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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Monday, November 5, 2001
The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good evening. I call the 42nd meeting of the Standing Committee on Justice and Human Rights to order. This evening we're undertaking consideration of Bill C-36, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities in order to combat terrorism.
First of all, witnesses, let me say thank you very much for giving us your evening at a later than usual starting time.
Colleagues, we have with us the following individuals: from the Canadian Council for Refugees, Sharryn Aiken; from Human Concern International, Mumtaz Akhtar; from the Mennonite Central Committee Canada, William Janzen; and from the Canadian Centre for Philanthropy, Patrick Johnston.
I'm sure you're aware of the way we operate here. We'll be asking each of you to make an opening statement of something less than ten minutes—I will bring it to your attention when you are in significant violation of that rule—and then we go to an opportunity for members of the committee to ask questions and make comments on your presentations around the subject we're discussing.
Without further ado, I go first to Sharryn Aiken, of the Canadian Council for Refugees.
Ms. Sharryn Aiken (Former President, Canadian Council for Refugees): Thank you, and good evening. The Canadian Council for Refugees very much welcomes and appreciates the opportunity to address you this evening.
I should add that our brief is on its way to your desks as I speak. I apologize for the fact that the brief is not ready this evening, but you will have it to supplement my remarks probably by tomorrow.
For those of you who aren't familiar with the Canadian Council for Refugees, we're an umbrella organization with some 170 members across the country. Our membership includes ethno-specific organizations, agencies serving immigrants and refugees, local and provincial umbrella associations, lawyers' groups, and many organizations concerned about refugee protection.
In terms of why we're here this evening, the Canadian Council for Refugees brings an international human rights perspective to the issues of terrorism. In fact, we have been working on these issues for some eight years, since the implementation of the Bill C-86 amendments to the Immigration Act in 1992, which included, for the first time, provisions related to terrorism and membership in terrorist groups. We have essentially four recommendations concerning the current bill. I will outline them briefly and then focus primarily on the first two.
Just by way of summary, the Canadian Council for Refugees is very concerned about the definition of terrorist activity in Bill C-36. We recommend that the definition be limited exclusively to offences referred to in the international instruments to which Canada is a signatory—and I'll get back to that later. Secondly, we recommend that the definition of terrorist group be limited to entities whose single purpose is facilitating or carrying out terrorist activities. Thirdly, we have concerns about the lack of due process with respect to many of the procedures outlined in Bill C-36, particularly the fact that persons concerned are only afforded summaries of evidence in criminal proceedings rather than the evidence itself. We are concerned that substantial lack of due process will result in serious injustice. And fourthly, we are concerned about part 6 of the bill, with respect to registration of charities. We are recommending that the security information section be deleted.
I'm not going to go into the final two recommendations in the brief time allocated. In fact, I believe Mr. Johnston, who will cover those issues, will provide adequate remarks that I may want to supplement during questioning.
What I'd like to do is begin by addressing this whole problem of defining terrorism. Rosalyn Higgins, currently a judge with the International Court of Justice, has suggested that terrorism is a term without legal significance. She says that because, despite the best efforts of scholars over many years, there is no internationally accepted definition of terrorism. The international community, through the United Nations, as well as through regional organizations, has sought not to define terrorism, but rather to limit the efforts to eradicating terrorism through the enumeration of specific acts and offences.
As you know, there are some twelve treaties at the level of the United Nations, and comparable ones in regional bodies—in the European context, as well as in the Organization of American States—and all of these treaties do not seek to define terrorism. Rather, they attempt to address what we understand to be the subjects of concern, namely hijacking, bombings, and the like. Those are the kinds of activities—and certainly the activities that we saw on September 11—that have caused the government to bring forward this bill in the first place.
The Canadian Council for Refugees has absolutely no objection to the first part of how terrorist activity is defined, namely through specific references to the international treaties to which we have already committed ourselves, and which adequately define the activities we're concerned about. We are, however, very worried about the latter part of the definition—the broad, vague language, and the potential for targeting people who have not committed illegal activities.
We have had long experience with immigrants and refugees in particular being targeted by the terrorism provisions in the Immigration Act. Very often, conflicts far from Canada are complex and poorly understood. What may seem very clear here in Canada—a nurses' strike that we know we wouldn't criminalize here—may seem like something altogether different far from here. The concern we have is that immigrants and refugees will be criminalized under Bill C-36 for activities that are not criminal. The definition in this bill reaches much too far.
I want to speak for a moment about another aspect of the definition that relates to terrorist groups and people who are facilitating terrorist groups. We do note that the government has not sought to criminalize membership per se, but we are very concerned that the definition of terrorist group and the criminalizing of those who facilitate terrorist groups indeed accomplishes the same thing, as though being a member of a group is a crime in and of itself. No mental intent is required in order to facilitate a terrorist group as it is presently constructed in the bill. In that regard, we endorse the submission of the Canadian Bar Association in drawing concern to that.
Let me give you a concrete example. In the refugee context, people can be excluded from refugee protection if they have been involved in criminal activities in their homeland and if they have been involved in illegal violence. But a long jurisprudence has developed, both here in Canada and around the world, that recognizes that many groups are multi-faceted. In fact, if we take the example of the African National Congress during the days of apartheid, the ANC had a political wing and it had a military wing. Many people who were deeply committed to the cause of overthrowing apartheid were deeply involved in a political cause, but they had absolutely nothing to do with any violence.
Because of the way Bill C-36 is drafted, it would indeed criminalize people whose political convictions supported the ANC in the apartheid era. Ironically, it would not seek to criminalize those who were part of the apartheid regime. We are worried that these sections are indeed framed with a very state-centric bias right now, in a way that will particularly have a disproportionate impact on immigrants and refugees.
As I said, the jurisprudence is quite clear that not all groups are the same and that it is very important to distinguish the kinds of activities groups are engaged in before criminalizing people for their involvement in them—and I'd like to give the committee another quick example.
Imagine that an organization here in Canada is sending money to Afghanistan for food aid, with the firm understanding that the food was going to needy refugees, to people who have been displaced as a result of the conflict. Imagine what would happen if some of that food ended up going to terrorist groups, unbeknownst to the organization. Under the terms of Bill C-36, the individuals here in Canada would indeed be criminalized. It wouldn't matter if they didn't know they were facilitating this occurrence. That's exactly the kind of activity I think we would all agree should not be criminalized.
It's not good enough to tell us not to worry, that this won't happen. In the eight years in which I've had an opportunity as a lawyer to observe the implementation of the terrorism provisions in the Immigration Act, we have seen far too many examples of just this kind of thing. Most recently, two Kurdish people from Turkey brought their cases to the Security Intelligence Review Committee, to complain about the fact that negative security advice was rendered by CSIS in both of their cases. After years of waiting in limbo, one of them has finally been granted permanent residence, while the other one has been denied. The recommendations of the Security Intelligence Review Committee were identical in both cases, yet one was accepted and one was denied. I'm drawing your attention to such cases in order demonstrate the fact that catch-all terms like “terrorism” and “terrorist group” leave wide scope for arbitrary, unprincipled decision-making.
I probably don't have too much time left, so I would like to conclude—and hopefully engage with the committee members subsequently—by reminding us all that some twenty years ago, the McDonald commission released Freedom and Security under the Law: Second Report. The commission found at the time that the RCMP had subjected many groups, including the new left, Quebec separatists, unions, the Indian movement, and others, to surveillance, infiltration, and dirty tricks, solely on the grounds that they were exercising their freedom of expression. A full chapter of the commission's report addressed security concerns, security screening, and threats to the security of Canada. I think we would do well to recall the McDonald commission's reminder:
Canada must meet both the requirements of
security and the requirements of
democracy: we must never forget that the
fundamental purpose of the former is
to secure the latter.
Thank you very much. I look forward to having an opportunity to address your questions.
The Chair: Thank you very much.
We now go to Mr. Akhtar.
Mr. Mumtaz Akhtar (Chairperson, Human Concern International): Mr. Scott, ladies and gentlemen, I am Mumtaz Akhtar, chairman of the board of Human Concern International.
HCI, a humanitarian organization based in Ottawa, was formed in 1981 by four professionals from Calgary who were concerned about the intolerable plight of their fellow Muslims in Afghanistan. Today, 21 years later, over $20 million has been raised—mostly by Canadians of the Muslim faith—to fund our work, primarily on the front lines in the world's most troubled hot spots. It is very dangerous work, and each day our staff are subjected to horrors that we, sitting here in this beautiful, warm building, could not begin to imagine. They also face imprisonment and even death, yet they continue because they are dedicated and needed.
Today, I would like to draw your attention to concerns that you should consider about this proposed bill. We would also like to make some concrete suggestions.
There is no question that Canada needs to strengthen not only its laws but also its policies and resolve to fight terrorism. Like all law-abiding Canadians, we support measures that will do so. However, we must be very cautious that this bill is not a reactionary measure. Otherwise, we might risk creating another McCarthy era and go back to the days of unjust character assassinations. That is a distinct possibility.
Being a Muslim-based organization made up of a small number of employees and many volunteers, we are very concerned. Like many of your forebears, we came to Canada to avoid oppression and lawless regimes. We came to be free. Yet HCI is a living example of how, even under current legislation, one can become a victim of improper statements and inaccurate information that emanates from government-leaked or -supplied information.
Bill C-36, at first read, has the potential to create more innocent victims than current law can, particularly those of us who have made Canada our home of choice because of its civil liberties, rule of law, and protection of the innocent. Bill C-36 appears to reverse the principle that you are innocent until proven guilty. Inaccurate, wrong, and false information also can create a de facto state of fear, in which one is presumed guilty until proven innocent. I would like to give you a very real, very specific example of how that can happen. HCI is that example.
In 1995, the volunteer director of our Pakistan office was arrested for alleged involvement in the bombing of an embassy in Islamabad. He was never charged. After four months in jail, and with direct intervention by Prime Minister Chrétien, he was found innocent in Pakistan and was released. Today, we learned he is listed on Canadian and U.S. terrorist lists.
Back in 1995, we were concerned that this incident would negatively affect our work, so we asked that he leave our organization. An independent audit turned up no financial or organizational irregularities, but to further protect ourselves, we brought financial control back to our headquarters in Ottawa. We conversed, and we presented ourselves to all major government departments in an effort to restore HCI's operations. We made our internal workings available to concerned government entities, such as CSIS. We have an open and standing invitation to CSIS to review any of our files whenever it wants, and HCI has made itself available to answer any questions or issues.
As responsible persons who are responsible for HCI, we thought we had done the right thing. Despite our efforts, CIDA has never reversed its 1996 decision to suspend funding to HCI. CIDA also intimated to other NGOs that it would not fund projects in which HCI was involved as subcontractors. We went through two Revenue Canada audits, both with no concerns. Even so, we have been through hell since then. We keep asking what we have done wrong, but no one will tell us. For the past six years, HCI has asked that question of ministers of the crown, members of Parliament, and senior civil servants. We also sought information through the Access to Information Act and Privacy Act.
A judicial review initiated at HCI's request revealed for the first time that secret CSIS information may have been the sole cause for the 1996 suspension, but we still don't know for certain. Today, we are proceeding before the Security Intelligence Review Committee in order to get to the root of CIDA's 1996 decision. In that proceeding, we do not know what it is that HCI has done wrong, if anything. We are nonetheless expected to defend our reputation, which other humanitarian groups, our partners, and stakeholders will tell you is excellent.
Today, victims in a situation like ours have no legal rights. Imagine what could happen under the new bill when innuendoes, secret information, and rumours become the basis for the destruction of organizations and the reputations of individuals.
During our recent quest to find out what HCI has supposedly done wrong, we were subjected to information provided to the media by certain persons. This has resulted in rumours, innuendo, speculation, and even accusations, against which we are constantly forced to defend ourselves. As an example, the United States Department of the Treasury issued an erroneous press briefing that stated that the Canadian aid worker named on terrorist lists both here and in the United States presently works for HCI, the front organization. We think they were referring to HCI U.S.A. Incorporated, an organization totally removed from HCI Canada—we share only similar names. Also, the reference to the individual presently working for HCI is wrong, and we have had to write the United States Department of the Treasury to correct the misstatement. We have heard no reply. Likewise, we have heard no reply from our own Solicitor General, with whom we have sought to correct misinformation. Can you imagine the damage to our organization from this false information?
Initially, at the outset of the September 11 tragedy, comments were made to the media by the Honourable Maria Minna, the minister responsible for CIDA, intimating that HCI was under investigation for terrorist links. The article suggested that she had accused HCI of not answering audit questions satisfactorily, thus leading to the suspension. This caused a flurry of front-page articles. It took five weeks for Minister Minna to finally reply to HCI. In her reply, she retracted the statement allegedly made to the media. Somehow, we doubt the reply will make the front-page news.
In the first five-week period, untold damage has been inflicted on HCI, our donors, our volunteers, and our staff. We were even subjected to an embarrassing reference in the House of Commons, where it was alleged that HCI was on a U.S. terrorist list. When we should be concentrating on saving lives, we are wasting valuable time and resources to combat false accusations and innuendo. In the past six years, we have spent over $250,000 and too much time defending ourselves. Do you know this wasted money would have fed over 700 people for the whole year in wartorn countries?
The work we do is very dangerous. It is very tough. We are fighting against lawlessness, criminals, and the elements every single day of the year. The last thing we need to do is fight our own government, but that is exactly what we have been forced to do. The worst thing is that we don't know why. If we have done something wrong, tell us, charge us, but don't persecute us. And for heaven's sake, in your enthusiasm to chalk up victories against terrorism, don't destroy 21 years of hard, life-threatening work and the countless numbers of reputations of those who have faithfully and honestly served the interest of humanity in the globe's most impoverished areas.
A few years ago, a top CIA official was charged with spying for the Russians. One of Queen Elizabeth's senior and most trusted officials was as well. With all the resources that they have, they could not keep from being infiltrated by those bad guys. How, then, can a small, non-profit organization like HCI protect itself? If an organization has been infiltrated, it should be warned and advised. What do you expect us to do in the absence of cooperation and assistance from our own government? If we were in fact infiltrated, in 1999, we asked if some prospective employees could be screened. This request was denied on the grounds that such action was not in the mandate of CSIS.
Ladies and gentlemen, when you are debating this bill, please remember our story. If we have been subjected to this kind of harassment before Bill C-36, can you imagine how innocent people might be damaged once it is passed? We are sure most Canadians would give up some freedom if it means better protection against evil people. I'm sure most would say that if you are an honest and good person, you shouldn't have to worry about this bill. We beg to differ.
Today we are due to look for ways to protect the innocent while pursuing the guilty, and to be aggressive in protecting the innocent, as we must capture criminals. We have some positive suggestions that we think will help to do both. The first is to staff up a mechanism or an organization that will help groups that might be targeted for infiltration by terrorists. It could be a one-stop shop that could help us to check the credentials of prospective employees and to answer any concerns we may have about whether or not we are following proper security procedures. The second is to work with an intelligence agency—
The Chair: Mr. Akhtar, how much time do you have left? We're over by quite a bit.
Mr. Mumtaz Akhtar: Just one minute.
The Chair: One more minute? Okay.
Mr. Mumtaz Akhtar: Establish a mechanism that allows for an accused charity to provide additional information. Collect that information before a certificate is issued, before a news release is issued, or before it is judged guilty by government information. Thirdly, and finally, establish information reporting by charitable organizations.
In conclusion, I would like to underscore that HCI has been victimized under current law. We have been through a living nightmare. We hope our real-life example will provide you with information that will help you to craft a law that helps to combat terrorism without further terrorizing the innocent. Otherwise, the terrorists will have won.
Thank you very much for your indulgence.
The Chair: Thank you very much.
Mr. Janzen, of the Mennonite Central Committee.
Mr. William (Bill) Janzen (Director, Ottawa Office, Mennonite Central Committee Canada): Thank you, Mr. Chairman.
We thank the committee members for this opportunity to come before you. We recognize that you have a difficult task in seeking the appropriate security measures in this context. We do not want to avoid public scrutiny or accountability. We know church organizations and other NGOs are not perfect, and we don't want to assume the worst possible scenarios in the sense that the strictest parts of the law would definitely be enforced. Nevertheless, we do have concerns that the balance that needs to be struck in this context could be struck in a somewhat better way.
The brief, which some of you have—I brought it here, and I have some additional copies available if some of you don't have one—basically deals with three parts. One is the definition of terrorist activity. The second is a definition of terrorist group, which to a large extent hinges on the word “facilitating”. Thirdly, we have some words about procedural safeguards.
I will not belabour the discussion about the definition of terrorist activity. Others have already spoken on that. But I would like to use one illustration to indicate the problem.
We are active in more than fifty countries. Most social protest in Canada is within the framework of the law. A great deal can be done here within the framework of the law. In contrast, that is not the way it is in every other country. In many countries, very little social protest is allowed within the law. In that kind of a setting, there may be situations in which some people courageously undertake certain non-violent acts of civil disobedience. According to this bill, those acts could now be considered terrorist activity even though they are non-violent, and even though they should in many ways be considered as courageous steps toward democracy and human rights. Further, there could be problems for us, as a Canadian NGO that was somehow involved with those individuals.
Coming now to the matter of facilitating terrorism, which relates to being designated as a terrorist group, a great deal of that hinges on the word “facilitating”. There are two difficult situations. For example, in much of our work in other countries, we give grants to local NGOs, be they farmers' associations, conflict resolution centres, dialogue groups, clinics, schools, or vocational training centres. We choose these groups very carefully. We have over 200 Canadians working in our programs overseas. They are mature people. They assess these organizations very carefully before we give grants. But it is difficult, even with the best of diligence, to make sure none of the individuals involved in or associated with some of those groups might not do some activities that could be labelled “terrorist” under this act. So it could put us in a very difficult situation.
Further, another illustration of the problem is that, in some situations where people have been living in unjust and oppressive conditions for years and where some groups find themselves considering actions of violent resistance, we have provided people with extensive literature on the philosophy and the strategies of non-violent resistance and engaged in dialogue with them about the possibilities of such an approach. Unfortunately, under this bill, that is very risky activity, because if it's against the law and we are associated with it, it could land us in serious difficulty.
Another on-the-ground problem is where, say, we're working in a situation where a certain territory and a certain population is under the control of a rebel group or an insurgency group. The people there are in great need of humanitarian assistance, and we want to work there. We will somehow have to come to terms with the organization that controls that territory, just as if it were a government. Under this bill, that could put us in considerable jeopardy as to whether we might be associated with a terrorist group.
I say that because proposed paragraph 83.05(1)(b) refers not only to facilitating terrorism, but it says, if you act in association with an entity that does facilitate terrorism.... The wording is such that the acting “in association with” doesn't have to have anything to do with supporting terrorism; it's just as long as we have been associated with such a group. So if we have been feeding women and children but some other parts of the organization are doing questionable things, we have been associating with such a group.
There are several procedural safeguards that we raise near the end of our proposal. I will not go over all of them, but I'd like to mention two.
One is the idea that there might be a charities advocate. First of all, the reason for the charities advocate relates to the idea that perhaps the Canadian government might not want to disclose all the information it would get from a foreign government. That in itself is a concern to us because we can well imagine situations where a foreign government might be quite happy to have an international NGO removed, making it a little bit easier for it to carry on with certain questionable policies, so it might pass information on to the Canadian government about a Canadian organization working in that context.
It's not inconceivable that the Canadian government, in its pursuit of broad interests, might not examine every aspect of that information very closely. So then the NGO is in a very vulnerable situation. We can not see all the information, according to this bill.
The first idea would be that, yes, there should be full disclosure, but if that is not possible, and we can sort of understand why the Canadian government might not want to make full disclosure of all the information that it would get from a foreign government, in that context perhaps the idea of a charities advocate would merit consideration. This advocate would have access to all the information, and it could then give some advice as to how we, as an NGO, could present our case, not detailed advice but it could say, well, present your employment records, or present your records about other activities that may be crucial in persuading the judge that you are innocent, and so on.
As well, in the bill there is some confusion about whether “facilitating” requires knowledge of facilitating. In other words, at least according to one section in the bill, we could be guilty of facilitating even though we did not know that we were facilitating. There are other sections that use different words, and there is come confusion about that. But if the committee will not recommend that a facilitator should know that he or she has been facilitating, then we would like to recommend, minimally, that there be a defence of due diligence, that we were duly diligent in ensuring that any groups we were associated with were not engaged in any questionable acts.
The last procedural safeguard that I think would help relates to the idea of a warning. The measures in the bill that the Canadian government can use against an NGO that may be involved in or facilitating questionable activity or may be acting in association with another group that is facilitating, and so on, are very harsh. You can be deregistered as a charity, which is almost certain to be fatal, or you can be labelled as a terrorist group. Both are almost certain to be fatal.
If there is a situation—and there might well be such situations—where there is every reason to believe an NGO has acted in good faith and has exercised due diligence, if then there is a questionable situation and the Canadian government has information about it, why not simply give that NGO a warning? Tell that NGO that it must cease and desist from certain activities or certain associations immediately or else these draconian measures will fall. That warning could well clear up most situations where the two very harsh measures that are in here are simply too harsh, situations where there would be all indications of good faith and due diligence. We believe it merits consideration.
The Chair: Thank you very much.
Patrick Johnston, with the Canadian Centre for Philanthropy.
Mr. Patrick Johnston (President and Chief Executive Officer, Canadian Centre for Philanthropy): Thank you very much, Mr. Chairman, and thank you for the invitation to be here this evening.
The Canadian Centre for Philanthropy is a national association of more than 1,100 charities and non-profits in all ten provinces and three territories, so it will not surprise you that the particular provision of this legislation that deals with charities is of great interest to us and our members. In fact, I am going to focus my comments in particular on part 6 of the proposed legislation.
Earlier this afternoon we submitted copies of our written submissions, so I am assuming or hoping that they have been distributed or will soon be circulated.
A number of months ago, in fact earlier this year, we conveyed to the Solicitor General concerns we had about Bill C-16, which, for all intents and purposes, is very similar to part 6 of this legislation. We were concerned about that piece of legislation and recommended that there should be a criminalization of fundraising for terrorism activities and there should be a definition of terrorism.
Bill C-36 does address some of the concerns we raised with respect to Bill C-16, so from that point of view, in some instances, we see Bill C-36 as an improvement over Bill C-16. Having said that, we have gone through some of the provisions of the legislation, and we have a number of amendments to propose to part 6.
We share many of the views that were conveyed by the Canadian Bar Association on certain of these provisions, and some of those are referred to in our written submission. But let me briefly touch on some of the key points.
Upon reflection—and again we agree with the Canadian Bar Association—with the criminalization of fundraising for terrorism activities that is now incorporated in part 1 of this legislation, combined with the existing powers of the Canada Customs and Revenue Agency to revoke charitable status, we're not clear any longer that there is a real need for part 6 of this legislation. It has almost become redundant as a result of the provisions of part 1 of the legislation. So we think a serious look should be given at whether in fact part 6 is still needed or not.
If, however, part 6 continues to form part of this legislation, we have a number of amendments to propose so that provisions in part 6 are at least consistent with other parts of the legislation.
We believe clause 4 of part 6 would be improved by some reference—and we've suggested some wording—to knowledge and intent of the organization, that it had to have some understanding and knowledge that its resources were being used for terrorism activities before it could be subject to the issuance of a certificate.
We also have some concerns about and have made some recommendations that we think would enhance clause 6 of part 6, so that a court could not find a certificate reasonable where an organization had established that it had exercised due diligence to avoid the illicit use of its resources, as defined in clause 4. We want to be careful that we are capturing here and putting out of business those organizations that are operating under the auspices of charitable registration, that are quite clearly intentionally raising funds and supporting the raising of funds for terrorism activities.
We want to be very careful, though, that we don't unintentionally capture some organizations where an individual involved with that organization may not be disclosing full information about what he or she is doing, where it is misleading, and that organization then becomes subject to the provisions of part 6 and the issuance of a certificate. So we believe that provision, in terms of due diligence, would enhance the bill.
In addition to that, we would like to see changes to clause 6 of part 6 stating that where an organization makes a disclosure to the appropriate authority that it has become aware that its resources have been used illicitly, it would not then be subject to a certificate arising out of the disclosed transaction.
Essentially what we're trying to do here is ensure that there is no disincentive for anyone involved with a charity that, even with due diligence, learns that its operations are being misused and that some of those funds are going to support terrorism activities to come forward and disclose that information. We believe that change in clause 6 would enhance that.
We also talk in particular about some concerns we have about the lack of full disclosure of information to charities that may be subject to the issuance of a certificate. We are aware that, in certain parts of the world, governments that may not be particularly sympathetic to organizations that may be engaged in environmental protection, or human rights, or advocacy for the abolition of child labour may, as a way to eliminate the activities of those organizations within their country, simply declare that a terrorist organization. We want to ensure that does not happen and that those organizations have a right to then challenge inaccurate allegations that may be made about their operations, so we have made some suggestions about changes in that regard.
In summary, on balance, we do see Bill C-36 as an improvement, having addressed some of the concerns we expressed with respect to Bill C-16. However, we're not sure any longer that part 6 of the legislation is really warranted given those changes included now in part 1. Also, if it is decided to continue with part 6 of the legislation, we have proposed some amendments that we think would enhance those provisions and ensure that only charities that are engaged quite clearly and intentionally to raise funds for terrorism activities would be the subject of the legislation.
The Chair: Thank you very much, Mr. Johnston.
I'll go immediately to Mr. Toews for seven minutes.
Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.
I thank the witnesses for coming here today. We certainly appreciate your efforts and your genuine concern that the good work your organizations do is not impeded by this legislation. I detect a recognition that the government has a genuine concern in dealing with this very terrible situation arising out of terrorism generally and the events of September 11 specifically.
My own view is that Bill C-36 does not criminalize actions that don't have the appropriate level of mens rea, that is, guilty mind. Generally speaking, under our constitutional framework, inadvertent actions are not criminal actions. However, as has been pointed out very clearly tonight, it's not simply the criminal penalties that can be fatal for an organization; the administrative steps can be every bit as fatal, indeed, can be capital punishment for those organizations.
I know of the good work of your organizations. I'm perhaps more familiar with the work of the Mennonite Central Committee. This organization arose in the 1920s and rescued many from the turmoil and horrors of the Russian civil war, including both my parents and their families. The Mennonite Central Committee's reputation as a charitable relief organization is well established and well recognized. Although I've singled you out, I'm sure the other organizations have similar intents and similar success stories. I think every member of this committee is mindful of the work your organizations have done.
I've noted some of the recommendations that have been made. I think they're very good recommendations, and they certainly track some of my thinking on this bill.
One is the utilization of a charities advocate, someone who would review, essentially in confidence, information and then assist charities. I'm not necessarily in favour of creating a new bureaucracy, but perhaps that could be put into the existing bureaucratic framework of the Privacy Commissioner or the Information Commissioner. I'm certain you're not particularly concerned about which office that's in.
The recommendation of a warning as an intermediary step is a prudent one. It's often done by police officers catching speeders, who are just a few miles on the wrong side of the law, perhaps by inadvertence. They can give a warning ticket, to give direction and set matter on the appropriate course.
Today we heard the idea of the repeal of part 6 explained in a very effective way. You've given us—certainly me—something to consider. What role does that part really have to play now?
Essentially, my comments here are simply to thank you for the very important information from all four organizations, and I'll leave the rest of my moments open. I know that Mr. Akhtar was cut off by the chair, as he was required to do by the rules, but perhaps he has additional comments. Perhaps Ms. Aiken has something additional to state to the committee.
Mr. Mumtaz Akhtar: I just want to add that we should have some kind of mechanism to warn these organizations. You don't know who is working for you at the other end, and who is infiltrating your organization.
Our intent is very good. We are trying to do our best. But what happens if somebody blows up a bomb at the other end? How can we protect ourselves? How can we say that these people are not needy? We are providing food, shelter, and vocational training.
That's why we think this mechanism should be in this bill. Then we can check the credentials of prospective employees, answer any concerns we may have about whether or not we are following proper security procedures, and get information.
Our third point, which I couldn't finish, is to establish information reporting by charitable organizations. There should be regular disclosure reports if they are honest charitable organizations. They should tell the government where their money is, how they spent it, who their employees are, who their volunteers are, and who their consultants and partners are.
The Chair: I believe Mr. Janzen would also like to respond.
Mr. William Janzen: I want to thank Mr. Toews for his kind words, and also for his conviction that mens rea, or intent, is rooted in this bill.
If that is really the case, it takes care of some of our concerns. The section that left us with the contrary impression is on page 15 in proposed subsection 83.01(2), which says a terrorist act can be facilitated, whether or not the facilitator knows.
There are other sections that indicate something else, but if Mr. Toews' view can hold, despite these words, that would be a comfort.
Mr. Vic Toews: That's certainly my view on the criminal process, but your concern about proposed paragraph 83.05(1)(b), the association for the purposes of listing, is a very troubling one because it is outside of that criminal context. That causes me some concern. It seems to be overly broadly drafted.
The Chair: I want to go directly to Mr. Bellehumeur, as we're over our seven minutes.
Mr. Vic Toews: I'm sorry.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much for your enlightening comments and briefs.
It is most likely that what I'll tell you won't be very comforting. Contrary to my colleague, who is surely a very good lawyer, I'm convinced that we have to make a distinction between the two provisions, since the offence which is mentioned in proposed subsection 83.01(2) that you have quoted is, according to me, an offence which does not require mens rea, which is not the case for all the other sections where Parliament used the word “knowingly”.
I think we have to make a very important distinction. This bill contains in fact sections which go against a number of principles of criminal law, which makes me very concerned, including the concept of mens rea.
As you see, two lawyers have looked at the bill and understood things differently. I'm sure that a third lawyer who would study the bill would also understand differently this complex bill, which, obviously, has been drafted very quickly, which contains a number of deficiencies and that we, as legislators, are studying very quickly. I think that we are putting aside a number of things so we can pass this bill as fast as possible. I'm not sure it is very wise to proceed like that.
We should add to that a definition of “terrorist activity” which is much too broad and, to follow on what the lady who spoke first was saying, the fact that it is not in the first part, which deals with international conventions, but mainly in the second part, which creates a terrorist activity made in Canada, an obvious cause for concern because, as I said, it is very broad. This is a big concern. Also add to that the examples of wrongdoings given by this gentleman, examples of errors and false accusations thrown at groups like those you defend. If we give them the powers included in Bill C-36, those concerns will increase. I think we have every right to be concerned when we look at the provisions about facilitation and arrest without warrant.
Taking into account what you have said, Mr. Johnston, I now see Part 6 from a new perspective and I'm asking myself if it is really necessary, given the comments you've made. With all the things I mentioned, I agree with you that this is a concern and that we should be very careful.
I'm being told that this bill could be reviewed, according to section 145, in three years. There will be a review but I don't think this is a sufficient safeguard.
From the start, the Bloc Québécois recommends sunset clauses. The aim is to set a clear limit in time. In three years, as our proposal will provide, this bill will die. If the government, who will still have a majority at that time, wants to revive the bill, it will have to demonstrate that it is still needed in three years.
My question, and it will be the only one, is the following. Do you think such sunset clauses should be mandatory in such a bill?
The Chair: Ms. Aiken.
Ms. Sharryn Aiken: I'd be happy to address the question.
Our brief doesn't address it directly, but we certainly agree that a sunset clause is very important, particularly given all of the concerns. We don't address it in the brief because a sunset clause may give people the impression that the provisions in here are all right to live with for the next three years, and from our perspective they're not.
Unlike my three colleagues here, our focus first and foremost is not an organizational one, per se. It's first and foremost a concern for the individuals, refugees and immigrants. Obviously the organizations here are worried about individuals as well, but I'm trying to say that the focus we bring to the table this evening is the concern that individual lives will be ruined, as a result of even three years of the application of this bill, in the way it is drafted right now.
I would urge the committee members, in response to the remarks just made, to consider the fact that the United States had very enforcement-oriented legal tools. None of those legal tools were able to safeguard them and protect them from the tragedies of September 11.
We don't need new, fancier legal tools to protect ourselves from the very real threats we face internationally. We need to do a better job of using the tools we have. That is very important. As I said, why would Canada go beyond the parameters that the international community has agreed to, in criminalizing terrorist acts?
The Chair: Mr. Janzen.
Mr. William Janzen: Thank you.
Our brief also does not speak to the question of whether there should be a sunset clause. But the provisions in this bill are far-reaching and unusual. At least that is the way they appear. So anything that ensures a very thorough review of these provisions before they become a permanent part of the Canadian legal framework deserves support.
The Chair: I'll go to Mr. MacKay for seven minutes.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair, and thank you to all the panellists. Again, you've brought forward a very interesting, very important, perspective for us. Much of what you have raised in all of your presentations is very much the pith and substance of what we're wrestling with in order to find that very important balance of protection, while not treading too far into the area of civil rights.
Ms. Aiken's last point I think is one that we do have to keep as a backdrop to what we're doing. There is the ability to do much of what we seek to accomplish in this legislation right now through a more diligent and rigorous enforcement of current provisions.
I was struck with one comment you made, Ms. Aiken, in your presentation going into the area of groups that purport a political agenda versus groups that purport using violence to achieve that political agenda. We had a visit here from Gerry Adams today and I couldn't help but be struck in the face with this group that has for years carried on activities on a political level, had a political agenda, while at the same time never severing the ties they had with the IRA, who were actively engaged in acts of terrorism.
Without getting into the politics of the reason behind that, how do we delve into this? How does the government take responsibility to determine this grey area if the groups themselves that are working with individuals purport to be somewhere in between, advocating certain types of civil disobedience to achieve a political end while at the same time maintaining ties to a group that quite clearly crosses that line?
That is my first question. Again, I apologize. We have such a short time to pose these questions to you.
But I was also going to ask the other panellists, Mr. Johnston and Mr. Janzen, about this issue of facilitating and the knowledge. My interpretation of our current Criminal Code is that due diligence is always going to be there as a defence. It's one of those common law defences that has its application. Yet I'm very interested in this idea that you have posed to us in terms of the issuance of the certificate, which could be very much the death knell when it comes to a group's charitable work.
Once having been accused and never being given a trial, you have neither the ability to proclaim your innocence or prove your innocence, nor does the investigation ever end. It's the prosecutorial purgatory, if you will. There's never an end to it; it's an investigation that goes on forever. “I would rather be charged and convicted than be permanently under investigation” is the old adage.
Yet there is this idea of a yellow card where you say, look, you're very close to the line for reasons that you may or may not be aware of. You now bear the obligation of clearing this situation or presenting evidence that shows you're not somehow going down a road that's going to lead to funding of terrorist activity or even unknowingly putting yourself in this situation.
How do we put some parameters around that? There would have to be, as you've suggested, a forum, and that doesn't appear to exist, because once the minister has made that determination, much of the judicial oversight has been removed by virtue of this bill; much of the discretion now lies solely in the hands of the small “p”, political minister, the Attorney General. So your ideal scenario of this warning would have to work in conjunction with some sort of impartial arbitrator, perhaps an existing office, as was suggested by Mr. Toews, of the Information or Privacy Commissioner. And I would suggest that even the Auditor General might play a role in something such as this.
Perhaps you could give us more of your ideas in this regard. I think there's something very substantial there that we could draw out of your presentation.
The Chair: I'll go first to Ms. Aiken.
Ms. Sharryn Aiken: I'll jump in, if you don't mind, because I do have to leave quite soon to catch a flight.
In terms of the grey groups, jurisprudence coming out of international criminal law as well as refugee law speaks to the fact that only groups whose single purpose is a limited brutal purpose should be criminalized—only those. The grey groups and everybody else we need to examine on a case-by-case basis, and we need to consider whether the individual had close or direct responsibility or was actively associated with the commission of a crime.
In other words, we look to individual complicity, aiding and abetting, conspiracy, traditionally well-understood concepts in the criminal law, and that's how we find people culpable, not on a basis of associations with grey groups, as you termed that, because in fact doing that risks criminalizing all kinds of people who have done nothing wrong, who have committed no crime.
The international terrorism treaties, all 12 of them, don't criminalize activities in the grey groups; they criminalize complicity in crime. That's what we should focus on. In order to solve the problem of the grey groups, all we need to do to Bill C-36 is to stop after the enumeration of the treaties. If you take a look at the text of the treaties, they're comprehensive. They address all of the concerns that this committee should properly have to address security in this country and more.
The Chair: Thank you very much.
I think there was a question put to Mr. Johnston and Mr. Janzen.
Mr. William Janzen: I would speak similarly to my colleague here. I think the question of where to draw the line with regard to facilitating is very difficult, and we face it in other situations too. A few years ago I visited North Korea. I came back and people said, you provide food to North Korea; you're making it possible for the government to use more of its resources for purposes that we don't approve of. I responded that that assumes the government would want to use its resources to help the people. I said we know the food we send there is getting to the people, and it's saving lives, so let's work with that.
Mr. Peter MacKay: Can we trust the integrity of those systems, though? Do you not constantly face the situation where you're dealing with countries—take Afghanistan as the most obvious—where the governing regime is not dependable, is not concerned about ensuring that your acts of charity actually benefit the populace?
Mr. William Janzen: We are extremely careful that the food, or the goods, or the work we do gets to the people for whom it is intended. We simply don't work in situations where we have to assume the good word of a questionable government. I think most Canadian charities work that way. The idea of writing a blank cheque to some authority doesn't wash.
The Chair: Mr. Johnston, for a final answer.
Mr. Patrick Johnston: In response to your question, Mr. MacKay, if we are talking about organizations that already are registered, that have status as a registered charity and are able to issue tax receipts, then it is the Canada Customs and Revenue Agency that really, in many ways, would be the first place to start in terms of the appropriate oversight body. I don't know if there's anybody who has ever thought of the Canada Customs and Revenue Agency as an advocate for charities. I don't think most charities think of that, but this would certainly be a place where one would start.
I think there has been a suggestion about some sort of a warning system, yellow cards, before a charity crosses that line and then suffers “capital punishment”, I think is the term we use. That is what revocation would entail.
One of the shortcomings of the current legislation that governs charities is there are very few, if any, intermediate sanctions before a charity gets completely cut off. There's charitable registration and then there's revocation, and not much in between. This is an issue that the agency is actually looking at for not just this instance but for a whole variety of purposes.
So there may be some there, but that provision does not exist right now to the extent we would want it within the agency.
The Chair: Thank you very much.
We'll surprise Mr. Paradis by going to Mr. Blaikie.
Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Chairman, I won't take up much of the committee's time. Unfortunately, the question I had in mind to ask, I wanted to ask of the witness who just had to leave to catch a plane.
In regard to this conversation about trying to have some person, an advocate or the Auditor General, whoever, I wonder whether this role couldn't be subsumed under the mandate of what the Senate was recommending when they were talking about.... I haven't actually read their report, but the media reports of their recommendations said they were talking about an officer of Parliament to oversee the implementation of the legislation and its enforcement on an ongoing basis.
I'm just musing out loud here now about whether or not some of the things that have been talked about here tonight aren't the sorts of responsibilities that could be—if this committee and the government accepted such a recommendation—some of the things that officer of Parliament the Senate committee envisioned could do.
The Chair: Is there any response?
Mr. William Janzen: I think it would be workable. I'm very pleased there is serious interest in that sort of idea around this table.
The Chair: Mr. Akhtar.
Mr. Mumtaz Akhtar: Yes, I think it's very important to have some agency or organization to look after this kind of thing. Maybe CSIS. It's an information-gathering agency, and they could find out what is going on, because they get information from other secret agencies too. They could tell us if we were on the yellow line, if we have to be careful with this kind of information. We should protect ourselves and try to find out what is going on, especially in Afghanistan.
We've been working there for 20 years, and somehow somebody infiltrated our organization. We don't know what happened. We're still trying to find out. If CSIS knew about it—and we've asked them to tell us—it could have saved a lot of time and a lot of money. We've been fighting the same thing for the last six years.
The Chair: Mr. Johnston.
Mr. Patrick Johnston: I have not read the Senate report either, so I'm not sure of the specific recommendation, but at first blush I would wonder about the merits of establishing a two-tier system, if I can use that language, that approaches certain charities differently from others. I'd want to think through why we would implement different systems.
All sorts of charitable organizations are subject to scrutiny by Revenue Canada, and some—not a lot, fortunately—have had their charitable status revoked for a whole variety of reasons. So I'd want to be careful about setting up someone, whether it's an officer of Parliament or whoever, who would want to approach certain charities differently from other sets of charities.
Mr. Bill Blaikie: That would be for only those things that were occurring because of this new legislation, not because of Revenue Canada.
Mr. Patrick Johnston: One of the points, Mr. Blaikie, that I made earlier is the question again about whether part 6 of the bill really is necessary any longer. It's our view that with part 1 of the legislation and the current powers of the Canada Customs and Revenue Agency, it's not entirely clear part 6 of the legislation is really required.
The Chair: Thank you very much.
Thank you very much, Mr. Blaikie.
Mr. Paradis, with all that time to think about it, we're expecting a high level of questioning.
Mr. Denis Paradis (Brome—Missisquoi, Lib.): Thank you, Mr. Chairman. First, I would like to thank the panellists for their presentations and thank them also for the charity work,
for the charity work you are doing in the field.
Mr. Chairman, I will start by giving you two examples of situations which I experienced in my own riding of Brome—Missisquoi, a rural riding south of Montreal.
First, I tried to get, a few months ago, a charity registration for an organization called Société d'Agriculture which wanted to protect its buildings, etc. Those who are making gifts to that society were receiving tax receipts, etc. I can tell you it has not been easy. It is not easy to work in that sector. I therefore tell myself that when one has this charity organization status, and the possibility to hand out tax receipts, that's already something. It's a privilege that the state gives you to deliver tax receipts because those amounts can be deducted from their income tax by the people who make those contributions.
Here is my second example. Last weekend, I've been to a school activity where 1,500 parents of my riding were paying $10 or $15 for a brunch to help finance student activities. They have not applied for a charity status. In the end, all the parents were giving $15.
Which brings me to the following thought. I will put aside the questions of definitions of control mechanisms and period of validity of the bill, because others around this table have talked about that. When I was studying law, I was told that there was a difference between a right and a privilege. The tax receipt or the registration as a charity organization, is it a right or a privilege?
I come to the conclusion that, when the state allows you to deduct from your income the money that you give, it comes down to a privilege. It is not a right you have from the beginning. I start from their principle. If this is a privilege and not a right, it is not automatic. So, at some point in time, you have certain obligations. I have to commend you because 99 percent of the charity organizations in Canada do a very good job, but we have to make the difference between a right and a privilege. It is a privilege which the state gives you.
My question is very simple. What can you suggest so that the privilege which is granted to you to receive tax deductible gifts...? What can you suggest so this bill will be simple to apply while excluding people who would like to abuse the system to do things which would come under the anti-terrorist act?
The Chair: Mr. Akhtar.
Mr. Mumtaz Akhtar: I think every organization that collects money from donors tries to spend that money on the needy in a very diligent way. We have accountabilities. We have transparencies. Every couple of years, Revenue Canada audits different organizations from floor to floor. I don't know how else you can protect the distribution of funds in different countries, especially in a country where there is no law, there is no government, there are no police. Just in going there, you're taking your life in your hands to feed these poor, needy people.
I think it's a right and a privilege. I think it's a right, because the government is taking advantage of these organizations who are working in these countries. Otherwise, the onus would have been on the government to help these poor nations and the people in these wartorn countries. I think the laws are there to protect the donors who give their money, and the organizations in return give them tax receipts. What else can be done?
The Chair: Does anyone else have a comment?
Mr. William Janzen: Thank you.
Mr. Paradis, you begin with a very interesting philosophical question about whether it's a right or a privilege. We could discuss that at some length.
Another way of approaching it is to say that it is in the interest of governments and of Canadian society that there be a generous charitable organizational framework. Our society could not function as a democracy without a broad range of non-governmental organizations. We don't want the kind of society where there's only the state and the individual. We want these intermediate organizations.
Further, when one reads about the tragedy we are all in now, one thing that becomes evident is the enormous misunderstanding. I don't want to be naive about this situation, but there are some people in the world who have the worst possible impression about North America; and there are some people in North America who have the worst possible impression about other peoples in the world, religions, ethnic groups, and so on. The people-to-people exchange can play a large role in overcoming those differences in understanding.
The non-governmental sector can play a significant role here. Canada has a very significant, a very rich, history in this regard, going back not only to recent decades, but for more than a century, when missionaries went all over. They may not have done their work perfectly, as we see it now, but there was a lot of human understanding and love and bridge building that did occur. The educational systems and the schools that were set up in many parts of the world provided occasions for cross-cultural dialogue.
Whether it is a right or a privilege, it is in the interest of all of us to try to make the non-governmental sector flourish. If we leave everything to governments, it's not going to happen, not in the humane way we want it done. The question of how to ensure that this work can be done without some bad apples getting in...this is a very tough challenge we're talking about here. We realize that's what you're wrestling with—
Mr. Denis Paradis: How can you help?
Mr. William Janzen: Yes. Each recommendation we are bringing forth is a partial answer to this question, but we know they are not a complete answer, and there will never be a complete guarantee that it doesn't happen.
The Chair: Thank you very much.
Were you waiting, Mr. Johnston?
Mr. Patrick Johnston: If I could, Mr. Chairman....
I'm actually glad Monsieur Paradis had difficulty getting that organization in his riding registered as a charity because it allows me to make an important point. The term and the construct of charity as it's used in Canada has been shaped by 400 years of common law. Actually there are very limited tests of what charity is and what constitutes a charitable activity that would deem an organization to be a charity and registered with Revenue Canada.
It is important to understand that many organizations raise funds that are not registered, nor do they need to be registered, with Revenue Canada as a charity. They can still raise funds. If they apply for registration, however, they have to operate within a fairly narrow paradigm of activities that has essentially been shaped by 400 years of common law.
This goes back to the point I made before on how a clear delineation already exists of what activities constitute charitable activities for the purposes of the legislation and registrations of charity. Any organization not engaging in activities meeting that test and definition of charitable activity is subject to revocation. Any organization that is a charity undertaking anything that relates to terrorism is clearly undertaking an activity that isn't charitable, and it is subject to revocation.
Mr. Denis Paradis: But, Mr. Johnston—
The Chair: Mr. Paradis, don't even think about it.
Some hon. members: Oh, oh!
The Chair: Your turn, Mr. Sorenson.
Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Chairman, and thank you for coming tonight, at this late hour on a Monday evening. The dimension or angle you have brought is a little different from a lot of the other witnesses we've had.
First of all, I agree with your assertion, Mr. Janzen, that we don't want to live in a society where on one hand we have the state and on the other hand we have the individual. A lot of needs have been brought to people...and originally you're right. Missionaries, the church, fulfilled those needs here in Canada.
Now perhaps this legislation represents an attack on those groups that each of the three of you represent—perhaps it doesn't put you under attack, but under such close scrutiny that it would certainly jeopardize your mission or your responsibilities to go about what you've been doing.
Ms. Aiken asked why we would go beyond the tools we already have to fight against terrorist acts. That's why we're here; the reason for going beyond is because what we have simply isn't working. September 11 changed everything and we've realized—and our government has realized, and I applaud them in this—that extra measures are needed. This is why we have to go beyond the tools we have already.
Legislation such as this isn't simply to deal with illegal immigrants, but it certainly includes this. The legislation isn't simply to deal with refugees, but perhaps it may include this. The legislation needs to be inclusive so that even citizens of our country finding themselves involved in terrorist acts, or groups that are, perhaps unknowingly or knowingly, involved in terrorist acts, stop doing what they're doing.
My quick question is this. How would this legislation as it is drafted now affect your groups? In other words, what changes would you make within your group to be sure you fell under the guidelines of this legislation?
The Chair: Mr. Akhtar.
Mr. Mumtaz Akhtar: [Inaudible—Editor]...protection for the organization before they are given a certificate, or have their accounts frozen, or are decertified, as long as there is a protection for innocent organizations. I explained to you our case, how we have been fighting for six years and we haven't come close to getting the information about our charges.
Mr. Kevin Sorenson: Just to make sure you understand the question, if this legislation was passed as it is—not what would you like to see put into it—what changes would you have to make? Would you close down, or make changes so you could adhere to this law?
The Chair: Thank you, Mr. Sorenson.
Mr. Mumtaz Akhtar: I don't see any changes, because we are doing everything according to the law here.
Mr. Kevin Sorenson: Okay, so there would be no changes.
The Chair: I wanted to see how he could answer after that.
Mr. William Janzen: Frankly, I'm not sure we would change. But if we wouldn't change, it would rest on the assumption that this law would not be enforced. And I would have a little bit of faith that the worst measures in here would not be enforced.
For example, we are active in quite a few situations of conflict. One of the things we have tried hard to do over the years is to talk to people who are resorting to violence and challenge them to use non-violent means in order to pursue what they see as justice. Some of them have suffered terribly. It's not surprising they have resorted to violent actions, but in many cases, their violent actions only result in worse repression and more suffering. The whole idea that there might be a non-violent way of actually working toward getting justice is something we try to promote in many situations.
But according to this bill, non-violent action, if it is illegal in country X, could be deemed an act of terrorism. If we are associated with a group that undertakes it, we could be in trouble according to this bill. That's what it says.
My inclination would be to say to my colleagues, let's not change, let's wait until they catch us, and then let's go to the courts and make any arguments. But the words in here are quite clear, that we would be breaking the law. I would greatly prefer that we not be in a situation where we have to do that. I would also be very sorry if we found ourselves changing what we believe very deeply and that is needed.
The Chair: Mr. Johnston, did you want to answer?
Mr. Patrick Johnston: Very briefly, the legislation would not affect my own organization directly, because we're an umbrella network of about 1,100 organizations. My concern is that some of our member organizations are international development humanitarian organizations. I would be concerned that they may start to pull their punches. They may start to second-guess whether or not they should be moving into areas of conflict internationally and delivering the same level and kind of services for refugees, for example, simply because they would be worried about being caught unintentionally in this legislation. This is part of the reason why we provided a number of specific amendments that are trying to ensure that those organizations—whether it's the CARE Canadas or the Médecins sans frontières—are not unintentionally caught by the legislation.
The Chair: Thank you. Mr. Owen.
Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you all for being here tonight. What you say has great resonance with me and with the experiences I've had in some wartorn countries.
I'd like to address a few issues that have been raised and perhaps get your reaction, because I've found—as have colleagues here—your presentations very interesting. One is the issue of the warning, just as a general concept.
The challenge of dealing with warnings is that if you're trying to stop the flow of funds to terrorist activities or groups, you have to be able to stop the funds immediately. The notion of freezing is just that: it's freezing instantaneously. Warnings may—and you might like to reflect on that—give away the advantage and that important objective.
Another issue in terms of part 6 is that it seems to me in looking at it—and this is not the criminal part of the bill, it's an administrative part—curiously there's more due process wrapped around part 6 than around almost any other part of the law in terms of notice, judicial affirmation of the reasonableness of the decision to revoke the certificate, or an opportunity for the organization to apply to the court to have the records sealed so that the reputation is not spread.
I understand your concerns that it may not be perfect, but it does actually go some way towards due process. If not for part 6, I think charities, Mr. Johnston, if they were just left to the criminal provisions—at least as the bill is currently drafted—would be less well off. I'm concerned about that.
In terms of armed conflict in many parts of the world where insurrectionist groups are fighting against great oppression, there is on page 14 of the bill, at the end of the definition of “terrorist activity”, a reference to an exclusion. It
does not include an act or omission that is
committed during an armed conflict and that, at the
time and in the place of its commission, is in
accordance with customary international law or
conventional international law applicable to the
The growing body of international customary law is supporting the right of armed conflict against oppression. There may be some helpful aspects to it, and I think that is what that part of the bill was cast towards.
Finally, I note your concern involving page 15, with the apparent lack of the mens rea element under the “facilitation” definition. I would refer you to page 29, where you're actually talking about the offence. It's proposed section 83.19. There, the offence includes the mental element, the “knowingly facilitates a terrorist activity”. It may be a drafting difficulty. I think that suggests the intention of the legislation is to have the mental element, but it's an important point you bring up. Perhaps it's a drafting issue.
The Chair: Do you have any response? Mr. Janzen.
Mr. William Janzen: I appreciate the comments. I think the relationship between the two sections Mr. Owen refers to may well be a drafting problem that could be clarified so as to make clear what Mr. Toews mentioned earlier, that mens rea is a basic element of this provision. I think that could be done with some minor rewording.
With regard to the warning and the need to freeze things immediately, I agree with you. I think “warning” may not be quite the right word, but I'm not sure I can think of a better word. Certainly I could support a situation where an official of the Canadian government would convey a message to a non-governmental organization and certain activities would have to cease immediately. That would be a much softer treatment than being put on a list as a terrorist group or being deregistered as a charitable organization. You could simply cease certain activities or certain associations as of that moment and prove you were doing it. So, yes, the word “warning” may not capture all of that. I should think of a better word than “warning”.
With regard to the reference on page 14 to “armed conflict”, I'm sure you are more familiar with the development of international law on that than I am. My understanding is that a situation can be deemed an armed conflict if one party does control a significant territory. Now, there can be situations where there are movements that do not control territory, but are, nevertheless, significant movements. That could probably be clarified too.
The Chair: Thank you very much, Mr. Owen and Mr. Janzen.
Mr. Peter MacKay: Thank you very much.
Just to pick up on a couple of points that were alluded to by both yourselves and Mr. Owen, there's specific reference to the word “knowledge” not only in proposed section 83.19, but also in 83.18, 83.03 and 83.04. I think it is fair to say the requisite mens rea has to be proved for the offence sections to kick in, and yet there is clearly discrepancy here when we look at the section that says “whether or not...the facilitator knows”. There's a clear inconsistency in the way it's worded currently.
Also, it is fair to say that the judicial oversight—the capacity to go to a Federal Court judge—exists for charitable organizations while it is virtually absent from other sections. While in my recent experience the Department of Justice has been very charter-constipated in a lot of cases, in this bill—outside of the charity sections—they really tread heavily into the area of whether in fact this is charter-proof. And I guess, sadly, we'll have to wait and see, unless amendments are made.
But I wanted to revisit again this issue of damage to reputation or the stigma that attaches to your organizations, and the possible freezing. There doesn't appear to be—at least in my reading of it—any explicit compensation or recourse other than to go to court. We know that can sometimes take years. I expect many charitable organizations are operating now on a shoestring budget. You've been stigmatized by this possible listing or reference. You're not going to be able to keep up the fight to go to court to try to clear your name, let alone the question of whether, even if you do, you'll ever be able to.... You certainly won't regain your reputation.
There isn't any talk in here of compensation or even interest that might accrue on a substantial amount of money that's been frozen for a period of time. I'm just wondering if you could speak to those issues in terms of your comfort level, because charities are all about passing on resources. In this case the resources are the subject of a judicial or governmental freeze that can make dysfunctional, paralyze, and eventually lead to the dismantling of your ability to do your good work.
The Chair: Mr. Johnston.
Mr. Patrick Johnston: Let me just briefly talk about this, which is really ultimately what is behind some of the concerns we have with certain provisions of the legislation. At the end of the day, a registered charity has only its public face, that is, the trust the public places in it and the perception of integrity the public has of it. That's really all it has, because it is dependent on that trust in order to raise and secure funds. If it does not have that trust, then clearly it doesn't have the capacity to raise funds.
Revocation of charitable status is really the death knell for an organization. Not only is there not an issue here of compensation—and I'm not a lawyer, so I'm not entirely sure—but if I'm not mistaken, revocation of charitable status of an organization also entails forfeiture of all the assets of the charity to the crown. At the end of the day, you not only have no reputation, you don't have a dollar in your bank account.
That is, again, partly why we're so concerned about the potential effects of this on organizations that are clearly undertaking and performing charitable activities. As I say, revocation is the end of the road, and it is the death knell.
The Chair: Mr. Janzen.
Mr. William Janzen: I will only add that I am very pleased that these questions and these concerns are being raised. I'm not sure I have a great deal to add in terms of specific wisdom on that, but I'm pleased that the committee will be taking them into account in its deliberations, because, as my colleague has said, they have enormous consequences. For that reason, an effort to find some intermediate tool for dealing with problem situations is all the more important for the committee.
The Chair: Thank you very much.
Mr. Paradis. Be gentle.
Mr. Denis Paradis: Mr. Chairman, I only want to mention that we are talking about the application of the Income Tax Act when we talk about registration. I come back to the deductibility of the contributions made by citizens. That's the subject we're discussing tonight. At least, that's what I think.
There are other economic sectors. I think of the farm losses for farmers who work full or part time. I also think of the tax credit for investing in the mining sector. There are several sectors where the state verifies if the credits and the losses have been used for the purpose for which they were created.
I come back to your registration and to your right to grant a tax deduction to the people who give you money. This is a good thing because in 99 percent of the cases, it is done according to proper standards.
My question goes to Mr. Johnston, who represents the Canadian Centre for Philanthropy. As you were mentioning earlier, you are an umbrella that covers a great number of organizations in Canada. Do you have the means to ensure that you separate the good from the bad?
The Chair: Mr. Johnston.
Mr. Patrick Johnston: I wish it were that simple. One of the things my organization has done to try to get at that issue is we have developed an ethical code we encourage our members and other charities to endorse. At the end of the day, it's completely voluntary. Of course, we have no power of compulsion. We have no ability to issue sanctions. But a number of organizations and subsectors within the broader charitable sector are developing codes of conduct and standards of practice, that kind of thing, to try to weed out the bad apples from the barrel.
I should point out, however, that of course the Canada Customs and Revenue Agency does in fact have those powers. It does have an auditing branch. It does undertake on an ongoing basis audits of charities. Often they will respond in particular to complaints or concerns that are registered by individual citizens about a particular organization. As I understand it, they will also do random audits of charities. Now, whether or not that is sufficient and whether or not they need those powers or that process needs to be looked at.... If you haven't already, you may want to have officials from CCRA here and ask them to speak to it, but certainly the power is to try to weed out....
Let me be very clear, too, that from the point of view of the vast majority—as you say, the 99% of registered charities of all kinds—it is important for us to make sure that those bad apples are weeded out as soon as possible. If there's a problem with any single charity, it attaches to all registered charities and plants in the minds of individual citizens some concerns about whether they should donate or not. It's something we want to try to eliminate as efficaciously as possible.
The Chair: Thank you very much.
Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.
To Mr. Akhtar, in your opening submission—and correct me if I'm wrong—as I understood it, you mentioned something to the effect that if your organization had been infiltrated by somebody, you would like CSIS to let you know. Is that what you were implying, that you would like CSIS to let you know? What about the onus on you to know who you were hiring or what projects you were becoming involved with?
Mr. Mumtaz Akhtar: When we invited CSIS to discuss this problem with us, we also asked them if we could rely on them to tell us about any prospective employee we were going to hire. At that time they said that yes, they would let us know, but when we sent them a letter later on about an employee we wanted to hire, they said that it was not in their mandate.
CSIS is an information-gathering agency in Canada, and of course they know everything; they are in contact with other secret organizations in other countries. I think they could really help our organizations if they knew that somebody was infiltrating us and told us.
Mr. Chuck Cadman: Just so I'm clear, what you're suggesting is that you would like to be able to request CSIS to do something like a criminal record check on an international level, but they say that it's not within their mandate.
Mr. Mumtaz Akhtar: That's right.
Mr. Chuck Cadman: Would the others have anything to comment on there?
Mr. William Janzen: It's a significant point. I would support that, but I don't have much to add.
Mr. Chuck Cadman: Thank you, Mr. Chair.
The Chair: The final word goes to Mr. MacKay.
Mr. Peter MacKay: Thank you, Mr. Chair.
I have a very short question. Would all of you have a greater comfort level with another oversight body, whether it be through the office of Parliament, a body created by Parliament, to expedite any form of appeal that might wind up before the courts? We all know, and you certainly know in your experience, that delay is the deadliest form of denial in cases such as this. Would you draw solace from the fact that there would be an office, an ombudsman of sorts, you could go to? I'd simply like a yes or no as to whether you would have a greater comfort level with that.
Were question period that simple.
Mr. William Janzen: Yes.
A voice: Perhaps.
Mr. Peter MacKay: Perhaps.
The Chair: Well, thank you to the panel and to Ms. Aiken in her absence, having left to catch a flight. We appreciate very much you giving us your time and helping us in our deliberations on a very important piece of legislation for the country.
On that note, I'll adjourn to the call of the chair, and we'll see you tomorrow morning at 9:30.