This is meeting number 53 of the Standing Committee on Public Safety and National Security, Thursday, February 10, 2011. Today we will be continuing our study of Bill C-17, an act to amend the Criminal Code (Investigative Hearing and Recognizance with Conditions).
Members will recall that the Minister of Justice, the Honourable Rob Nicholson, and his officials testified before our committee on December 15, 2010, outlining the goals and the features of this bill.
Appearing before us today, we have, from the Canada Muslim Lawyers Association, Ziyaad Mia, chair of the advocacy and research committee. Welcome. From the British Columbia Civil Liberties Association we have Carmen Cheung, counsel. As well, from the Canadian Jewish Congress we have Eric Vernon, director of government relations and international affairs. We thank you for coming in response to an invitation sent only yesterday. From the Canadian Civil Liberties Association we have Nathalie Des Rosiers, general counsel. Again, thank you for coming on short notice.
Our committee thanks the panel for agreeing and making the effort to appear before us today.
I understand that each of you has opening comments; then we'll proceed into a number of rounds. We have two hours today, or just short of that. We'll proceed into two rounds of questions. Perhaps we can work our way along, starting from one end of the witness table.
Good morning, Mr. Chair, members of the committee, fellow witnesses, and guests. My name is Ziyaad Mia, and I am representing the Canadian Muslim Lawyers Association today. Thank you for inviting me to participate in this session on this very important matter that we have before us.
The Canadian Muslim Lawyers Association represents various Muslim lawyers across this country. As some of you may know, we've been involved in the national security and anti-terrorism issues that have arisen over the last decade, quite deeply. We have a number of concerns and we have expressed them over the last ten years. Some of them were heard, some of them not heard. We hope that you will listen to us today and that we can engage in a discussion about our concerns.
One of our central concerns with this legislation and the general tone of law and policy in this area is that it is largely driven by fear. The problem with that is that fear does not develop good law and does not develop good policy. At the end of the day, in this climate that we have in the world in the war on terror, the culture of fear, unfortunately there is xenophobia. Muslim Canadians, Muslims around the world seem to bear the brunt of it.
That's not the essence of all I'm going to talk to you about today; it is one concern I have.
I also have concerns about having broad and blunt powers that are not precisely crafted put into the law, to sit there and maybe be used against other vulnerable minority communities in the future. At the end of the day, when you have poorly drafted laws, mistakes are made and innocent people's lives are destroyed. And that's a real thing. We read about in the papers, but at the end of the day, when the rubber hits the road, it's real people—real children and families—who are destroyed. And you can't put that back together through compensation alone.
So we have two major concerns. The first is that these laws that are before you today are not necessary. We have in this country a Criminal Code that is robust; there are a number of provisions, and I'm happy to engage you on them. But what we have before you today is legislation that takes us away from the fundamental protections in the Criminal Code and in the Constitution of this country, which are finely crafted to strike the right balance in respecting rights and getting at criminals and terrorists—because that's what terrorists essentially are. And we're watering down or in some cases possibly throwing away historic, fundamental protections that have been with us for centuries: on arbitrary detention, habeas corpus, judicial independence, and the separation of powers. These are not things to be taken lightly, and we are putting them significantly at risk.
My second point is that these types of powers run the risk of abuse. When we talk about this today, we can talk about all the examples we now have over the last ten years of the mistakes that have been made and innocent people's lives that are being destroyed. I don't think that's your aim and I don't think it's our aim at the Muslim Lawyers Association. We stand firmly with every other Canadian to stop terrorism in its tracks, but we need to make sure we don't catch a lot of innocent people in the process of doing it. It will stigmatize some communities, and as I said, there is the very real fear of scope creep, once we start to change the fundamental fabric of the legislation and the Constitution of this country.
Many people have come before your committee, and the rhetoric and the discourse are about “striking a balance” between national security and civil rights. I'll tell you one thing: I don't think we need to strike a balance. Because we have the Constitution in this country and the criminal law in this country, a balance has been struck. We don't have a system of absolute rights; section 1 of the charter is essentially a balancing mechanism. We as a community have decided to strike that balance.
What you're doing is moving that balance from one place on the spectrum to another, closer to security. That is fine, if you want to do that. But I don't think this is being discussed exactly in that way. We've been told that we're balancing things, away from absolute to a balance, when in fact what we have is a movement of that balance: we're moving and altering the fundamental social contract in this country and we're not having a proper public debate about it.
So it is a fallacious argument to say that we're striking a balance.
As we've said, our position before you on numerous occasions and in front of other committees is that these provisions are unnecessary. The fundamental principle of legal drafting is that you do not draft laws that are unnecessary, and you need to be precise in drafting.
We have—and we can talk about these provisions and you've heard about them before—the Criminal Code.
Section 495 of the code allows you to pre-empt criminal activity. It was fallacious for the previous government and for those saying it now to say that we need to stop the terrorists before they get on the plane and that we didn't have the tools to do that before. We did have the tools to do that before. They were called the Criminal Code and investigative techniques. We need to use those, I agree; we need to use those robustly. But to say that preventative arrest is needed because we need to stop something that might happen.... Well, we have tools that will do that.
There are the peace bond measures. Section 810 of the Criminal Code, as you know and as you've heard, has those protections already there, including for terrorism. Now, I may have some criticisms about how those may be applied broadly, in a civil liberties perspective, but they are there. And they're based on reasonable grounds, not reasonable suspicion; that's a very important point we should be talking about today. Part 13 of the code covers all sorts of preparatory offences—conspiracies, attempts, et cetera—and those address exactly what prevention is all about.
Basically, what I think we're doing today as a society is putting the cart before the horse. These are poorly designed laws, they're overly broad, they're loose, and they're giving police and the security agencies—although CSIS doesn't use these powers, their investigations lead into and feed into this system—loose, blunt powers, and they're ill-equipped to deal with them.
You know that there's a host of inquiries sitting on the table gathering dust: the Arar inquiry, the Air India inquiry, the Iacobucci inquiry. You have two cases, Almrei and Charkaoui, in which CSIS and the RCMP were roundly thrashed as incompetent, as not really understanding geopolitics in the way they should, so that we can catch real terrorists instead of wasting resources on other things. That's what we heard from Justice Mosley.
On top of that—forget national security—the RCMP is in a bit of disarray. You have the Dziekanski affair, which is a tragedy, a fundamental tragedy in this country: that an innocent man was killed and the RCMP then moved forward to mislead all of us. Not only is it an insult to our intelligence; it is fundamentally wrong.
There's a lot that's wrong with the RCMP. At this table two days ago you heard from the RCMP senior brass about what's wrong with the RCMP. We know that CSIS doesn't “get it”, as Justice Mosley says. They don't understand what jihad is. They had it all wrong with Almrei in the first case. They're chasing an innocent guy when they should be chasing real terrorists, putting the cart before the horse.
What you need to do is clean house with CSIS and the RCMP; implement the Arar commission's findings immediately; have that oversight, that transparency, those protections, so that we get our police and security agencies going after real terrorists—which is what we all want to do—while respecting the rule of law. Essentially, we have a picture of a security service and a national police force that are dysfunctional and in disarray, and you need to work with them to clean that house before we even consider any extraordinary new powers.
These are sunsetted provisions, which you're trying to bring back. The point of a sunsetted provision is exceptional power. If we keep renewing it, it's not an exceptional power anymore. Justice Binnie in the Air India case looked at the investigative hearings and raised that very concern. He raised this red flag: that if you keep renewing this, it is no longer an exceptional power. And from a rule-of-law and a democratic perspective, that is very dangerous. We are now at the point where we might have permanent emergency legislation, permanent exceptional legislation. I don't want to get into the constitutional theory, but it's fundamentally contradictory to our system of government and the rule of law. That is the kind of thing that you see Mr. Mubarak has: 30 years of emergency law. It's a bit absurd: it's a permanent emergency.
I'm not comparing us to Mubarak or the Nazis—obviously we're far from that—but I'm raising the issue because we don't want to start adopting measures that are indicative of those societies. Nazi Germany had legal theorists who said essentially that the leader decides when there's exception and when it ends. We don't have that; we have the rule of law and we have oversight over government. We have courts, checks and balances, and oversight over police and security services.
I'm telling you, we don't need to say “we'll just pass this for another five years”. Security agencies will always tell you they need more power. Every government agency and every institution will tell you they need more power and they need more money. That is just how things work.
I'll leave you with one reminder—I'm finishing up. I'm sure you're all familiar with Edmund Burke, a great parliamentarian. He was actually the father of modern conservatism; I have a lot of respect for him. More than 200 years ago he said that “the true danger is when liberty is nibbled away, for expedience, and by parts”. And I think that is what we have before us today: we're nibbling away by expedience—“let this one pass, let that one pass”—and at the end of the day we have nothing left.
Thank you very much for your attention. I look forward to your questions.
Good morning. My name is Carmen Cheung, and I'm counsel with the British Columbia Civil Liberties Association. On behalf of the BCCLA, I wish to thank the members of the committee for the invitation and opportunity to present on Bill today.
The BCCLA is a non-profit, non-partisan advocacy group based in Vancouver, British Columbia. Since its incorporation in 1863, the mandate of the BCCLA has been to promote, defend, sustain, and extend civil liberties and human rights around Canada.
We speak out on the principles that promote individual rights and freedoms, including due process and fundamental justice concerns in situations in which individual interests are affected or engaged by the state.
In December this committee heard from our colleagues with the International Civil Liberties Monitoring Group, La Ligue des droits et libertés, the Canadian Council on American-Islamic Relations, and others. The BCCLA echoes many of the concerns so persuasively voiced here already, namely that the proposed legislation does little to protect Canadians, while at the same time compromising many precious and hard-won democratic safeguards.
Let me start by addressing the preventative detention provision, which permits a holding of an individual without charge for up to 72 hours based on mere suspicion of dangerousness. When this provision was last in force in the Criminal Code, it was never invoked. Advocates for preventative detention point to this statistic as demonstrating restraint on the part of law enforcement agencies; we view it as evidence that such sweeping powers of preventative detention are simply unnecessary.
Protection of personal liberty is a fundamental value in Canadian society and indeed in any free society. Expanding the powers of the executive to detain people must be examined with the utmost scrutiny. Canadian principles of fundamental justice impose limits, both procedural and substantive, on deprivations of liberty. This means two things. First, the process through which any individual is subjected to detention must meet the requirements of fundamental justice. Second, the substantive reasons for any detention must be justifiable in a free and democratic society.
Detention without charge or conviction is deeply problematic, because it is based on a hypothetical. It depends upon speculating on the future dangerousness of an individual because of assumed propensity. Preventative detention is necessarily based on propensity reasoning, because if there were actual evidence of preparation to commit a terrorist act or of conspiracy to commit a terrorist act, then there would be grounds to lay charges for committing a criminal offence, and suspected individuals could be detained under the usual criminal law procedures. Stripping an individual's liberty when no offence has been found to have been committed or when no offence is even suspected to have been committed runs counter to basic principles of fundamental justice.
The Criminal Code, as it currently exists, contains more-than-adequate mechanisms for prosecuting past terrorism offences and preventing future ones. The sweep of terrorism-related offences in the Criminal Code is broad. As defined in the code, terrorist activity encompasses everything from conspiracy to the attempt or threat to commit an act of terrorism to the actual terrorist act itself.
The code also confers expansive powers on authorities to impose conditions on individuals who pose a danger to public safety. As you've already heard, this is reflected generally in section 810.2, and with respect to terrorism offences in section 810.01. As you've also already heard, as recent law enforcement investigations have shown, the terrorism provisions in the current Criminal Code are effective. They have been successfully used to protect the safety of Canadians and to disrupt prospective terrorist attacks.
Detaining individuals based on predictions of future dangerousness is a troubling proposition. Because the requirements of proof are relaxed, there is an increased chance not only of error or abuse, but of such errors or abuse going undetected and without remedy.
For example, it may be difficult to accurately assess whether the prediction of dangerousness is ultimately borne out. Let's say an individual is held in preventative detention and no terrorist attack takes place. The fact that no terrorist attack ensued may mean that by detaining the individual, law enforcement officials successfully disrupted a terrorist plot. But it may equally mean that the detained individual was not involved in any planned attack at all. Such uncertainties cannot be the basis on which Canadians and others in this country are imprisoned for any length of time.
On the other hand, prosecuting inchoate offences such as conspiracy permits the government to incapacitate potentially dangerous people and to disrupt terrorist plots before they can take place, but the evidentiary requirements for laying charges provides a measure of protection against mistake or abuse.
Separate from the deprivation of liberty associated with preventative detention, there is the stigmatizing effect of being labeled a terrorism suspect or an individual associated with terrorist activities. We believe it is fairly uncontroversial to say that the stigma associated with an accusation of terrorism is severe. Yet the system of preventative detention proposed in this bill would effectively brand an individual a terrorist even though law enforcement officials may not have any grounds to lay charges, let alone evidence to convict, now or ever. The potential harm to that individual's reputation and other negative impacts flowing from being labeled as a terrorist cannot be discounted.
With respect to the second substantive prong of Bill , the reintroduction of investigative hearings, we would observe that such a mechanism effectively renders the courts an investigative tool of CSIS and the RCMP. Indeed, we would adopt the logic of Justices LeBel and Fish of the Supreme Court of Canada, when they found that investigative hearings such as the ones proposed here compromise judicial independence from the other branches of government, which is a cornerstone of our democracy.
Although writing for the dissent, Justice LeBel's and Justice Fish's words should have resonance for anyone who subscribes to the concepts of the rule of law and an independent judiciary. They wrote:
||Although a judge may be independent in fact and act with the utmost impartiality, judicial independence will not exist if the court of which he or she is a member is not independent of the other branches of government on an institutional level.
| Section 83.28 requires judges to preside over police investigations; as such investigations are the responsibility of the executive branch, this cannot but leave a reasonable, well-informed person with the impression that judges have become allies of the executive branch.
While the previous iteration of this investigative hearing provision may have been deemed "charter-proof", to borrow a phrase from Professor Kent Roach, that does not mean that these measures are truly compatible with the right against self-incrimination. As contemplated in Bill , investigative hearings bear all the hallmarks of complying with the right against self-incrimination. We would submit, however, that they still do not comply with the spirit of the right to silence.
We believe that Professor Roach, of the University of Toronto Law School, perhaps said it best, with respect to the 2001 version of this provision. He wrote:
||Regardless of whether investigative hearings can or cannot survive Charter review, there is a strong case that they are unnecessary, unprincipled and unwise. Those who will talk will do so without the threat of prosecution. Those who will refuse to talk or who lie will likely not be deterred by the threat of continued detention or prosecution for failing to obey a judicial order or for perjury. More fundamentally, it is unworthy to abrogate centuries of respect for the right to silence and the right against self-incrimination during police investigations. Attempts at Charter proofing, in the form of judicial authorization, right to counsel and use and derivative use immunity, should not take away from the fundamental damage that investigative hearings will do to our long traditions of adversarial criminal justice.
And indeed, while the Supreme Court did find the 2001 investigative hearing provision to be constitutional, it made that finding only after reading into the law what had not been expressly provided by Parliament. It placed limits on the use of investigative hearings. Specifically, it held that information gathered could not be used against an individual in any kind of proceeding, including extradition or deportation hearings or proceedings in foreign jurisdictions. As it is currently drafted, however, the investigative hearing provision fails to reflect those requirements and leaves open room for potential misapplication of the law. Given the danger that the information compelled through investigative hearings could potentially be used against Canadians or others abroad, perhaps by countries where human rights protections are not as robust as those found in Canada, we are deeply concerned that the Supreme Court's direction has not been codified here.
Finally, we wish to note that while the provisions at issue here, like their predecessors from 2001, are accompanied by sunset clauses, we fear that putting these measures in law again will be far from temporary. We urge you to refrain from passing this legislation and giving it a state of de facto permanence in Canada. Canada has historically served as an example among nations of how democracy, freedom, and the rule of law can be upheld on an ongoing basis. But we must be vigilant in protecting these values. The measures proposed by this bill have afforded no demonstrable gains in combating terrorism and instead would work to erode the democratic principles and ideals that we seek to protect.
I'll end here for now. Thank you again.
Thank you very much, Mr. Chair.
Thank you for the opportunity, even as late in the day as it came, to appear before this committee as it studies this important legislation.
I am delighted to be here on behalf of Canadian Jewish Congress, which for over 90 years now has been the advocacy voice of the Jewish community of Canada and a voice for human rights for all Canadians.
Thank you for the invitation to present the Jewish community's views on antiterrorism in Canada and on Bill .
Let me begin by stating clearly that Canadian Jewish Congress supports Bill . I think it's good that I understand what it means to be a minority, because I clearly am one at this panel. At the same time, we would examine with interest any amendments that this committee might eventually recommend after completing its review towards strengthening the legislation as part of the overall anti-terrorist regime in Canada.
It will come as no surprise, I'm sure, that Canadian Jewish Congress has for many years, and well prior to 9/11, been a strong advocate for a comprehensive and effective counter-terrorism regime in Canada on behalf of a community that is essentially twice targeted--that is, both as Canadians and as Jews.
In our brief on the legislation establishing CSIS, the Canadian Security Intelligence Service, CJC noted, and I quote:
||If terrorism is allowed to implant itself in Canada because we are reluctant to establish realistic measures to prevent it, its impact will spread beyond any particular community to affect Canada as a nation and in the international forum. As terrorism grows more organized and more international in scope, so must the efforts to contain it be more organized, serious, and efficacious.
Members of the committee, that brief was submitted in April 1984, almost 27 years ago, and yet in the aftermath of September 11 it became clear just how unprepared Canada was in dealing with the threat of international terrorism and its domestic manifestations. Canadian Jewish Congress was therefore gratified by the government's introduction of then Bill C-36, including the two ultimately sunsetting clauses that lie at the heart of Bill now.
To date, thankfully, Canada has been spared the agony of the suicide bombings and attacks that, at least since the turn of the new century, have become a commonplace weapon in the terrorist arsenal. But our nation has certainly not been immune to terrorism, not least the tragic events surrounding the bombing of Air India flight 182.
Canada's Jewish community has been targeted for terrorist violence by the likes of Ahmed Ressam and Jamal Akal, and beyond that we cannot but see the community's security in the context of the vulnerability of and attacks on sister communities elsewhere in the world, both before and after September 11, 2001.
Given the multicultural and pluralistic nature of its society, Canada is especially vulnerable in an increasingly interconnected world to terrorist infiltration. While the vast majority of ethnic, cultural, and community groups and their members pose no threat, terrorists are well positioned to exploit, intimidate, or attract individual fellow ethnics and/or co-religionists into supporting, financially and otherwise, and providing valuable cover for their activities in one way or another. We have already had a glimpse into the potential for homegrown radicalization, and if that weren't enough, we have the examples of the U.K. and elsewhere in Europe to ponder.
From our perspective, it was a decided strength of the Anti-terrorism Act that it set its primary sights on prevention of terrorist acts rather than the apprehension and punishment of perpetrators. Potential terrorist operations, or those discovered in progress, must be thwarted immediately. The powers of recognizance with conditions and investigative hearings introduced by the act remain important for the attainment of this purpose. Though having been sparingly used, as we know, it is still important to have these powers available to our security and police forces, because the best and first line of defence against terrorism is effective and timely surveillance and intelligence gathering, intrusive though they may be at times.
We believed in 2001 and continue to believe in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.
Now, since the passage of the Anti-terrorism Act, Canadians have been passing judgment on how well it met the most fundamental challenge facing any democracy, namely, how to provide for the safety and security of its citizens while minimally impairing the basic civil liberties that underpin their society.
The two sunsetted measures clearly provide a stern test to any democratic society. In fact, these two provisions seem to epitomize the zero sum game of protection of security versus protection of human rights. And as we know, they ultimately died on the floor of the House of Commons.
From our perspective, one need not approach the debate from the either/or perspective of security versus rights. If terrorism is rightly regarded as an assault on human rights, it stands to reason that the implementation of counter-terrorism measures necessarily protects the highest priority rights of life, liberty, and the security of the person--the foundation of all other rights and freedoms.
Now, the corollary of course is that these actions themselves must always be rooted in and comport with the rule of law. A properly framed and implemented counter-terrorism policy enhances civil liberties and core charter values and protects them as part of the way of our life, whose essence is threatened by terrorism.
A look around the world clearly tells us that terrorist acts remain a clear and present danger, and our security and police personnel must have sufficient authority to take preventive action to interdict possible attacks before they occur. Nonetheless, we are fully cognizant of the potential severity of these measures, and we are heartened that Bill provides additional safeguards to reassure Canadians' concerns about the possible adverse impact of these measures.
Members of the committee, the most fundamental role of the state is to protect the safety and security of its citizens and the core national way of life. Governments such as ours must thwart the efforts of those who would use our open society against us and then shut it down, while at the same time we must be sure not to impair the very democratic nature of that society. But it would be the ultimate irony if in striving to maintain civil liberties we strip authorities of the necessary powers to stop terrorists and extremists from destroying our open and free society.
In our respectful submission, Bill C-17 deserves expeditious passage, as it successfully meets the challenge in restoring the authority for the use of recognizance with conditions and investigative hearings while providing additional safeguards for fundamental civil liberties and rights.
I thank you for your kind attention and look forward to your questions.
I want to thank the committee for having invited the Canadian Civil Liberties Association to appear. I will make the first part of my remarks in French and the second in English.
The Canadian Civil Liberties Association has existed since 1964. It has always worked to defend the rights and freedoms of Canadians. We will make four proposals as part of our submission.
The first is that in its current form, Bill contains major flaws and problems that must be remedied.
Secondly, like other rights and freedoms advocacy groups, we question the need to proceed this way and to adopt the bill in its current form.
Finally, I won't repeat what has been said by my colleagues, but I simply want to present the international context surrounding the bill. I will begin with that proposal.
This is an opportunity for us to take a sober look at provisions adopted in 2001, which expired in 2007 because of a provision, and to determine now if they were appropriate and necessary.
This is being done in a context where we hear the United Kingdom is preparing to review the use of control orders which had been used consistently as of 2001.
One of the reasons why many people say that Bill C-17 is not that dangerous is that these measures have not been used excessively by our police forces. Despite that, it creates a precedent in terms of commitment and in the context of international law. It becomes a precedent for other countries in the world who will look to and use the Canadian precedent.
The only guarantee that Canadians had in the face of these powers is that they were not abused and were almost never used. The same will not be true in other countries. Given Canada's leadership role in terms of international human rights, it is important to look at whether this is the right time to introduce a legal tool which fundamentally questions some of the principles around which our system is organized. That is one of our proposals.
I won't repeat what my colleagues have said. I just want to stress a couple of ways in which the bill stresses our system and its fundamental tenets. There are three tenets, I think, of our system that are at odds with the premise and the economy of the bill, and I think that's why we, as civil libertarians, are searching within this bill for guarantees.
The first one is that, obviously, we live in a system where judges are not inquisitorial judges. They are judges who work and are trained in the context of contradictory evidence. Indeed, I think one of the ways in which we have been able to fine-tune our system of counter-terrorism.... Canadian civil liberties all support the idea that the government has a duty to engage in counter-terrorism. What we're debating here is whether this is the best way. It's not to question the effort; it's to ensure that indeed it does what it seeks to do.
We have responded in other contexts by insisting there be special advocates, to ensure that judges are not put in a position to be inquisitorial. They're not trained for this; it is incompatible with the way in which they are proceeding. But this is not present here. Contrary to what happened after the Charkaoui decision, we are not seeing here a recognition that there needs to be.... If you're going to take someone and threaten his or her liberty in front of a judge in a context where the judge will have to rely on the information provided, you need to balance this by having at least a special advocate. That's what we've learned in other contexts, and I think this, indeed, should be looked at in this context as well.
The second tenet of our system that I think is fundamentally challenged by Bill is the one referred to earlier. It's the fundamental tenet that you ought not to be detained, arrested, or subject to punishment unless there is a format or a framework by which the accusations and the evidence against you can be tested and at the end of the day you are found to be guilty or not, and that's the end of it.
This process allows preventative detentions that threaten the concept of strong protection through habeas corpus. It creates a fracture in our legal thinking, and that's why people react to this with such visceral fear. It was a great advancement in law and legal thinking to insist that a king not be able to put people in jail simply because he was afraid that something might happen to threaten public order. The writ of habeas corpus was a great advancement in saying it is inappropriate to detain people without having a process to fundamentally challenge the evidence on which you are being detained. That's why people react with such fear to this case in which preventative detentions are being normalized in the process.
Finally, the third principle of our system is that there is no obligation for Canadians to cooperate with the police. Here, they are forced to come and give testimony in front of a judge. As Kent Roach has said numerous times, some people will tell the truth, some people will lie, and indeed they will not cooperate more because there's a threat of being incarcerated.
Now, let me go through the different dispositions and look specifically at some of the challenges they present and some of the ways in which they ought to be.
In our view, the bill should not proceed. It's not necessary and it's not the way to go. But if it is to proceed it must have additional guarantees that are not there.
The first guarantee is under proposed section 83.28. There is no guarantee that this indeed will not be relying on evidence obtained under torture. That's a significant issue. What we would suggest is that there be a commitment that there be included a specific reference saying that there is an affidavit from CSIS, an affidavit from the police, which is being recognized by the judge, as to the evidence's not having been obtained under torture.
We're insisting on this not only because there is a general prohibition around the world against torture and Canada should be part of it, should be an instrument, a model on this. It's also a good signal to say to other countries that whatever evidence they would want to lead in will not be acceptable. But what is interesting as well is that it protects our system from being polluted by the fact that some evidence obtained under torture may have found its way somewhere. If everybody along the system has to guarantee that to their knowledge—and they do the investigation—the evidence has not been obtained under torture, we improve the guarantee that the system will not inadvertently be an instrument of perpetrating torture.
One concern that has been raised, and I think my colleague has raised it, is that it does not protect testimony from being used in proceedings outside of Canada. This was mentioned by the Supreme Court. This is not in the bill; it should be in the bill.
As well, it should not be used against members of the family of people who testify. That's another aspect. Many people who could be compelled here will be shunned for sure by their community but will expose themselves to great dangers, and there's no provision here to ensure their protection.
I know my time is running out, and I just want to make sure that.... Let's see: no special counsel proceeding has been.... There has been no guarantee that no evidence has been obtained under torture....
There are no boundaries to the conditions that can be imposed by the judge, and I think there should be a way in which these conditions are reviewed and found not to be unnecessary.
Finally, there's no right of appeal. There should be a right of appeal.
Thank you, Mr. Chair, and thank you to the witnesses, each of you, for very compelling testimony.
I think we recognize that the initial provisions came into being immediately after September 11. At that time there was a feeling that we needed to act as quickly as possible to do something to give extra powers to police, but I think wisely those provisions had sunset clauses to allow the country—Parliament, Canadians, and the judiciary—to examine both the necessity and the applicability of those provisions.
Over that period of time, we have heard, as the witnesses have said, from the Supreme Court. We have also heard from the former head of CSIS, who says that these provisions are unnecessary and don't provide any additional security.
But I have to say that I've also been moved by seeing the faces of security and intelligence failures: Maher Arar, Mr. El Maati, Mr. Nureddin, Mr. Almalki, and others. There were a couple of other cases referenced as well by Mr. Mia.
Let me just say to Mr. Vernon, I have to reject the premise that the suspension of due process or civil liberties for the possibility of greater collective security is unto itself not enough, because the danger of that argument is that it has no end. That argument could continue to the point that it fundamentally destroys the things that are most fundamental and important about what we're trying to protect.
The question here is, if you are going to suspend the civil liberties of an individual, if you are going to suspend due process, can you demonstrably prove two things: first, that you are in fact making substantive improvements to collective security; and second, that you have vigorous and robust oversight to ensure in those circumstances that the power will not be misused or that the powers will be restrained or that, if mistakes happen, they will be immediately caught and rectified?
On the first point, I am yet to hear in the testimony that we've had over the three meetings we have held any concrete examples of specifically how these provisions would achieve my first point. In fact, we've heard the former director of CSIS, who was responsible for oversight of all intelligence services in this country, say—not before this committee, but publicly—that these provisions fail in that first measure.
The second one is, I think, even more important, and I would bring this question first to Mr. Vernon. The second one deals with oversight. We have O'Connor, Iacobucci, Brown, the Standing Committee on Public Safety and National Security, Mr. Kennedy, Mr. Major, all of whom have brought out recommendations on oversight, the vast majority of which are unanswered. We have many departments involved in intelligence today that have no oversight: Immigration, as an example; the Canadian Border Services Agency, as an example.
Would you not agree with me, Mr. Vernon, that prior to the continuation or the re-institution of any extraordinary measures, we would first have to make sure that security and intelligence oversights, failures, and deficiencies that exist today are repaired?
Madame Mourani, thank you for your question.
That is a real concern in the Muslim and Arab communities since September 11, 2001, since the Anti-terrorism Act came into play. We're not discounting the fact that, yes, people are suspicious. There are issues in the world today that might lead a normal human being towards.... That's what we call prejudice and discrimination; we all do it. The point there is that we need to check that. I think we all agree that we want to prevent any harm coming to anyone in Canada from illegal acts of any violence—including terrorism, because it's a mass scale of violence.
But to your point, I know that in previous testimony, if I can give a bit of a preamble, people have said: these powers haven't been used, so how can they be discriminatory? It's not really the hard use. You'll probably see that they won't be used a lot. But what we have found in the last ten years is that CSIS, the RCMP, other police agencies, but mostly those two agencies, will demonstrate the “soft abuse” of these powers. They go to vulnerable people—immigrants, refugees, those who are the most vulnerable, but also to other Canadians who are Muslim, or Arab, or maybe seem to be those things—and they are told, “You know, we have these new powers, so if you don't cooperate...”. So it's “play ball with me, or else I have this big stick”.
Not everybody is schooled in the law. I've been to many mosques and community centre events where young people, older people, anyone...their computers were taken. CSIS does not have any police powers. They don't have the right to seize property, arrest, search—nothing. You can tell them to go away. I had people tell me they just handed over their computers to CSIS because they were told they needed to do this.
So it seems circular.
I also think that we go down a dangerous slippery slope when we start saying that in order to protect our way of life and our civil liberties, I may have to violate the civil liberties of other people.
The second concept that comes to my mind is the question of onus. It seems to me that a fundamental feature of the fabric of Canadian society and western democracies is that we as individuals have certain fundamental rights. Those rights are primary, and the onus is on the state to make a case as to when those rights are properly abrogated.
I heard mention of the Charter of Rights and Freedoms. Yes, we are given fundamental rights as individuals, and those rights may be abrogated, if the state can justify an abrogation of those rights “as may be justified in a free and democratic society”. It's not for individuals to justify why they're entitled to their rights. As a matter of being Canadian citizens, as a matter of fundamental liberty in our concept of democracy, we have those rights until the state justifies otherwise.
I want to talk a little bit about what we're dealing with here. We're dealing with the concept of giving police officers the right to preventatively arrest based on suspicion, and we're talking about compelling testimony from people—forcing people to testify. Both of these are significant departures from our current legal system. In fact, I'm going to quote the CBA, which says:
||These powers, especially the power to conduct an investigative hearing, represent a significant departure from powers traditionally available to investigate criminal offences.
I'm going to try to go to some fact. If we're talking about a justification for these powers, I think the place we must all start from is the objective evidence. Now, we all know some basic facts, but I think they bear repeating.
This is what we know so far: that these powers were introduced in 2001, and in ten years they have been used precisely once—once in a decade. We know that since the original bill sunsetted—since 2007, when these powers have not been in place at all—we have not had any occasion to utilize these powers. We also know that since those provisions were allowed to sunset, Canadian criminal law has continued to operate effectively.
I also want to quote from the Canadian Bar Association submission that we received, and then I'll ask for some comment on it, if I can. It said we must:
||...recognize that rules and procedures in Canadian criminal law, as they existed prior to the addition of sections 83.28 and 83.3, were effective in protecting people within Canada from the harm caused by criminal offences, including those associated with terrorism.
And CBA has identified themselves as the national voice of the legal profession.
Here's my question. If we put these laws into place, which were used once, we have the Canadian Bar Association, the national voice of the legal profession, telling us that the criminal laws we had at that time and since are totally effective in preventing terrorism. We also know that, standing in distinction to the fact that they were used only once, I can name you five cases of serious violations of Canadians' human rights: Messrs. Arar, El Maati, Almalki, Nureddin, and Charkaoui.
Can any of you comment on the evidentiary basis, the objective base that we as parliamentarians would possibly have to proceed with a law that so fundamentally alters our Canadian legal system?
No, that's okay. I appreciate it.
As I say, I don't think any of our witnesses here are being disrespectful or anything else. These are their true feelings and their true views. I just made a few notes here on some of the thoughts that were mentioned.
Who are the “real terrorists”? I guess my question would be, to the average Canadian.... Well, we do know that there have been prosecutions of terrorists. One of the greatest terrorist acts suffered by this country was the Air India one. I have to say that the terrorists don't belong to any one group of people from any one religion. They're right across the board, and they exist around the world in every way, shape, or form.
Then we hear, of course, from more than one witness and more than one political party at the table, that CSIS is dysfunctional, that the RCMP have huge troubles, etc. I think we all have a responsibility, if we say those things, to ask whether these agencies are capable of making Canadians safe. I would say the evidence that they are capable, and that they have kept us safe, is the fact that we have not had the kind of terrible terrorist acts that they have had in Great Britain, the United States, and many countries throughout the world. It's because of these agencies that we are safe.
Have they made mistakes? Of course they have. They're made up of men and women who are human. They make mistakes. No one agency or group of people, whether they be learned judges...would ever say that they are not capable of making errors in judgment and mistakes.
I think Canadians need to know why we have the Anti-terrorism Act and these laws. We have them, as was mentioned, because the United Nations directed all of its members to look at their laws and regulations to ensure that they are made in such a way that they can prevent, or attempt to prevent, terrorist acts like 9/11, but not just restrict it to that one act. Canada took on that obligation and constructed the Anti-terrorism Act under a previous government that this party and I think all parties... I forget how the votes were, but at least the two major parties in Canada agreed with it.
But because we were unsure, and because there were some significant changes to our law, we put a sunset clause in. We revisited that. I was part of the subcommittee on anti-terrorism. I can tell you that we looked at it, we had a wholesome debate, and it was the majority view that we should maintain, with a sunset clause, these provisions.
We were talking about the Toronto 18. The comment that the police and other authorities have not used these existing provisions is evidence, I would suggest to you, of the fact that the police are very much aware, and CSIS and those other authorities are very much aware, that you only, only, only use these provisions when the Criminal Code may not apply...but that but there is sufficient evidence to have you believe that you need, in order to prevent an occurrence, the benefits of Bill .
I go further to say that their authority is extremely restricted, because they may only hold a person for 24 hours, and that's if a judge is not available. If a judge is available, we constrain that judge by saying they may not detain more than 72 hours.
So my comment is that we need this legislation because it does indeed add a measure of safety to every man, woman, and child in this country.
Thank you, Mr. Chairman.
I have a question for Ms. Des Rosiers, and afterwards for Mr. Vernon.
Ms. Des Rosiers, exceptional powers would be granted under this act. You were referring to abuse of these powers, as others have on this panel, except perhaps Mr. Vernon. As you know, and it is not the first time we have discussed this, CSIS has acknowledged having used information obtained through torture. I would imagine this information is unreliable, because someone who is tortured will eventually say anything to escape the pain.
If this service is basing its risk analysis on intelligence obtained through torture, ethnic criteria, anything that can be found in newspapers of the Arab world or internationally, what you can see in the media, on TV and the Internet, on investigations whereby they apparently walk into people's homes to question them again based on ethnic criteria, do you not believe that there is risk not only that CSIS may abuse its power, but also that it may target the wrong people? I am not questioning the work of the RCMP, which, in my opinion, is better than that of CSIS, given that they are required to conduct real investigations involving wiretapping, for instance. In fact, we should address the issue of CSIS and the way that it operates in a broad-based way, so that their information is based on facts rather than on ethnic criteria or on biased information obtained through torture.
Should we not be looking into the operations of CSIS to ensure it performs better in the field, rather than extending this legislation?
I would like to thank the witnesses for being here. I would also like to point out that Mr. Vernon is appearing on short notice.
We had two family members of victims scheduled to testify. Unfortunately, they both have the flu and couldn't make it. I think it's good to get on the record. It's not that your presence is not significant. It's very significant, and I don't mean to diminish it. But we want to listen to the victims of terrorism and get their views on this issue. We hope that this can happen down the road.
As I listen to the discussion today, it's quite apparent that our law enforcement has taken a major hit from those who wish not to have this bill go forward. I want to underscore my colleague's comments that these are human beings, men and women. They make mistakes from time to time, but on balance and in the scheme of our national security they do a fine job. Thank goodness we're a country that has not had to experience a terrorist attack such as those experienced by a lot of other western democracies.
As I look at terrorist organizations and the reason we need to give law enforcement the tools that this bill contemplates, I see that al-Qaeda and the like survive on two major resources: money and personnel. They are like any major organization. They have to have money and they have to have recruits. They also have to have training grounds for those recruits. Those recruits are preparing for something. Whether you think it's a terrorist attack or just to engage in a debate is up to you.
One of the reasons we've had testimony before and why it is appropriate to go forward with this is that we need to stop terrorism in its tracks by finding the money trail. We need to find and get those people who are suspected of fund-raising in our country and other countries around the world. For this, our law enforcement agencies need to have all the tools available, not just partial tools. They need all the tools at their disposal to disrupt that. That's for sure. This is another tool.
We had testimony earlier, on December 15, from Professor Forcese of the University of Ottawa. He has done an extensive study of this legislation and has compared it with legislation in other countries. Countries like the U.K. and Australia have far more stringent holding powers. He identified a gap in our system.
We asked the department officials who drafted the laws what were they attempting to do. Were they trying to close that gap and trying to do it with a balanced approach to human rights? They said that was exactly what they were doing—trying to close the gap.
The other thing we've been misled about here today is that, actually, CSIS is overseen by a civilian board.
Perhaps I can start by continuing what Mr. Forcese said.
Mr. Forcese went on to say, “I'm not sure that Bill C-17 is useful in filling that gap...”. That's the gap you were referring to earlier, Mr. McColeman. He continued:
||I'd be unprepared to have those extra-aggressive provisions imposed via this legislation in the absence of very robust checks and balances to enhance the civil liberties....
He went on to say he doesn't agree and certainly wouldn't proceed without the addition of extra checks and balances.
Let me come back. A comment has been made several times that we appreciate and we like the work done by the men and women who are police officers and CSIS officers. Let's agree that everybody around this table, both witnesses and politicians, all deeply and profoundly respect the job that is done by men and women who serve this country. That's a given, and I think everybody would agree with that.
What is at question is that in any human society there are errors, flaws, weaknesses; that's why we need oversight. I think we've all seen examples that when we erode that, when we let it go, it leads to bad and dark places. That's the point here.
Witnesses, on that issue of oversight, how imperative is it that we fix what's broken first, before extending those additional extraordinary powers?