FINA Committee Meeting

STANDING COMMITTEE ON FINANCE

COMITÉ PERMANENT DES FINANCES

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 29, 2001

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[English]

The Acting Chair (Mrs. Sue Barnes (London West, Lib.)): Good morning, everybody. Our chair is on his way, so in order not to delay anybody else and because we have very important witnesses we wish to hear from on a timely basis, we'll start.

This is the order of the day: Bill C-16, an act respecting the registration of charities and security information and to amend the Income Tax Act.

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We have two sets of witnesses this morning, and to start off, I'll introduce, from the Canadian Bar Association, Tamra Thomson and Arthur Drache. Welcome. From the Canadian Islamic Congress we have Mr. Rocco Galati, Wahida Valiante, and Mumtaz Akhtar. Welcome, and thank you for coming.

We have regrets from Mr. Borovoy from the Canadian Civil Liberties Association.

From the Canadian Council for Refugees, we have with us Chantal Tie and Michael Bossin. Welcome.

I will leave it to you to start your presentation. Perhaps we could start with the Canadian Bar Association. Please proceed.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Madam Chair.

The Canadian Bar Association is a national association that represents over 37,000 jurists across Canada. Among our primary objectives are improvement of the law and improvement of the administration of justice. It is within that rubric that we appear before the committee today and make our comments on Bill C-16.

With me today is Mr. Arthur Drache, who is an executive member of the charities and not-for-profit law section of the Canadian Bar Association. I am going to ask him to make the substantive comments on the bill.

Mr. Drache.

Mr. Arthur Drache (Member at Large, National Charities and Not-for-Profit Law Section, Canadian Bar Association): Thank you. I assume that all members of the committee have been given the copies of the brief that have been submitted. I am not going to read the brief. I'm going to talk in plain language about the problems we have with this.

When I talk about the problems we have, I should say that I'm a practising lawyer, one of the very few whose practice is almost entirely dealing with charities and non-profits. So the issues I will raise are the issues of my client base and issues that I would have to come to grips with should this legislation be passed in the form it is in.

I would like to start off with just a general observation that, in my view, as one who has drafted legislation in the past, this has been drafted by people who are intellectually lazy. They've been unwilling to do the mental work to define the offensive actions. We have, if you will, a crime—not in a technical sense, but an offence—in the bill that is undefined. So for starters, when you talk about the support of terrorism, we do not know what is meant by terrorism, and we don't know what is meant by support. This is a terrible problem.

On top of that, we have legislation that does away with all the normal evidentiary standards if we go to court. We don't get to examine witnesses; we get summaries of what a witness says. We may not know who the witness is. Absolutely none of the rights given to Canadians generally are given to charities in this particular situation. We find it really quite appalling.

I have to tell you, when I go to court, under the current legislation it's bad enough, in the court of appeal, without having a situation in which they're not even going to tell me who the witnesses against my clients are. They're not going to tell me what the offence is: I don't know what it is, but I'll know what it is if I see it—this sort of thing. That's if you happen to be the bureaucrat who's behind the thing. But as a lawyer trying to give advice, we have real problems with this.

It is clear, given the nature of the international problem with terrorism, nobody is suggesting that Canada should stand by and do nothing. But terrorism is essentially a criminal activity, and therefore it is our view that the proper way to deal with the issue in the Canadian context is through the Criminal Code. But what we suspect, of course, is that if it went under the Criminal Code, the protections for the organizations could not stand judicial scrutiny—couldn't stand up under the Charter of Rights. So you have attempted to take a back-door approach.

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With regard to the definition issue, incidentally, it's not such a big problem defining it. The Brits have defined it in their legislation; they have defined “terrorism”. I offered one of the officials who is involved in this a copy of the British legislation, but she informed me they had already managed to get a copy of it. So the choice not to include a definition seemed to be quite a conscious one and not one driven by the overall situation.

What is the offence? What do you do with a situation where the activity involved is clearly charitable as a matter of law, but peripherally, if I can use that term, gives aid to terrorists?

Let's take a hypothetical organization called the Canadian Friends of Palestinian Education. It is just hypothetical, but it would be an easy one to set up. The organization arranges for scholarships of bright students to attend school in various areas of Palestine. What happens if one of those students who gets a scholarship suddenly fancies himself a martyr, straps explosives to his body, and blows himself up in a shopping mall? Has a Canadian organization supported terrorism because this student had a scholarship? What happens if you have three students who do it, out of the 10,000 who get the scholarships? Somebody comes to me and says, what happens if...? I don't know, is that the support of terrorism? The bill certainly doesn't give us any help.

If a Tamil organization supports a hospital, this is a charitable activity. If the hospital treats a wounded Tamil Tiger, has a charity supported terrorism? What if the hospital treats 10 Tamil Tigers who are wounded? Has a Canadian charity now embarked on a set of activities that support terrorism?

These points were put to officials. They suggested to us that there is no clear-cut answer—really a wonderful thing if you are passing what is essentially punitive legislation—but the Canadian charity should trust them to make the right decisions.

I can tell you, ladies and gentlemen, there is not that level of trust among the charities community officials. There really isn't.

On the other hand, one of the things that is striking is that this legislation looks to one type of organization—a registered charity.

Let me give you another hypo—it's easy to do—the Canadian Friends of Islamic Jihad. The Islamic Jihad is generally recognized as a terrorist organization. We set up Canadian Friends of Islamic Jihad, the objectives of which include lobbying the Canadian government and giving support to the families of martyred terrorists. It also raises money to buy sophisticated arms for Islamic Jihad. What sanctions, if any, apply to this organization? The answer, I can tell you right now, is none. This hypothetical organization was not registered as a charity. It is, as a matter of Canadian law, a non-profit organization. Because it is not a registered charity, this legislation does not apply.

Indeed, we come to a fundamental question. If the government is so interested in reducing alleged support, from a Canadian perspective, of international terrorism, why is this focused on one particular category of organization and no attention given on the much larger group? Why are there not penalties for non-profits? Why are there not penalties for taxable entities? Are you under the impression that just because something is a taxable entity it cannot support terrorism? In fact, I suspect it is easier, and you can probably do it with tax deductible dollars if you got yourself a decent lawyer.

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Moving to the evidentiary side, what does a lawyer do when faced with a summary, an accusation against his client from a foreign informant who cannot be cross-examined and whose name and background are not available? We are told we should trust CSIS, or others in authority, because they are honest people who have no axes to grind. We all know that no official has an axe to grind. History shows us that they do have strong political biases and are willing to accept the words of some very doubtful sources if the word supports their own political viewpoint. I have had first-hand experience with this sort of thing.

I'd like to raise one other technical point. The legislation talks about the issuance of certificates. If a certificate is upheld, it's effective for a maximum of five years. But the legislation doesn't go to a crucial legal question. Is the charity deregistered? Deregistration is a process under the Income Tax Act, and there's not a word in the legislation about whether it's deregistered.

It talks about this five-year hiatus. If it's deregistered under the Income Tax Act, then the provisions of the act require that within one year of the deregistration all its assets be distributed to other registered charities, or failing that, they are forfeited to the crown with 100% tax.

So I'm now faced with the question of trying to explain to my client the inexplicable: assuming the worst-case scenario, a certificate is issued and is upheld, are we still a charity? Are we in some sort of state of suspension, which there is no legislative basis for? Are we deregistered or not deregistered? Can we issue receipts or not issue receipts? Are we tax-free or not tax-free? Most important perhaps in this context, have we forfeited de facto all our assets? If we have, it makes the idea that somehow you're going to be restored to normal status within five years, which is what the legislation suggests, absolutely laughable. You just bankrupted us, and then you say, we're going to give you back your status in five years or less if you can show that the offence has been cured in some way, shape, or form.

Let me say this. I've spent a lot of time with organizations outside Canada. I'm not referring to my clients so much, but international organizations, NGOs, charities, and so on and so forth. As the word got around about this legislation—of course with the Internet the word gets around very quickly indeed, and people can take a look at it themselves—they were absolutely appalled.

People are telling me that they simply cannot believe a country like Canada could come up with a piece of legislation that is so anti-democratic, so contrary to the principles of law in Commonwealth jurisdictions. They simply cannot believe it.

I can tell you that if this legislation passes in this form, Canada—I don't want to say will be a laughingstock—will be held up as an example of a country that says all the right things about volunteerism, about charities, where you have a voluntary sector initiative between the charitable sector and the government, and all the rest.... This makes nonsense out of it. Basically what you're saying is that officials can go after the organizations as they see fit, and the rights of those organizations are minimal.

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The Canadian Bar Association simply suggests that we take a look, that this committee take a look, at the issues involved in fighting terrorism by use of Criminal Code provisions applicable to all with the rights, protections, and penalties that are appropriate within the context of the Criminal Code. After all, when all is said and done, terrorism is a criminal activity. It may be dressed up in political rhetoric and all, but you are essentially looking at criminal activity here and it's the position of the Canadian Bar that to the extent the government wants to enter into the fight against terrorism, it should be done through the Criminal Code.

Thank you very much.

The Acting Chair (Mrs. Sue Barnes): Thank you very much, Mr. Drache. Who will go next? Maybe we'll hear from the Canadian Islamic Congress.

Ms. Wahida Valiante (National Vice-President and Vice-Chair to the Board, Canadian Islamic Congress): Thank you, Madam Chairman.

My name is Wahida Valiante and I'm the national vice-president of the Canadian Islamic Congress and I'm a social worker by profession. With me is our counsel, Mr. Galati, who is a former justice department lawyer and has done CSIS trials in actual practice. Mr. Galati will present the recommendations on behalf of the congress, and I would like to very briefly summarize some of the psychological and emotional implications that this bill has for the Muslim community.

I think most of us are aware, and most of the members here are aware, that there's a perception out there that all Muslims are potential terrorists. This perception is promoted and sustained by the media and self-appointed scholars on the Middle East, Arabs, and Muslims. This predisposes Muslim charities and Canadian Muslims, in general, to the danger of being singled out as terrorists and as supporting terrorist activities abroad or in Canada.

You can't even begin to understand the collective negative impact of such stereotyping on the psychological and social well-being of our children. As a social worker and as a counsellor, time and time again I have seen what is happening to our children and their sense of perception as Canadians because of all these definitions that apply when we are describing Muslims or describing Islam. What does it do to the community? It basically disempowers its members as fully fledged citizens of Canada who are also entitled to all the rights and guarantees under the Charter of Rights.

As a Muslim, and as part of the Canadian scene, I believe very strongly that this bill must not be passed without proper amendments, since in its present form it has the potential to do greater harm than good to a certain segment of our society, which happens to be the Muslim community. This is basically what I strongly recommend; that we definitely look at this bill and not rush it through, because it does have serious implications for us as a community.

I would like Mr. Galati to address the recommendations on behalf of the Canadian Islamic Congress.

Mr. Rocco Galati (Constitutional Lawyer, Legal Counsel, Canadian Islamic Congress): Good morning, Madam Chair and MPs. You should have before you a six-page statement that is taken, really, from a 12-page submission on behalf of the Canadian Islamic Congress.

I echo the remarks of my friend from the Canadian Bar Association, but on the assumption that this bill is going to pass in some form, the Canadian Islamic Congress has eight very concrete concerns and eight very concrete recommendations, down to the nitty-gritty of the proposed amendments, which we would urge the committee to insist on.

Those eight points, very briefly, are as follows.

One, the legislation is overly broad. There is no clear and direct link requirement. There's no knowledge or intent requirement. There's not even a gross negligence or lack of due diligence or acquiescence on the part of the charity, before a charity is caught, when any of its resources directly or indirectly are made available to any supporter or terrorist group.

Second, the legislation is vague in its references to, one, “any of its resources”; two, “indirectly”; three, “supporters”; and four, “terrorism”.

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The third point is that the procedure that's going to be followed in this CSIS trial is unacceptable. It is a secret, star chamber procedure. I've done them under the Immigration Act. Let no one be under any illusion, you do not get a summary of the facts, you do not get a summary of the evidence. What you get is a summary of the allegations and of the conclusions of the service. You do not get a summary of the facts. So what normally should be a one-day trial has turned out to be a 14- to 50-day trial. These proceedings go on for years. The counsel has to turn every conceivable rock, because he doesn't know what the allegations are. We have to review the entire operations of the charity and the entire structure of the alleged terrorist group, if one is named. That could take years. These hearings could take years. No charity can afford legal fees to defend one of these.

Fourth, the proceeding is a star chamber process; it's not in accordance with our charter of rights. I've read transcripts of the proceedings. The Supreme Court of Canada has not looked at these procedures yet. I have a leave application sitting before the Supreme Court right now. Whether we will get permission to go up or not, we don't know. The Supreme Court has never reviewed the constitutionality of these proceedings.

Fifth, this law imposes an absolute liability on the charity without any moral blameworthiness. Our system of law has always said that before you get punished, you somehow must be morally blameworthy. This is an absolute liability. If the act occurs, whether you know about it or not, you're caught.

The sixth point is that the name of the charity is only concealed upon court application, but there's a lag between the time the certificate is signed by the minister and the time it gets to court. Experience tells us that with the immigration certificates, the National Post announces who has been arrested before the family even knows that the person has been arrested. There's going to be a time period where the charity is named. So you have the worst of both worlds. The charity is named, and then if the charity makes an application to conceal its name, what inference does that give to the public? So the name of the charity should be anonymous right from day one on the face of the certificate.

The seventh point is that one allegation is going to bankrupt any charity. I can tell you, it's a matter of public record, a 14-day immigration CSIS trial at legal aid rates in the Jaballah case cost legal aid $64,000. You multiply that by four times for a private rate and that same trial would have cost Mr. Jaballah $300,000. That's 14 days in court. So imagine a one-month trial, which is the minimum we're going to need for a charity—you're looking at $1 million right off the bat.

The eighth point is this. The charities law, the classification, goes back to the Statute of Elizabeth of 1601. The Supreme Court of Canada, the federal court, have begged time and time again, and the royal commission reports have begged Parliament to look at the whole charity structure. We now have the opportunity to look at it, and what's injected is more confusion, more anxiety.

So the congress would urge that if this law is going to pass, given the 400 years of history, given the damage it's going to do, given the stereotyping of groups like the Muslims, the Sikhs, the Tamils, the government should refer it to a Supreme Court reference before it does its damage. It owes the 80,000 charities and the billions of dollars and the endless work the charities do enough to have the courts review it before it actually does the damage.

If you turn to page 3 of the six-page statement we've put before you, the first recommendation the congress has is to amend the definition. What I've done there is inject the operating component of section 163 of the Income Tax Act, which is the penalty section. If you're going to be imposed a penalty under the Income Tax Act, the wording says the person has to “knowingly, or under circumstances amounting to gross negligence,” make or participate in, assent to or acquiesces in the making of....

So I would urge the committee to amend paragraphs 4(a) and (b) of this bill to read:

that an applicant or controlling mind of a registered charity, knowingly or under circumstances amounting to gross negligence, makes or participates in a sense to or acquiesces in the making available any of its resources....

There at least you don't penalize people who don't know what's happening, who never would have acquiesced, who have no intention of supporting terrorism. At least the judge reviewing the facts of the case has to be satisfied that the charity either knew or turned a blind eye to it.

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The second recommendation, at page 4 of the statement, is that “terrorism supports” and this notion of “indirect” are too vague as terms. Under our charter of rights we have a doctrine called vagueness, and our Supreme Court has said that a law must be sufficiently clear to put people on notice, so that they can conduct their affairs. You cannot conduct your affairs under this law. You don't know what is a terrorist organization. You don't know what definition is being used of terrorism.

The congress proposes either that terrorism be defined or that there be a schedule of organizations the Government of Canada and CSIS consider to be terrorist. If we can't define terrorism, we certainly know which organizations we consider to be terrorist, and as with the drug legislation, they could be put on a list, amended by addition and deletion from time to time by Governor in Council. At least then a charity knows that whether you agree or disagree, Canada considers this organization terrorist, so it should make sure none of its resources end up in their hands.

The idea of supporter is also vague. A supporter can go through five or six degrees of separation, and this could include somebody writing a newspaper editorial advocating the independence of the Punjab or the independence of a Tamil state. Is that person a supporter? Is a person who protests at Quebec City against globalization a supporter of the Black Bloc, which engages in violent activities in those demonstrations? The answer is clearly no.

I would say, if you're honest with yourselves as members of Parliament, if this law were applied to political parties that receive money and issue tax deductions under the elections legislation, in respect of people who support terrorism, not one political party in this House would have the right to issue tax receipts—that's how broad this law is—because you'll all be at functions and dinners where there's someone who supports terrorism. If this were equally applied to your tax status, you wouldn't have one as members of Parliament and as political parties.

The idea of “indirectly” also is offensive. There are endless degrees of separation. What we need is a clear and direct link approach. By clear and direct link we don't mean a one-to-one, it could be through a series of four dominoes. But the link has to be clear and direct from A to B to C to D, not from A to B to C to Z, where Z is so far removed from the cherry that nobody could ever even guess at the link.

The third recommendation you have, at page 5 of the statement, is that where there is no clear or direct link between the charity and the terrorist organization or supporter, the act should mandate the consultation process between the minister and the charity before a certificate is signed, not through administrative generosity but through legislative right. I've drafted for the committee a proposed section that could work. If you have a direct link between a charity and a terrorist organization, there's no problem, let CSIS issue its report. But if it's going through four or five different chains, I think the minister should be obliged to consult with the charity first, tell them they have a problem, tell them to do their due diligence, come back and report. If the charity satisfies the minister that they didn't know or they're going to put a stop to what they didn't know or agree to, then there should be no certificate signed.

What I've done in drafting that proposed section is to say that nothing in subsection (1) shall be interpreted to require the minister to reveal either the source or identity of any information or evidence as to breach the third party rule employed under the CSIS Act. This is where CSIS gets its justification, saying, we can't reveal secret informants. That's fine, but you can at least give the nature of the evidence, the source of the evidence. Is it photographs? Is it rumour? What is it? What country are we talking about? What organization are we talking about? Let us do our investigations, otherwise it's unfair. It really is a star chamber. This is a wartime piece of legislation. This is how the Italians were interned in the Second World War. This is how the Japanese were interned. Social clubs were shut down on this kind of legislation as enemy aliens, and we're doing it now in peacetime with various communities.

I've done CSIS trials with alleged Egyptian Jihad members. In the first one the certificate was quashed. I spent 14 days not knowing what the evidence was. I still don't know what the evidence was. I only feel that I convinced the judge that the CSIS officers were incompetent and misled the court. That's all I can gauge from that proceeding. I still don't know what went on.

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We shouldn't have to put up with this kind of legislation in peacetime. I have seen what the CSIS trials and the Immigration Act have done to the Muslim community. There is a state of heightened anxiety, fear, and mistrust. Every mosque is afraid to freely associate because they're afraid it's laced with CSIS agents. That's a fact. That's a reality.

At page 6, you have the more concrete six other recommendations. I'll leave them with you. But the last thing I'd like to say about this bill is if you think it through, it's a recipe for disaster. One religious group, one racial group in Canada will be targeting the other by feeding information to CSIS. It's going to undo what we've had in Canada, which is religious and racial cohesion in a multicultural society. This is a witch hunt provision. It is a recipe for disaster.

Thank you for your time.

The Chair (Mr. Maurizio Bevilacqua (Vaughan—King—Aurora, Lib.)): Thank you very much, Mr. Galati. I don't know if this is pretty evident to the members of this committee, but I don't think this bill will be proceeding to clause-by-clause any time soon.

Some hon. members: Oh, oh!

The Chair: We certainly need to discuss the issues related to this bill. We're going to have a lot of time during the summer.

We'll now hear from Chantal Tie and Michael Bossin. Welcome.

Ms. Chantal Tie (Executive Director, Community Legal Services, Ottawa South, Canadian Council for Refugees): Thank you.

My name's Chantal Tie and I'm here for the Canadian Council for Refugees. This is Michael Bossin. We're going to split our presentation. I'll do the introduction and Michael will be dealing with the lack of definition of terrorism and the overall structure and approach the bill takes.

The Canadian Council for Refugees has an interest here for two reasons. We are an umbrella organization, and many of our members will be directly affected by the new legislation—probably some of the most affected charities, as the conditions that create refugees are normally the conditions that also create organizations at risk of being targeted or labelled as terrorist.

The second reason we're here is this legislation, as we understand it and can clearly see, is modelled on the Immigration Act security provisions. We now have almost ten years of experience working with very similar provisions under the Immigration Act, and we're here to tell you about our experiences and give you some concrete examples of why this legislation won't work, how it will work, and who will be harmed by it.

All of the fears alluded to by Mr. Drache of the CBA and Mr. Galati have been borne out in the immigration context. These are not hypothetical concerns; they're very real concerns. The previous presenters have actually asked a number of questions. What will happen? It's perhaps appropriate that we are speaking last, because I think we can answer some of those questions, from the immigration context.

When officials say we are to trust them, our experience prevents us from bestowing that trust. We've provided—and I'm not sure if it was distributed—the Canadian Council for Refugees' report on refugees and security. We apologize that it's only available in English at this point, but we thought it was important to provide it nonetheless. It contains details of our overall concerns, as well as case studies that illustrate dramatically the problems in the immigration context.

These concerns can be summarized very quickly. There's no definition of terrorism in the Immigration Act. There's no definition of membership, which is akin to the problems that will arise under activities, in your clause 4. There is no clear and transparent process applicable to the review of security certificates. It's very much the way Mr. Galati has described.

Mr. Bossin will deal in detail with the question of no definition of terrorism, but I would like to comment on the problem with clause 4, where it indicates any organization engaged in terrorism or activities in support of terrorism.

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Our problem arises primarily because that definition ignores the reality that many so-called terrorist organizations are in fact multifaceted organizations. In some areas of the world, they are the de facto government under which people live. These organizations provide the health, education, and social services that sustain the people who live under their control.

I can give you two historic examples. The ANC and the PLO—the African National Congress and the Palestine Liberation Organization—were clearly branded terrorist organizations historically. Their leaders needed special permits to enter Canada.

That has all changed now. Nelson Mandela has been called the world's greatest citizen by our Prime Minister. He was invited to address Parliament here in Ottawa. Both organizations historically had extensive involvement in humanitarian work, sustaining the people they were fighting for simultaneously. So there's a real problem with what activities support terrorism, particularly when they all fall under the same umbrella.

What do we know about how the Canadian government, and CSIS in particular, have treated those types of organizations? I'd urge you to carefully look at the case studies that begin on page 18 of our material, of Suleyman Goven and Mr. Durgun. What we learned from the SIRC review of the CSIS investigation is a profound criticism by SIRC that there's no appropriate definition of membership; there's no appropriate definition of a terrorist organization; and there's a lack of clarity in the process in interviewing and reporting on security investigations.

Membership was central to the government's decision to label both Mr. Durgun and Mr. Goven as terrorists. We have a similar problem with the words “activities in support of terrorism”. What do they mean?

In the immigration context, Mr. Durgun was a law-abiding, peaceful, non-violent Kurdish nationalist. But he was labelled a terrorist because of the extremely wide net cast by the security provisions in the Immigration Act. In essence, he supported Kurdish nationalism. SIRC found that to apply the definition of terrorist to him was ludicrous and sent it back to CSIS.

Instead of CSIS fixing their process, applying a more rational and reasonable definition of terrorist, and landing Mr. Goven and Mr. Durgun, they issued a rebuttal report.

It is of concern to us that CSIS appears unable to distinguish between varying degrees of support and membership in organizations it has determined are terrorist. They cannot distinguish between political activity, humanitarian activity, and para-military activity. We feel the Canadian organizations that support humanitarian activity will be caught by CSIS's inability to distinguish and by the lack of clarity and a definition within the act.

It's also been our experience, which I would echo with the Canadian Islamic Congress, that CSIS has selectively cast a very wide net. There's no question that Islamic organizations have been repeatedly branded terrorist, whereas members of the Kosovar community, for instance, have not had the same experience. So there is a selective casting in a very non-transparent system.

Mr. Bossin is going to deal with defining a terrorist organization.

Mr. Michael Bossin (Staff Lawyer, Community Legal Services, Ottawa-Carleton, Canadian Council for Refugees): If I have two minutes, I'll take two minutes.

As the other witnesses have said, this is a very curious bill. Its aim is to suppress a certain activity—terrorist activity, terrorism—yet nowhere in the bill do we know what terrorism means, and other witnesses have alluded to that.

In the view of the CCR, as a matter of principle it's always better to specify in law what is a prohibited activity, so people can govern their actions accordingly. Bill C-16 follows the opposite—a rather backward approach—which is to not define terrorism. Again, the central aim of this legislation is to stop terrorism. It doesn't define it in any way, which forces organizations to then guess whether their actions are within the law or outside the law. The legislation says, then we'll investigate and then we'll punish them by stripping them of their charitable status after the fact. It is at the very least an awkward and clumsy way to prevent unwanted activity. It's also, as other witnesses have said, unfair.

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Under Bill C-16, how can a charitable organization know with any degree of certainty whether it is supporting a legitimate liberation movement or an illegitimate terrorist organization? Without defining “terrorism” or “terrorist activity”, it cannot do so.

Mr. Drache said that the drafters of this bill were lazy. It's not easy to define “terrorism”, and many governments and courts have struggled with this term, but it's not impossible. There is a growing group of legislators and legal authorities who have tackled this problem and have taken a very functional approach to terrorism, and they've done that by concentrating on the acts, not the politics. Hostage-taking is a terrorist activity, hijacking is a terrorist activity, car bombing civilians is a terrorist activity—it's not impossible to define terrorism.

As Mr. Galati said, another approach taken by other governments with respect to this problem, instead of taking this backwards approach that Bill C-16 takes, is to list organizations that the government considers terrorist. Put charities on notice and say, if you send money to any of these organizations we're going to apply sanctions, and then at least charities can know what the rules are. This legislation does not tell anybody the rules until afterwards, and in that respect it's very unfair.

Thank you.

The Chair: We'll move to the question and answer session.

Mr. Epp.

Mr. Ken Epp (Elk Island, Canadian Alliance): Thank you, Mr. Chairman, and thank you all for being here. I listened with great interest to your presentations, and actually they're quite consistent with what we have already heard in the committee on hearings on Bill C-16.

I want to ask you a question. There are many organizations that mix their activities. It's come up here again today. You fund hospitals. At these hospitals you treat children who have been injured in a war not of their making. You may also treat the injured who were carrying the bomb that caused the damage. So you get that mixture of activities.

Do you think there is any way at all of defining this? For example, Mr. Bossin just indicated that we could list organizations. I think that's an impossible task because, number one, as soon as you're listed, all you do is re-form under a different name and you carry on. I think it's such a rapidly moving target it would be effectively ineffective.

I really don't know how one could solve this problem, and none of you have said that. You've been very erudite today in explaining and illustrating the flaws in the bill, but none of you have given us a way of actually getting around it that, in my view, is workable.

Even in regard to defining terrorism, you can define it, but what happens if someone does something that's right on the verge of the activity that's defined, that's still very harmful but hasn't been included in the definition? Do they then get away with it? It seems to me that in this particular case not having it defined is terrible, but the task of actually defining it is almost impossible. So I want some solutions.

Mr. Rocco Galati: Let me offer some philosophical food for thought. I've offered you a one-sentence definition of terrorism. The problem with defining terrorism is not its definition, it's in accepting its definition and its equal application. Here's a working definition of terrorism that I propose on behalf of my client: a terrorist act is any act by an armed individual or group against an unarmed individual civilian or group for political, economic, racial, or religious reasons, including state terrorism.

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If you have two armed individuals, or two armed groups, then we're not into terrorism, we're into treason, murder, insurrection, revolution, or maybe a legitimate liberation struggle or an outright war.

But backtrack to the idea of the threat or actual use of violence by an armed individual or group against an unarmed civilian or group and that's terrorism. Here's the problem. We'd like to engage in our own terrorist acts and allow our friends to do it when it's convenient; that's why it's difficult to define terrorism.

Mr. Ken Epp: Do any of you here suppose that Canada would have any moral ground left at all if this bill were passed and it became known right around the world that in Canada, if you raise money for terrorist activity and you get your knuckles rapped, you're not able to give charitable receipts any more? I think that's a ludicrous view. I agree with the Bar Association, where they said very strongly this is a criminal activity and should be covered under the Criminal Code. It should be a banned activity, and if you do it you should go to jail. You shouldn't just have your registration for charitable donations struck off the record. We wouldn't do that with any other organization. For example, if there's a guy who makes his business doing bank robberies, do we punish him by saying, you can no longer deduct your business expenses when you file your taxes?

Ms. Chantal Tie: That is the CCR's position as well.

Mr. Ken Epp: I'm going to propose—and our chairman has alluded to it—that what this committee should do is send this bill into oblivion. Do you agree with that?

Mr. Rocco Galati: It's already in the Criminal Code. Take a terrorist act, sir, as I defined it. It already constitutes either attempted murder or assault. It already is a Criminal Code offence. If you knowingly or with wilful blindness fund-raise and support that, you are party, an accessory before and after the fact. It's already covered by the code.

The fact that somebody blows up a building because that person in that house is stealing his drugs or that person has slept with his or her spouse, or that person is of a religious or racial faction that the person can't stand, doesn't change the nature of the horrendous act of murder or blowing up that house, just the motive. It's already a crime, sir, no matter what your motive is.

Mr. Ken Epp: But is it a crime right now if we have an accessory to the crime and the crime takes place in some other country in the world?

Mr. Rocco Galati: Sure. It is a crime, definitely.

Mr. Ken Epp: In Canada?

Mr. Rocco Galati: Yes, sir. I'd prosecute in a second. Yes, it is. If I give you money to blow somebody up, I'm a party to that offence, of course, under section 21 of the Criminal Code.

Mr. Ken Epp: Thank you. You're a lawyer, I'm not.

I'm finished. I appreciate so much your presentations. They're clear, they're succinct, and they're focused. I think I know where I'm going. Thank you.

The Chair: Mr. Loubier.

[Translation]

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Thank you, Mr. Chairman.

I'm still wondering why the government has introduced this bill dealing specifically with charities? These are organizations amongst others and they do not fight terrorism.

Secondly, I am also appalled by the text of the bill. Sometimes I wonder if Canada is not in the process of not being called a constitutional State any more since this bill does not give any chances to the accused. The proof is given somewhere else behind closed doors by the Canadian Security and Intelligence Service. One can appeal five years later, but appeal what? You don't even know the evidence nor the charges.

I sometimes have the feeling—and I have reread this bill several times to understand it—of living in Big Brother's era or a like period of time.

In light of this, I wonder if it wouldn't be preferable, as says Mr. Epp, to scrap this bill and start indicating precisely and correctly in the Criminal Code what is a financial participation in a terrorist group and establishing penalties.

One could then increase control resources within Canadian boundaries. Everybody recalls several recent cases, namely Ahmed Ressam who travelled in Canada for several months in all freedom. One would also recall other cases where there was no cooperation whatsoever between CSIS, the RCMP, Immigration Canada and the Solicitor General where we lost track of terrorists or criminals. One would also remember the recent case of Gaetano Amodeo accused in Europe of having killed two police officers or the like. People realized there was no cooperation between concerned departments yet for the same individual.

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I'm asking you this: would it not be preferable to scrap this bill, to describe what is financial assistance to terrorist activities in the Criminal Code and penalties and to give more resources to authorities like Immigration Canada, the Solicitor General and even CSIS so they can at least work together and increase their efficiency?

I have the feeling this bill has been tabled to restore the federal government's image after the Ahmed Ressam's case and to try to please Americans who were scornfully insulting to the Canadian government following that event.

I'd like to know what you think about that.

Mr. Rocco Galati: First, I agree with your comments. I feel, without exaggerating, that this bill is a dictatorship law that is totally deprived of the notion of due process of law that exists in Canada. Those activities are already illegal according to the Criminal Code. So, my clients agree with you.

However, if the bill is passed, you would be asked to apply what was proposed this morning. This bill does not recognize the rule of law. Actually, it's a bill that is tabled during a war or in a dictatorship, not in a constitutional and democratic society.

[English]

The Chair: Are there any further comments?

[Translation]

Mr. Loubier.

Mr. Yvan Loubier: No, for me, that covers it all.

[English]

The Chair: Mr. Gallaway.

Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Thank you. I just have a couple of questions.

Mr. Drache, you've described the drafters of this bill as being intellectually lazy. I can assure you that with the people I've heard from and with whom I've met, the most complimentary thing they can say about it is “rubbish”. In your opinion, as someone who has drafted legislation, is this bill beyond redemption or could it be amended? Would you scrap it or would you amend it?

Mr. Arthur Drache: My own reaction would be to scrap it, because I'm not sure I agree with the philosophy behind it. I don't think it can be saved, no matter how much you tinker with it. It can be improved. It can go from abominable to not so terrible—the question of definition and so on. But there's the matter of intent.

You raise the question, for example, of the mixture of activities. If you start off with the proposition that the Canadian organization has an intention of carrying on charitable activity, promoting education, running a hospital, whatever, you realize that when you move into certain areas of the world, those facilities will be utilized perhaps by “terrorist organizations”, however you define that.

The fundamental question it seems to me—and Mr. Galati referred to it—is the intention. My intention, as executive director of a Canadian organization, is to fund a hospital in Kashmir, and we're funding a hospital, doing all the things. A terrorist is brought in and gets treatment—or two terrorists, or three terrorists.

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Our intention was only to fund a hospital. It seems to me you do not have, in this criminal context, the mens rea, the guilty mind. That would seem to me the crucial thing. If it could be shown by a preponderance of evidence that it was always the intention, in moving into areas that are in dispute and where terrorists operate, to give aid, even indirectly, then I think there's a case.

You have to go to the intention of the people who are running the Canadian organizations. I have a great many clients with good reputations who are out there doing good things, but they can't warrant every person who uses one of their services in Somalia or Ethiopia. They don't know. But it's not their intention to promote strife; it is their intention to do good.

It seems to me that wherever the legislation goes, especially if it goes on the criminal side, there will definitely be a need to show intent. If you stay on the civil side, the kind of drafting Mr. Galati suggested, using the words from section 163 of the Income Tax Act, building it in there, would also help. But in my heart of hearts, the problem ultimately is with those who make the decisions to lay the charges, to take the action, the extent to which you can trust them to deal fairly with the organizations. What you're hearing from all of us around here, coming at it from different ways, is that the track record of trust just isn't there. I have no reason to believe that all of a sudden that track record is going to change.

So the simple answer to your question is, I'd scrap it.

Ms. Chantal Tie: I would just add one thing to take the example one step further. It's often the case that some of these organizations actually control significant areas of countries. In those circumstances, often the only way to deliver humanitarian services to the people who live in those areas is in cooperation with those terrorist organizations in control and other de facto governments in those areas. So the grey areas are extensive. The bill assumes that it's black and white. It isn't black and white. The world just isn't that simple.

The CCR's position is to scrap it and use the Criminal Code for outlawing specific criminal and terrorist activities. Don't do it this way, because if charities cannot deliver those humanitarian services in those areas controlled by so-called terrorist organizations, people are going to die in greater numbers than they already are.

Ms. Wahida Valiante: Can I just add to what is being said. I was in Palestine and in Gaza, and I went to visit the school where little girls are being taught. This is really the only school they have for girls. Usually, as you know, where there is poverty or there is a war, women and children, particularly girls and women, are always left behind. This is a school that has been funded by some of the charities from Canada. They were telling me who these girls were who were orphans. Many of their fathers had died during the Intifada. Could I say now these are the children of terrorists and they shouldn't be taught here? This is the only lifeline they have, the money coming from Canada.

It is really an issue here being without a definition, not knowing exactly who we're defining as a terrorist. We can truly undo all that good work that is being done. It is a very poor country; there are no structures. Their school is funded by us here in Canada. I think even CIDA has given some money recently.

Mr. Roger Gallaway: I have one final question, which I pose to Mr. Drache and Mr. Galati. Is there any law in Canada, whether criminal or civil, where an accused is required to respond to an accusation in which the accusers are nameless and faceless, and what you're receiving is a précis of a group of accusations.... Is there any law anywhere where that...?

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Ms. Chantal Tie: Yes, the Immigration Act. Very clearly, that's why we have 10 years' experience with this very process.

I would suggest that if you're interested, the SIRC report for Govin and Durgun is available, and I can make that available to the committee. You can read what happened in those two particular cases that came down last year from that committee, and you'll see how it works. It's very clear.

Mr. Rocco Galati: In deference to the committee members and to the good-intentioned drafters of this legislation, there are very restricted scenarios in our law—and I deal with them in my full submission to your committee—where in very specific cases where we can establish that, let's say, an informant is going to be killed or is going to be in danger, our courts have devised judicial processes through the common law to protect those individuals from harm, for instance, information to obtain wiretaps in drug trafficking or murder cases. So there's a very select tailoring that happens so we protect those in danger, but apart from that, no, this is unheard of in a constitutional democracy.

Mr. Roger Gallaway: Thank you.

The Chair: Thank you, Mr. Gallaway.

Ms. Barnes.

Mrs. Sue Barnes: Thank you, Mr. Chair.

I'm very grateful that this bill came to us in a draft form. It really is not a bill that Parliament has given a voice to by approval in principle at this point in time. I think we've had consistent testimony, and it's very necessary for us to hear very loudly the voices of people most affected.

My concerns are about the constitutionality of this, and I would like to get your answers on record as to whether you think it meets the test of a fair trial in this country.

Mr. Rocco Galati: I know I've tended to monopolize the morning, and I do apologize, but I hope the Supreme Court of Canada grants us leave.

The Supreme Court of Canada has never ruled on this. Ten years in interpretation of legislation by courts is not a heck of a long time. It takes a good six or seven years to get to the Supreme Court in the run of the mill. But quite frankly, if the Supreme Court of Canada upholds this legislation in total under the Immigration Act, if and when they actually deal with it on the substance, I can tell you on record today that I will hang up my robes as a solicitor. As a barrister, I will never do another one of these cases again, because I think it's an affront to constitutional democracy.

Mrs. Sue Barnes: Mr. Drache.

Mr. Arthur Drache: I have to agree with Mr. Galati. Constitutional law, and so on, is not my particular area of expertise, but as a lawyer, just taking a look at this, it's so offensive to me, so completely contrary to everything I learned in law school about procedural fairness, and so on....

Every time I talk to lawyers—and it popped up here, too—they talk about a star chamber. It basically says we're going to take away your rights. That's really what it comes down to. We're going to tie your hands behind your back, and now you can have a closed-door hearing; and incidentally, there's no appeal, and if we're successful, you lose all your assets, and it doesn't make any difference whether you intended to do bad things or not.

It's absolutely outrageous. The normal deregistration procedures for charities under the Income Tax Act are tough enough themselves. The onus is on the charity to show the minister is wrong; you cannot call witnesses; everything is based on paper; there's no cross-examination, no nothing. You may have a tough time as a lawyer, but at least there are procedural protections. One wonders why the drafters of this bill felt that even having the cards stacked against the organizations in an ordinary appeal was not enough in this particular situation. It just boggles the mind.

Mr. Michael Bossin: I would just add, yes, the issue is of due process, and we would agree with all the concerns that have been raised. The problem is compounded by the fact that you're being accused of supporting activities that are undefined, and so not only are your hands tied behind your back because you don't get to know who's making these allegations against you, but it's also very unclear what activity you were supposed to have been supporting, because that also is not defined anywhere.

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So it is clearly an issue of due process and unfairness, and all of that, and we would agree with what everyone else has said.

Mrs. Sue Barnes: I would like your opinion as to whether you think there is a lack of sections in the current Criminal Code to deal with terrorism, and whether we need more sections in the Criminal Code.

Mr. Rocco Galati: I think if the evidence is there, the code is clear in its various crimes against the person sections, and subsection 7(3.71), which is still in force, the crimes against humanity provisions, which all terrorist acts are.

I share the concern of the drafters of this bill that it's very hard to prove something on a criminal standard. So, fair enough, we don't want to fund or allow charities to use tax dollars to fund terrorist activities, but then it all has to be in the pudding. There has to be a fair process to do that.

I want to be clear here that reading the transcripts of the last sitting of this committee, what has to be proved on one of these processes is reasonable grounds to believe...blah, blah, blah. That's less than a balance of probability. You were told that it was balanced, but that's not true. It's less than a balance. The case law makes it clear.

So you have a standard that's this high, and as Arthur said, you walk into the courtroom, hands handcuffed behind your back, blindfold on, and the lights turned off, and they say to cross-examine. I say, okay, fine, I'll show these guys to be liars; that's the best chance I have. What a system!

The Chair: Anybody else?

Mr. Arthur Drache: In response to that question, I agree that the Criminal Code, properly applied, will in fact cover these kinds of activities. So what we're suggesting is maybe you'd want to make it more concise instead of relying on the general Criminal Code provisions against murder, against various acts against property.

But I should also say, incidentally, that supporting terrorist activities is not a charitable thing. That being the case, you have your normal provisions under the Income Tax Act whereby the minister can strip a charity of its registration for carrying on non-charitable activities. You have a procedure that has been laid out, and it's gone through the Federal Court of Appeal in a dozen cases, and we had one case at the Supreme Court of Canada.

I may not particularly like the procedures that we have there, but at least they're there. I don't understand what these provisions add, except to allow the bureaucrats to eliminate even those moderate protections that you have under the Income Tax Act right now when the Department of Revenue takes away your charitable status. I just don't see what it adds to it, except speed and a bludgeoning of the organization and the taking away of their rights.

Mrs. Sue Barnes: Mr. Bevilacqua, I'll just put on the record that subsection 149(1) of the Income Tax Act contains specific requirements right now. I think that may be one of the sections in which charities have to have due diligence and know the extent to which a registered charity has a responsibility to know how its resources are applied. I think we do have that provision in the Income Tax Act today, and that's used all the time.

The Chair: I think the panellists have made their points very clear.

I have three more questioners, and we have 15 minutes until we have to be out of this room, so keep that in mind when asking the questions and when answering them.

Mr. McCallum, and then Mr. Nystrom and Mr. Brison.

Mr. John McCallum (Markham, Lib.): Thank you, Mr. Chairman.

I've certainly found what I've heard this morning very compelling. What I was going to say has in part been said, so I will make three very brief comments or questions, and then maybe you'll have answers.

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First, on the narrower point of the definition of terrorism from Mr. Galati, that it has to be attacks on unarmed persons, I would have thought that Timothy McVeigh was a terrorist even though he attacked the U.S. government, which presumably is armed. So I don't understand that definition.

Second, initially I got the impression from Mr. Drache that sometimes it's okay to support terrorism as long as you don't tax deduct the money, which seemed bizarre.

Then I heard that nobody can support terrorism because it's in the Criminal Code under section 20. Is the issue, then, that the Criminal Code should be beefed up and/or that under some circumstances there should be a lesser standard of proof?

Finally, related to that, one hears all the time that the threat of terrorism is increasing around the world. Why else would the U.S. be proposing to spend billions of dollars to protect itself from rogue-state terrorism? Technology is improving. In some circles—and we heard this in the immigration committee hearings—Canada is said to be a safe haven. A more general question is, assuming it's done appropriately, do you agree that we should beef up our protection against terrorism, whether it's through the Criminal Code or by other means?

Mr. Rocco Galati: I wholeheartedly agree, and there are easy ways to do it. With regard to your McVeigh example, children and civilians were in that building in addition to federal agents. The thing about McVeigh is that they didn't charge him and convict him on a terrorist provision. They dealt with it under the criminal law of the state. So that makes the point.

I'd like to add that you have to be very careful when moving from terrorism to terrorist act to terrorist organization. You can't equate all three in one global, nebulous definition. What I defined earlier was a terrorist act. I think if you define a terrorist act that way, you've gone very far in terms of defining terrorism outside the scope of murder, assault, and assault causing bodily harm, if you will.

I don't want to monopolize more than my fair share of the 15 minutes.

Mr. Arthur Drache: It may be of interest to the committee members what the Brits have said about it. They say that terrorism is:

(b) the use or threat is designed to influence government or to intimidate the public or a section of the public,

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

In other words, that takes out greed in the normal sense. Then the action:

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life other than that of the person committing the action,

or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

That's the British definition, which goes to the question of the motive of the organization, the difference between somebody who blows up a building for personal gain as opposed to somebody who blows up a building because he or she has a political agenda.

I think that while you can use the Criminal Code provisions, one of the differences, of course, is that normally the Criminal Code provisions are used against individuals, whereas what we are talking about here is a provision that is used against an organization, which obviously is quite a different kettle of fish.

But I do think that the existing law, if properly applied, would be effective.

The comments made earlier with regard to non-profits, for example, other organizations that are not covered, simply suggest that this is not a serious attempt. When you cut through it all, the question is, why these groups and not other groups? If you put it in the Criminal Code, it applies to everybody. If you leave it this way, it applies to one relatively small group. It's estimated that for every registered charity you have two to three non-profit organizations out there. Why have they been ignored in this context if one is serious about the proposition?

The Chair: Thank you very much.

We'll now go to Mr. Nystrom and then to Mr. Brison.

• 1055

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): I want to compliment the groups for their presentations this morning.

I'd just like to speculate out loud why our government would even introduce such a draconian proposition. Do you have any idea why that happened? I suppose a more serious question would be, is there any other country in the world with a similar law on the books? What countries would they be?

Mr. Arthur Drache: I don't know of any other country that has similar laws relating to charities.

What I do know is that right now the interpretation of charities law, especially with regard to political activities, is much tougher in Canada than in any other common-law country. In fact, it is an ongoing problem within this country, which has been studied constantly with regard to advocacy activity and political activities and what all these things are. Canada is much tighter right now than any other country.

On the issue of terrorist activities and so on, the American and British position for the most part is to prescribe organizations. We simply say, this organization is a terrorist organization. You cannot give it money. You cannot do blah, blah, blah, and that's the end of it. They go on an organizational basis.

Mr. Lorne Nystrom: I think most of us around this table have been big fans of Nelson Mandela for a long time. Supposing Mr. McCallum had a charity for 20 years and this law was in effect for the last 20 years. If Mr. McCallum funded the liberation of Nelson Mandela, at what point would his activities become a legal operation and at what point would he have been funding a terrorist?

Mr. Rocco Galati: Under this law it would still be illegal today.

Mr. Lorne Nystrom: So, hypothetically, under this law Mr. McCallum's activities would still be illegal today.

Mr. Rocco Galati: Yes, because they made available some of their resources. That's past tense.

The Chair: This is all hypothetical, by the way.

Mr. Brison.

Mr. Scott Brison (Kings—Hants, PC): I don't have any questions.

The Chair: Mr. Drache, do you have a final comment?

Mr. Arthur Drache: I would simply say that without a definition, the question apropos Mr. Mandela is, who determines who's a terrorist? Under the apartheid regime Mr. Mandela was a terrorist. Under the current regime Mr. Mandela is a hero. Who is going to determine which group is in and which group is out? Is it going to be the country in which the “activity” takes place, or is it going to be Canada? Without a definition we really don't know.

Ms. Chantal Tie: If I could just add to that, I'd urge you to look at the case of RD on page 15 of our brief, which sets out another problem. We all know now that the U.S. was responsible for the overthrow of the Allende government in Chile and the installation of the brutal Pinochet regime. I think most of us haven't forgotten that. The United States branded MIR in Chile as a terrorist organization. On the basis of that, RD here in Canada was found to have supported a terrorist organization and was inadmissible, even though MIR was a conglomeration of groups, including church groups, some of which did not support terrorism in any form. So on the question of who's going to decide, one should be very wary of the U.S. making determinations in Chile of what is and is not a terrorist organization considering the role they played. Yet CSIS doesn't seem to take that into account.

The Chair: Thank you very much, panellists. You've certainly brought out some excellent points, which we'll take this summer to think about.

There's a reason the government brought this to us after first reading. It gave us a parameter to work within. After first reading usually implies we can do an in-depth study, and that's exactly what we will do. Thank you very much.

The meeting is adjourned.