JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 6, 2001

• 0933

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 43rd meeting of the Standing Committee on Justice and Human Rights.

Today we're considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act, and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

Before we go any further, so our guests won't be finding their way to the door, I want to welcome them. I want to welcome, representing the Canadian Jewish Congress, Professor Ed Morgan, Eric Vernon, and Manuel Prutschi; from the Canadian Islamic Congress, Professor Mohamed Elmasry, Mr. Rocco Galati, and Adam Amen; from the Canadian Council of Churches, Peter Noteboom and Jennifer Leddy; and from the Canadian Arab Federation, John Asfour and Amina Sherazee.

I apologize to anyone for whom I didn't do justice to their name. I'm sure you'll correct me, as has happened before.

I want to thank everyone for coming and giving us your time this morning. The method of our operation here is quite simple. Each group will be given something less than ten minutes to make an opening statement. Because there are four groups and we only have two hours, I'm going to hold people to those numbers to the best of my capacity and within the rules of maritime politeness. Following that we'll have an opportunity for members of the committee to question and engage in dialogue.

• 0935

With that, I'll go directly to the Canadian Jewish Congress. Mr. Morgan.

Professor Ed Morgan (Chair, Ontario Region, Canadian Jewish Congress): Thank you, Mr. Chairman.

Mr. Chairman, honourable members of the committee, my name is Ed Morgan. I'm formerly national legal counsel and currently Ontario chair of the Canadian Jewish Congress. With me are my colleagues, Manuel Prutschi, our national director of community relations, and Eric Vernon, our director of government affairs.

Speaking today on behalf of the Jewish community in Canada, I will start by saying that the Jewish community is very concerned about the current crisis that we've been in since September 11 of this year. We're of course particularly concerned about the problem of international terrorism and the prospect of terrorism coming into Canada either to do violence here or to use Canada as a springboard to do violence elsewhere.

Of course we're also concerned, as many communities across Canada are, about the prospect or possibility of a domestic backlash and various domestic expressions of hatred, racism, and anti-Semitism that also might result from this international crisis. Sadly, the Jewish community does have experience with international violence and international disputes turning inward in the form of domestic hate crimes. Just last year, when there was an outbreak of violence in the Middle East there were no fewer than 18 synagogues across Canada vandalized or damaged. In Thornhill, Ontario, just three weeks ago, a synagogue had spray-painted on it the slogan “Osama lives”, and it turns out that it was the same synagogue that ten years ago on a different external wall had spray-painted on it the slogan “Saddam lives”.

So we do have experience with international crises turning inward as hate crimes. We deplore this. We deplore it when it happens to our friends in other religious and ethnic communities. We deplore it when we see it on mosques, when we see it on Hindu temples, and of course when we see it on synagogues. We feel that for this reason it is appropriate that the government has, in addition to bringing in these anti-terrorism measures, included measures augmenting and supplementing the existing hate crimes legislation.

None of this, I must say, odious as it is, equals flying airplanes into office towers. We are particularly worried of course about the central problem of international terrorism. Mr. bin Laden himself has styled his organization, and I quote, “the global Islamic front to fight Jews and crusaders”. I find in some ways it's easy to scoff at what sounds like almost medieval rhetoric. And of course we acknowledge that just because he uses the label “Islam” we understand that this is not truly Islam or the belief of the vast majority of Muslims. But at the same time, he has said it, and we don't scoff at it. That is, we are the people he is talking about, so we find it very hard to scoff at this. We find it hard to do anything but take these kinds of threats seriously.

We all read in the press recently that Ahmed Ressam testified south of the border that among other things, in addition to his attacks in Los Angeles, he and his group had planned an attack against Israeli or Zionist interests in Montreal. We know whose community he was talking about attacking. There's nothing to target there in those words except the local Canadian Jewish community.

In addition, we have a trial now going on in Buenos Aires, Argentina. As you probably know, the Jewish community centre in Buenos Aires was bombed. Eighty people were killed in that attack. The Argentinian police blame overseas terrorism and its supporters for that atrocity. Argentina, I would submit, is as remote from the Middle East conflict as Canada is. We want to make sure that Canada remains literally remote from international terrorism.

We therefore welcome the government's legislative initiatives here, and we welcome their bona fide conscientious attempt to deal with this problem as it pertains to Canada. We also of course welcome the openness, the stated open-mindedness, of the government in listening to commentary, both supportive commentary and critical commentary. And of course we welcome the opportunity to appear before this committee.

• 0940

I believe we've distributed a copy of our brief. I won't take you through it now, except to ask you to turn to the summary of recommendations, which you'll find at the very end, on page 10. With my remaining moments, I'll go through some of the highlights of the summary.

The Chair: Excuse me, professor. I bring to the attention of the committee that—

Prof. Ed Morgan: You don't have it?

The Chair: We have not circulated the brief. It wasn't in both official languages; as a result, we don't circulate it.

Prof. Ed Morgan: We do have a brief for anyone who wants it. I will simply walk through the highlights of the summary of our specific recommendations.

In the first place, the organizations responsible for security in this country, in addition to the legislative power they've been supplied with, must be provided with the requisite human and material resources. And I would say that substantial interagency intelligence sharing should be encouraged.

As I said, we do take the prospect of international terrorism coming into Canada seriously. Much of the debate—I find this not only in my capacity as a Canadian Jewish Congress chair, but in my capacity as a lawyer and a law professor—about what kind of power should be given to government, and what kind of power should not be given to government, be it the debate between law enforcement agencies and civil libertarians... all seems to boil down to this problem: do we take seriously the threat of international violence coming into Canada?

We do not see this as many Canadians seem to see this. They tell me that CSIS has a history of chasing phantoms, that when law enforcement agencies deal with international problems they have a history of imagining the problems to be bigger than they are.

We take seriously what the government tells us, that there is a serious threat of violent people coming into Canada, and therefore we think they should have not only legislative power, but the requisite resources at their disposal.

In terms of the definition of “terrorism” itself, I would submit that language should be added to the definition of terrorist activity in proposed section 83.01 of the bill simply to ensure that the anti-terrorism provisions cannot be invoked against strikes or protests in Canada, even in the event that those strikes or protests are illegal or turn violent. Of course it would be reprehensible to hold an illegal strike, a violent strike, a violent protest in Canada, but it would not be terrorism.

A wildcat labour walkout that's illegal under existing provincial labour laws would not be covered in the caveat to the terrorism definition contained in the bill, but I would submit it would not be terrorism either. Some language should be added to that definition in order to cover off that possibility.

Similarly, a protest that's contrary to municipal bylaws and that doesn't have a municipal permit and that might even turn violent in confrontation with the police is reprehensible, but it's not terrorism. And I think we should be careful not to paint terrorism with an overly broad brush.

Otherwise, I would submit that the definition, generally speaking, is good. It has, in my view, eliminated what I think is the excessive discretion that has plagued the problem of defining terrorism under the Immigration Act, where there is no existing definition at all. We've incorporated ten different international conventions and given our own twist to the definition of terrorism, which I commend.

I particularly commend the government and the legislative draftspersons for avoiding the trap of trying to define good terrorism and bad terrorism. In our submission, there is no good terrorism and bad terrorism; it should not turn on our view of international politics. The definition of terrorism, as it is in the bill, as I understand it, does not depend on any person's view of whether God is on the side of the Catholics or the Protestants in Northern Ireland, or who you think the good guys or the bad guys are in the Middle East dispute, or who you think should be controlling Kashmir, etc., or whether you think the Chechens get a good break from the Russians or don't get a good break. None of that matters. The government has clearly prohibited and criminalized any form of ideologically, politically, and religiously motivated violence, and in my submission that's appropriate.

We should not fall into the trap of trying to figure out the old cliché of one man's terrorist is the next man's freedom fighter. We should simply prohibit this kind of violence from landing on Canadian shores.

The only other thing I would say about the definition of terrorism or the identification of terrorist organizations is that I commend the government for saying that they will publish the named terrorist organizations. They should publish an updated list from time to time of all groups on the terrorism list. Transparency is the best remedy for many of the civil libertarian problems people are saying the statute gives rise to. I would say that not only the deletions should be published, as mentioned in the legislation, but subsequent additions to the terrorism list as well.

• 0945

I see my time is running short, so I will turn very briefly to some of the hate crimes provisions.

Section 430 of the Criminal Code—the mischief to property provision—is amended in this bill. We say it should be further amended to make sure all religious property is covered. Not just sanctuaries, not just synagogues or churches, but all religious structures, religious centres, religious schools, religious community centres, cemeteries—which are a particular target for hate crimes and desecration—ought to be covered as well.

I would also say the grounds of group identification ought to be expanded to include, for example, hate crimes against groups identified by sexual orientation or gender. Gay-bashing is a hate crime, as would be an attack on a women's centre, every bit as much as on a religious community centre.

In our brief, which I hope to provide to the members of the committee who want to see it, we've also included several recommendations for augmenting the provisions dealing with hate on the Internet. I would say that the Internet—for those of you who haven't explored it enough—contains a shocking amount of hate propaganda and hatred material. Much of that, sadly, is aimed at the Jewish community.

Somebody brought my attention two weeks ago to a Chechen liberation movement website. I learned, for the first time, that there is a triangular-shaped world conspiracy of Jewish interests in Moscow, Washington, and Tel Aviv that's basically responsible for the oppression of the Chechens and virtually every oppressive act in the third world.

So I commend the government for turning its attention to the Internet. I've got some proposed language, which I'll hand out to anyone who's interested, for augmenting that section in particular.

Thank you.

The Chair: Thank you very much.

Professor Elmasry.

Professor Mohamed Elmasry (National President, Canadian Islamic Congress): Good morning, Mr. Chair. Good morning, ladies and gentlemen. My name is Mohamed Elmasry. I am national president of the Canadian Islamic Congress. To my right is Mr. Rocco Galati, who is the legal counsel of the Congress.

For a living, I am a professor of electrical and computer engineering at the University of Waterloo, and my peers think I'm one of the top world experts in microchip design. I'm Egyptian-born. My wife is from Dartmouth, Nova Scotia. Two of my kids were born in this town, and two were born in Waterloo.

I have lived in the United States, Switzerland, Kuwait, and Egypt, and I have a family of six who are American citizens. This introduction is important for Bill C-36, and you'll see why.

As a young man living in Egypt in my twenties, I looked forward to when Egypt would turn into democracy. I know by heart the American Bill of Rights and the Canadian Charter of Rights, and this is also relevant to Bill C-36.

Let me say for the n^*th time, Mr. Chair, that Muslim Canadians and the Canadian Islamic Congress have been among the first and the foremost to condemn the terrorist acts of September 11, on both religious and humanitarian grounds. We are familiar with terror, because for most of us coming from developing countries terrorist acts are a way of life. But this case is important because it's close to home.

Mr. Chair, you're going to hear supporters of this bill saying it's a good bill, but I submit to you that it's a bad bill. Muslim Canadians—Arab Canadians and those who are similar in appearance or by name to those known to be Muslim and Arabs—will be the most targeted group in this country, and we should not allow this to happen.

Egypt had a similar bill twenty years ago when President Sadat was assassinated. This bill is still in effect 20 years later, because those who would like a police state are very supportive of that emergency law, as Egypt used to call it. It did not stop terrorist activities in Egypt. Many attempts of assassination have been made on the president and official government officials, and every two or three years Egypt has been victimized because of terrorist acts.

• 0950

Canadian Muslims are now in a historical position to be in the front line to defend the civil liberty of Canadians, a role we did not ask for and were not prepared for. This is a role we wish to take, on behalf of all Canadians—that we are supporting civil liberties in this country. It's very strange, because most of us have first-hand information that when civil liberty is destroyed the whole society is destroyed.

I will leave the legal matters to Mr. Galati, but I would like to share with you five precise recommendations.

The Canadian Islamic Congress recommends, number one, a continuous review process by a special standing committee, with the direct participation of an advisory committee representing Canadians who most likely will be affected by Bill C-36—most notably Muslims and Arabs. This continuous review process will lead to filing an annual report. This is not too much to ask for, Mr. Chair.

The second recommendation is a sunset clause to all or most of the bill after two years. If the Americans can afford a sunset clause after four years, surely we can afford one after two years.

Third, the review process and the sunset clause are both absolutely necessary but not sufficient. I repeat, they're absolutely necessary but not sufficient. This bill must be amended, and there is a full legal 17-page report in your hand from Mr. Galati, and he will brief you in a minute. These amendments have to be considered seriously.

The fourth recommendation is that any part of the bill not directly affecting terrorism should be taken out. This is not the time and the place to deal with charitable organizations. This is not the time and place to see hate crimes put in the bill. We support other measures, but please, this is not the time and place to do it.

The last one is that even when the bill is part of the Canadian law, we would like you, Mr. Chair, to refer the bill, or at least a major section of it, to the Supreme Court of Canada for legal advice, and this can be done in parallel. There is no time wasted if you refer it at the same time in order to get some feedback in a month or two.

Thank you. I want to turn it over now to Mr. Galati.

Mr. Rocco Galati (Legal Counsel, Canadian Islamic Congress): Good morning, Mr. Chair. I see I have four minutes.

On behalf of my clients I want to reiterate—and it's not mere speculation—that the Muslim and Arab communities will be directly affected. You just have to witness the approximately 800 illegal detentions currently going on in the correctional centres in this country, before you even have Bill C-36, where it has been directed Muslims and Arabs are not to be able to phone their lawyers, see their lawyers, phone their families, or see their families as of September 11. That's going on right now. I see it in the jails every day.

This bill is, in my humble submission, obscene in the net it casts. You might as well have deleted the constitution from our landscape. The bill is so overbroad, it catches socio-economic and political offences. It creates them: strikes, work stoppages, boycotts, protests, association, assembly, and free speech.

What's insidious about this bill, if you read clause 27 and the definition of what is a prejudicial act to the safety or interest of the state, is that there are various economic crimes that relate back to the definition of terrorism that would catch boycotts for environmental and ethical reasons; would catch any legal strike against the financial markets.

This is as much about stomping anti-globalization, anti-poverty, anti-logging protest as it is about terrorism. In fact, if it were just about terrorism, this bill would be ten to fifteen pages long.

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You are invoking extraordinary measures we haven't seen since June 21, 1941, and October 1970 in terms of secret trials, secret trial mechanisms, the abrogation of the right to remain silent, self-incrimination, the 72-hour detention without charge. You have investigative hearings that do away with all charter rights, and then you have seizure of property, and then the power to charge, convict, and sentence someone—even without knowledge whether he's a facilitator—with secret trials.

I'm probably the only one in the room who's actually conducted these secret trials under the Immigration Act. They are the substance of a dictatorship, of a police state. You don't get to see the evidence, ever. It's all dealt with by the judge. It's covered; the accused person never gets to see it.

Now there's much made about what my client sees as the red herring of hate propaganda. This is not the place to deal with it. We have hate laws.

When I was a crown attorney, I got death threats all the time from the criminals I was prosecuting. I've been getting death threats almost on a daily basis since 1997, ever since I've been representing members of the Muslim and Arab community. We can deal with those—if you can catch the people phoning or sending the letters.

That is not a sugar pill you put into an act that's supposed to deal with terrorism. If it's to deal with terrorism—and my client, the congress, applauds criminalizing terrorism, and we applaud criminalizing the financing of terrorism—it has to be done with knowledge. It has to be done in an open and fair trial—no Star Chambers, as you have them in this bill. And it has to be done... You cannot have somebody criminally libelled and losing their property, like the Italians and Japanese in the Second World War, for just being Muslim or Arab.

That's what this bill does. It just repeats the historical injustices against a racial or religious minority that we've seen throughout Canadian history. The Muslin and Arab communities are going to bear the brunt of this injustice.

My clients find it offensive, and all Canadians should, to see this kind of bill deal with matters that are not dealing with the criminal dangers of terrorism as we know them and fear them. All reference to economic and civil dissent has to be deleted here.

Thank you.

The Chair: Thank you very much.

Now we turn to the Canadian Council of Churches.

Mr. Peter Noteboom (Associate Secretary for Justice and Peace, Canadian Council of Churches): Yes, hello, Mr. Chair, honourable members.

My name is Peter Noteboom, with the Canadian Council of Churches. With me is Jennifer Leddy. I work with the commission on justice and peace in the Canadian Council of Churches, and Jennifer Leddy with the church-state working group.

[Translation]

Unfortunately, we weren't able to have our document translated in French. So we only have a brief written presentation in English.

[English]

I'm sorry we couldn't translate the document for you so that we could distribute it to all.

I just wanted to share briefly the basis for the churches' interest in the issues before this committee, as well as the assumptions we bring to this work. After that, Jennifer will go to some issues raised by the legislation.

The basis for the churches' interest here with respect to Bill C-36 comes from decades of work with refugees: sponsorship of refugees and work with settlement of refugees; partnerships overseas and in Canada with non-governmental organizations working in the fields of humanitarian work—justice, development, human rights—and that includes some in conflict zones closely connected to cases of terrorism; collaboration in the areas of worship, education, and service; a long history of working in the United Nations system on human rights work, suitable models of church-state relationships, and also questions of religious freedom; and so on. That's some of the background we bring.

The assumptions or values we hold when we address these issues include especially a sharp concern for human security—and that grounded in the work of human rights and a human rights approach—and a strong commitment to multilateralism and the international common law and the framework that's being built there. Another value we bring is “persons in community”—not only the individual or the state, but also a balance of social responsibilities and individual civil liberties.

Some particular Canadian values we do not want to see jeopardized in this bill include: the policy of encouraging immigration; building a multi-ethnic and multi-faith society; protection of equality rights for Canadian citizens, landed immigrants, and refugee claimants; the commitment to social programs for all people within Canadian boundaries, and to cooperation for justice and development beyond Canada's borders; and finally, a tradition of religious freedom and religious communities, balanced by the social responsibility of religious believers and their communities to the wider community and to Canadian law—a strong commitment to public accountability.

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It's in that context we would like to raise some issues that come up because of this legislation.

Ms. Jennifer Leddy (Canadian Conference of Catholic Bishops, Canadian Council of Churches): Good morning, and thank you for having us with you today.

Like many of the groups who have commented on the bill—today, in the media, and at other hearings—we are concerned that the net cast by the definition of “terrorist activity” is too wide and could catch those involved in the kind of political dissent and protest that has long been part of Canada's social landscape.

We ask that amendments be made to make it crystal clear that traditional social protest will not be treated as terrorism. We also think the bill would be much stronger if motive were deleted as an element of the offence. Proposed subsection 83.01(2) concerns us very much, because it provides that a terrorist activity is facilitated whether or not the person knows the act is being facilitated.

This section could catch church groups that in good faith, and after due diligence, provide funds to their overseas partners for humanitarian or development assistance only to discover these funds may have been inadvertently diverted to a terrorist organization. This section should be amended to include a requirement of criminal intent. And it's very important, because the word “facilitate” is used quite often throughout the act.

As far as the process for listing an entity as a terrorist organization is concerned, as Peter mentioned, the churches have worked for decades in countries where governments use repressive measures to govern the population, as well as in other conflict zones. Many of these countries, as you know, are willing to apply the terrorist label to unpopular minorities, unofficial religions, human rights groups, and so on. So we ask that Canada not allow an entity to be placed on that list simply on the evidence of a foreign government.

We draw to your attention our concerns with respect to proposed subsection 83.18(3). Charities, including Canadian churches, are often encouraged to provide humanitarian assistance for people who are in allegedly terrorist-controlled areas, otherwise the people would starve. A contemporary example would be southern Sudan. We ask that the legislation again be crystal clear that humanitarian assistance is not an offence.

I would now like to go to part 6 of the act, which provides for special treatment for registered charities, almost one-half of which are religious organizations. As you know, and I'm sure you know this bill inside out, the Solicitor General and the Minister of National Revenue are able to sign a certificate stating it is their opinion, based on security or intelligence reports, that there are reasonable grounds to believe a registered charity or applicant for charitable status has made, makes, or will make available any resources, directly or indirectly, to a terrorist organization.

The matter, of course, doesn't end there, but is referred to a Federal Court judge, who can certify whether that certificate is reasonable. Now the charity does have a right to be heard, but it's a very limited right because the judge can decide not to advise the charity or its adviser of information it receives from a foreign country, or other information, if it feels it would jeopardize national security. And there is no right to appeal this. The result of all of this is that a charity's registration can be revoked, they can be subject to the revocation tax, and international humanitarian effort will be inhibited.

Given the problems so many groups have mentioned to you already about the definitions and the lack of requirement for knowledge or criminal intent, there is a very real concern that bona fide charities are going to be caught by this part of the bill. We don't assume it is your intention to do that. It is not your intention to interfere with genuine humanitarian efforts.

Our experience, as I've said before, is that some governments designate our church partners and related non-governmental organizations as terrorist groups simply because they work among minorities or among the poorest people of the country. We need only to think of South Africa.

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You know, we do wonder why charities have a whole special section of the act just for them, and not other non-profit corporations or business corporations that are also involved in overseas operations. We welcome very much the call of the Canadian Bar Association that this section of the bill be deleted because of its serious lack of procedural fairness and because it will unnecessarily hamper the legitimate operation of Canadian charities. As an alternative, this part should be substantially amended so the charitable organization knows the case it has to meet and has available at least the usual defence of due diligence.

Given the extraordinary powers of this bill, the complexity and quantity of the provisions, the limited time allowed for study and debate, the uncertainty of how it will be applied, and the danger that it could cause irreparable harm to innocent individuals and bona fide organizations, we ask you to consider fully the recommendations by several groups, including the Canadian Bar Association and the Senate of Canada, that there be a sunset clause.

In our brief we have listed about ten recommendations. It is only available in English, but if you would like to look at them, we would be happy to provide it.

Thank you very much for giving us this opportunity.

The Chair: And thank you very much.

Now I turn to the Canadian Arab Federation, Mr. Asfour.

Mr. John Asfour (President, Canadian Arab Federation): Thank you, Mr. Chair.

I will turn the floor over to our counsel, Amina Sherazee, and if there are a couple of minutes left at the end, I'll make a couple of comments.

Ms. Amina Sherazee (Legal Counsel, Canadian Arab Federation): Good morning. Thank you for giving us this opportunity to make statements before you today about Bill C-36.

The Canadian Arab Federation is an umbrella nationwide organization that has been representing Arabs for 35 years. It has played a very important institutional and advocacy role in Canada on behalf of Arab Canadians. In particular, the federation has extensive experience and knowledge of legislation and policies that affect Arab Canadians insofar as they relate to terrorism and terrorist organizations. As a highly visible minority group in Canada, the federation has been affected by stereotypes of terrorism and has also been able to effect change in combating the stereotype.

In the aftermath of the attacks on the United States, it is appropriate that Canada, a neighbouring country, should take reasonable steps to protect our nation from the possibility of similar attacks. But it is a mistake to assume that many of the expansive definitions and expanded police powers sought in the bill are going to make us feel safer, or by any means rid the world of terrorism.

We have identified significant civil liberty concerns with the bill, namely, the definition of “terrorist activity” and its interrelatedness to the offences of being associated with a terrorist group and providing facilitation; the onerous registration requirements for charities and the criminalization of their activities and their donors'; and the wide expansive powers being delivered to law enforcement and intelligence agencies, in particular preventive arrest and detention, the erosion of the right to silence, and the non-disclosure of evidence, to name a few.

Details of these concerns are in my brief, and I encourage you to read it closely. I will not be commenting on those points today.

Some of the provisions of Bill C-36 are welcome measures, such as the amendments to the Criminal Code and the Canadian Human Rights Code that strengthen the laws against hate crimes and propaganda. We believe these crimes need to be addressed desperately, and they do not belong in Bill C-36.

However, it is our strong believe that all the other provisions go far beyond addressing the concerns of national security, and under the guise of investigating terrorism, suspend the most crucial rights and protections we are guaranteed under the charter.

While this committee has doubtlessly heard submissions from various legal associations about the erosion of substantial and basic civil rights, we are here today to tell you it is the Arabs and the Muslims in this country who have suffered and will continue to suffer the effects of these erosions disproportionately.

Although we appreciate the opportunity to be part of this briefing, it should not be used in place of thorough public hearings. There are many minority communities who will be detrimentally affected who have not had the opportunity to either study the bill or make presentations to you. We urge the House to engage in a thorough and deliberative analysis of the proposed legislation and really look behind it to see if it will make our nation safer, or more repressive, and for whom, because history has shown it has been the most vulnerable and marginalized in society who have been affected this way.

• 1010

The Canadian Arab Federation is in agreement with the idea that every new measure proposed by the government in response to the threat of terrorism must meet a basic test. It must provide maximum effectiveness in the fight against terrorism while minimizing any adverse impact on civil rights and civil liberties. However, after weighing the purpose and objective of this proposed law—the means by which it will be accomplished against the adverse effects it will have in our communities—we submit that as a whole the bill fails the basic test of whether it makes us safer.

We hope the following will place our objection in context. It is our position that the bill is inherently flawed. It is not built on an historical and contextual analysis. It is not based on studies of the roots and causes of terrorism, and it is not even premised on international legal standards. Rather, it is an overly simplified reflex reaction based on what is happening in the United States. It is designed to placate Canadians at the expense of the rights and liberties of those who are disproportionately suffering from the excesses of power it grants to law enforcers, intelligence gatherers, and the state.

Given these flaws, we ask the government to slow down. There's no need to rush. There was a need in the United States because there was an attack on the United States.

I would like to share with you something I have learned about Canada's history and what happens when we rush through legislation. In 1919 section 98 of the Criminal Code was passed in response to the Winnipeg general strike and resulted in the imprisonment of those considered to be members of a broadly defined “unlawful association”. The definition of “unlawful association” is remarkably similar to the proposed definition of a terrorist organization under Bill C-36. Section 98 was used to prosecute and imprison those who were seen as enemies of the state, who were inevitably those who challenged the political orthodoxy of the time. The mistake has been made before here in Canada, and it took 17 years and the defeat of the government to correct it. Let us learn from that history and not doom ourselves to repeating it through the passage of this bill.

Third, there is no need for a new law. That's our position. This has already been pointed out. What occurred on September 11 in the United States is and was already illegal in that country and in Canada. We raise the question that if Bill C-36 had been in place before, would it have prevented the hijacking and the deaths? We have provisions under the Criminal Code, we have provisions in the Immigration Act, we have international conventions, and we need to use them. Instead of a new law, we need to study terrorism, its causes, and its roots; then we can legislate if necessary. We believe that you cannot eliminate terrorism by treating its symptoms; you must treat its roots.

Fourth, we believe the bill is poorly drafted. It places terrorism, charities, hate crimes, and propaganda all in the same law. They need to be separated and dealt with separately. The definition of terrorist activity is a huge problem, and this is the heart of the bill. It is overly broad, which has already been mentioned, so I won't take up more of your time on it. It makes no distinction between legitimate protest and acts of terror. There's no distinction between liberation movements, guerrilla warfare, insurrection, revolution, and armed resistance. All have existed throughout history.

Who are we in Canada to define what is a legitimate struggle for people? People have a right to fight for their human rights and for self-determination, which are guaranteed under the UN Human Rights Charter and a plethora of international conventions.

We believe the scope is too broad. There have been many examples provided to you. This legislation would catch Louis Riel. It would catch Nelson Mandela and Mahatma Gandhi. It would catch members of the Intifada. With this bill the Arabs and the Muslim communities are aware that both societal and governmental reactions to them are becoming more and more threatening.

They are acutely aware of the adversities that have befallen Canadian minorities in past wars. Following so closely on the heels of September 11 and the outbreak of war in Afghanistan, Bill C-36 is perceived by Arab and Muslim Canadians as part and parcel of a long tradition of accompanying action against external enemies with government action against the “enemy” within its borders. During World War I, Germans, Ukrainians, and other immigrants from the Austro-Hungarian Empire faced extreme prejudice. They were classified as enemy aliens. Many of these people lost their jobs. Rioting crowds attacked their property and their clubs, and more than 8,000 of them were placed in internment camps as prisoners of war. During World War II people of Japanese, Italian, and German descent faced similar problems of prejudice and discrimination, and they were also interned in detention camps.

• 1015

Recently, during the Gulf War, the degree of harassment against Arab and Muslim Canadians escalated. The activities of CSIS during that time were particularly disturbing. Although its mandate is to protect Canada from threats of security, it was clearly targeting the Arab and Muslim Canadian communities, creating fear and unnecessarily subjecting many people to questioning.

Amid reports of harassment and secret wiretaps, the federation produced a pamphlet called “When CSIS Calls”, which was defined as an Arab Canadian guide to civil rights. Why should Arab Canadians have to have their own guide to civil rights?

With the daily bombing in Afghanistan and the prospect of a larger war in the Middle East looming ahead, Bill C-36 is largely regarded by Arabs and Muslim Canadians as a measure that will further threaten their security rather than protect it. They fear—and their fear has been proven true—that they will be called terrorists instead of enemy aliens or prisoners of war. They will be subject to arbitrary arrest and will be confined in prisons and detention cells instead of internment camps. They will be fired from their jobs, and they will have to protect their own and their children's safety. This bill will not end terrorism but rather will create and prosecute a new enemy, the Arabs and Muslims in Canada.

If you enact this bill and use the definition you have now, it will result in the misapplication and a miscarriage of justice. It will result in widespread discrimination against targeted groups based on stereotypes. It will result in harassment of those communities that are stereotyped and an abuse of the process.

Finally, there's no recourse for those who are harassed and wrongfully arrested, detained, and accused. There is no recourse, and this will lead to frustration, resentment, and anger. This bill will breed inequality, discrimination, repression, and oppression, which in turn will make people angry.

Finally, internationally, it will lead to double standards, and it will make the current ones more glaringly obvious by labelling—

The Chair: Excuse me. I'm just trying to protect the couple of minutes Mr. Asfour wanted.

Ms. Amina Sherazee: Okay. I'll just wrap up, then—

The Chair: Thank you.

Ms. Amina Sherazee: —with my last point.

Based on a changing foreign policy and needs of diplomatic relations, the bill will make the current standards more glaringly obvious by labelling certain groups in certain countries as terrorists, ignoring the repressive behaviour of those countries and of groups in those countries.

In conclusion, I would just like to say that we believe that this government should not enact this bill in haste. If it nonetheless pushes forward with this legislation, then we recommend that you separate the issues being addressed in this bill. Separate hate propaganda, and there is a desperate need to address this problem. You separate the charities and you separate terrorism. You study it and then you legislate it.

Thank you very much.

The Chair: Thank you.

Mr. Asfour, could you keep your wrap-up brief, please?

Mr. John Asfour: Thanks. I'll just make a comment or two, Mr. Chair, as an Arab community activist and as a member of the Arab community.

The Arab community is by and large Muslim, Christian, and Jewish and is very afraid, sir. We've heard of cases where people don't go out of their houses in fear of repression or reprisals. We've heard of cases where people are discriminated against at work, and they can't say much for fear of losing their jobs. We've heard of countless events on airplanes, where Arabs and Muslims are pulled out to be questioned and harassed. We've heard, sir, that it is the time to terrorize Muslims and Arabs in this country.

Muslims and Arabs have contributed quite a bit to this culture. They have been faithful to the liberty and rules of democracy of this country. This bill, sir, is terrorizing and will terrorize Arabs. We were calling for the scrapping of CSIS. This bill will now extend the power of CSIS to the police. What guarantees does this bill provide that the police will not abuse their powers?

• 1020

We are afraid, sir, about a couple of things. Arabs and Muslims feel targeted after September 11, and this bill will target them more. We are afraid that religious, political, and ideological grounds could include anything. We are also afraid that in the 72 hours civil liberties will be derailed. Don't let anybody fool you and allow us to hate and to introduce bills that would target groups.

Thank you very much.

The Chair: We'll go to Mr. Toews for seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.

I want to thank the witnesses here today for their presentations and comments.

I believe all of us around the table share the concerns that have been expressed about discrimination against various ethnic groups in our country. Whether they're Muslim, Arab, Jewish, or otherwise, we certainly don't want to see that. And we don't want to see legislation that aggravates that situation. I think that's important.

I do want to address the lawyers who gave the presentation, because of their rather strident condemnation of the bill. I also am a lawyer and a former prosecutor, and I have concerns about the bill. However, I wouldn't describe it in as strident terms as you have chosen in respect of the breadth of the legislation.

I do have a number of specific concerns. Certainly I'm concerned about the definition of “terrorist activity”, which targets political, religious, and ideological purposes. I think that kind of phrase aggravates discrimination in this country.

I'm concerned about the lack of an ongoing, effective review process, not by a committee such as the justice committee, but by Parliament. There should be a recall of legislation to Parliament so that it's not dealt with by a committee such as this but rather in Parliament where all members are present. So I'm concerned about that.

I'm concerned about the criteria upon which the minister issues a certificate to deregister a charity. We heard from relief organizations yesterday about inadvertently being caught up in that type of activity. In effect, the capital punishment for that charity is administered by the revocation of their charitable status.

I'm very concerned, as the privacy commissioner indicated, about the certificate of the minister overriding freedom of information.

I think these are all things that need to be addressed and that can be addressed very effectively.

However, I don't agree that somehow the bill falls below some type of constitutional standard. Due diligence is constitutionally required in our criminal law. The courts have ruled on this over and over again. So I think the courts will interpret it in this way in respect of any criminal proceeding. I'm not talking about the administrative proceeding, I'm talking about the criminal one.

We heard Ms. Sherazee say that we have international conventions so we don't need domestic legislation. In fact, this legislation, the government tells us, is in compliance with international conventions. That's how we put into effect international conventions, by enacting domestic legislation.

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We know that the Americans, the British, and other free and democratic countries have similar legislation. It's not identical, but similar. I'd like to know from the lawyers, and perhaps others, how does this legislation stand out from those other forms of legislation—the English, American, German, or Italian? How is this legislation unique and more destructive, if I can use that term, of civil liberties than the legislation of our allies?

Mr. Rocco Galati: I can answer that, sir.

The Chair: Mr. Galati.

Mr. Rocco Galati: The only legislation that comes close is the English legislation. As an aside, I would like to add that ever since England has had that legislation, it's not the legislation that has made any advances in the Irish problem or terrorism in Ireland. Having said that, to answer your question, apart from England there is no western democracy that invokes the measures and procedures for trying to enact a substantive definition of terrorism. If I can focus it—

Mr. Vic Toews: Excuse me. So the Americans don't have a definition?

Mr. Rocco Galati: They have a definition. What I am saying is defining terrorism is fine. We say that is overly broad, but as you have stated, you have the same concerns and you can deal with that.

The problem with our legislation that makes it stand out like a sore thumb is how do you get an alleged terrorist convicted and how do you have his assets seized? It's in the mechanisms of the 72-hour detention, the investigative hearings, and the secret trials before the trial court that this legislation is unprecedented anywhere in the world.

Mr. Vic Toews: Are you saying then that it's the use of the investigative hearing and the preventative detention that have ramifications on civil rights, like the holding of property? It will be used for that purpose?

Mr. Rocco Galati: No, it's the way people are arrested without cause, or need for a probable cause, and held for 72 hours. They can, in theory, be out the door and back in for another 72, and another 72. There's nothing that stops that. We saw that during the FLQ crisis.

Secondly, it's hauling people in for investigative hearings. If you don't answer a question, that's an offence, and you can go to jail, even if they ask you if you have marijuana at home. There's nothing that protects against self-incrimination of non-terrorist acts in the bill, for instance.

Thirdly, when you get to court, and this is unprecedented, the star chamber proceedings that you've mirrored from the immigration terrorist certificates that we've seen for the last twelve years are unprecedented. They're medieval; they're inquisitorial. I've done them. In fact, sir, I won one in Mr. Jaballah's case in 1999. CSIS did not like the result. He has been rearrested on the same allegations in 2001. You can be rearrested and rearrested even if you're acquitted. That is unprecedented anywhere in the world.

As you know, Italy had its terrorism nightmare in the seventies. Germany had its terrorism nightmare in the seventies and eighties.

Mr. Vic Toews: Are you saying—

The Chair: Mr. Toews, there will be another chance. Mr. Morgan also wants to speak to this.

Prof. Ed Morgan: Thank you, Mr. Chairman.

I'm also a lawyer, although I'm not sure I'm in the category of people who are criticizing the legislation vehemently. I'll just make a couple of points.

I was going to say the same things as Mr. Galati about the U.K. legislation. The U.K. legislation in fact is much more egregious in terms of preventative detention and how long they can hold suspects. My understanding, though, is that our own proposal does require reasonable grounds before somebody can be arrested and held in preventative detention. It seems to me that the 24-hour period before the person has to be brought before a judge is a fair compromise, given the urgency of the current situation.

I'd also say that you're correct: we have to implement treaties in order to prosecute someone under them. If we've signed ten different treaties that define in various ways international terrorism, the government has committed itself to our international treaty partners and we can't just prosecute somebody under a treaty. This is an elementary constitutional act. We have to enact the treaty in order to have criminal provisions to prosecute a person under. We've specifically mentioned ten different treaties in this bill in defining the acts of terrorism. So this seems perfectly appropriate.

The only other thing I would say is that in terms of the so-called secret hearings, it's true that we have experience with this in the immigration context. We've had CSIS certificates and evidence summarized but not disclosed to the immigrant under those procedures. I don't pretend to have inside knowledge of how those procedures work. However, I have done a study of them, and it seems to me that we don't have a great history of mass deportations based on those provisions.

I commend my friend for having won the Jaballah case. I've seen that one reported. It was a good job.

• 1030

There are numerous other victories in those cases. It's a mixed bag as to how those cases go. Those cases are not in fact simply a rubber stamp for CSIS deporting the person without a hearing—quite the opposite. I agree that they must be difficult to defend, and as I say, I give the defence counsel full marks. But indeed we do have a respect for due process, even in the immigration context, where the Charter of Rights will be slightly different from and less than in the criminal process.

The Chair: Thank you very much.

Madame Venne, seven minutes.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Ladies and gentlemen, I also find it regrettable that the time we have to review this bill is so short.

Right now, we are following what I would call an expedited hearing process. We hear witnesses like yourselves everyday, sometimes even in the evening. Certainly, I would prefer we take our time to examine all recommendations, yours and the ones which are presented to us by other witnesses, but I think you'll have to lobby the liberal members of Parliament who are sitting in front of me, as well as the Chairman, if you want the steamroller to stop.

However, as far as the bill itself is concerned, I know you disagree completely. Would you be in the least satisfied if, in the definition of “terrorist activity”, in the proposed section 83.01, we were to omit the famous word “lawful” in clause 83.01(1)(b)(ii)(E), which deals with “lawful advocacy” and “lawful stoppage of work”? In that case, those activities would be allowed. I'd like to hear your comments.

Mr. Galati, I was quite surprised when you said, at the beginning of your presentation, that on occasion, here, in Canada, people who were detained were denied the right to a lawyer. I think these are very serious allegations, and I'd like to know whether you could give us some specific examples.

[English]

The Chair: The chair recognizes Ms. Leddy first, please.

Ms. Jennifer Leddy: To answer your first question, on the deletion of the word “lawful”, we have heard through the media that the Minister of Justice is quite open to that possibility. We think that would go a long way toward addressing our concerns, but our preference would be to go again with the Canadian Bar Association and suggest that (E) be deleted altogether. We think that would be even better and make it clearer.

The Chair: Mr. Galati.

Mr. Rocco Galati: On the same note, that wouldn't do it, because if you just did that... This, in my humble view—and no offence to who drafted it—is a reptilian piece of legislation, because it's really conniving in the way it works.

You have to deal with clause 27 of the bill that amends what is prejudicial to the safety and interest of the state, which then feeds in to proposed item 83.01(1)(b)(i)(B), because (B) talks about something that “in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security,”—and I underline—“including its economic security...”.

You have to then go to the amendment under section 27 of the Official Secrets Act, which defines that as a prejudicial safety interest, and then you have to go to proposed paragraphs 3(1)(d), (f), (j), (k), and (l), and this covers that you can't do anything to adversely affect the financial markets or treaty negotiations—for instance, in Quebec City, or APEC.

That amendment to the Official Secrets Act, coupled with economic security interests, means that political and economic dissent are still acts of terrorism under this law. And I'll read you some of those paragraphs that are there: if you do anything that “adversely affects the stability of the Canadian economy, the financial system or any financial market in Canada without reasonable economic or financial justification”. So the French farmer who wants to boycott McDonald's and maybe dump something with a dump truck is a terrorist under this provision.

• 1035

Proposed paragraph 3(1)(l) says: “impairs or threatens the capability of the Government of Canada to conduct diplomatic or consular relations, or conduct and manage international negotiations”. So in Quebec City, all the protesters would be terrorists. And in fact RCMP Commissioner Zaccardelli was asked publicly a few weeks ago if he could have used Bill C-36 in Quebec City, and he said he probably would not have, but, yes, he could have used it to arrest those as terrorists.

So deleting the lawful protest part of item (E) does not do it. You have to go to 83.01(1)(b)(i)(B), and you have to—unless you delete the amendments to the Official Secrets Act, now the Security of Information Act—delete that reference to “economic security”, because that in turn makes all civil protests for anti-globalization, anti-logging, anti-poverty, or against anything that doesn't have an economic or financial justification an act of terrorism. And that's why I referred to this as reptilian before, because it really is a slithery piece of legislation.

It's not clear in the definition of terrorism. It's by reference to economic and financial security, and when you go over to the Official Secrets Act you see that anybody who voices an opinion converse to the government of the day is a terrorist under this.

Lastly, yes, there are hundreds of people in the jails in Ontario and British Columbia being held illegally since September 11 who are not allowed to phone lawyers; they're not allowed to phone me, and they're not allowed to see their families. That's been documented.

The Chair: Professor Elmasry, and then we'll go to Mr. McKay.

Prof. Mohamed Elmasry: Yes, thank you for your question.

We believe the definition of terrorism in this bill is so loose that it actually will backfire. It will draw resources from the law enforcement, RCMP and CSIS; it has to cover so many people that actually the real terrorists will be free. You have to put out a wider net, because the definition is so loose and law enforcement will feel compelled to go after many people that their resources cannot handle. So they will spread themselves thin. And this is a very practical consideration, based on other bills that have passed, including, as I mentioned at the beginning of my talk, Egypt.

The Chair: I apologize to Mr. Blaikie, who is next in order. The seating arrangement has left me puzzled.

Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman.

I first of all want to thank the witnesses for being here today and expressing a lot of concerns about the legislation—which the NDP also has. I think it's overdue that we've heard some of these concerns about the sections of the legislation having to do with charities, etc., because there has been so much concentration on the other aspects of the legislation having to do with definition of terrorist activity, whether or not we should have sunset clauses, etc., that a lot of these other concerns haven't received the attention they probably should have.

I perhaps want to expand—I can't resist, Mr. Chairman—on the history lesson that Ms. Sherazee offered us about the Winnipeg general strike, being a member of Parliament, and reminding—

An hon. member: Were you an MP then?

Mr. Bill Blaikie: No, but the person who later went on to lead what later became the NDP was charged with sedition under that same amendment to the Criminal Code that you referred to for quoting the Prophet Isaiah in the strike newspaper. That was J.S. Woodsworth. The crown eventually dropped the charges, but there were many other strike leaders who went to jail as a result of that particular piece of legislation, many of whom, I might say, Mr. Chairman, were elected to the provincial legislature while they were still in jail. So the people had an opportunity to correct the government. But it may explain, Mr. Chairman, why members of the NDP have this institutional and historical memory about how legislation of this kind is used to suppress legitimate dissent of that kind.

Having said that, I wonder if perhaps Mr. Galati or others could expand on something. There have been a number of claims made here today about detentions. I think there was an article in the Globe and Mail this morning speculating on the number of people who have been detained, and indicating that there are numbers available in the United States. Apparently there are no official numbers available here in Canada as to how many people have been detained since September 11. I think you used a particular number. I wonder if either the Canadian Islamic Congress or the Canadian Arab Federation could share with us what the situation has been since September 11 in terms of detentions—not under this legislation, obviously, but just under the legislation that exists. If the government can't tell us, maybe you can tell us what's been going on.

• 1040

Mr. Rocco Galati: I can only speak to Ontario. In Ontario there was a correctional services directive that any Arab or Muslim arrested after September 11 be put in segregation. In our jail systems, there are two types of segregation. There is protective segregation and punitive segregation. Protective segregation is obviously there to protect somebody against backlash from other prisoners. However, the type of segregation Muslims and Arabs have been systematically suffering is punitive segregation. That means they do not get to use the phones, and they're in the “hole”, as we call it, which doesn't have normal toilet facilities or any facilities, often for 18 hours. They're often stripped naked and left in the cell. They are not allowed to phone any lawyers or to see any families. I've had to yell to just get them to be able to call me. I am told from other segregated prisoners that they pass messages while they pass the jail cells. Persons taken off the plane on September 11, people who were simply rerouted from the States, are in our jail systems and have not been able to phone family or any lawyer. They know no one in Canada, and they're stranded there.

Official requests to Immigration Canada have been met with the response that they just arrest them; they're housed by the province. Requests to the provincial correctional centres have been met with the answer that we just house them; we don't arrest them, so go to Immigration. I know members of the media in the process of trying to do privacy applications—

Mr. Bill Blaikie: What were they arrested for?

Mr. Rocco Galati: Most of them are on immigration hold. But the point is, they have not seen lawyers, they have not seen family, and they're in punitive segregation with very harsh conditions. One organization guesstimated there are about eight hundred, but that's just a guess.

The Chair: Mr. Asfour.

Mr. John Asfour: We don't have a specific number because we don't get...

Mr. Chair, there is something we have to understand here. Anybody who is accused and anybody who's arrested for two hours, maybe, is arrested, right? With those people who are pulled from the plane and investigated for two hours, we don't get the reports from them. The other misleading issue here is that most of those people are afraid to come to community organizations and report because of fear of reprisal. As to those numbers Mr. Galati has mentioned, it may be 800, maybe more, maybe less. We don't have a specific number, and we don't have the financial ability to go out and search for them.

The Chair: Mr. MacKay, you have seven minutes.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you Mr. Chair, and sincere thanks to all the panellists.

It's both enlightening and I would say frightening to hear your testimony today as to the potential impact. As those of you who are lawyers here are overly aware, the law can be interpreted in many ways. It can be interpreted for the good of the people, but it can certainly be used in an extremely punitive way, to use Mr. Galati's phrase.

This legislation was obviously drafted in a certain atmosphere, an atmosphere of fear and repugnance over what took place. Yet the long-term implications and how this is going to affect our way of life are what we're struggling with most. It occurs to me in looking at some of the current Criminal Code sections, including treason and the more serious offences that could attach to terrorist acts, that we have a great deal of discretion at our disposal now in the Criminal Code. Much of what appears in this bill was, quite frankly, an attempt by the Department of Justice, by the government, to appear to be doing something in a very strong fashion, to send a message. That is often the purpose behind criminal sanctions, to send a message.

• 1045

So in looking at how much of this is worded, it appears that some of the tinkering, if you will, although it has such a huge impact, includes tightening up definitions, adding or deleting words that would give comfort to those who would be most affected. I think you are representative of those in the country who would be most affected, as you've all quite clearly pointed out.

The sunset clauses give some comfort. Yet we want to get it right in the first instance, so that three or five years from now there hasn't been significant harm done—harm that doesn't go away. Even if a person is released, as we've seen in cases of wrongful conviction in this country, you can never give a person back their reputation or time away from their family, if they've been wrongfully incarcerated.

Something that we haven't really heard in your presentations today is what levels of comfort would you get from a parliamentary oversight committee or greater infusion of judicial discretion, which is something that greatly concerns me.

Mr. Galati, you quite correctly pointed out that some of these mechanisms, if taken... I know a lot of police officers—I've worked with police. The overwhelming majority would never, in my opinion, attempt to abuse these mechanisms that are now potentially in their hands, yet it only takes a few. What greater judicial intervention could we put in place in this legislation? It's there ironically for the charitable sections. Yet when it comes to the issuance of certificates by the Attorney General, judicial oversight is absent.

Parliamentary officers are stripped of their powers when it comes to disclosure of information. You would be more than familiar with the years of struggle it took to get disclosure laws to the point where they are in this country. It used to be trial by ambush right up until the mid-1970s, early 1980s, until the charter. What sort of oversight would you draw greater comfort from—judicial or parliamentary?

The Chair: Mr. Galati.

Mr. Rocco Galati: Thank you, Mr. Chairman.

With respect to parliamentary oversight, I want to make clear that Parliament clearly has... It's laudable that if terrorism has to be set apart as a particular harm we're trying to deal with, we define it substantively as a separate section in the Criminal Code and provide for stiffer penalties for harm that results from terrorism. Fine. So that's defined substantively. As long as it's not overly broad to catch civil dissent, that's fine. But once you get to the mechanisms, what you have here is the worst of both worlds. What you have is a general permanent law of general application under the Criminal Code, but with procedures and mechanisms that are really wartime and emergency in nature.

You can't have that. If you're going to have emergency procedures of arrest without warrant, investigative hearings, secret trials, those have to come under the parliamentary rubric of the Emergencies Act, where there's a parliamentary committee overseeing the measures. You could ask for reports on how many people have been detained under this measure across the country. You can oversee it. It has to be continually renewed from time to time—

Mr. Peter MacKay: But, Mr. Galati, what would you say to the argument that we are living, very arguably, in heightened times of emergency, in heightened times of threat and vulnerability? How do you combat that in the context of what you've just said?

The Chair: Mr. Galati and then Mr. Morgan.

Mr. Peter MacKay: I believe I still have a little time, Mr. Chair.

The Chair: But Mr. Morgan wants to respond as well—

Mr. Peter MacKay: But I get to use the time, I think, as I prefer. Thank you.

Mr. Rocco Galati: History has been in that heightened time up and down since Spartacus, but the answer is how do we react in that heightened time. Do we react by trying to squash a fly with a sledgehammer on a glass table, or do we keep our diapers on, do we keep our courage, and react in a balanced way that doesn't inflict injustices again?

• 1050

On the judicial note, I think that before any of these measures can be taken, you should require the pre-authorization of a superior court judge, like we do in warrants. That would be the only safeguard, to answer your question.

Mr. Peter MacKay: Thank you.

The Chair: Mr. Morgan.

Prof. Ed Morgan: Thank you. I don't want to cut into your time.

Mr. Peter MacKay: No, no, please. I'm not concerned about you cutting into my time. It's the other side. They'll get their chance. We actually get answers here, unlike question period.

Prof. Ed Morgan: I'm going to start off agreeing with you that much of this act in fact, although it looks voluminous, is a doctoring, a tinkering, and an application to a specific context—general powers that the police and law enforcement agencies already have. I think you've accurately described a big bulk of the legislation in that way.

Therefore, I would not want to see either this committee or the critics of the legislation pick apart a bill that I think is necessary to attack a very serious problem that we're facing after September 11 on peripheral attacks that are basically attacks on powers that law enforcement agencies have had all along.

There are some new powers, though, and one of them, of course, is the security certificates. Unless I missed it, I was a bit surprised to see SIRC review left out of the package. My reading of the immigration cases shows that the Security Intelligence Review Committee has in fact been quite helpful in its review of these national security certificates. Of course you don't get the full reported cases from the SIRC committees, but you do on their website. You get a summary of the cases. I would say it's about fifty-fifty—the cases where SIRC in fact overturns the ministerial certificate. So SIRC has been instrumental in protecting civil liberties in a difficult situation, and I would recommend that also be built into the package.

The Chair: Thank you very much.

The others who wanted to speak will hang on and we'll come around.

Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you Mr. Chairman.

I want to thank the witnesses for appearing today. It has been very enlightening.

I noted, Professor Elmasry, that you, along with Mr. Galati and Ms. Sherazee, said that hate crimes should not be in this bill. I wonder if you could, along with the others, perhaps talk a little bit about it—if not here, where?—and whether or not you thought the existing hate crime legislation was in fact adequate.

Then I want to hear from Professor Morgan, because I thought I heard you say that in fact the hate crimes section, as it now stands, is not even strong enough. Perhaps we can get a dialogue going on that point.

Prof. Mohamed Elmasry: Let me address this point. We feel that addressing the hate crime is important. We don't believe that this is the time and place to do it because of the urgency of the matter of addressing terrorist activities, and Bill C-36 is supposed to address that. Because of the shortage of time, and the debate has to be finished sooner rather than later for political reasons, we feel that anything that does not directly address terrorist activities in this country should be shelved, should be waived, should be in the pipeline. When we have the time and the place we can actually address it.

Do you want to comment?

The Chair: Mr. Galati.

Mr. Rocco Galati: Thank you, Mr. Chair.

The other reason, Mr. Myers, is that the hate crimes, if you want to beef them up in terms of increasing sentences and what not, can be beefed up where they are. The irony that I foresee as a lawyer... And although I was a crown attorney as well, Mr. MacKay, before I was a defence lawyer, I don't share the extent of how the police would act or not act that you do. Ironically, when these hate crimes come in, members of the targeted communities—the Muslims and the Arab communities—will also be the subject of hate crimes under the same bill, if they dare announce, for instance, that the U.S.A.'s policy is indefensible and they make certain pronouncements that they have a right otherwise to make. Ironically, this hate propaganda will be used vis-à-vis free speech against the very group that it's meant to protect.

If you take an unpopular position with respect to let's say the U.S.A. or the allies or Israel, that could be seen as hate propaganda against the Americans. Witness that girl in the States last week who went to school with a T-shirt that said “Stop the bombing in Afghanistan” and was suspended and criminally charged and convicted for it. That happened only two weeks ago or last week in the United States.

• 1055

So if an Arab or Muslim says blah, blah... and it's quite free speech, non-violent, but crosses the line as potential hate propaganda, we have a double problem there too. We should be separating this.

The Chair: Thank you.

Anything else, Mr. Morgan?

Prof. Ed Morgan: Sure. I'd like to speak on two fronts.

First of all, I'll speak as somebody who was counsel to an intervener group in the Keegstra case. I can understand where this concern about hate propaganda comes from. The idea that our courts in this country, under the Charter of Rights, would allow a prosecution for voicing a contrary opinion about foreign policy seems to me very far-fetched. The courts have been so clear that only the most vilifying speech against a specifically targeted ethnic or religious or sexual orientation group could possibly count for a criminal prosecution that I don't think we have anything to worry about on that front. I think that's an inflated fear, frankly.

I do speak to you, though, as a person whose own office at the Canadian Jewish Congress received three of those white-powder letters, complete with notes inside that said “Death to the Jews”. It seems to me it is appropriate, in the climate we're dealing with, to include augmented powers in the hate crimes context. I do agree, though, that's only tangentially related to the problem of international terrorism. It's related to the climate that we're in, but it's not really related to the problem of international terrorism, and I wouldn't want to see it related.

I would remind everybody, though, that this is only an omnibus bill amending a series of other statutes. It's packaged together, as we know, for legislative purposes to amend the Criminal Code, the Privacy Act, the Canada Evidence Act, and the money-laundering statute. It doesn't matter that it's packaged together. That's just for the purposes of shepherding it through Parliament. It won't in fact be all packaged together by the time it's enacted as separate amendments to the various pieces of legislation that it covers.

So it seems to me that while the climate is appropriate for augmented hate crimes legislation, I would agree that it's really not related to the problem of international terrorism. That's a serious problem that has to be confronted and is confronted on its own.

The Chair: Thank you, Mr. Morgan.

Mr. Asfour.

Mr. John Asfour: The gentleman here raised a point about what comfort can we get, and what comfort would you offer us?

We feel that this bill is, at this time, so misplaced, and with the time we are spending on it while we already have laws and legislation on the books that would reach to any extent and to prosecute under the laws that we have, my community wonders why the government hasn't gone out to the people and told them, listen, there is nothing to be afraid of; you are protected here.

As I and my community see it, Pierre Trudeau would have been caught under this. René Lévesque would have got caught for 24 hours for speaking out. Lucien Bouchard would have been caught for speaking out. You, sir, would have been caught for speaking out. This is unneeded.

We have learned to abide by the rules, to abide by our laws. Our laws are good enough to protect us. There hasn't been the need to rush a law to give the police such power and to frighten a whole community without reassurance, without telling them to go out and work; go out and participate in your community. Nobody did it, sir. One visit to a mosque is not enough to reassure a whole community that numbers over a million.

The Chair: Thank you.

The last response is to Ms. Leddy, and then we'll go to Mr. Toews again.

Ms. Jennifer Leddy: I have two comments in terms of some of the discussion that has come up.

SIRC was mentioned as a possible model for comfort. I'm not an expert on this, but I think it is true that they give good hearings and investigation. There is a question, though, and a serious one, about what happens to their decisions and whether they actually get implemented. That is very much a question for those involved in advocacy for refugees.

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The omnibus bill itself points out one of the difficulties of putting all this legislation into a bill that's 185 pages long and requires 200 lawyers to draft, and then to expect all of the people in the community to be able to respond in a way that we can give it thought. I'm telling you something you know already, but we do feel that in the non-governmental community.

The Chair: Mr. Toews, three minutes.

Mr. Vic Toews: Thank you.

Some of the comments I think are appropriate in respect of the job the government should be doing by going out and reassuring the people of Canada about the steps that are being taken. Unlike the American government, the Canadian government chooses not to have regular briefings, and I think that perpetuates a climate of fear or aggravates fear. I would certainly agree that the government could be doing more than simply passing legislation; briefings and other liaison and meetings with community members I think is very important.

The second point is legislation is never enough. In order to have effective security, there have to be resources in place. And I think we've heard from numerous organizations that despite all of the information that is already coming in to our government, we simply don't have the resources to process all this information. So I agree that in some respects we might be going ahead of ourselves by simply passing legislation but not putting any more resources in place. That might be some small, cold comfort to civil libertarians who are concerned that this will give the government more power, but in fact if they don't put the resources in place, the legislation itself is meaningless.

I want to get back to the point, and I didn't hear from Ms. Sherazee on this earlier, about how this legislation stands out from our allies, particularly the Americans and the British. How are we out of line? I'd like to hear if you have any comments in that respect, because I think it's telling if we are out of line with other free democratic nations.

Ms. Amina Sherazee: I appreciate your question. I think it's important to do a comparative analysis, but I don't think we should be comparing ourselves with other standards. We should be comparing ourselves with our own standards. I think this is not a race to the bottom to see who can get closest to the most minimum and to the most basic.

Mr. Vic Toews: Let me interrupt you there. My concern is that we're in the process of implementing an international obligation. If the Americans or the British have felt that it was necessary to implement those international obligations, have we gone further than they did? That's why I think it's important.

I know that we could discuss this forever, and I have lots of disagreements with the legislation, but that's not the point. I need to be able to have particular information so that I can make intelligent comments in respect of amendments to this bill.

Ms. Amina Sherazee: First of all, in international legal standards the definition of terrorism is by action, it's not by membership or by association.

Secondly, I don't think we should be looking at motive. I think you had raised that concern too. I think we should be looking at what constitutes the nature of the offence and focusing on that.

Definitely we need to define terrorism. It's a very important definition. But we cannot attempt to err on the side of being over-inclusive in order to have a definition in time. I think this is something that we really need to turn our minds to and study so that we don't have this overly broad definition.

The Chair: Thank you very much.

Mr. Elmasry, and then to Peter MacKay.

Prof. Mohamed Elmasry: I know that the level of sugar in the blood is going down and down, and the caffeine effect of the morning is not really holding, but let me share with you a couple of points.

The first one is Islam is a Canadian religion. It is being practised by more than 650,000 Canadians, and half of us are born in this country. So please remember this fact.

The second point is give us more weight than the people who are supporting this bill and want to rush it through as soon as possible, because we are victimized today; it's not that we perceive we will be victimized tomorrow.

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This is a letter that has been made public by the victim. I've sent it already to a member of Parliament. I don't think the MP is here. But I will make copies of this before you leave and I will give it to you.

This is from a man in Toronto with 26 years of serving this country as a successful businessman, with trade in South America, Europe, and the U.S. Last week he went to American Airlines. First, because of his Muslim name, U.S. immigration was called in and the RCMP was called in. Listen to the types of questions they asked him.

So I was then subjected to questions such as where was I born, membership in what organization? What mosque do I belong to? Who's in charge of that mosque? Who are the people in the mosque organization committee? What is your community saying about September 11? What is your priest saying to his congregation? Do you have a criminal record?

This went on and on. After searching his luggage, they made a photocopy of his business agenda, with telephone numbers and names.

I will leave that with you, sir.

Mr. Vic Toews: Thank you.

Prof. Mohamed Elmasry: His missed his plane and the law enforcement agency assured him that if he came back to the airport he would be subjected to the same thing. There was no apology. This was before Bill C-36.

So you have in your hands the future of Muslim Canadians in this country. You have in your hands the civil liberty of all Canadians in this country. This is not an ordinary committee of members of Parliament getting together in order to have hearing after hearing.

Sometimes it's boring. I've been on committees in my career for a long time. This is a special one, and you have to have a special attitude and give us a higher way than everybody else because of what I just said.

So this is very important, and what you're going to decide on Bill C-36 will affect this country in years to come.

The Chair: Mr. McKay, for three minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you all for your presentations.

Just to reinforce Professor Elmasry's comments, it is probably the most important piece of legislation that we, as legislators, will ever seen, certainly in the life of this Parliament.

I also want to talk, if I may, about the unintended consequences. But in the short time I have, I'd like to address it to the charity representatives here. We've heard evidence concerning the lack of procedural fairness, the limited access to disclosure of information, the evidence law, no rights of appeal, no due diligence defence, etc.

I was wondering if you could give examples of the issue, with respect to disclosure of information, where charitable organizations will be precluded under the bill from inquiring into what foreign information is coming in to deregister them.

I think you made special note of evidence coming from foreign sources, and you're particularly concerned about that. I think the issue is arising that information from foreign sources may well be manipulated, shall we say, in order to set up the charity. So if you could think of an example, that would sort of crystallize that point.

The second is the issue of due diligence defence. It's very onerous, if not impossible, for a Canadian charity to ensure that any of its funds distributed to a foreign entity will not be abused and eventually end up in the hands of a terrorist entity. This addresses the issue of a no-due-diligence defence. Can you, again, given an example of how you would expect that to play out?

The third is with respect to dealing in securities, particularly in Ontario, where you argue that charities are authorized to deal in securities. You do international transactions. How are you advising your people, with respect to suspicious transactions? Do you agree that you're caught by this legislation? If you are caught, how will you report suspicious transactions, and how will you advise others in your group of charities?

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The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Who did you direct that to, Mr. McKay?

Mr. John McKay: To the charitable groups, Mr. Noteboom and Ms. Leddy.

Ms. Jennifer Leddy: I'll begin by speaking about the due diligence.

This relates to some of the rest of the dialogue we're having here today. CIDA and the CCRA already require agreements with Canadian charities doing work in international communities, and that is all part of the responsibility we undertake as charities. Everyone around this table is probably part of a registered charity and do require that we have agreements with our agents in other countries. That's an important part to ensure our transparency, our accountability, and our responsibility. We do have these measures available right now and would feel that the additional measures under this act are probably not necessary, given the obligations we already have.

Mr. John McKay: Do you think that will be a defence?

Ms. Jennifer Leddy: Well, part 6 is so inadequate right now that it's difficult to know what could be a defence. Almost everything appears to be caught under part 6. Again, whether we can predict anything exactly and guarantee that it will be caught is difficult to know.

Mr. Rocco Galati: If I just may speak briefly, as part of our written submissions in May of this year we did a full brief on Bill C-16, which is attached as schedule A to our brief on Bill C-36. The test on Bill C-16 is direct or indirect. There is clearly no due diligence defence. Bill C-16 would catch the current U.S. president because of the family's association with bin Laden. We know about degrees of separation, and there are no stated degrees of separation. It's direct or indirect and any part or resource of the charity. It's wide open. There is no due diligence defence embedded in the legislation. I think the drafters admitted that during the hearings on Bill C-16 in May and July of this year.

The Chair: Thank you very much.

We'll have Mr. Blaikie for three minutes.

Mr. Bill Blaikie: Mr. Chairman, I think many of the witnesses here this morning, particularly Professor Elmasry, have underlined the significance of what we're considering here today in the form of Bill C-36. It just seems to me that what he and others have had to say underlines the importance of some kind of sunset clause on the more controversial aspects of the legislation if we're not going to change the legislation itself, although I hope that we will change it in significant ways.

No one is suggesting that we sunset the United Nations definitions of terrorist activity or compliance with the UN conventions, but for these other things I think we need to look at sunsetting, where the Canadian government has gone beyond what was required to ratify the UN conventions. Instead of taking the United Nations conventions as our example of what we need to do, for some reason we're taking—perhaps as a vestige of the colonial mentality, as someone suggested earlier—the British legislation as the model we have to conform to.

I wonder if any of the witnesses here today would care to expand opn this, given the concern they have about the legislation and as to whether and to what extent they think this legislation should be sunsetted. I know there was reference to it before, but perhaps it's time to make that argument again.

The Chair: First Mr. Noteboom, then Mr. Elmasry, and then Mr. Morgan.

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Mr. Peter Noteboom: I'll just make a couple of comments, responding with a concrete example.

The churches work regularly with different groups in Colombia, for example. They could be the local Mennonite churches or local peace and justice groups. They probably don't support Plan Colombia, so could easily be named as a terrorist organization of one kind or another. At the same time, they don't support FARC or the paramilitary either. That's a concrete example of a partnership, a working relationship we have, that could be in jeopardy.

I'll just briefly comment about another kind of eventual response to some of the concerns that have been raised. It's about the importance of religion in conflicts internationally, globally with respect to terrorism, and so on. It seems to be sort of raising its profile, and it seems to have come back to international relations work. But it doesn't seem to have come back yet to the Department of Foreign Affairs, and it doesn't seem to have come back to some of the legislative committees.

One of our recommendations, one that's aimed not particularly at this legislation but at the topic generally, is to set up a multifaith advisory group that could advise the government either through the department or through this committee to help think through some of these issues, especially as they relate to religion.

The Chair: Professor Elmasry.

Prof. Mohamed Elmasry: I want to comment on the fact that there are three things that have to be done. One of them is to fix this bill, if you'll allow me to use that expression. The second one is to have a continuous review by the committee with scope for input in overseeing it and with input from the perceived targeted groups, namely groups like Arabs and Muslims. I think this would go a long way towards making a better country and better citizenship in this country.

As for the sunset clause, we advocate that it be a two-year sunset clause. If the Americans can have four, I think it makes sense that we have two. For the legal details, do you want to add anything, Mr. Galati?

Mr. Rocco Galati: I just want to reiterate that the investigative detention and trial process this bill invokes is unprecedented. It's unprecedented. The Americans don't have it. The British have come closer, yet they still don't even come close. Continental Europe doesn't have it and has never had it. When President Aldo Moro of Italy was, in the heat of one of the worst terrorist periods with the Red Brigades, kidnapped and murdered, nothing came close to this procedure. This is so unprecedented. It is inquisitorial. It does away with everything from the Magna Carta right up to the Charter of Rights. It's the process.

The Chair: Mr. Morgan, and then we'll go to Mr. Owen.

Prof. Ed Morgan: I'm going to address just for one minute this question of the sunset clause. The bill talks about parliamentary review in three years. What we recommend is that the review be made mandatory, that the government now, in enacting the legislation, commit itself to a parliamentary review in three years.

With a parliamentary review, in three years the government has to either confirm the continued state of affairs that led to this legislation to begin with, thereby confirming the legislation's continued existence on the books, or repeal it. A sunset clause means that in three years the government has to consider whether the state of affairs that gave rise to this legislation is still in existence, whereupon the government has to either confirm the act's repeal or re-enact it. The difference between these two things in our parliamentary system is so minor that's it's barely worth debating.

I think that we've all fastened onto this sunset clause idea because of the American system. We don't have the congressional system they have in the United States. In our Westminster system, where we have the government of the day setting the legislative agenda and we have party discipline in votes—unlike what they have in the U.S. Congress—the idea of a sunset clause is not so important. In the U.S. system, where there is a separation of powers between the administration and Congress and a lack of party discipline in the way they vote in Congress, the sunset clause for today's Congress means something in three or four years.

In Canada the difference between review and sunset is fairly minimal. It's not that there's absolutely no difference, it's just fairly minimal. I would think that spending that much time debating it is in fact a red herring.

The Chair: Mr. Owen, for three minutes.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you.

Thank you all for being here and sharing your various religious and cultural legal expertise with us. It's very important to us.

In response to some of your comments, I'll just start by reminding us all that this legislation has to conform to our charter, which is our moral and legal compass in this country, having been drafted with that objective in mind. If the bill falls short of those responsibilities under the charter, including section 1, then it must be amended, or eventually it will be corrected. That's a binding obligation on any government in this country.

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With respect to hate, this is an immensely important issue for us in our society when under this stress. I don't know of any parliamentarian from any party I've heard speak of this issue in the last month, inside or outside the House, who hasn't combined his or her comments about the need for security with the concern that no group in our society, be it cultural, religious, or otherwise, be targeted as a result of this. That is something we must all repeat often and practise, and we hope we'll see it reflected in this legislation as a small step towards providing extra tools in the legislation to reflect that concern.

The next point is risk. The risk we have been exposed to as a result of September 11 is beyond what we in our free and democratic societies have ever contemplated before. We have simply never before contemplated the overwhelming consequences of a terrorist occurrence, the result of a perverted—albeit ideological, political, or religious—fever that will move people to do great harm without consideration for humanity or their own lives. In that context, we have to consider the need for legislation that is quickly but carefully drawn.

This gets us to the legislation itself. Although we've heard some very strong statements for and against this legislation, particularly from the lawyers, we're going to have it. What is most helpful and has been helpful today is hearing information and advice on how to improve the definition so we meet the objectives of the bill. We've heard something of what we can do about the oversight mechanisms and the various tools, specifically the ones that are somewhat unique in our system, and the comments have all been very helpful.

Let's remember that, with respect to the tools, investigative hearings are not much different from public inquiries in our society. In fact, these are public. Mr. Galati, contrary to your assertion, the evidence taken is not only excluded from subsequent legal proceedings having to do with terrorism, it's excluded from any subsequent criminal proceeding, and that's quite clearly set out. Those investigative hearings pale in comparison to the grand jury proceedings in the U.S., which are part of their constitutional and legal history.

As to preventative arrest, remember the risk. We're dealing with shadowy networks that are international in nature and that are bent on bringing about extreme consequences. We're talking about taking someone into custody for 24 hours and then brought before a judge under a certificate issued by an attorney general on reasonable suspicion so an issue can be frozen. When we consider the consequences of what we know some people in these networks are bent on doing, this is not, I would suggest, out of line. It's certainly far less intrusive than either our former War Measures Act, the Emergency Services Act, or what exists now in the U.K. Compared to both those countries, we do pretty well.

The other extra procedures we see in this act—

The Chair: Mr. Owen.

Mr. Stephen Owen: I'll just ask for any reaction to this to end. As has been mentioned, with respect to other extra procedures we already have in our law relating to things like electronic surveillance, extensions, and proceeds of crime, these already exist in our laws with respect to organized crime.

As to charities, remember, charities have an administrative privilege. They do not have a right. They have a privilege over and above non-profit organizations in order to get tax exemptions. Money is the lifeblood of terrorism, and if we have holes, then we have to plug them.

The Chair: Mr. Owen, may I remind you, it's a three-minute round. I'm going to have to go to Mr. Asfour. We have other witnesses waiting.

Mr. Asfour.

Mr. Stephen Owen: Thank you. I would be grateful for any reaction.

Mr. John Asfour: I repeat, our fear is this 24-hour business. It will be a sad day for Canada to have this included in such a bill. If we are to consider this bill as an emergency bill that has been prepared because of the events that have taken place elsewhere, I think the sunset clause is very appropriate. And what is more appropriate also is a review by your committee or a committee from Parliament perhaps every six months and a list of those who will be arrested. And the record would be brought before you to see what violation the police and the authorities have gone through.

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Measures like this—and I hate to say this—are taken in regimes like Syria and Libya and other dictatorships in the world. Arabs and Muslims have suffered enough from this and they come to this country to find a peaceful haven. There is no need for us to target them again.

The Chair: Thank you.

Do you have a point of order?

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Mr. Chairman, I'd like to raise a point of order. Would it be possible to ask people to turn their cell phones off?

[English]

The Chair: I believe it's a device for Mr. Asfour. For anyone else, there are no real grounds to necessarily have such a device. I hesitate to do this, because our own clock is so noisy, but let's at the very least put these things on stun or something.

Mr. Prutschi.

Mr. Manuel Prutschi (National Director, Community Relations, Canadian Jewish Congress): Thank you very much, Mr. Chairman.

In terms of our summing up and picking up from what Mr. Owen was saying, we agree with a lot of the points that Mr. Owen was making.

We certainly believe very strongly at Canadian Jewish Congress that one must ensure that no community and its members be victimized in any way by this bill or its enforcement. We also have to say to you as members of this committee that you have in your hands the safety and the security of all Canadians in this country. And by Canadians we mean all Canadians, irrespective of religion, ethnic background, colour, and so on.

We as a community, the Jewish community, in many ways have been doubly victimized. On the one hand, whenever political conflicts abroad spill over onto our shores, our community suffers victimization in terms of attacks on individuals and attacks on communal property, as have other communities here, certainly in more significant ways during this particular crisis. So we certainly believe very strongly that it's tremendously important that the anti-hate amendments in this bill be brought in, and indeed we believe that they should be expanded. As we've said, it should not only deal with places of worship but all kinds of religious property. It should include cemeteries, and it should not only be limited to religious property, but indeed all kinds of communal property and so on.

The second important point is that our community, unfortunately, is the one single community that is targeted for terrorism in this world. We're the only community that is specifically identified for terrorist victimization in this world. So we say to you very simply that in dealing with this bill and in measuring this bill one must keep in mind that it is terrorism and not the measures taken to combat it that represents the greatest threat to our human rights and cherished values of freedom and democracy. It's for that reason that we support the bill and that we're calling on the government and Parliament to pass it expeditiously.

The Chair: Professor Elmasry.

Prof. Mohamed Elmasry: We have two comments. I will do one and Mr. Galati will do another.

To answer the question from Mr. Owen regarding the hate part of the law, Canadian Muslims today are subjected to hate crimes and they are the number one group in this country. We have already surpassed Jews and blacks in this country. This is statistics.

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So we are saying we need that part of the law because we have time pressure to pass this law. Let's do a better job and just hold it. Do it another few months later down the pipeline to make sure we don't trample on the civil liberties and other issues related to that part of the law.

The Chair: Ms. Sherazee.

Prof. Mohamed Elmasry: There is another part to that.

The Chair: He's on the list.

Prof. Mohamed Elmasry: Okay. Sorry.

Ms. Amina Sherazee: To respond to Mr. Owen's comments, there is general consensus on this panel that the hate crime and the hate propaganda is extremely important. They need to be expanded and they need to have more coverage.

We have an additional concern. We're asking you to consider this very difficult job of looking at how you can perhaps try to legislate the media, because the Arab community has come under considerable targeting by the media. I have a few examples here to illustrate.

There have been photo ops that have grotesquely portrayed Arabs as the victims in the hate propaganda. I have these available, if you're interested, where we're being referred to as uncivilized, as people who need to be colonized. I have numerous examples of how the media are actually perpetuating hate propaganda. So we would ask that you turn your mind to that as well.

Briefly, about the standard of the grounds of arrest, suspicion is a subjective standard, and suspicion will be formed by people's assumptions, stereotypes, and information. In a climate of anxiety and fear, in a climate of war, where there is a targeting of a community as the enemy, we don't trust that this suspicion will not be exercised against Arabs and Muslims.

Finally, I have a word to add about the charter. Definitely, people do have recourse to the courts if there is a law that is alleged to have violated the charter. This is an extremely expensive process, a very long process, and you only really get results after lives have already been ruined and many financial resources have been exhausted. I think it's very important for you to realize that you have the extra pressure of trying to produce a bill that will be charter-proof.

Ms. Jennifer Leddy: I would like to respond as well to Mr. Owen's statement that charities have a certain administrative privilege.

Non-profits also have certain benefits that might be considered privileges, though I do dispute your word about privilege, where they don't pay taxes. Businesses have many tax deductions and many benefits from the tax system and they are not targeted or identified in this particular bill. Charities do want to be accountable. They want to be responsible. We try to use our best efforts to make sure that our funds are used only in an appropriate way, for good. We don't consider that a privilege; we consider that a duty.

The danger we see in this bill, and I don't think that is the intention of the bill, is that bona fide charitable organizations could end up being vicariously liable for terrorism. We have enough problems with vicarious liability for other civil actions. So we are asking that you really take a good hard look at this section. The Canadian Bar Association has taken a terrific look at it and they are very worried about it.

That makes us very nervous, because what will happen is the charity will be de-registered. So that's the end of the organization, because there won't be any more donations. More important than the end of the organization, it's the end of the work and the end of the good work for the most marginalized, the most oppressed, and the people who are the most in need, including those refugees in Afghanistan.

So I thank you for your comment, but we're very concerned.

The Chair: And the last response goes to Mr. Galati.

Mr. Rocco Galati: Mr. Owen, if it were you parliamentarians who were going to enforce the law, I wouldn't be here today.

You have a naive view of law enforcement agencies and what they will do with the legislation once they have it.

I spent my teen years being beaten up by the Toronto police, because of a perceived Mafia threat on College Street in Toronto, under loitering and World War II laws. That's where I come from in bringing this to the table.

You say we're fighting a shadowy enemy. I agree. Terrorism is serious. That shadow is going to take a real human face in this country, and it's going to be Arab and Muslim.

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My friend here says that any such terrorist threat is never worse than what our government will give to its people. History teaches us that this is wrong. No insurrection group, no terrorist group has ever inflicted the massive genocide and human rights abuses that organized governments have. This country is no exception to that.

This group now—the Muslims and the Arabs—will be the victims, as those before them were, including the Italians, the Japanese, the Doukhobors, the Native Canadians, the French Canadians, the Ukrainians, right up the line.

We don't need to give this draconian power and procedure to our police forces that we haven't seen since the Inquisition in the Christian church. That's what they have. That's the power they have.

The Chair: I would like to thank all our witnesses. We're well past the time. We go to 11:30. We have a new group of witnesses, and everyone will have their chance. So I thank very much the witnesses for being here.

I'm going to suspend for a couple of minutes to allow the next series of witnesses to find their way to the table.

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The Chair: I call back to order the 43rd meeting of the Standing Committee on Justice and Human Rights for consideration of Bill C-36.

Our next group of witnesses includes the Muslim Council of Montreal, and our witness is Salam Elmenyawi. From the World Sikh Organization, we have Anne Lowthian and Palbinder Schergill.

Before we begin, I hope there isn't someone here from Regroupement des organismes musulmans de Montréal.

Please proceed.

Mr. Salam Elmenyawi (Spokesperson, Muslim Council of Montreal): Good morning. On behalf of the Muslim Council of Montreal, I would like first to thank the honourable chairman and the honourable members of the committee for providing us the opportunity to present our concerns.

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Secondly, I would like to reiterate our condemnation of the vicious attack on civilians on September 11 and all such attacks against civilians around the world.

I am here today to convey a message from Quebec Muslims, which is shared by many other Canadians who are seriously concerned about the impact of Bill C-36 on freedoms and civil liberties. You have already heard from a number of them, and you will be hearing from others after me who are well versed in the field of law. However, my position is made a bit difficult, complicated by the short notice to appear and the lack of legal expertise. Canadians surely would need more time to reflect and to discuss this bill.

Maybe the best way to describe my position is by the story of the congregation who lost their imam, which is their religious leader. They looked around to find someone among them who could lead their prayers, give the sermon, and lead the weekly prayer. They found the person with the longest beard, who may not have known all the facts or all the issues, but after insistence, he stood up in front of them and asked them, “Do you know what I'm going to talk about?” They said “Yes”. He said “Then there is no reason for me to talk.”

The week after, the same thing was repeated, but this time they agreed that when he asked the question they would say no. So he said “Do you know what I'm going to talk about?” They said “No”. He said “Then you don't deserve that I should talk to you.” Well, the third week again the same thing was repeated, but this time they agreed that half of them would say yes and half of them would say no. So he asked again, “Do you know what I'm going to talk about?” Half said yes and half said no. He said “Well, let those who know tell those who don't know.”

Having said this, I will say that almost all of us already agree on being told that this bill is an encroachment of Canadians' rights, freedoms, civil liberties, and fundamental justice. I add my voice to those who are criticising this bill, which is causing overwhelming pain and angst among many Canadians and more specifically among the Muslin community, and for a very good reason.

Experts agree that the bill is certainly flawed. The following is a quick summary of some issues:

First, the abdication of the rule of law and fundamental justice, including an officer of government possessing an arbitrary power over the person or the interest of the individual, secret evidence, foreign evidence, and the lack of proper checks and balances.

Second, the infringement of the Charter of Rights and Freedoms, including freedom of expression, freedom of association, the right not to be deprived of life, liberty, or security of the person except in accordance with fundamental justice; the right to be secure against unreasonable search and seizure; the right not to be arbitrarily detained or imprisoned; the right to silence; the right to fair trial; and the right to equal protection of the law. These are fundamental principles of our legal system, which could not be limited without a demonstrably justifiable cause in a free and democratic society.

Third, the definition of terrorist activity is wide and too inclusive. The target of this bill must be very precise to avoid disproportionally targeting Muslims or legitimate political dissent.

Fourth, lack of consistency in applying the law, more specifically in relation to hate crimes, which should cover all the media, including print and broadcast media.

Fifth, procedures to list a terrorist entity should be significantly changed, with the addition of proper safeguards to avoid erroneous listings, which, due to the severity of the charge, may cause the downfall of the entity.

Sixth, due to the serious penalty of this bill, it is essential to prove criminal intent, more specifically in the case of facilitation charges and under the Charities Act.

Seven, the cumulative sentencing provision must be deleted.

Eight, arrest without warrant must be only if it was imminent that terrorist activity will be carried out.

Nine, the right to silence should be reinstated or proper safeguards must be added and assurances must be given to prevent the use of the evidence against the person by giving full immunity.

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Ten, in charities, unfortunately, a number of provisions in Bill C-16 seem to reappear, such as secret evidence, guilt by association, retroactive justice, lack of consistency, and no appeal, all of which will impair the operation of Canadian charities, especially Muslims. Under these special circumstances, if an organization is found guilty this will not only lead to the revoking of the registration of this charitable organization, which may paralyse an honest charity, but also stigmatize the organization, its members, and the community it represents as a terrorist organization or supporters of such, causing irreparable damage and forcing the organization to defend itself against these odds, which would be a very costly affair indeed, leading to the final demise of the organization.

Eleven, a news ban must continue to be available for accused charities and individuals, as suggested in the bill.

It is very important to fix these serious flaws in the bill and other flaws as recommended by experts. A joint brief will be handed out by the Muslim Lawyers Association, covering some of these recommendations. In the meantime, and even after fixing the flaws, the idea of a sunset clause—which I may call sunrise instead of sunset—will happen with enacting this law against the freedoms. The idea of a sunset clause is very important to limit the possibility of abuse and misuse of this bill.

Going over all of this, I could not help but remember a sad story 29 years ago. Upon my arrival to Canada, I met Dawood Yahoda, an Egyptian Jew, who came to Canada about the same time. Yahoda told me, with his sense of humour, that he was accused of being a member of the Muslim Brotherhood organization in Egypt and was put in jail with many of its members. His best defence was his repeated declaration that he's a Jew, but no one cared. Finally, the order came to release the Muslim Brotherhood from jail. When everyone was released except Yahoda, he complained. He was told, “We have an order to release members of the Muslim Brotherhood, and you said you are Jew, so we have no order to release.” So it didn't help him either way.

I was in pain hearing that. I was also relieved that I was far away from such regimes. I thought that one day all this will come to an end with proper democracy. But now, with Bill C-36, we are giving these tyrants, despots, and the like a long hand to reach out through foreign and secret evidence and get Canada to do their dirty work. We are willing to accept evidence from states that are willing to forge our Canadian passports and use the bill to advance their own political agenda. This is unacceptable.

Furthermore, history and experiences with similar laws south of the border dictate to us that Muslims will be disproportionately targeted when applying this bill because of the continued stereotyping and maligning of Muslims and Islam in the media. And due to the fact that the paying of alms is an article of faith and one of five Islamic pillars, Muslims will have to be engaged in charity, not only because they wish to do so, but also because it is the requirement of their religion.

Keep in mind that while Muslims make up 27% of the world population, 80% of refugees around the world are Muslims, who are expecting the better-off Canadian Muslims, who are enjoying a good life in Canada, to be able to reach out and help them from want and poverty. This would cause Muslims to be more exposed than any to the draconian effects of this law.

If we wish to join the international effort to conquer terrorism, we must go the roots of the problem of terrorism and exert efforts there. There is no perfect justice system in the world, but our Canadian justice system is one of the best. Under this system, and with built-in checks and balances, we still make mistakes, jail and devastate the lives of innocent people. To empower this bill as it is would be totally unfair to Canadians, remembering that when there is no justice for some of the people, there will be no justice for all of the people. Or as stated by Martin Luther King, “Injustice anywhere is a threat to justice everywhere”. It is better that ten guilty persons escape than that one innocent suffer. We are here banishing many under the pretension of maybe we will catch one, one day.

We say the accused is innocent until proven guilty, but here we say not only that the accused is guilty until proven innocent, but the accused is going to need more than just a lawyer to defend against and rebut a witch hunt and secret evidence produced by foreign state sources; the accused is going to need unlimited resources, which may not be available, and if available most probably will not work. This is undefendable.

If you do not modify this bill to conform with the Charter of Rights and Freedoms, fundamental justice and due process, you will be telling the Muslim community at large and a multitude of other Canadians of different cultural backgrounds that they are dispensable, that you are willing to sacrifice them at the first excuse you find, and democracy is not necessarily for all.

We must find the right balance between collective security and individual liberties, but sacrificing our liberties for our security will lead us to lose both.

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Honourable chairman and honourable members of the committee, if we do not maintain justice, justice will not maintain us. Justice should not only be done, but should manifestly and undoubtedly be seen to be done. At the end, I humbly ask the blessing of God. May he protect each and every one of us. May he guide you to an honourable way that is fair and just.

The Chair: Thank you very much.

Ms. Lowthian.

Ms. Anne Lowthian (Executive Director, World Sikh Organization): Thank you, Mr. Chairman, and good morning.

The World Sikh Organization has been in existence since 1984, both on a national and international scale. We've participated in a variety of programs, from educating different levels of government about the Sikh faith, to turbans in the RCMP, to a variety of issues where in each case the Sikh community has had to justify its beliefs, its perceptions, its mere existence in Canada repeatedly—and we have done so in a court of law. In many of those cases we have had legal counsel. In this particular case, as we present to you, as we have presented on Bill C-16 and many others, I offer you our legal counsel, Palbinder Schergill.

Ms. Palbinder Schergill (Legal Counsel, World Sikh Organization): Thank you, Mr. Chair and members of this committee. I want to thank you first for giving the World Sikh Organization an opportunity to present at these hearings.

I understand that time is of the essence, so I'm going to direct your attention to the key issues the World Sikh Organization is concerned about with respect to this bill, keeping in mind that there are many issues I will not be covering that are equally of concern, but given the scope of this bill and the limited time I'm only able to cover some of them.

I have prepared a written brief. I understand we're not able to circulate it because it has not yet been translated, but it is available and I would urge members of this committee to pick up copies of it at the end.

The World Sikh Organization submits essentially that the bill raises significant concerns with respect to four key areas. The first is definitions of terms such as “terrorist activity”, “terrorist group” and “facilitation”, which we deem are too broad, vague, and lack the necessary mental intent, thereby criminalizing otherwise legitimate political activities, individuals, and groups.

Second, many of the provisions in this bill, such as procedures related to preventative arrest, the listing of terrorist groups, and facilitation offences, offend various sections of the charter, including sections 2, 7, and 11. I will go into that discussion as well.

Third, the bill severely hampers the effectiveness of federal statutes such as the Access to Information Act, Personal Information Protection and Electronic Documents Act, the Privacy Act, as well, by permitting the Attorney General of Canada to unilaterally and without review exempt entire documents or governmental departments from public scrutiny and to release otherwise private information on Canadians to foreign governments.

Four, the lack of a sunset clause in this bill allows the government to use the extraordinary powers granted pursuant to this bill even in situations where the emergency need no longer exists.

With respect to each of these concerns, what I'm going to do is highlight the recommendations that we're making and then I would assume that the panel will probably have questions with respect to each of the recommendations.

First, with respect to the definition of terrorist activity, it is recommended that the definition as it's contained in clause 4, proposed section 83.01, be amended by removing proposed item 83.01(1)(b)(i)(A) and proposed item 83.01(1)(b)(ii)(E). Proposed item (i)(A) refers to the definition of the terrorist activity as one being with a political, ideological, or some other motive.

The reason we believe this must be removed is because terrorism is terrorism. There is absolutely no reason why a terrorist is considered to be more threatening because they simply have a belief system, whether it's political, religious, or ideological, or whether they simply want to commit a crime and terrorize the public. The planting of a bomb, whether it was done with the intention to somehow foster some political ideology or religious belief system, is no less egregious than the planting of a bomb simply because an individual wants to gain economically, or gain in some other way in a criminal way.

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We believe that by defining terrorist activity and relating it entirely to a person's political and religious viewpoints we are essentially then not only relieving those individuals who would otherwise be committing criminal acts from criminal culpability under this bill, but we're also criminalizing acts by those individuals who simply have belief systems that may not otherwise be deemed criminal activities. People conducting unlawful protest, such as perhaps pro-abortion activists or anti-abortion activists who have religious belief systems and who may in fact interfere in public security, who may in fact block access to abortion clinics, may still be deemed to be terrorists under a bill like this.

So in our respectful submission there is no place in this nation for terrorism to be defined by the basis of one's religious ideology or political ideology. In fact, I believe that Mr. Toews once referred to that very issue in a quote that I read in the Globe and Mail. In essence, I believe Mr. Toews' concern was that we should not be embarking on a religious witch hunt, which I believe will in fact happen if we leave that definition within the definition of terrorist activity.

The second recommendation with respect to terrorist activity is the removal of item 83.01(1)(b)(ii)(E), which refers essentially to the manner in which one blocks or causes serious interference with or disruption of essential services, facilities, or systems. Again, the reason I believe that needs to be removed with respect to the definition of terrorist activity is because it encompasses activities that are considered lawful, activities that we believe as a free and democratic nation should occur, and those are political protests, which individuals should have the right to be involved in. But those activities, by virtue of the fact that we rightfully are concerned about international terrorism... And I pause here to say that international terrorism is a threat that we must deal with as a country, and the fact that we are attempting to deal with it is a positive. But the fact that we're attempting to deal with it the manner in which this bill has been designed and drafted and put together I believe goes far beyond what we need to do in order to address that very serious concern.

The second recommendation made is that if this panel believes that item (ii)(E) should not be removed, that in fact the refererence to a serious disruption to an essential service needs to be maintained, then somehow we must in some way or another define what we mean by “lawful advocacy”. We can perhaps put in place the words such as “otherwise lawful advocacy” so that what we don't see result is something that is deemed lawful outside of this bill is now deemed unlawful just because of the very existence of this particular bill.

The third recommendation that's made is with respect to the definition of “facilitation”. Clause 4, proposed subsection 83.01(2), in fact says that essentially three things must be done... It lists three things that need not exist in order for an individual to be considered to be facilitating an offence.

I pause here to say that the very definition of facilitation, which is a cornerstone of this particular bill, is problematic in three respects.

First, there's no action required that spells out what one must do in order to be deemed to have facilitated a terrorist activity. It's not in this bill. There's nothing that specifically says person A must do X, Y, Z, and if person A does X, Y, Z they are deemed to have facilitated a terrorist activity.

Second, this definition only tells you the elements that are not required for the activity that will still be considered to be facilitation—i.e., under the definition, it takes place whether or not the facilitator knows that a particular terrorist activity is facilitated, whether any particular terrorist activity was foreseen or planned, or whether any terrorist activity was actually carried out. So it tells you what doesn't have to happen, but it doesn't tell you what actually has to happen.

Third, there is no discernible mental element to this particular offence of facilitation. As a result of this, we believe that at the very minimum the definition of facilitation needs to be modified so that paragraph (c), whether “any terrorist activity was actually carried out”, is removed.

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With that change, in essence either an individual knowingly facilitates and intends to facilitate a terrorist activity—in which case it doesn't matter whether it was carried out or not, since their very intent raises the criminality of their behaviour—or alternatively, if they did not know a terrorist activity was going to be carried out, then, at a minimum, the terrorist activity must have occurred in order for them to be deemed to have facilitated it.

The next recommendation we're making is with respect to the question of knowledge. We believe there needs to be put into this particular bill an interpretive clause requiring that the crown essentially must prove criminal intent before an accused can be found guilty of any of the terrorist offences in the bill.

Next, we are recommending that the entire preventative arrest section be removed from the bill. That, I know, is a very dramatic recommendation. I can respond at length, when this panel has time, perhaps, on why I think that needs to be done.

In addition, we believe a civilian body comprised of NGOs and other interested and knowledgeable persons should be established to monitor the implementation and ongoing application of this particular bill.

Finally, we believe the sunset clause should apply within three years after this bill receives royal assent. Obviously, however, it should exempt three key provisions, clauses 10, 12, and 88, which relate to hate crimes. It also needs to exempt our international obligations pursuant to the various international instruments we're attempting to implement with respect to this bill.

Those are the recommendations the World Sikh Organization is making with respect to this bill.

Thank you.

The Chair: Thank you very much.

First to Mr. Toews for seven minutes.

Mr. Vic Toews: Thank you very much.

I appreciate your presentations, and I certainly appreciate the concern that has been stated. I have mentioned on other occasions that by including religious, political, or ideological purposes in the definition of terrorist activity, it sends Canadian courts, and indeed Canadian legislation, down a path they have traditionally refused to go down. So at a time of heightened anxiety and heightened security, we are adding a very volatile element—that is, to determine religious or political or ideological beliefs. I think that is very destructive.

Our American allies, who have strong terrorist legislation, have not found it necessary to proceed down that path. Perhaps it comes out of the very clear separation of church and state in that country, while we are somewhere in between the British system and the American system. As was indicated earlier, perhaps this phrase is a colonial remnant, and should be released from here. I certainly don't think it has any place in our legislation.

Mr. Elmenyawi... and I'm sorry if I've mispronounced your name. I take no offence when people mispronounce mine; it's my fault for spelling it improperly.

I've noted your comments with regard to your concerns over the powers. I think you've touched on the real nub of the problem with the legislation. If we agree—and we may not, but if we do—that the legislation is necessary, there clearly is a lack of proper checks and balances in the legislation. I think we as parliamentarians need to review the powers that have been granted to ensure that they are placed in an appropriate legislative context.

For example, the police are concerned about the sunset clause, that it will disrupt their ongoing investigations and their ability to ferret out true terrorist activities. However, members of the opposition here are concerned about the review proposed in the legislation, because we know it is ineffective. It is simply lip service. We know that provisions of the Criminal Code that should have been reviewed seven years ago have still not been reviewed, so I think your concern that the review will not be effective is very valid.

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If the government doesn't accept the issue of a sunset clause, and for what might be very valid reasons, I think we need an effective recall of the legislation to Parliament—not just to this committee, but Parliament—so there's a full and open debate of that legislation.

If we can't have a sunset clause, could you perhaps see some other type of effective legislative review that would also be effective in terms of addressing your concerns, given that the legislation may well pass? I'm trying to build in some safeguards.

The Chair: Mr. Elmenyawi.

Mr. Salam Elmenyawi: By discussing this and by going down this road, we are really all agreeing, in one way or another, that this bill does encroach on Canadian civil liberties and freedoms. Therefore, I think it is the responsibility of this Parliament not to make this law, not to let it be abused five or ten years from now. I think it is the responsibility of this Parliament to make sure this is not their legacy, to make sure the first Parliament of the 21st century is not the one that puts in a law that continues to go down the road of abuse or misuse. They should say, look, we expected that this issue of terrorism would be curtailed soon, and therefore, within three years—supposing they were wrong—we'll let the next Parliament take responsibility for re-enacting a new one.

Yes, they will need solutions then, but your responsibility today, if you're not going to be here three years from now, is to make sure that whoever is here will not use you as the excuse to go on making this kind of abuse in the future.

I think we all agree that there has to be some solution, but don't let the solution you come up with be abused by others. And we saw that; we saw people coming into power who said “One year only and we're going to see democracy”, and then “One year more and we're going to do it”, and then one year, two years, twenty years later, we still didn't see democracy in our country of birth. So if we say here the same thing, “One year only and we'll see later what we're going to do”, I'm afraid that thirty years from now it will still be there.

So I don't think you should attach Parliament to this legacy. If somebody wishes to bring it, let them do so under their own responsibility.

Ms. Palbinder Schergill: Thank you.

I'm sure I'm one of the ones who pronounced your name wrong. I apologize for that.

I heard it mentioned earlier by the Canadian Jewish Congress that there's no real distinction between a sunset clause and a review. I beg to differ. I think there's a dramatic difference. A review essentially allows government to control politically what it is they're going to do and when they're going to do it. There's no safeguard. There's no assurance that the review will happen. There's no assurance that the review will be thorough. There's no assurance, in fact, that the review will be done in a manner consistent with the objections and concerns being raised with respect to this particular bill.

A sunset clause is something that is critical, I think, when we consider a bill such as this, because the powers under this bill are so far in excess of what we are used to as Canadians. I mean, we can have a philosophical discussion on what we can do if we fall short of a sunset clause, or whether there is a review that's good enough, but I think there is no review that's good enough. I would simply say that we cannot think outside of that.

The reality is that either we're at war, in which case, if Mr. Owen says that this bill falls short of the War Measures Act, that's a good thing, or we're not. It's simply a question of that. Canadians either lead their lives in a manner that allows them to participate in activities consistent with the Charter of Rights and Freedoms, or, because of extraordinary circumstances, they do not. Extraordinary circumstances can be many.

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This threat is a real threat. It's a palpable threat. But we have faced many other threats in the international community and we will face many more. If we react in a knee-jerk way by simply saying we're going to implement an act and let's get on with it, but don't worry too much because it doesn't go as far as the War Measures Act, I don't think that's very much comfort.

Anything short of a sunset clause I believe is not going to do Canadians justice. If there is something other than a sunset clause, at the minimum there has to be a civilian body involved with that review. Why? Because civilian bodies, as perhaps this committee has seen over the past several weeks... Many individuals and non-governmental organizations have been able to add a considerable amount of debate and dialogue to this particular bill. I think that an independent civilian body review of the bill should be done on an ongoing basis to ensure it's being implemented properly and to follow and monitor whether there are any violations of the charter.

Secondly, if there's going to be a governmental review, it must be mandated. It's not enough to say that there's going to be a review in three years. There have to be checks and balances to ensure that it's going to happen, that it's going to be a committee comprised not only of the government but also of opposition members, and that it's a committee of not only the House but also the Senate as well, so that we have as much input in this as possible.

The Chair: Thank you.

Mr. Bellehumeur, for seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I'm going to start with a comment.

Thank you for coming and giving us your perspective of the situation. I agree with you: there is quite a difference between the review proposed in section 145 of the bill and a sunset clause. Clearly, in the case of a review, it is understood that the act will be permanent. The act itself is not supposed to be in question; the point of the review is its improvement. This permanence is unacceptable. When there is a sunset clause, it's temporary. In exceptional circumstances, an exceptional legislation is enacted, but this legislation does not and should not set any standard. I totally agree with you in this regard.

There are things which are similar, but not necessarily the same. I want to clarify.

First, I think we agree that there should be a sunset clause. We have to plan for this legislation to die in two, three, four or five years and not be implemented any longer. In the meantime, things have to be livable. We have to protect some individual and collective rights and find a balance, if we can.

I, for one, would like a sunset clause covering the whole bill, or some parts of it, as well as an annual review. I am convinced that there should be an annual review, including a report. Should it be a report by the Department of Justice or another department? Should it be a report by some civil organization, as you suggested? You said that a civil organization should report to the House of Commons on the number of arrests without a warrant, the number of people on the terrorists' list and the amount of money which has been confiscated. This would be a detailed account of the way the act has been enforced.

Whether such a report is done by the Department of Justice or an organization, I don't think it's enough, because parliamentarians would have no control over the content. Let me explain. We know what happens, for example, in the case of the Canadian Security Intelligence Service. We often get reports from the Director, but these are the kind of reports you read, but which don't allow for much follow-up. We can't really call people in to ask them questions and get to the bottom of things.

What would you say if a civil organization were to table a report in the House of Commons and if we had a clause in the act stipulating that this report has to be referred to the Standing Committee on Justice and Human Rights whose members, if need be, could call in and question the director of the civil organization, the Defence Minister, the Justice Minister, the Solicitor General, civil servants and police officers, if the report indicates that there have been abuses, and if the committee had three months to do a study to be tabled in the House of Commons?

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Would the combination of such a requirement and a sunset clause give you some degree of comfort? Am I completely missing the point or did I get you right? Tell me. What do you think about that?

[English]

Mr. Salam Elmenyawi: That's a very good point, but again I am sure, not only for myself but from so many others who are engaged in this debate, that all the discussion in relation to a sunset clause does not mean that the bill is acceptable as it is, even with the sunset clause. You have to be very careful that all these recommendations we're coming up with are besides the sunset clause. We are relating to the fact that there is infringement on Canada's bill of rights, and this has to be demonstrated almost every year, so that review will have to be there. There have to be reasons to do this in a democratic and free society, to demonstrate that there's a reason for this bill to continue infringing on Canadian rights and civil liberties, and therefore three years later it has to stop. Hopefully by that time it will have done its job. This has to go parallel with the modifications or the changes that were recommended.

The Chair: We'll hear from Ms. Schergill.

Ms. Palbinder Schergill: I agree with your comments, Mr. Bellehumeur. The reality is that if we have an annual review, there's at least ongoing monitoring. What that will do, in addition to the sunset clause, is perhaps allay some of the government's concerns that ongoing police investigations may be impeded and about what's going to happen to those investigations in three years if this bill dies.

Frankly, if the job is being done properly and effectively pursuant to this bill, and if there's ongoing monitoring on a regular basis, then the government should be well equipped in advance of the three years to be able to put all the machinery into place to ensure that this bill is passed again.

There's absolutely no reason to create fear in the public and say, well, in three years we're going to be left with all these investigations that are going to be ongoing, and what are we going to do? I think this concern that perhaps all these potential criminals will be let loose in three years is unnecessary because, realistically, all of those steps that should have been taken, prior to this bill being proposed at this point in time, will be available to the government three years hence.

In my respectful submission, I don't think the two are mutually exclusive. I completely agree with Mr. Elmenyawi's concerns that even if we have a sunset clause, that should not derogate from the fact that there are still serious problems with this bill. The idea of a sunset clause is once we've made all the fixes that we think, at the minimum, need to be made, we still think a sunset clause has to be put into this bill.

Ms. Anne Lowthian: Let's not forget as well that the primary goal for Canadian citizens is to be part of the process, particularly the process of developing laws such as this, but also participating in reviews.

If the annual reviews were open and inclusive and took however much time is needed to analyse and investigate the information that every involved person could provide, then you're providing some checks and balances, at least, to a law that is perceived as very faulty.

The Chair: Thank you.

Mr. Blaikie, for seven minutes.

Mr. Bill Blaikie: Mr. Chairman, just picking up on what now seems to be an ongoing debate about the merits of the sunset clause, I want to agree with what Ms. Schergill said, that having a sunset clause does not mean that the law will not be renewed. It could in fact be renewed if the government felt that it needed to be renewed; it's just that the government would be forced to act rather than allowing it to continue forever as a result of inaction. So I think the scenario that was painted for us by a couple of witnesses, to the extent that everything will come to an end in three years, is not necessarily so, and it shouldn't be portrayed that way.

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A funny thing I think you referred to Mr. Owen saying—and I can't remember when he said it—is that this doesn't go as far as the War Measures Act. But the fact of the matter is, in some ways it goes further than the War Measures Act, because unless we sunset it, unlike the War Measures Act, this will continue forever.

In 1970 it was a temporary measure. It had to be renewed in the spring, and only extended for six months into the spring of 1971. It didn't go for three years even, just six months. This has the potential to be a lot worse than the War Measures Act, if in fact a lot of the dangers that we see in it turn out to be true and are incorporated into the normal and ordinary law of the country. It could be an awful lot worse than the War Measures Act, so I think that's something that also needs to be taken into consideration.

I'm thinking particularly of the World Sikh Organization. One of the concerns that people have here is that organizations that are Canadian, whether they're charity organizations or various kinds of organizations, might be subject to various actions pursuant to this legislation, based on information that comes from other governments.

I raise this with the WSO because I remember in 1984, 1985, or 1986, or whenever, the Conservative government of the day was telling members of Parliament, don't meet with these people, don't go to their meetings, don't go to their events, because they're a... I don't know if they actually used the word “terrorist organization” at the time, but there was certainly something unacceptable, and that was based on information that the Canadian government, at the time, was getting from the Indian government.

So it would seem to me that you have some first-hand experience with how, if you have a Canadian government that accepts, uncritically, information about or characterizations of Canadian organizations that come from a government of a country in which there is legitimate conflict or dissent, a lot could happen, particularly given this legislation, when so much can happen behind closed doors. Somebody whispers in somebody's ear, who whispers in somebody's ear, and none of this information is disclosed. So it's a problem.

Ms. Palbinder Schergill: Yes, and in fact I think you're absolutely correct in saying it's a very real problem that the World Sikh Organization certainly has experienced. We can probably use your example to extrapolate what other organizations in Canada and other law-abiding Canadians will likely have to face.

First of all, WSO is not a charitable entity. It has never applied for and does not have charitable status. So they don't fall under the charities part of this particular provision.

In this particular bill, particularly with respect to the Privacy Act considerations and the considerations that are contemplated when a ministerial or a prohibition certificate would be issued by the Attorney General, the contemplation is that not only will the certificate be issued for various reasons, but in addition, if there is a risk to international relations. The very fact that the government felt it necessary to say that a risk to international relations will be enough of a concern to issue a prohibition certificate, in my view, essentially means that the government wants to protect its international relations with other perhaps democratic or non-democratic nations, whose interests may very well be adverse to the interests of law-abiding organizations within this country.

Certainly with respect to the World Sikh Organization, it's no secret that the Indian government has never been happy with the work of this organization. This is a political lobby group that has worked very hard over the last 15 or 16 years to establish itself within Canada and internationally. It has made presentations in Geneva and throughout the world with respect to the issue of human rights within that country.

Even after the WSO started making those presentations back in 1983-84, following its inception, it took many years for the international community to recognize that in fact what organizations like Amnesty International and WSO were saying was true, that in that country there were terrible violations of human rights. It was in the best interests of the Indian government to ensure that organizations like the WSO were marred, were given a bad name, were looked at in a negative light.

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Without doing the necessary checks that one absolutely has to do, the Canadian government, certainly under the Tories, relied almost exclusively on the insinuation and innuendo and misinformation that was being provided by the Indian government to them at that time.

To give a very basic example, to take it away from the World Sikh Organization to in fact the experience of the Sikh community, I attended the University of British Columbia in my undergraduate years and was a member of a student association called the Sikh Students' Association, which was a social group like all social organizations at the university campus. This is going back to 1984-85, just around the culmination of that time.

One of our functions at that time was to assist in the establishment of a chair of Sikh studies at the University of British Columbia. We were accepting donations from people with respect to the establishment of that chair. The federal government had given a commitment that they would put in 50%, match dollar for dollar of the moneys raised privately, in order to establish the chair of Sikh studies.

At that time, Joe Clark sent a letter to the University of British Columbia, received by the president, to say there was pressure being put on the federal government by the Indian government to have a chair of Hindu studies instead of a chair of Sikh studies. The concern was being raised why a chair of Sikh studies was being established at the University of British Columbia when in fact the major religion of the country of India is Hinduism and not Sikhism, never mind the fact that 75% of the immigrants from India at that time were from a Sikh background.

That rightfully caused an enormous ruckus. The letter was leaked to the university media, and there were concerns, obviously, about the effect that a foreign government was having on an independent university organization.

We were at the point where, on one occasion, we were also establishing a scholarship fund, and the only individuals who were allowed to have access to the information as to who the donors were for the scholarship fund and bursary were myself, our then treasurer, and the university's financial services department.

We received a complaint from a gentleman who went to the Indian consulate office six months after he had donated $500 to the Sikh Students' Association for the establishment of the bursary fund to say he had been denied a visa to India because of the very fact that he had made a donation to the Sikh Students' Association for the establishment of this fund.

Where did that information come from, how did the Indian consulate obtain that information, and why was that information being used to deny this individual some very basic things that he should have been granted? Those are basic questions.

These are experiences of fifteen years ago, where we did not have such a bill enacted, where we did not have the types of powers that the government is going to have legitimized under the guise of this bill. If we bring this to today's date, I think the excesses that are going to be shown by the government, by the police particularly, despite the fact that the police have...

No one is casting aspersions that the police are not interested in protecting law and order and public safety, but the sole purpose of the police force is to protect the public at any cost. The purpose of government is to ensure that the cost is never too high for Canadians. That's the balancing act that government has to do, and in my respectful submission, I don't think that balancing act is achieved here.

The Chair: Thank you.

Mr. Elmenyawi.

Mr. Salam Elmenyawi: Actually, this matter of international issues, especially in relation to foreign evidence and secret evidence, is quite worrisome for Muslims in general, and I'm sure for many other Canadians.

The world is not made out of democratic and transparent governments everywhere. The world is mixed, with all kinds of different governments. When we look at a government... For example, in our courts here, if a witness lies, all his testimony is rejected. We don't take part of it; part of it is weighed, and he gets out of it. But here we are willing to take, for example, evidence from a country that may have forged Canadian passports and may have used it in their own interests, which would be a forgery that is not acceptable under our law, but we sit and listen to their evidence.

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There are geopolitical and socio-political situations around the world today, especially in the Arab world, that would make for a lot of prejudice against Muslims and Arabs if, to stop activism, the government targeted them and tried to manipulate evidence to the effect that they're coming in here and using Canadian law to muzzle debate.

The Chair: Thank you.

Mr. MacKay, you have seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chair.

Our thanks go to all the panellists. You've provided us with some very thought-provoking information, in particular Ms. Schergill. The institutional memory you have about what has taken place under our current laws is particularly relevant in the context of this bill.

We don't have to go back so many years for what took place at the APEC summit in British Columbia, your home province, as well; that is something that gives us cause to pause and reflect upon potential abuses. The issue of protecting a foreign dignitary's feelings as opposed to protecting the legitimate right of students to protest is something that, again, takes on a very scary dimension in regard to what we now hold to be very dear.

As well, a lot of the talk and political intrigue over the sunset clause have been affected very much by the ongoing somersaulting signals of the prime minister as to what is and isn't going to be in this bill. This, whether the government will be open to amendments, has been omnipresent in our reflections.

This aspect of access to legal counsel is something that very much troubles me. We've heard a number of witnesses, and many of the witnesses who have been here have talked about the complexity and the charter-proof nature of legislation. Well, the reality is that many Canadians, particularly new Canadians, are oblivious to what their rights really are. If they don't have access to legal representation and if they don't have access through their legal representation to information the government may hold about them so they can at the very least challenge it or put another version forward, it shakes some of the fundamentals of freedoms in this country.

Would you comment on that aspect with respect to access to information and the disclosure of information, for under the powers that are granted by this bill the Attorney General may in fact issue a certificate that says, that's it; for reasons of national security or international relations, we are not going to release any information about why you're being held or why we're behaving in this fashion. And further to that, please comment on the access for those gargoyles at the gate, the lawyers themselves, who at least have the ability to use legal mechanisms to try to get at the information so a case can be presented on behalf of their client.

Mr. Salam Elmenyawi: I would like to comment on this.

In the United States, for the last ten years there has been the Secret Evidence Act, and there they were not releasing any information. Only the judge could see it. And 13 people—all of them Arabs, as you may have guessed—were held under this law. Most of the judges have in all these cases asked them to release these people, and even though the order came, they kept using some other sections of the law to hold them and detain them again and again. This happened until maybe the last one, number 13, just before President Bush took office. They abrogated the bill, and they stopped that Secret Evidence Act in the United States of America. It's very serious. It also hampered the chances for having proper legal representation.

Right now I have a very specific case. Even with all this law, in the United States one person was caught in the middle. On September 11 he was on an Egypt Air flight. He just happened to be there. His flight arrived in New York at 8:15 and was supposed to leave by 9:15. All flights were stopped at nine. He was taken off the flight. He is a Palestinian. He had no passport. He had only UN documents, and they took him into detention. Up until now he has not been released. After 50 days he has not been charged, nor does he have legal representation.

All this has happened under the existing laws in the United States. Even the new law provides for seven days of detention in the United States only for immigrants, not for non-citizens. He was not even visiting the United States. They were supposed to deport him, but he shouldn't even have been detained. He was coming to Canada. He's a landed immigrant in Canada, and he's been living and working here for two years. He's a family man with three kids. Until now we've had a very big problem even to find out what the charges against him are. There are absolutely none. It is very frustrating to try to find justice under these kinds of circumstances.

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The Chair: Ms. Lowthian.

Ms. Lowthian: Thank you, Mr. Chairman.

I think what you raise is a very important issue. It's about an uncritical analysis of evidence presented. We've seen it happen in immigration and refugee cases. We've seen it happen in countries where standards are not the same as those in Canada.

We can see a lot of international communities taking great pleasure in the enactment of this law because it allows those other countries to manipulate the Canadian system—a Canadian system of government and a Canadian court system—by providing evidence that cannot be tested or refuted as the opportunity for testing or refutation has not been provided. That is unacceptable by Canadian standards.

What you're suggesting is that there are many individuals who will be negatively affected by in camera hearings, where evidence is not presented due to “national security reasons”. The fact that such privileges are afforded to foreign governments, to the court system, has a huge impact on individuals who can't address the situation because they are not provided the basic opportunities to defend themselves.

Again, this type of legislation affords a foreign government undue influence to override rights at the expense of Canadian citizens.

The Chair: Mr. MacKay, you may ask a very short question if you have one.

Mr. Peter MacKay: Just in relation to that, would you draw any solace or comfort from what has been suggested by many on this committee, that we have not only greater judicial discretion but judicial oversight? There is judicial oversight under the charitable provisions of this bill, ironically, but not for some of the more fundamental rights of citizens concerning preventative arrests, investigative hearings, and the issuance of certificates. The judiciary is absent, as are the traditional watchdogs of Parliament, the Information Commissioner and the Privacy Commissioner.

Would you feel at least some greater degree of comfort with either a parliamentary officer or—I think it was Ms. Schergill who suggested this—an oversight body that had input from stakeholders and citizens generally not only to review but to actually have powers to intervene, à la an ombudsman? Or it could be someone who could in instances where abuse or evidence of abuse arises make inquiries and interventions to ensure that the rule of law is being respected even in these exceptional circumstances.

The Chair: Ms. Schergill.

Ms. Palbinder Schergill: Mr. MacKay, I think that having that kind of review or that kind of ombudsperson-type role is certainly necessary in addition to having a judicial review available, given the nature of what's happening.

It is my respectful submission that I take no comfort in any of the provisions that are being recommended with respect to the Privacy Act and the Access to Information Act because I think that this particular bill completely derogates from the very essences of those acts. It makes those acts irrelevant, frankly.

The legislation essentially says that the government can tag information for the purposes of protecting international relations, national defence, or security. In fact, the Access to Information Act already allows that. It has provisions that protect information relating to all those things, so what is the need for that to be put in this particular bill?

Really, I believe the essential reason is obviously that it also does other things very silently. One of the things it does silently is that it violates the right to privacy. It allows the government to, without saying so, take that tagged information, give it to any other country in the world, and provide them information on Canadians, information they can't even give to Canadians living in this country.

In other words, third countries, third parties, have more of a right under this bill to have access to information about who I am, where I come from, and all those little details than the very people living in this country who would, I think, have a far greater vested interest in knowing who I am and where I come from.

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It is my respectful submission that nothing sort of removing all the provisions with regard to the amendments allowing the issuance of a prohibition certificate would be acceptable pursuant to the Charter of Rights and Freedoms.

The Chair: Thank you very much, Mr. MacKay.

We'll have a chance, Mr. Elmenyawi, to come back later.

Mr. McKay.

Mr. John McKay: Thank you, Mr. Chairman.

Thank you both for your presentation. I have two questions. The first has to do with the definition section.

Let me take the government position for a moment, which is an unusual position for me. If I understand the position of the government with respect to the inclusion of “political, religious or ideological purpose” in the definition, it is to distinguish this level of criminality from ordinary criminality. The government is willing is impose upon itself a higher burden of proof by having in effect to prove motivation. The point is that the government wishes to show to Canadians that this is not an ordinary level of criminality; this is a level of criminality such as we've never seen before, one that therefore requires an extraordinary response.

I'd be interested in your comments with respect to, first, whether that's a valid point, and second, whether there is possibly another way of achieving this kind of distinction of criminality.

The second question has to do with being charter-proof, which gets batted around here as if it's the World Series. You make the point that sections 2, 7, and 11 are in play, which are certainly some of the most significant sections of the charter. The government's position is that under section 1, it will be subject only to reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society. That will be the nexus around which the argument goes.

The likelihood—it's not a likelihood, it's a certainty—is that this law will be challenged. It's an almost dead certainty that it will be challenged on issues of preventative arrest, hearings, lists, or something of that nature. In all those sections, the evidence is prescribed in some manner or another, yet the government be going before the court and saying, this is a demonstrable limit.

Does it concern you, or should it be a concern for this committee, that the government's argument is really, it's demonstrable because we say it's demonstrable? Is that in effect the essence of your concern, that the crown, representing the government in this particular instance, will effectively have circumscribed the hearing before you actually get there because of the interaction of these various sections?

The Chair: Mr. Elmenyawi.

Mr. Salam Elmenyawi: I believe you have brought up a point in relation to the definition itself. I beg to differ on this, because already our existing laws cover a number of all these issues. In order to differentiate between them—we do see this in the organized crime law, where there are certain differentiations in order to get that power to go after organized crime.

But as to relating it to religious movements, I don't know how even this would have helped prevent the September 11 attack. Nobody claimed they did it. Nobody claimed they did it for the cause of religion. Until now we've been sitting and waiting. I don't know how this section can protect Canadians from an attack like the one on September 11.

There is no religion that can dictate for somebody to do that, but there are political reasons, political causes, maybe. Then again, we have politics and other issues, and this is why it has to be rethought. There has to be a lot of thought going into the definition. There are many problems.

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I have here a list. For example, the Kurdistan Workers Party is active in Turkey. This is banned by the United States and is considered a terrorist group, but the KDP or PDQ, which is a Kurdish organization active in Iraq, is supported by the United States. They do exactly the same job for exactly the same cause, for exactly the same objective, but one is supported by the United States and one is not. One is terrorist and one is not. There are very serious matters here even by listing this word.

How are we going to apply this law after we do it? Who is going to decide who is going to be charged and who is not going to be charged under this law? So there are very serious issues that we relate to in this point.

I want to make a further comment. If this ombudsman looks into some of these points, and of course any other step of due process and checks and balances will always be appreciated, we have a very important point, in that secret evidence means the person will not be able to face his accuser. He will not be able to check the evidence. The best person who can rebut on evidence is the defender himself. He has to have the right to bring his own exhibit. The judges looking at it alone will not get an exhibit to find out whether these facts are there or not there.

The other point—

The Chair: Mr. Elmenyawi, I'd like to go to Ms. Schergill. We have four names left on the list and less than ten minutes.

Mr. Salam Elmenyawi: No problem.

Ms. Palbinder Schergill: Mr. MacKay, I'm going to deal with your first question first, which is the question of the burden of proof, whether it's higher or lower, or whether in fact it puts a higher onus on the government.

Certainly, in addition to proving that a crime has been committed, the government is going to place on itself an onus to now establish a political or religious motive or ideology. The test should not be whether the onus is higher or lower, because in fact in some instances it could be a higher onus, but in others it's a lower onus.

With respect to crimes where an individual has a political and religious ideology, where a disruption of an essential service occurs because of their political or religious ideology—never mind that they had no intent to disrupt that essential service—the mental element now, in fact the burden of proof, is far lower, because all the government has to do in order to establish that this individual has now committed a terrorist activity is just prove they had an ideology. It's almost the argument that A follows B, that just because they have an ideology, therefore whatever results or flows from that is now considered a terrorist or criminal activity. In fact, I think the burden of proof becomes far lower.

The reason we cannot go into the analysis of the burden of proof is this. Let's assume for a moment that there's conclusive proof that the events of September 11 were done for a political and religious motive, which is what the assumption is right now, which is why there's a war going on. Now let's take away that political and religious motive, and let's say that all of the events of September 11 had still occurred. The twin towers have gone, they've collapsed, there was all this devastation and death.

Just because the perpetrators of that event have no religious, ideological, or political motive, does that make that crime any less heinous? Absolutely not. We may never be able to discern their motive. We may never be able to find out why it is they did this. In Canadian law we don't have to establish motive.

The Chair: Thank you, Ms. Schergill.

I'm going to go to Mr. Cadman.

Mr. Chuck Cadman: It's nice to see you again, Ms. Schergill.

We've heard this morning from the representatives of the Muslim community about the concern within that community about the targeting, about backlash, and I think some of it's quite well founded. I'm just wondering what the feeling within the Sikh community is along those lines.

At home in Surrey I've certainly had representations made to me, especially in the wake of the murder of Mr. Tara Singh Hayer, about people's concerns within the Sikh community about terrorists operating within Canada. There was a 12,000-name petition presented to me primarily from the Indo-Canadian community.

I want to get a general sense of what the feeling is within the Sikh community on the need for this legislation and the acceptability of it.

Ms. Anne Lowthian: I'd actually like to address that.

First off, the WSO has many reports of hate crimes that are occurring around the world against Sikhs specifically, simply because of the way they look. There's very little understanding or intelligence about culture, and that is one of the primary issues—whether it be Arab or Muslim groups, to Christians to Sikhs to Hindus, regardless. Everybody is getting judged based on stereotypes and the way they look.

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Secondly, as it stands with regard to terrorist activity in Canada, it's going to be no different.

I'm not too sure I understand your question. Are you saying you're getting petitions from the Sikh community that they're worried they're going to be persecuted?

Mr. Chuck Cadman: No. There are concerns about terrorist activity within Canada and some people being allowed into the country and to stay within their own community.

Ms. Anne Lowthian: The general consensus that we're getting from our constituents is first of all that they're being stereotyped and having terrorism attributed to them.

Mr. Chuck Cadman: Yes. I understand that's there too.

Ms. Anne Lowthian: Perhaps Palbinder could address the B.C. issue a little better.

Ms. Palbinder Schergill: Thank you, Mr. Cadman. We are a long way from Surrey Central.

Certainly there are concerns within the Sikh community. The Sikh community has been a victim of terrorist activity for many years, particularly with respect to the Air India issue. Many Sikhs died on that flight. That still is unresolved at this point in time. We still have trials pending, etc.

Clearly, the community is concerned. There is a concern and a need and desire to want to have the activity limited. The reality is this bill isn't going to do it. Whether or not this bill will address those concerns in an appropriate manner is really the question before this committee today.

No community wants to feel safe at all costs, because there are costs to that safety. If it means we abandon or get rid of the very values we hold dear as Canadians, if we get rid of what makes us unique in the international community, then that safety is meaningless, because we lose who we are.

The Chair: Mr. Owen.

Mr. Stephen Owen: Thank you all for your testimony and giving us the value of your insights into some of the jeopardy that you feel this legislation might put you in. You've stimulated a lot of thought around things like the definition, and that's very helpful. Thank you. We've heard numerous comments about this in terms of the new tools, if that's what they are, and in terms of the longevity and oversight of some of these actions.

Perhaps I can put it this way. Following on from Mr. Cadman's question, different cultural and religious communities and more recently immigrant communities in Canada feel real fear about violence perhaps in their country of birth following them, haunting them, and in tragic cases murdering them in this country.

Something like preventative arrest, which I think you said was without judicial oversight, where in fact you are brought before a judge within 24 hours and it must be certified in most cases, in all but the greatest emergency, by the Attorney General... If we had a situation of intelligence and investigation describing a situation that's still hazy but is starting to come into focus, I think this is really what this tool is cast at. Individuals are identified; they're part of a network. We know there's a major targeted catastrophe about to be perpetrated on a cultural or ethnic group. Take Air India for the worst example in aviation history.

Say there are those reasonable suspicions, certified and authorized by an Attorney General and with the consequence, which is unusual in our society, but not unprecedented, particularly given the potential consequences, of 24 hours to bring that person before a judge to try to get enough time to bring this into focus to stop that catastrophe. In terms of balancing security in our society, which is part of our democracy with the freedoms of our society, do you feel that is out of line with the notion of our democracy, which balances the two?

The Chair: I'm going to get the answer from Ms. Schergill, then I'm going to go to Mr. Cotler.

Ms. Schergill.

Ms. Palbinder Schergill: Mr. Owen, I think it is out of line because it is out of line with the charter, frankly. The reason I say that is the entire preventative arrest provision essentially criminalizes activity that is yet to happen.

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There are already provisions in the Criminal Code for an individual to be arrested under subsection 24(1) and charged for attempting to commit an offence, as long as that person's act constitutes a real attempt and not mere preparation.

Under this legislation what we're looking at is not an attempt at all. What we're looking at is a suspicion of an attempt first of all. Secondly, we're not simply looking at a repercussion of 24 hours of detainment. We are looking at the individual being brought before the judge, and if the judge thinks there is some evidence for this mere suspicion, and if the judge believes that imposing conditions is desirable, not necessary but desirable, that individual must then enter into some form of recognizance for a period of up to 12 months. And in addition to that—

Mr. Stephen Owen: Something like a peace bond.

Ms. Palbinder Schergill: No, not necessarily just like a peace bond.

Mr. Stephen Owen: It's very similar.

Ms. Palbinder Schergill: In addition to that, if they refuse, if they're innocent and they know they're not about to commit a terrorist activity, they will now face jail for up to 12 months. So we're not looking at simply a 24-hour detention. We're looking at a very real and palpable probability with that individual, because the standard is so low. The standard is mere suspicion, so what happens, effectively—

Mr. Stephen Owen: Reasonable suspicion, I think.

Ms. Palbinder Schergill: Reasonable suspicion. That standard, which is in fact the reasonable suspicion standard, is lower than the original standard to pick up that person. Because the standard to pick up that person is that there has to be some reasonable belief. The police officer picks up that individual. There's a reasonable belief that a terrorist act is going to be committed, not imminently committed but just committed. So again, there's no safeguard to make sure that we're not looking at an offence that's going to be committed in two years or six months. There's no provision that the offence has to be imminent.

I believe that you have to remove “suspicion” and say that there has to be a reasonable belief. But in addition to that, you have to say more than just a desirable condition for the judge to be able to impose such recognizance. There has to be a necessity for that, because if you can't show there's a necessity to prevent the particular offence that's being contemplated, then that individual should not be forced to enter into recognizance. And it's not just a peace bond.

Mr. Stephen Owen: Thank you.

The Chair: Thank you.

Mr. Cotler, three minutes.

Mr. Irwin Cotler (Mount Royal, Lib.): I'm going to follow up exactly where you both left off.

I want to express to you, Mr. Elmenyawi and Ms. Schergill, my own appreciation for you expressing your concerns, underpinned as they are by a civil liberties approach in general and reflecting concerns of your communities in particular.

I want to say I share some of your concerns regarding the definition of terrorism, particularly that motivational elements should not be included as part of the offence. My question is, should they be included in the sense that they should not be an exculpatory part of the defence? That's just turning it around in that regard.

I also agree that the section regarding facilitating terror has to clarify the mens rea component, as you put it.

I want to conclude on preventive arrest, because you many have some other things to say. I think Mr. Owen identified some of the safeguards regarding the preventive arrest principle, the requirement for the most part of ministerial authorization, the judicial review component, the requirement that it be a specific individual with regard to a specific prospective terrorist offence in relation to which there has to be reasonable suspicion.

My point is that even allowing for the fact that preventive arrest alone looked at is problematic... I want to get back to Mr. Owen's point on the contextual principle. That is, should we not be looking at the question of preventive arrest not only in and of itself, because in and of itself it is problematic, but in the context of what is sought to be prevented and whether in that context, in weighing the different approaches, one has to perhaps err on the side of a preventive principle of caution rather than err on the side of a civil libertarian approach?

The Chair: Mr. Elmenyawi.

Mr. Salam Elmenyawi: But the bill's caution does affect families, and affects people and affects their future, and you are charging them with something very severe, very serious, which may stay with them for the rest of their lives and stigmatize them and stigmatize even their community and where they pray. If they are Muslims and they go to a certain mosque, the media will be going after them. I have seen in the last few weeks how the media has been chasing people everywhere just because their name was there. Even at the time of the Ressam story, we had a completely innocent person with his picture splashed all over the media and the newspaper as a terrorist. It's been known everywhere that the man has only a problem with his name, that there was a confusion in the name.

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The standard of proof must go higher when something is so serious. The information has to be clear and there has to be an imminent threat to the society in order to hold someone against his will, not to go lower in these kinds of hard times.

The way we see it, it is if the table has four legs, and the cow has four legs, then the table is the daughter of the cow. This is the kind of logic that has been prevalent most of the time. This is how people have been taken and must stay in court, 800 or 1,000 in the United States, and I don't see it to be any different in Canada.

So I think civil liberties, Mr. Cotler, are very important. You know that. It's a very important issue. You are the champion for the cause of human rights. With these kinds of issues we have to balance it the right way, and not just say for prevention I'm going to take whatever intelligence is brought to me, especially as we know that intelligence information has always been frail and disconnected in many places. You hear an Arabic word, Tawakilt ala Allah, I trust in God. They say he committed suicide and he was the captain of an airplane. So these kinds of words, if someone is translating them who's not from the Muslim community and who does not understand the culture and the background, could be translated into reasonable cause to hurt someone. It's unacceptable for the standard of life we're living here today.

The Chair: Ms. Schergill.

Ms. Palbinder Schergill: Yes, thank you.

There are presently, and I think I read this in the newspaper a couple of days ago, approximately 1,000 individuals who are mainly of Muslim background who are being held without charges in the United States. Those individuals have been held. They have not been released. There have been no charges laid. One would have expected that perhaps if they were not Muslim, and perhaps if the alleged perpetrators of this offence that happened on September 11 were not Muslim, then indeed these individuals likely would not have been held and there would have been a great public outcry to ensure their release. I think we're going down that very same road.

Section 7 has been analysed extensively by the Supreme Court of Canada. There was a case that just came out earlier this year essentially saying that except in extraordinary circumstances, a violation of section 7 cannot be saved by section 1. In section 1, Mr. MacKay earlier had referred to the FDS, the free and democratic society clause. Except in extraordinary circumstances—did the circumstances that happened on September 11 cause extraordinary circumstances to arise such that the courts will allow violation of section 7 in this particular case? I don't think so. Why? Because the excesses go too far.

If the government is insistent on keeping that provision on preventative arrest, at the very minimum there has to be a “necessity” component for the conditions being imposed on that individual, so that if the judge is going to impose conditions, it's not conditions that are “desirable” for the prevention of an offence, meaning any offence, not necessarily the offence the individual is brought before the court on. It has to be “necessity”, necessary for the prevention of an offence that is imminent.

Those qualifiers that make sure that in fact there's at least some degree of control over what's happening aren't there. The preventative arrest section will allow anybody to be picked up if they have an iota of a political ideology, and if perhaps there's some intelligence saying that the individual is going to commit an offence at some point in the future.

The reality is, the police officers have to protect the public. Their fear is going to be that if they don't arrest this individual, this individual may go out and commit a crime. We have to make sure that those safeguards are put into place so that a further crime is not committed by unreasonable, undue detention of that individual for extended periods of time, particularly if that person refuses to enter into recognizance, which I am concerned about.

The Chair: Thank you.

Mr. Maloney, three minutes.

Mr. John Maloney (Erie—Lincoln, Lib.): I'd like to thank the panel for their very articulate presentations here today.

Ms. Schergill, in your presentation to us you asked the question, are we at war or not? You commented that although this is a real threat, the international community has faced threats from time to time. So I'm assuming from your comments—and I may be reading something into it that may not be there—that it's a question of degree and that you aren't necessarily concerned that this is the highest degree.

If your feeling was otherwise, if you felt this was a very high degree, would a response to these extraordinary circumstances not require the response that is set out in this act, subject to again the reservations, limitations, and qualifications that we see built into the act?

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Ms. Palbinder Schergill: Thank you, Mr. Mahoney.

The reason I made that comment is that I heard Mr. Owen say earlier we should take some comfort in the fact that the denial of rights pursuant to this bill is far less than in the War Measures Act, somehow implying that we're not in as high a level of heightened concern as we would be if the War Measures Act were being invoked, and that because it's lower than that standard, we shouldn't be as concerned.

What I was essentially saying was either we're in a situation where we think there is a real crisis, or we're not. I believe there is certainly a crisis. I have no doubt about that. Whether we're reacting in a manner consistent with that crisis is the real question. I think we are not. I think this bill proposes a reaction that is far in excess of what we're dealing with, particularly because of the fact that we're not dealing with a War Measures Act that would be in force for only six months. We're dealing with something that's being contemplated to be in force indefinitely, or at minimum perhaps five years or onwards.

I have no doubt in my mind that the threat to us as Canadians is very real. It's perhaps even greater than the way Canadians felt when Air India happened. But when Air India happened, the Sikh community felt the same threat at the same heightened level that's being felt here now in the last several weeks. It's just that now it's on a more global basis. The base has expanded because we see our continents being under threat, our neighbours being under threat, and ourselves. That fear is very real.

The World Sikh Organization does not deny that, does not minimize that, and it says absolutely something must be done. That's why we're at the table. Otherwise, we would simply say this bill shouldn't be passed, let's go away. We're saying there are problems with this. There are safeguards that have to be put in place to make sure we're not reacting in excess of what we need to do, and even then, let's make sure that when the imminent danger seems to have subsided, this act will lapse. Then it would have to be be re-enacted if there were another fear of a crisis happening again.

The Chair: Thank you very much.

I want to thank the panellists. Your presence here today has assisted us greatly in the deliberation of this legislation, and we appreciate you giving us your time and expertise. Thank you.

The meeting is adjourned.