the opportunity, perhaps through a mistake or whatever, in order to clean up their act. If they do that, we don't sign the certificate.
Ms. Sophia Leung: If the organization still—
Mr. Martin Cauchon: We don't make any differentiation in the sense that, based on the piece of legislation we have in front of us, Bill C-16, if it appears that an organization may have some links with terrorist groups in the world, even though it's a few people within the organization, we'll proceed in applying the law.
But then, at the end of the day, if the judge comes to the conclusion that indeed the certificate was based on reasonable grounds, they will lose their registration, or registration will be refused. Then what they can do is use the standard path we have within the Income Tax Act, that is to say to transfer their assets to another organization within a year.
Ms. Sophia Leung: So their certificate will not be expired. It's still eligible?
The Chair: Mr. Kennedy, do you want to clarify that?
Mr. Paul Kennedy: I think we're dealing with two issues here.
One issue I think is an organization that is otherwise acting in good faith and has a few people it's unaware of who are redirecting moneys inappropriately. The Minister of Revenue has an administrative process that would allow a dialogue to occur, where we advise that person, if possible, that there's something untoward. So those institutions that are being abused would have that opportunity; we would try to craft that.
The other issue is, assuming no action is taken on their part to clean it up, we then have the case in regard to an institution that's involved in this behaviour where we'll proceed with the certificate issue.
The other aspect after that is what happens to an organization in respect to which a certificate has been issued, and I think Minister Cauchon was dealing with this.
Mr. Lawrence MacAulay: But she is asking about the first one.
Mr. Paul Kennedy: Yes, he was dealing—
Mr. Lawrence MacAulay: And the first one is, they do have the opportunity.
Mr. Paul Kennedy: The second issue is, where we issue a certificate, then you obviously have an opportunity to correct your affairs, reconstitute yourself, come back to the ministers and indicate that there has been a material change of circumstance.
That allows them to reconsider whether or not the certificate should be cancelled. So you have an opportunity to make a correction in that way. If you don't take that correction activity, then there are other means available to you to transfer your charitable assets to another charity to protect the ongoing activity.
So there are three things I think that are at play.
Ms. Sophia Leung: Thank you.
The Chair: Thank you, Ms. Leung.
We'll go to Mrs. Barnes now.
Mrs. Sue Barnes (London West, Lib.): Thank you, Mr. Chair and Ministers.
I would think that Canada's commitment to the International Convention for the Suppression of Financing of Terrorism is a very laudable goal with which I think everybody in this room and all our parties can agree with. But if this bill is passed in its present form, I don't think this bill in and of itself goes anywhere near fulfilling that. In fact, I think we would definitely have to do some sort of criminal sanction and change our Criminal Code to satisfy our obligations there. I want to make clear and have you confirm to me that you do not agree that this fulfils our obligations internationally.
Mr. Lawrence MacAulay: You're absolutely right. This is one small step, but a major step. In 1996 we had the G-8 conference, and there were 25 recommendations given. Two very important recommendations were on the charitable status of terrorist fundraising, and this is in fact what we're addressing here.
We've indicated, as you're aware, Sue, a number of times that there are more steps to be taken. But this is the first step, a very important step, in the legal process. It's the step the G-8 countries want us to take.
Mrs. Sue Barnes: In fact, what this really does is just disallow the tax deductibility of wrongfully headed donations. That's the only thing it really does, and it could in fact penalize a charity for all of its other funds and raises quite high the standard of knowledge of where the flow of money is going for all charities. In other words, there's a very high bar here now for every charity if this bill is passed in its present form to know where their money is going.
Mr. Lawrence MacAulay: It's the responsibility of the charities to know where the money is spent, and if it's not spent appropriately then it's the problem of the charities.
Mr. Martin Cauchon: If I may add here, indeed, it doesn't fulfil our international obligation. It's one component of what we intend to do as a government. As Lawrence just mentioned, the organization has the duty vis-à-vis Revenue Canada to know what they're doing with their money.
To come back to Sophia Leung's question in regard to a few people involved in an organization, the answer has been quite properly put by Mr. Kennedy. But I would like to tell you that of course we have laymen organizations, and they're obliged to have good management and due diligence. If a few people are involved in the organization and management of the organization don't know that, and we know it's a good organization, with good management, and they're proceeding with good due diligence, then, as Mr. Kennedy said, we will inform them. But if we realize at the end of the day that it's a sloppy organization and there's a huge lack of seriousness, we may issue the certificate as well.
Mrs. Sue Barnes: One of the questions I had is why the CCRA did not ask for an amendment to the Income Tax Act to make the information they cannot now use—because it goes public—confidential as opposed to going through this process.
Mr. Martin Cauchon: It's pretty simple. It's because the information we're getting through the intelligence body can't be used in court at this point in time, because when you're going to court the information you're using against another party has to be made public so that you can have witnesses who can cross-examine as well.
So we decided to proceed with the bill because if we want to be able to use that information, we have to set up a system in order to find a good balance between the charity organization system we know and the question of the protection of our society and the opportunity for us to use all information to which we can have access. This is the balance that was referred to at the beginning of the presentation by Mr. Kennedy.
This is what we tried to find with that bill. And because it was impossible to use safely and to protect that information, we decided to proceed from that bill with another judicial process.
Mrs. Sue Barnes: Your certificate could last up to three years, and there is a process where your charity could get an order from the court for non-publication. I'm wondering how practical you think this will be in reality. You're essentially having an accusation against a registered institution doing charitable works in this country. They need to have their operations. They don't need to be harmed in the process. Up to three years is a long time, and, practically speaking, if you go after an organization, in reality do you really think it will be covered properly?
Mr. Martin Cauchon: Clause 13 of Bill C-16 tells us that indeed a certificate will last for three years.
Of course, you refer to the question of the confidentiality of the organization up until the time there is a final decision. That is an important element you just raised, because, as you know, before proceeding with the bill we went through a consultation process with stakeholders. A few months before we decided to table that bill, some groups told us they were very much concerned about this question of confidentiality. If, for example, at the end of the day it appears that a judge will decide that the certificate wasn't good, they will have cost their organization prejudice and damages.
So there is a section of Bill C-16, subclause 5(3), that gives the opportunity to organizations to ask the judge to protect their identity up until the end of the judicial process. It's quite easy to use, and I'm pretty sure most of the organizations are going to use this subclause 5(3).
Mrs. Sue Barnes: Mr. Kennedy, is this on balance of probabilities, the civil standard or the criminal standard, beyond a reasonable doubt?
Mr. Paul Kennedy: This is a civil standard we're dealing with, and for the whole case it's whether or not there are reasonable grounds to believe. It's not a criminal standard, which is beyond reasonable doubt. This is an administrative hearing process, and with reference to the application we just referred to for non-publication, it's one that currently exists under Federal Court rules. You have that ability. We've put it in here to clarify that. And of course it would be up to the judge, and of course anyone who published it in the face of an order would be subject to the contempt procedures of the court. That's how that is.
But the evidentiary burden is here. There has to be credible evidence and reasonable grounds.
Mrs. Sue Barnes: That's my point, though. If this was somehow in the Criminal Code and we were attacking it this way, we would have to have the criminal standard of beyond a reasonable doubt, which would be much more difficult to prove, but also the repercussions to organizations would be a lot better for them.
Mr. Paul Kennedy: I spent eight years as a criminal prosecutor. In the criminal court the evidentiary regimes are different. In administrative law you can have evidence that is not viva voce and so on. Of course, if you go into a criminal process, we would have to come up with, I would think, some regime to address the problem in a criminal trial as well, which might very well be something akin to this. I don't want to prejudge it, but you're stuck with the same dynamic. How do I disclose evidence without disclosing a human source who might be at risk, an ongoing investigation, a confidential relationship, or something that might damage the international affairs of Canada?
The problem we're confronted with is evidence we have that we can't act upon. Clearly, the first thing you do is there is a lesser interest at stake in terms of what rights are at stake with a privilege to have charitable status, as opposed to the stigma that flows from a criminal proceeding, with incarceration being the consequence as well.
So if you go to criminal, we'll be set and this committee will be set—or the justice committee—with a dynamic there now of a criminal process. How do we handle that, and what kinds of mechanisms do we come up with?
Mrs. Sue Barnes: I'm trying to put myself in the place of that judge who has to come up with a summation that he hands over to the other party. Do we have any experience in our law? It's that type of experience I'd like to hear about, because I think that would be an incredibly difficult task, and it goes to the heart of the whole problem of not having the right of proper cross-examination of the parties coming out against you.
Mr. Paul Kennedy: We do. I could, with the indulgence of the minister, speak to it since I was involved in the legislation on the immigration side when it started. Our very first case resulted in a case being dismissed. So the crown was unsuccessful in terms of where the certificate was issued.
We've had approximately 20 instances in the past 12 years, let's say, where the certificate process has been used under the Immigration Act. At least two of those cases have been thrown out by the court.
I do know that some of the recent cases have had 50 days of hearings, which is evidence being called by both sides, examinations and cross-examinations. That's a fairly vigorous contesting of the issues, so this is not a clear case where the other side is unprepared. Clearly they are prepared and they can marshall evidence. There's a difference between my giving you the gist of the allegation without having to tell you that it came from this particular human being. You know the case you have to confront, so the judges have been successful in doing that. The courts have looked at the process and been comfortable.
We have had other models similar to this where the Security Intelligence Review Committee uses that for certain hearings as well. That's gone to the Supreme Court of Canada, and the Supreme Court of Canada has felt that, yes, the balance was appropriate. So we have had the issue tested and it has worked. It has worked to the point where the state has lost. If there has been any obvious proof of its efficacy, that's it.
Mr. Martin Cauchon: If I may, we really tried to reach that balance and to provide fairness as well as organization. If you have a look, for example, at the question of evidence...if you go to court, normally there are very tight rules regarding the use of evidence, information, and so on. But clause 7 of Bill C-16 says, regarding fairness, that we're going to the maximum we can in the sense that the judge may use evidence that normally we wouldn't use in court. So the rules of procedure regarding evidence and proof are very flexible in order to make sure they're going to have their day in court and they're going to have the chance and opportunity as well to express themselves, to defend themselves, and to explain their case, using everything they can and want to use.
The Chair: Thank you, Mrs. Barnes.
Mr. Gallaway, then we have Pillitteri, Cullen, and Nystrom.
Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Thank you, Mr. Chairman.
Ministers, I wanted to start by asking you who is a judge for the purposes of this act?
Mr. Lawrence MacAulay: A Federal Court judge.
Mr. Martin Cauchon: A Federal Court judge.
Mr. Roger Gallaway: Then I'd turn your attention to clause 20 and I would ask the same question again.
Clause 20 revokes the definition of judge if Bill C-11 passes, so it's contingent.
Mr. Lawrence MacAulay: If the courts rule, then we have to—
Mr. Roger Gallaway: No, I'm asking which court will rule?
Mr. Paul Kennedy: The Federal Court. It's a Federal Court judge.
Apparently this picks up a consequential amendment to the Federal Court Act where they've tinkered with the definition of judge. It's just to make the systems work. The matter is referred to as a judge of the Federal Court.
Mr. Roger Gallaway: So notwithstanding the fact that clause 20 would revoke clause 3, which defines a judge, it's the same definition. Is that what you're telling us?
Mr. Paul Kennedy: I'd have to look back and see, but all I'm telling you is that the Federal Court changed. I think at one time they established a trial division and an appeal division. They made some changes, and it's because of the language that was in there that they've tried to address it.
So what I'm telling you is the judge who will hear this matter is a judge of the Federal Court.
We will look at the legislation and come back if you want a more profound analysis and we'll make sure of the mechanics.
Mr. Roger Gallaway: Could you provide an answer then?
Mr. Paul Kennedy: Certainly.
Mr. Roger Gallaway: Secondly, I've heard your argument with respect to your reticence to talk about terrorism or to define it. We are being told that it's well defined judicially. I wonder if you would—and I'm not asking for an answer today—undertake to table with this committee some background notes on what the parameters of terrorism might be for the purposes of this legislation.
Mr. Lawrence MacAulay: I expect we could table some parameters, but I don't believe I'm in a position to define explicitly what terrorism is.
Mr. Roger Gallaway: No, I understand that, Minister, but at the same time, we're being asked to accept that the courts will, and I think members of this committee would like to know what the parameters of that would be.
Mr. Lawrence MacAulay: What you're asking for are some general ideas, like injuries to human beings—
Mr. Roger Gallaway: No, I'm asking for more than that. I'm asking for—
Mr. Lawrence MacAulay: Yes, but I'm not—
Mr. Roger Gallaway: Reference has been made by one of you that in fact there's jurisprudence. Perhaps you can provide us with a summary of that jurisprudence.
Mr. Lawrence MacAulay: We will.
Mr. Roger Gallaway: Thank you.
Now, I want to ask who is going to—
The Chair: That's one minute off your time limit.
Mr. Paul Kennedy: To help clarify, because if we're given an undertaking, we want to be able to respect the undertaking. What we'll do is see what cases we can find that our Canadian courts have looked at where the term “terrorism” is used and the facts they've looked at. Maybe they've said, “This is terrorism”. We will get for you whatever the UN has come up with, because there's some language there—although they don't define it, the concepts are there. Then there are other jurisdictions where they've come up with definitions. In some jurisdictions each statute might have something a little different, but at least we'll give to you the hopper of what we have.
Mr. Roger Gallaway: All right.
The Chair: Mr. Gallaway, you can have one more question.
Mr. Roger Gallaway: That's an interesting point. I've got a couple more, Mr. Chairman.
Who then is going to determine when this bill is being triggered? Is it going to be Mr. Elcock's agency? Is it going to be in accordance with the Criminal Code of Canada? Are we going to provide some extraterritorial information? For example, in Northern Ireland Gerry Adams was declared to be a terrorist with respect to entry into Canada at one time, now he's not. In Northern Ireland there are the emergency provisions in effect, where people can be held for 60 days without being charged with anything. Those people in English law are terrorists—or many of them are deemed to be terrorists. So if the local Catholic Women's League at St. Patrick's is sending money to an orphanage in Northern Ireland and there's somebody in there who's alleged to be a terrorist, that is English law, not Canadian law.
Is there going to be a standard whereby that allegation must be a criminal offence within Canada? Or are we going to accept that people in Northern Ireland who are alleged to be members of the IRA, but without any proof, are deemed that by British law? Is that going to be good enough for you?
Mr. Lawrence MacAulay: Roger, it wouldn't have to be a criminal offence, that's for sure.
Mr. Roger Gallaway: I'm sorry?
Mr. Lawrence MacAulay: It wouldn't have to be a criminal offence. What I have to do is evaluate what's presented to me, and if I am persuaded that this is an act of terrorism, like.... It's so difficult to explain, to definitely define terrorism, because it's like cyberterrorism now. As Paul said, ten years ago you couldn't even talk about that. It's a changing fact. But the fact is that we have to evaluate the evidence that's presented to us and decide whether we feel it is an act of terrorism or not. Then it goes to the federal judge. Should he disagree with us, the certificate is not issued.
Mr. Roger Gallaway: So what you're telling me is that an allegation of membership of the IRA, which is not a criminal act in Canada, may be good enough to trigger the provisions of this bill. Is that what you're telling me?
Mr. Lawrence MacAulay: We don't have any list of terrorist organizations in this country, to start with.
Mr. Roger Gallaway: I'm sure Mr. Elcock does.
Mr. Lawrence MacAulay: If he has, he's not sharing them with the rest of the committee.
Some hon. members: Oh, oh!
Mr. Lawrence MacAulay: There is no published list of terrorist organizations in this country.
Mr. Paul Kennedy: Possibly just to assist you, sometimes it's a bit confusing to talk about whether an act is a terrorist act and whether or not the act is criminalized. Most jurisdictions don't have legislation that talks about terrorism. So in Canada we don't have an offence of terrorism. If you kill someone, however, we call it murder. It may very well on the facts indicate what the nature of it is.
So what we're looking at is activities here. We gave you a general but not legislative definition of what would constitute some terrorism, which would be in fact use of violence or threats of violence, serious violence against a person's property. It's a good place to start. You have to look at where you're going to go from there.
Mr. Roger Gallaway: All right.
I have two questions remaining. If you receive information from Indian security forces that certain people are engaged in activities, which you receive in good faith, would you then apply the law? What I'm asking is, would you consider the source, the veracity, and the political regime in that country?
Mr. Lawrence MacAulay: I would, of course, receive the information from the security intelligence agents or the RCMP. They could receive the information from a different country, as you indicate. That source would be evaluated. CSIS would have ways of informing me whether this group or this individual is legitimate or not.
That's why, of course, this legislation is so important, because CSIS might tell us that if it's disclosed who provided us with this information, that individual's life could be in danger, or the security or security intelligence in another country could be in danger. That's why this legislation is so important.
Mr. Roger Gallaway: But Minister, Canada has trade sanctions against India, and has had for a long time. Why would we want to accept information from a country we deem not to be good enough to deal with in open and free trade? Why would we want to have open trade of information with them?
Mr. Lawrence MacAulay: I'll let the director of CSIS respond.
Mr. Ward Elcock (Director, Canadian Security Intelligence Service): Mr. Chairman, it's no secret that information we receive is often from foreign sources. But one of the things we have to do with all the information received is to determine whether it's accurate. We don't take information at face value. We have our own ways, with both our operations in Canada and our operations abroad, to confirm whether information is in fact accurate or not. And also we have a long-standing association with many of the organizations around the world, and have an ability to assess whether what they're telling us has been, on past form, proved accurate or not. So it's not simply a matter of taking unassessed information and passing it up the line as a suggestion as to what the government ought to do.
In any case where we receive information we have to make a decision on that information. We have to use our own sources to determine whether in fact that information is correct or not, and ultimately make a decision as to whether or not we have enough of a case to put it forward. And I suspect, knowing the cases that have gone through the Immigration Act, that one piece of information from one service wouldn't be sufficient to get us anywhere.
The Chair: Thank you.
I have to move to Mr. Nystrom.
I have just been informed that the ministers will have to leave in approximately ten minutes, so let's make the questions nice and short.
Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): I'll be very brief.
The information CSIS would get from outside the country, how do you obtain that, if the mandate is mainly to operate in the country? Does that come from other intelligence agencies?
Mr. Ward Elcock: Mr. Chairman, our mandate is not limited to operating only within Canada.
Mr. Lorne Nystrom: Okay.
I'd like to ask the minister whether a former member of Parliament, who was duly elected, would be a criminal or a terrorist or exonerated—Louis Riel?
Mr. Lawrence MacAulay: Lorne, I don't have all the evidence in front of me to evaluate the case.
Some hon. members: Oh, oh!
Mr. Lorne Nystrom: Does the minister think it's fair that the minister becomes the final adjudicator in this process and there's no appeals procedure with judges?
Mr. Lawrence MacAulay: I think you're absolutely right, it wouldn't be fair, and it is not. The Federal Court judge is the final arbiter.
Mr. Lorne Nystrom: I want to ask the minister about a couple of hypothetical situations.
We had the protests at the FTAA in Quebec City recently, and you had several different groups that were protesting outside the wall. Some of them had rubber bullets shot at them, some of them were gassed, some of them had a water cannon turned on them, some of them had nothing turned on them. Where do you draw the line in that kind of situation in terms of this legislation? Are they—or I should say we, because I was there too—are we all terrorists because we were there? Mr. Epp here, as the final adjudicator, would say yes.
Mr. Lawrence MacAulay: I don't think it would be very wise for me to answer a hypothetical question, when I don't have the information before me as to exactly what took place or didn't take place. I think the situation you referred to has happened a number of times around the world, and I don't believe these charges have occurred.
Mr. Lorne Nystrom: Does anybody else want to add to that? We had a situation there with different groups and different layers of activity. If we don't have any clear definition of terrorism, where do we draw the line?
Mr. Lawrence MacAulay: I don't think anybody would want to draw the line with somebody expressing their view.
Mr. Lorne Nystrom: I agree.
I want, then, to ask a philosophical question to my colleague who is a philosopher. Define a little more what you think terrorism is? Is it only when there's a violent act? Can there be intellectual terrorism? Can there be economic terrorism? Can there be non-violent biological terrorism? Can you wax eloquent here for a few minutes with your philosophical musings about terrorism?
Mr. Lawrence MacAulay: As I indicated previously, I am not in a position, and I don't think anybody is in the position, to define exactly what terrorism would be.
Mr. Lorne Nystrom: That's why I said to muse about it a bit and give us an idea of where you are coming from.
Mr. Lawrence MacAulay: Well, I think you have named a number of situations where it could or could not be. It's like...the assistant deputy minister indicated cyberterrorism. It wouldn't have been a subject that we would discuss ten years ago; today it is. It's an ever-changing world, and that's a fact of life.
Mr. Lorne Nystrom: I wonder if the other minister could add
something on this issue of defining terrorism.
Mr. Martin Cauchon: I said at the beginning of the presentation that there was no definition of terrorism in Canada. The judgments rendered—I have a number in front of me—review a number of the factors that show that under such and such circumstances, certain acts may be terrorism. In other countries, there are some rather broad and vague definitions. As my colleague Lawrence MacAulay mentioned, the concept of terrorism is one for which it is not really possible to set parameters. It is also a concept that is constantly evolving and forced to change very, very quickly. I think that judgment is needed at various levels: at the level of CSIS, at the level of the people at the RCMP and at the level of our two ministers.
Two ministers will have to sign the much talked-about certificate. There is my colleague, the Solicitor General who, as such, is concerned about protecting society and protecting our laws. For myself, as Minister of Revenue, I am concerned about protecting the integrity of the system for registering charities. So we are going to be looking at it from two very different standpoints.
The important thing to understand is that the question of determining whether something is an act of terrorism is going to involve different stages. When the much talked-about certificate is being issued, they will also go before the courts and have the opportunity to be heard, to argue the various points of view and to convince the judge. If the certificate is deemed unsatisfactory, either there will be no registration or registration will be denied.
The important thing once again is that under the act we want to give everyone the opportunity and we want to follow the rules of equity and the rules of due process. Once this certificate is deemed acceptable and in compliance, even if the organization is not registered or if its registration is revoked afterwards, notwithstanding the fact that the certificate has not expired, because we know that it can last three years, these charities will be able to come back if there is a significant change in their status.
Thus the government's intention is to be open and respectful of the aspirations of all the organizations, but also to protect society and the credibility of the system for registering charities. It must not be forgotten that a great deal of money is given every year to these charities, and as a government, we want to ensure that the money given by the people is put to good use.
The balance to which Mr. Kennedy alluded a short time ago is something that I believe we have succeed in achieving in Bill C-16.
Mr. Lorne Nystrom: I wanted to ask the ministers one more question.
My understanding is that the bill allows for the admission by a judge of any relevant information regardless of whether or not that information would be admissible in a regular court. Now I wanted you to give us a theoretical situation in which the judge would base his decision on something that would be inadmissible evidence.
Mr. Paul Kennedy: I think we're not dealing with inadmissible evidence. What you're dealing with here is a legal turn of phrase to distinguish the situation from a criminal law proceeding, where you have to do the best evidence—I was there; I saw it; it's not hearsay.
In administrative law procedures—the Immigration Act and this kind of legislation—the rules are different for evidence, and you can lead hearsay evidence. So in this case you could say, I got evidence of this nature, without necessarily calling the person, maybe from a foreign jurisdiction. So the admissibility is there. Although the admissibility in administrative law is broader than it is in a straight criminal proceeding, there's always the issue of weight, and that's how adjudicators in that forum handle it. Obviously, if someone was there, saw it, and was cross-examined, and you're satisfied as to their credibility, that increases the weight. If you don't have that and it's not corroborated by other sources, it goes to the weight the judge attaches to it. That's fairly common. That's the way it is in Canadian law.
The Chair: Thank you, Mr. Kennedy. Thank you, Mr. Nystrom.
Go ahead. You have a final comment?
Mr. Martin Cauchon: For example, if you're going to a standard court, the Federal Court, you can't use hearsay, you can't use copies, unless you have an agreement between the parties. It tells you exactly that we want to be flexible, in order to make sure that people have the chance to express themselves. They're going to have access to hearsay, they're going to have access to copies of documents, and so on. We want to be as flexible as possible, in order to meet the notion of due process of law and find the right balance between the protection of our society, protection of the treaty organization system, and protection of those organizations as well.
The Chair: Thank you, Ministers. It's unfortunate you have to leave, but I want to tell you that you certainly created a lot of interest. There are three members who wanted to ask questions who, unfortunately, will not be able to. But I understand that the officials will stay to field those questions. Once again, on behalf of the committee, thank you very much.
Mr. Martin Cauchon: Thank you very much, Mr. Chair. Thanks to all members.
The Chair: We'll now go to Mr. Peschisolido.
Mr. Joe Peschisolido (Richmond, Canadian Alliance): Thank you, Mr. Chair.
I was going to commend Minister Cauchon for the good work he's done on the bill, but since he's leaving, I won't get a chance to do that.
The Chair: I think you have already.
Mr. Joe Peschisolido: I've gone through Bill C-16, and I'll direct the questions to the officials. In my view, it's a finely crafted bill. You've dealt with the balance between security concerns and administrative justice.
The concern I have, though—and that's why I can't support this bill, and the Canadian Alliance can't support the bill—is that there's a mismatch between what we're trying to accomplish and the mechanism that is used. The goal here, which Ms. Barnes talked about, is to deal with eliminating or reducing as much as possible fundraising for terrorist activities. We should be dealing with the criminal side, not the administrative side of the issue.
There's a question that I'd like to ask Mr. Kennedy. The Minister, Mr. MacAulay, mentioned that there were going to be other steps taken to deal with the terrorist situation, with regard to fundraising. What are those steps? Are bills being planned right now?
Mr. Paul Kennedy: I wouldn't want to find myself in contempt of Parliament in respect of bills and things of that nature, but the minister has indicated things on other occasions. In February Canada signed the UN convention on the suppression of terrorist financing. It's fairly clear, if you have occasion to read the convention—I know some members of this committee have already done so—that it does call for criminalization. And what we were responding to here was something that was started back in 1995. Canada has been a major pusher internationally in dealing with terrorist financing, and there was the G-8 recommendation in 1996, which, of course, is wrapped up in the concept of that UN convention.
So we had started on that issue, but the convention only found acceptance in being put forward by the UN in February of this year. If we want to ratify that legislation, we have to take the next step, which is to pass some domestic law that gives teeth to that legislation. In the body of the document it does call for criminalization, it does call for mutual legal assistance, it does speak to a fairly broad range of items. So without indicating what the government is going to do—apparently it was signed February of 2001—it's fairly clear that we should ratify it and take the next step.
We acknowledge the concerns you have as to whether this is too little. But perhaps I can help situate this for you in the work we've done on organized crime. What we've always said on organized crime is that the solution is not just to pass another federal law. The problem is more than a federal problem. If we have biker clubs, for instance, you can close those down using municipal bylaws. You can do things with municipal bylaws we can't do federally.
I use that only as an example that the method isn't always to grab and use the Criminal Code. We may at some stage go ahead, if the government of the day and Parliament decide to pass it, and criminalize the fundraising aspect. There may be other things you have to look at, such as recruitment, because fundraising is only one part of the problem. There is also recruitment of people who fight overseas.
If we did that, it wouldn't necessarily address the problem of someone who's using tax-sponsored dollars, who's a registered charity, presumably holding themselves out to the public as a charity recognized by the federal government, using that as an attraction to recruit money. We have to use a whole series of tools. This is one, for sure, but I think, quite candidly, there is an awful lot more we have to do—which is not to say the others won't be very difficult to do. Criminalization does not necessarily lead to cases and cases being successful, because it's very difficult to meet a criminal standard of beyond reasonable doubt.
Mr. Joe Peschisolido: Mr. Kennedy, I'm heartened to hear, in the absence of Minister MacAulay—I'm not going to put words in your mouth—that there seems to be a general undertaking on the part of the government not to use this bill as an excuse for inaction, that the government will actually look at the problem as a criminal matter. I think most of us here on the committee would also like it to be dealt with as a criminal matter.
I was intrigued to hear the comments of Director Elcock with regard to the problems in setting up the criminal proceedings. I hope the end-game here is to devise a plan to deal with the criminal side of it. So I would ask the director to get into specifics of what he thinks could be mechanisms within the criminal justice system. When this bill comes forth from the Solicitor General or a new solicitor general in the future, how can you set that up?
Mr. Ward Elcock: Mr. Chairman, terrorism is a very complex issue. There is, as Paul said, no single solution to the problem of terrorism, just as there is no single solution to the problem of organized crime. It is clear that there is, again as I've said before, a very small number of individuals and groups who participate in terrorist activities in Canada, but it's not a secret that there are some, and indeed there are some who seek to collect through charitable organizations funds for purposes abroad.
As Paul said, you have to solve the problems you can solve. There are a lot of questions around, and I'm sure members of Parliament will have to ask themselves those questions when and if government comes forward with other pieces of legislation, whether other processes, such as criminalization, are effective, whether they have been effective in other countries where they've been used, notably in the United States. Those are very hard questions. I'm not sure there are very good answers to them. But this is one area where there is the possibility of at least a fix to the solution of the problem, if you will.
Mr. Joe Peschisolido: My final question, Mr. Chair, is also directed to Director Elcock. I share some of the concerns of Mr. Gallaway and others, where you have agents from foreign countries, the security agents themselves engaged in illegal activities within their own borders or across their borders. We've heard stories of the Indian government doing that and others. It's not a nice place out there. Once again I don't want you to compromise things, but I'd like to get a sense of what the criteria or the variables are that you or your agencies employ when you try to balance out and filter the information you would get from the foreign government when it deals with Canadian citizens who are viewed by the foreign country as an enemy to their country.
Mr. Ward Elcock: Mr. Chairman, I think the reality is that in an intelligence organization you really don't believe anybody who tells you anything until you can prove or corroborate in some way the information you've been given. As I said—and I think there is a misperception on that point—we are not limited to a territorial mandate of investigation, i.e. Canada. We do in fact carry out investigations in respect of those issues that are threats to the security of Canada outside and inside Canada.
So our own investigations can provide us frequently with the kinds of corroboration we need. We are also recipients, in many cases, of information from other parts of the world, other services in the world, and sometimes from services that are actually themselves operating in other parts of the world and can provide us with additional information.
There are a wide range of tools available to us—again, I wouldn't want to describe them in detail, because it would make it harder for us to do our job if we were to describe them—that allow us to assess the information we receive and come to a conclusion about whether it's accurate or not.
We have a lot of experience, and I think that's borne out from the reviews of the SIRC committee, which, quite apart from whatever process we go through with the court under this act or the Immigration Act, frequently looks at and reviews the kinds of information we share with other organizations or other organizations share with us, and what use we make of that information.
So there are at least two levels of review—the court and the normal SIRC process—to determine that we're not misusing or abusing the information we receive. I think those will continue to be effective.
We've certainly found, in the course of the immigration legislation, which has a very similar process to this.... Indeed, the Immigration Act is dealing with the incarceration and ultimately the deportation from Canada of an individual, rather than simply the question of the privilege of being able to use tax deductibility as a means of obtaining funds from Canadians. There's obviously a much higher weight under the Immigration Act when you're dealing with incarceration.
We've certainly found that we're putting forward a lot of information. The submissions we make run to thousands of documents. They're not based on a single assessment of some foreign agency that sent us an anonymous document overnight. They're done on the basis of a lot of intelligence work, a lot of information received from a lot of sources, including our own, before we make a final judgment and put it forward to ministers for a decision.
Mr. Joe Peschisolido: Thank you.
The Chair: Thank you very much, Mr. Peschisolido.
We'll now hear from Mr. Cullen.
Mr. Roy Cullen (Etobicoke North, Lib.): Thank you, Mr. Chairman. Thank you, gentlemen. I have a number of questions, so I'm going to go straight at it because I know the chairman's going to cut me off.
I have just a couple of comments, briefly.
Mr. Peschisolido, the fact that the government referred this bill here at this stage probably means they're looking for constructive input. So rather than saying you can't support the bill, if there are some constructive ideas you want to bring forward, maybe that's part of the process.
I'd like to come back to this notion of terrorism. What we heard from ministers was that they would rather we don't define “terrorism” in the bill. Clearly, they would not want us to be prescriptive—in other words, to say that it only includes those things. I look forward to the information on the jurisprudence that will come forward, because I think it's something the committee will probably wrestle with. I mean, where does terrorism stop and where does it end?
Mr. Kennedy, you talked about violence. Is it starting there? If, for example, I'm in Somalia and some warlord comes in and starts murdering my family and raping my wife, I'm going to fight back. I might need some help to do that. No one condones violence. But when you're involved in civil war, for example...you talked about insurrection. There are cases where certain regimes are hopelessly oppressive. Where do you draw the line?
I'm not asking you to comment here now because the ministers were quite clear, but if there's a way the committee could wrestle with putting perhaps some broad parameters around what we mean by terrorism.... What about sustained harassment? Does that qualify? If I'm fighting against genocide, etc.... It's a difficult challenge. I just wanted to put that on the record.
The intent of the bill is to focus on organizations. Is that correct? If an organization is supporting terrorist activities, it would lose its charitable status. You might have a situation where you have members on the board or in the organization who individually could be shown to be supporting terrorist activities in a certain country, but let's say the evidence would not show that the organization itself is supporting terrorist activities, however one defines that. Clearly, it would cast some bad light on that organization, and it might be useful to bring that to their attention somehow. But am I clear in understanding that the issue is if the funds of that organization are directed toward terrorist activities? It's not whether one or two individuals on the board or whatever.... Is that correct?
Mr. Paul Kennedy: Yes, that's exactly how the language reads, because we're looking at the organization and whether or not its assets, which have been accumulated as it is a tax-free organization, a charitable institution, are being used directly or indirectly to support the cause. So you are quite right.
Mr. Roy Cullen: Mr. Kennedy, you cited the example where let's say it would be shown that one or two of the directors were diverting the organization's funds, unbeknownst to the other members of the society, to terrorist activities, and that would clearly qualify. But if there are one or two bad apples on the board who are personally supporting terrorist activities, that doesn't really affect the charitable status. Is that correct?
Mr. Bill McCloskey (Assistant Commissioner, Policy and Legislation Branch, Canada Customs and Revenue Agency): If they're not using the funds of the organization.
Mr. Roy Cullen: Okay. A lot of this...I personally, and I think most Canadians, support the objective of what you're trying to achieve here. Clearly, people can be very creative, very imaginative.
It comes to mind, for example, if I'm an organization in Canada, I have charitable status, I may be supporting legitimate humanitarian or health and safety issues in a certain country that may be embroiled in civil war. But we know...if those are the parameters, some very interesting dynamics can...suddenly, this organization is supporting only humanitarian and health issues, etc.
So whatever we do, we'll have our work cut out for us. We could also have, I suspect, organizations being cut off and reinventing themselves with maybe a whole new slate of boards, but basically with the exact same intent.
I'm wondering if you could comment on the kind of...I've cited a couple. I think people will be very creative. In your thought process, how do you plan to deal with that? Is it just a matter of the ongoing challenge of administering such an act?
Mr. Paul Kennedy: I think it's fair to say we know we're dealing with an evolving problem. We know people will be creative. Because we are dealing with an organization, you're quite right, the organization....
What we're going after is the fact that it has charitable status. Once you lose your charitable status, this legislation doesn't speak to the issue that you could continue your fundraising. The only thing is you're not going to have the government complicit in your activity through a tax regime. So, first of all, the activity can continue.
You could, of course, turn around and endeavour to reconstitute yourself the next day. When you make an application, what we would do is look and see if you were the same individuals who were over there in this other organization. The ability here is to turn down an application as well as to decertify someone who is in place. So you have similar facts and evidence that would cause you to say, well, “we clearly anticipate that you're going to do the same thing again.” That's an evidentiary issue.
Some of the distinctions you've made are quite correct. You could have a very bad person who's serving an organization doing very good things, and in that part of the person's life, they're not directing assets to an improper purpose. That's fine, no problem. If they are, then they'd be captured because now the organization's assets are being moved.
It clearly is something that is evolving.
One of the other challenges that's been brought to us is an organization that funds something that is multidimensional. The question put to me was: Is it possible for a terrorist to carry out humanitarian actions? Clearly, yes. That has come up in other fora. The response, though, is if you give a dollar to an organization, the concept is that dollar is fungible, it has no character. If you support one activity by putting in your money, you allow them to apportion the budget in any way they want. It may very well be, by satisfying the primary needs of food, clothing, and so on, you in fact allow them to use other funds for weapons and things of that nature.
We also see organizations that, as part of their full package, will supply care for the widow and children of someone who has died having carried out a terrorist activity. It's hard to separate these items. Some of the people have indicated if an organization is like that, where one part of its activities is terrorist related and the other part is what you would otherwise call humanitarian, you have to approach it on the basis that there is a taint and all those activities are tainted. Otherwise, there is no certainty in your mind that your dollar is going for bandages or books, not bullets.
Mr. Roy Cullen: May I ask one quick question?
The Chair: You may ask one final question.
Mr. Roy Cullen: To Mr. McCloskey, just to clarify, I think I know the answer—I don't want to go down the garden path without clarifying it.
If I'm a charitable organization in Canada, let's say I am legitimately supporting the building of hospitals in the Punjab or somewhere, and it is ascertained that the area is totally peaceful and humanitarian, under Canadian tax law, we don't require those funds to be deployed in Canada. They would still get a charitable number, if it was bona fide, and it would be tax deductible.
Mr. Bill McCloskey: That is correct. We require the controlling mind to be in Canada. The way the funds are used has to be determined in Canada. You can't give money to the hospital and not know how it's being used. The projects have to be decided on by the board of directors in Canada as to how the funds are going to be used. Yes, you can give money for those kinds of purposes.
Mr. Roy Cullen: Thank you.
The Chair: Thank you very much, Mr. Cullen.
We'll go to Ms. Guarnieri, Ms. Barnes, and then Mr. Epp.
Ms. Albina Guarnieri (Mississauga East, Lib.): Thank you very much.
I'd like to thank you for donating your time today to talk about a worthy endeavour. In fact I think you're putting in overtime today.
I'm sure, as Mr. Cullen has stated, and I think a number of my colleagues have repeated tonight, all colleagues would agree the government should not be financing terrorism by providing tax credits to people who contribute to offending charities. I think we're all in agreement there.
I notice, however, that the bill before us seems to set a rather difficult standard for enforcement. Please correct me if I'm wrong. As I read the analysis of the bill, an organization would not be subject to the bill unless it has made resources available to someone who is currently engaged in terrorist activities. It would seem a charity that supported a terrorist group and perpetuated terrorist acts, whatever definition you use, in the past, could still be registered if it is believed the same terrorist group may not be currently involved in terrorism.
I have a very simple question. Why should the Canadian taxpayer be asked to subsidize any organization that has ever funded terrorism? Notwithstanding the cases of the widows and children and hospitals, I think they would not be subject to a definition of terrorism when you're providing care for the sick and the hopeless.
Mr. Paul Kennedy: It's a good point and you're quite correct. The way clause 4 reads, it has been so. There's reason for us to believe it will continue to be engaged.
I think you're going to find this is a factual issue that will have to be dealt with, in terms of the period of time since the activity occurred, whether the event causes us to say it is evidence we or the minister can act upon and the court would accept, and there's reason to believe they continue to be engaged in it. If you take too long with the historical period of time, it may very well be the members have changed.
Don't forget, it may be it was a rogue agent or representative on the board. These are going to be fact-driven issues. We are here, as has been pointed out to us a number of times, after the first reading, not the second, to get some input. It may very well be something you may wish to consider further.
Ms. Albina Guarnieri: Thank you for your candour.
My second question relates to the whole litigious approach the bill takes towards deregistering charities, of which I understand there are thousands operating in Canada.
It certainly gives the impression that the organizations have the right to have their contributors subsidized by the taxpayer, regardless of the kinds of activities they're engaging in. How would you regard a requalification of all these groups based on criteria that would, obviously, cover terrorism concerns, but would place greater limits on the kinds of activities that could be subsidized by the taxpayer? Is that a consideration? What are the impediments to having that kind of approach?
Mr. Bill McCloskey: I'm afraid I don't understand the question fully, when you say reclassification.
Ms. Albina Guarnieri: You must have criteria by which you grant the privilege of issuing tax credits, and rather than having these thousands of organizations tie up the courts—imagine the nightmare that would ensue—why would you not revamp the system and have a special review of the organizations that are currently enjoying the privilege of issuing tax credits?
Mr. Paul Kennedy: Maybe I could speak a little bit, and I think the director of the service would like to speak as well.
To go back, we indicated that 75,000 or 80,000 organizations currently have charitable status, and there are very few, relative to that number, that are problematic. One of the things we're hoping is that the legislation will also have a prophylactic effect, in that those who are currently abusing the system will get out of those organizations, so that they can in fact continue. I think this is more of a measured response. Sometimes if you have legislation, the fact that there is a cure in social policy causes the disease to go away. So people will be responding to this, looking at how they are carrying out their affairs, and, as the minister said, they'll clean up their act.
With others there'll be a dialogue, where it will be possible for us to acquaint them as to what their problem is. Then only with the most recalcitrant would there be a need for a certification process and going to court. I think, in respect of workload, that's the most efficacious way to do it, and we're not talking about thousands of cases.
I don't know if the director wants to speak, maybe my colleague as well.
Mr. Ward Elcock: Along the same lines, Mr. Chairman, to play lawyer for a second, I think the bill does not purport to suggest that there is a right to be a charitable organization and a right to give money to terrorist organizations. All the bill seeks to do is to say there are organizations out there that have been accorded the privilege of tax deductible status, and before they are deprived of that privilege, they should have a hearing in court, if you will.
Ms. Albina Guarnieri: Excuse me, as a point of clarification, isn't it organizations that are engaged in terrorist activities? Shouldn't the onus be on them to reapply and reaffirm their right to have access to taxpayers' money?
Mr. Ward Elcock: If one were to try to do that, Mr. Chairman, the effort would be extraordinarily onerous and very difficult for charitable organizations—and very difficult, I'm sure, for the department to try to manage that situation.
To give you an example, in the case of the Immigration Act, as I think Mr. Kennedy said earlier, there have been, since the inception of that legislation, only 21 cases where the government, through the ministers, has brought forward a certificate in respect of an individual, seeking to deport that individual for terrorist or criminal pursuits. I would not expect there to be a huge number of cases where we'll put forward information to justify the removal of tax deductible status from charitable organizations. That said, one charitable organization in Canada contributing to terrorist organizations outside Canada is probably more than Canadians want.
Ms. Albina Guarnieri: Forgive me, I'm somewhat confused. You mentioned that it would be difficult to pursue the course I'm suggesting, but how many terrorist organizations would we be talking about? If it's simply 20 or 21, as you suggested, why would it be a difficult task for them to reinstate themselves and put themselves in good standing?
Mr. Ward Elcock: Mr. Chair, I thought the member was suggesting that CCRA should require all charitable organizations to requalify themselves on the basis that they were not contributing to terrorist purposes anywhere in the world. I'm not sure that process would be administrable. It would be onerous, given that there are something like 80,000 charitable organizations in Canada. That would probably take forever.
Mr. Bill McCloskey: It would be incredibly onerous, if I could just add that. You have to remember that a lot of these charities are one- or two-people organizations that are delivering services in a community, and any kind of overhead and paperwork is incredibly burdensome to them.
The whole issue of defining what a charity is is really thorny. We don't define charity in the Income Tax Act. No common law country, Great Britain, Australia, New Zealand, the United States, has been able to define what a charity is. It's all based on common law and jurisprudence that's built up over 400 years. It's a really thorny issue to get into the idea of trying to classify what an organization is. Academics and people in the voluntary sector are very much split right down the middle on whether or not it would even be a good idea.
To put this in context too, the government, as you're probably aware, does have a big initiative going with the voluntary sector right now trying to clarify how charities will be treated, though not getting into the definition of charity. There is a lot of involvement with the charity sector to try to clean up the whole regulatory area.
Ms. Albina Guarnieri: Thank you very much.
The Chair: Thank you.
We'll go to Mrs. Barnes, and Mr. Epp as well.
Mrs. Sue Barnes: Thank you.
Mr. Kennedy, subclause 6(2) of this bill says the judge's determination regarding whether the certificate is reasonable is “not subject to appeal or review by any court”. I understand what that means, but I just want you to tell me if there are analogous sections in other pieces of legislation that you could advise us about.
Mr. Paul Kennedy: In the Immigration Act the provision for a section 40.1 certificate is the same. It provides for a final determination by the Federal Court judge, with no appeal.
When you normally have an appeal, the appeal is on a question of law, it's not on a question of fact. What we have here are factual determinations by two ministers independently, and then the judge looks at those facts, hears new evidence, and makes a confirmation as to whether or not the decision by the minister was reasonable and well founded.
So the Immigration Act is one example, and there are others in Canadian law, though I can't recall them offhand.
Mrs. Sue Barnes: Leave the others, because the Immigration Act deals with the liberty of individuals. I'll give you the opportunity, because nobody's touched on it, to put on the record judicial review of decisions right now.
Mr. Paul Kennedy: If I can add one thing too, that provision does not necessarily mean there will not be appeals on issues of law. We clearly have, even in the Immigration Act, some matters that have gone up to the Supreme Court of Canada dealing with various aspects of the provisions—whether they are compliant with the charter, and a host of things like that. So basically, what you'll find the judge doing here is looking at the factual basis. Were there facts there to justify the finding by the two ministers? Was it reasonable?
Mrs. Sue Barnes: Mr. Elcock, does the CSIS Act not define terrorism?
Mr. Ward Elcock: No, it doesn't, Mr. Chair.
Mrs. Sue Barnes: Okay.
Mr. McCloskey, what we're engaged in here is a line-drawing exercise, and I'm going to make an aside right now. One of the things charities aren't supposed to do is engage in political activity. I think a lot of our charities across Canada have crossed that line fairly frequently, and we haven't been able to capture that line-drawing exercise very well. This is a much more severe instance here, where we're trying to draw the line on terrorism. I think my colleague Mr. Cullen showed where funds could be directed in one way, and unbeknownst to the initiator of those funds, i.e. the charity, they could be utilized in some collateral activity. There's that danger. As I read this act, it doesn't even have to be past activity; it could be a belief in the future activity of an organization. Would somebody like to address that for me?
Mr. Paul Kennedy: Maybe I'd ask my colleague Mr. McCloskey, but I have one thing. Regardless of terrorism or anything else, there's a strict onus upon a charity to know where its funds go. If in fact the funds are used for a purpose other than the stated objectives of the charity, you are acting outside the ambit of your charity and could lose your status.
Mr. Bill McCloskey: That's essentially it.
You talked about political activity. Charitable organizations can spend up to 10% of their resources on small “p” political activity—in other words, lobbying members of Parliament for changes in legislation. They're not allowed to engage in partisan political activity.
Mrs. Sue Barnes: They're not supposed to be doing it full time with 100% of their—
Mr. Bill McCloskey: No, absolutely not. In fact, they can be deregistered if they're spending more than 10% of their resources on political activity.
Mrs. Sue Barnes: Okay.
I want to give us some kind of contextual basis here. I know there are thousands of charities. How many go through a deregistration process in any given year?
Mr. Bill McCloskey: We have anywhere between 12 and 25 charities, depending on the year. That may be because they're spending more than 10% of their resources on political activity, although that's not usually the case. It's usually because they don't have proper books and records.
Mrs. Sue Barnes: Actually, that's a pet peeve of mine. I have to get it in here.
Mr. Bill McCloskey: It could be because they don't keep proper books and records. There's a whole host of reasons they might be deregistered.
There are a number of other revocations a year, but these are usually on failure to file, organizations that may have become moribund and no longer in existence. There are several hundreds of those.
Mrs. Sue Barnes: Okay.
What's the timeline from start to finish for the current system?
Mr. Bill McCloskey: When you say “the timeline”....
Mrs. Sue Barnes: I mean from the start, giving somebody notice that you want to deregister them under the Canada Customs and Revenue Agency right now.
Mr. Bill McCloskey: They have 30 days, once they get what we call an administrative fairness letter, to come back to us and give us reason why they should not be deregistered. If we don't believe they have given us sufficient reason, then we can start the process to deregister them.
I'm not sure whether there are time limits on that. I don't think so.
There's a certain timeframe in the legislation—I think it's 30 days afterwards—during which they can file an appeal to try to prevent us from deregistering.
Mrs. Sue Barnes: My line of thought on this is, do you foresee what we are envisioning this process to be, a faster timeline to come to your objective, or a slower one?
Mr. Paul Kennedy: Obviously there's going to be a great deal of care taken in terms of building the case that will be presented to the ministers. But once a minister looks at it...at this stage the charity doesn't know, but clearly if we have concerns, the sooner they're notified of it, they have seven days. So clearly it goes directly to the courts.
It will go right to a judge. Within seven days the judge is going to have the case, and it will be for the judge, then, to set up the process and run from there. Obviously it gives them an opportunity to retain counsel, and so on, but it could be fairly expeditious. After that, it's just a court process.
So the lead time is marshalling the evidence sufficient to cause two ministers independently to say, yes, I think there is a case here. Once that is triggered, after seven days you're automatically into the court.
People say there's no appeal. I would have taken that there is in fact an appeal. Normally when an administrative decision is made, you have to process something to appeal that decision before a Federal Court judge. We've provided automatically that those ministers' decisions be appealed right away to the Federal Court, as an independent review starts immediately.
Mrs. Sue Barnes: Mr. Elcock, do you want to add to that?
Mr. Ward Elcock: No, I was just going to say that certainly if one were to look at the Immigration Act—and admittedly again there, the issue the court is dealing with is the deportation from Canada of an individual—those cases don't proceed quickly, whatever else they do.
The Chair: Thank you, Ms. Barnes. I appreciate that.
Mrs. Sue Barnes: Thank you.
The Chair: Mr. Epp will ask the final question.
Mr. Ken Epp: I have a couple of really quick questions requiring one-word answers. They're mostly directed to Mr. McCloskey.
First of all, with about 2,000 pages, 40 per page, that's quite a long list of registered charities. Can I read them off the Internet?
Mr. Bill McCloskey: Yes, you can. They are accessible at the CCRA website.
Mr. Ken Epp: Okay.
Secondly, to what extent do you look at the audits? I believe every charity is required to have an annual audit by a chartered accountant or a qualified auditor. To what degree do you have staff that actually review 80,000 audits a year?
Mr. Bill McCloskey: They're not required to have an audit a year. Each charity is required to fill in an annual report, an annual return. Those annual returns are reviewed to ensure they're complete.
We do have auditors that audit charities. There are only about 600 audits a year. All those audits, of course, are reviewed.
Mr. Ken Epp: If there is a Canadian charity that is sending money abroad, say for building hospitals or that sort of thing, do you have any mechanism to check to see whether that money collected, ostensibly for building hospitals in Rwanda, actually goes to Rwanda and builds hospitals or is used to fund the army there?
Mr. Bill McCloskey: Yes. The organization is required to keep books and records so that our auditors can go in and ensure that they can trace, do a forensic audit in a sense, and ensure that the money actually goes for the purpose it's being given to that country.
Mr. Ken Epp: Okay.
Another question I have is, does your website also show the criteria you use for registering a charity, or is that otherwise available?
Mr. Bill McCloskey: It's otherwise available. We have a number of booklets that talk about the criteria we use for registering a charity. We give them to any organization that is seeking charitable status.
They're on the website, too. All our publications are available on the website.
Mr. Ken Epp: Is that www.ccra.ca?
Mr. Bill McCloskey: It's www.ccra-adrc.gc.ca.
Mr. Ken Epp: Okay.
I have one more question that I want to make sure I get on the record here. I'm really concerned about the lack of definition, that at the whim of the minister of the day, or of the people who are up in the administration of the department, we can automatically say, well, this is a terrorist activity and this isn't. It seems to me it should not be that difficult to write down definitions, and if you want to, you could even put them under the regulations so that they can be changed from time to time. I don't buy the argument that because they change, we can't have them at all. I think maybe that's the time, then, to change to include or exclude.
The reason I'm concerned is that I actually have relatives who have lost their lives because, under the definition of the government under which they lived, being not in favour of the revolution of the day, they were considered enemies of the revolution and died. I think that very principle is one we want to avoid in Canada. This is a very small thing in comparison; we're not going to execute these people. But we're going to revoke their charitable status here, and I think there should be a very clear definition of what constitutes terrorism.
I want to put that on the record, Mr. Chairman. I don't know whether they want to respond. They've actually talked about it already, and they claim it's not possible. I say I think it should be possible.
The Chair: Maybe you want to clarify that point.
Mr. Bill McCloskey: I'm sorry, I may have misheard you. Did you say, what constitutes a charity or what constitutes terrorism?
Mr. Ken Epp: Terrorism. I'm sorry, did I say “charity”? My apologies.
Mr. Paul Kennedy: We've heard your observations. We'll try to give you some additional materials for you to address that concern.
One thing to bear in mind, though, is that in Canada we do have a Charter of Rights and Freedoms. It sets out the parameters in this country for probably a lot of the concerns that your ancestors may have confronted in terms of freedom of association, freedom of speech, freedom of assembly, and freedom from search and seizure.
So no one is talking here about what otherwise constitutes lawful advocacy, protest, and dissent. That's the very fabric of a democracy. I've tried to encapsulate in themes, and maybe some of the cases we'll bring forward to you will indicate that what we're looking at is the grosso modo type of thing, the use of violence against persons or property in pursuit of objectives that may be political, religious, racial, or whatever, but hopefully it will be a judgment that won't appear to be capricious, and it's one that certainly is going to go before the court.
That's the other thing, whatever ministers decide, two ministers independently have to decide it, as well as a court, which is going to have to look at it. So if one is too cavalier with this kind of thing, there would definitely be consequences, because there would be a public accountability. The judge will look and see whether or not you've crafted and exercised your discretion appropriately.
But we're sensitive to your concerns. If we can get more materials to assist you in your deliberations, we will do so.
Mr. Ken Epp: Okay. I have one more, and this will be the end.
The Chair: Go ahead.
Mr. Ken Epp: I really am concerned also about this question of appeal. We have a system of courts in this country, both civil and criminal, so if a court at a certain level makes a judgment under certain circumstances, it can be appealed. The fact that this is a dead-end street here is a matter of great concern, particularly...let's say there is a charitable organization that is incorrectly tagged with having a terrorist connection and has its charitable status rescinded.
Now, if in fact they are innocent, we should have a mechanism in Canada to determine that innocence and set them free. I'm really concerned about that. Right now, the way I read this act, that mechanism is a closed door.
I think in order to protect legitimate charities against false accusations we should have an appeal mechanism of some sort. If I were a charity and you attached to me some terrorist connection, I would have absolutely no hesitation to go to any court, be it public or whatever. I want that to be done so that somebody has to prove there is a connection. I can't imagine, if I'm innocent, how there then could be a breach of security or some threat to Canadian security.
Mr. Bill McCloskey: I might point out that the certificate is good for only three years, basically, and then the government would have to remake its case...well, the organization would have to reapply. But within that three-year period, the organization can reapply to the ministers and say the circumstances have changed and they think this certificate should be reconsidered. There are time limits in the legislation in which the ministers have to respond to that request. So in a sense there is that appeal after a certificate has been issued.
Mr. Paul Kennedy: If I could also comment...[Inaudible—Editor]...the extra step we think we've tried to go in terms of fairness, in the case where a certificate is issued, and, as Mr. McCloskey says, you're deregistered, is that if you come back to us, the ministers have 120 days to make their decision as to whether or not there's been a material change and whether or not the material change goes to the fact that you're no longer supporting—directly or indirectly—terrorist activities. If the ministers are deadlocked or they don't get their decision out in 120 days, by default the charity is registered; they succeed.
We try to craft regimes that...maybe in one case you'd look and think we're being a bit firm on them, and in other cases we're very firm on ourselves to move expeditiously and try to resolve the issue, and, by default, the benefit goes to the organization.
Mr. Ward Elcock: Mr. Chairman, I'll go back to something Paul said, which I think is worth renoting at this point. In this case, the minister has put forward a certificate. That certificate goes to the judge, and the judge will make a determination on the facts of the case. So each of the charities that might be accused of having contributed to a terrorist organization will have its day in court.
As Mr. Kennedy said earlier, in the case of the Immigration Act, there have been a plethora of appeals by individuals whose deportation has been sought from the country under the provisions of the act. They have not appealed on the facts, which would be very difficult for them to do in any case, because higher courts are frequently reluctant and almost never overturn a decision on the facts; they'll overturn them on the law. In the Immigration Act—and I suspect the same will be true here—there will be a plethora of appeals on legal issues, for example, if the test of the charter is being met, or if it's in accordance with fundamental rights and freedoms. There will be appeals, but they will be appeals on the legal issues rather than on the facts, which would be unlikely for anybody to get, in any case.
Mr. Ken Epp: Unfortunately, in Canada we have a number of people on record who have been sentenced to life imprisonment, based on the facts of the case, who were later exonerated. I rest my case.
Thank you, Mr. Chair.
The Chair: Thank you very much, Mr. Epp.
Mr. Paul Kennedy: May I just correct the record. One of my colleagues passed me a note. I don't want to leave you with any misunderstanding. Where I have indicated the 120-day period for us to reply, the effect of our failure to reply in the 120 days means the certificate lapses. Then you reapply for a certificate. So I just want to correct that for the record.
The Chair: Okay. Thank you very much.
As you've probably noticed, there's quite a bit of interest on this particular issue. Everybody wanted to ask a question. So you could probably expect to be called back to the committee to clarify some of the issues that were raised.
But I do want to thank you on behalf of the committee. I think you have, in some cases, attempted to clarify the issues already, but there are quite a few unanswered questions, and I look forward to receiving some of the documents you've promised us. Thank you very much.
The meeting is adjourned.