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37th PARLIAMENT, 2nd SESSION

Subcommittee on National Security of the Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, September 24, 2003

1530

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.))

Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General)

1535

1540

The Chair

Mr. Ward Elcock (Director, Canadian Security Intelligence Service)

The Chair

1545

Ms. Claudette Deschênes (Director General, Intelligence, Department of Citizenship and Immigration)

1550

Assistant Commissioner Richard Proulx (Criminal Intelligence Directorate, Royal Canadian Mounted Police)

1555

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

Ms. Claudette Deschênes

Mr. Vic Toews

Ms. Claudette Deschênes

Mr. Vic Toews

Ms. Claudette Deschênes

Mr. Vic Toews

Mr. Paul E. Kennedy

1600

The Chair

Mr. Vic Toews

Mr. Paul E. Kennedy

Mr. Vic Toews

Mr. Paul E. Kennedy

Mr. Vic Toews

Mr. Paul E. Kennedy

A/Commr Richard Proulx

Mr. Vic Toews

Ms. Claudette Deschênes

Mr. Paul E. Kennedy

Mr. Vic Toews

Mr. Paul E. Kennedy

Mr. Vic Toews

1605

The Chair

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ)

Ms. Claudette Deschênes

Mr. Mario Laframboise

Mr. Paul E. Kennedy

Mr. Mario Laframboise

Ms. Claudette Deschênes

Mr. Mario Laframboise

Ms. Claudette Deschênes

1610

Mr. Mario Laframboise

Ms. Claudette Deschênes

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

Mr. Paul E. Kennedy

1615

Mr. John McKay

Mr. Ward Elcock

Mr. John McKay

Mr. Ward Elcock

The Chair

Right Hon. Joe Clark (Calgary Centre, PC)

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

1620

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Ms. Claudette Deschênes

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Paul E. Kennedy

The Chair

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Ward Elcock

1625

Mr. Lorne Nystrom

Mr. Paul E. Kennedy

Mr. Lorne Nystrom

Mr. Ward Elcock

Mr. Lorne Nystrom

Mr. Ward Elcock

Mr. Paul E. Kennedy

Mr. Lorne Nystrom

Mr. Paul E. Kennedy

Mr. Lorne Nystrom

Mr. Ward Elcock

Mr. Lorne Nystrom

Mr. Ward Elcock

Mr. Lorne Nystrom

Mr. Paul E. Kennedy

1630

Mr. Lorne Nystrom

Mr. Ward Elcock

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

The Chair

Mr. Kevin Sorenson

Mr. Ward Elcock

Mr. Kevin Sorenson

Mr. Ward Elcock

Mr. Kevin Sorenson

Mr. Ward Elcock

Mr. Kevin Sorenson

Mr. Ward Elcock

Mr. Kevin Sorenson

Mr. Ward Elcock

Mr. Kevin Sorenson

1635

Mr. Ward Elcock

Mr. Kevin Sorenson

Mr. Ward Elcock

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Ms. Claudette Deschênes

Mrs. Marlene Jennings

1640

Ms. Claudette Deschênes

Mrs. Marlene Jennings

The Chair

Mr. Tom Wappel (Scarborough Southwest, Lib.)

Mr. Paul E. Kennedy

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Ms. Claudette Deschênes

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

1645

Mr. Tom Wappel

Ms. Claudette Deschênes

Mr. Tom Wappel

Ms. Claudette Deschênes

Mr. Tom Wappel

Ms. Claudette Deschênes

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Mr. Ward Elcock

Mr. Tom Wappel

Ms. Claudette Deschênes

Mr. Tom Wappel

The Chair

Mr. Mario Laframboise

Mr. Ward Elcock

Mr. Mario Laframboise

Mr. Ward Elcock

Mr. Mario Laframboise

Mr. Ward Elcock

1650

Mr. Mario Laframboise

The Chair

Mr. Joe Clark

Mr. Paul E. Kennedy

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Ms. Claudette Deschênes

Mr. Joe Clark

Ms. Claudette Deschênes

Mr. Joe Clark

Ms. Claudette Deschênes

Mr. Joe Clark

Ms. Claudette Deschênes

Mr. Joe Clark

The Chair

Mr. David Pratt (Nepean—Carleton, Lib.)

1655

Mr. Ward Elcock

Mr. David Pratt

Mr. Ward Elcock

Mr. David Pratt

Mr. Ward Elcock

Mr. David Pratt

Mr. Ward Elcock

Mr. David Pratt

Mr. Ward Elcock

Mr. David Pratt

The Chair

Mr. Ward Elcock

The Chair

Mr. Ward Elcock

The Chair

Mr. Ward Elcock

The Chair

Mr. Joe Clark

Mr. Ward Elcock

1700

The Chair

Ms. Claudette Deschênes

The Chair

Ms. Claudette Deschênes

The Chair

Ms. Claudette Deschênes

The Chair

Ms. Claudette Deschênes

The Chair

Ms. Claudette Deschênes

The Chair

Ms. Claudette Deschênes

The Chair

Mr. Vic Toews

1705

Mr. Paul E. Kennedy

Mr. Joe Clark

Mr. Paul E. Kennedy

Mr. Vic Toews

Mr. Paul E. Kennedy

Ms. Claudette Deschênes

The Chair

Mr. John McKay

1710

Mr. Ward Elcock

Mr. John McKay

Ms. Claudette Deschênes

Mr. John McKay

Ms. Claudette Deschênes

Mr. John McKay

Ms. Claudette Deschênes

Mr. John McKay

Ms. Claudette Deschênes

Mr. John McKay

Ms. Claudette Deschênes

Mr. John McKay

The Chair

Mr. Tom Wappel

Ms. Claudette Deschênes

Mr. Tom Wappel

1715

Ms. Claudette Deschênes

Mr. Tom Wappel

Mr. Paul E. Kennedy

Mr. Tom Wappel

The Chair

A/Commr Richard Proulx

The Chair

A/Commr Richard Proulx

The Chair

A/Commr Richard Proulx

The Chair

A/Commr Richard Proulx

The Chair

1720

Ms. Claudette Deschênes

The Chair

Ms. Claudette Deschênes

The Chair

Mr. Joe Clark

Mr. Ward Elcock

Mr. Joe Clark

Mr. Ward Elcock

The Chair

CANADA

Subcommittee on National Security of the Standing Committee on Justice and Human Rights

NUMBER 010

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, September 24, 2003

[Recorded by Electronic Apparatus]

¹ (1530)

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): We're meeting today as the Subcommittee on National Security to look at the existing inventory of what I would call security detentions in Canada. Many, but not all of them, relate to post-9/11 security issues.

We have with us today four witnesses from the relevant departments of the Government of Canada: from the Department of Citizenship and Immigration, Ms. Claudette Deschênes, director general, intelligence; from the Department of the Solicitor General, Mr. Paul Kennedy, Senior Assistant Deputy Solicitor General, national security, who is back with us again as a witness; from the Canadian Security Intelligence Service, Mr. Ward Elcock, director; and from the Royal Canadian Mounted Police, Richard Proulx, acting assistant commissioner with responsibility for criminal intelligence. Welcome.

The committee has always had two major focuses: the efficacy in the intelligence gathering and intelligence product envelope in our Canadian government, and the civil liberties of Canadians and persons in Canada. I think it's fair to say that today our focus is on the civil liberties envelope, although there are certainly real concerns dealing with security.

Having said that, my colleagues have been briefed by the Library of Parliament. I thank our researcher. We've also had additional input from the immigration envelope, and I thank Margaret Young for that.

I understand, Mr. Kennedy, that there is going to be a short presentation to provide us with background on this. If that's the case, I'll let you lead off.

Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General): Thank you very much, Mr. Chair.

I'd like to make a presentation to you on immigration and security matters. We thought if we gave you a framework, that would actually help inform discussion. I'll be giving an overview of the security certificate process itself. Ward Elcock, from the Canadian Security Intelligence Service, will describe its mandate and the role it plays in this area. Madam Claudette Deschênes, from the immigration department, will elaborate on the security certificate process, and the assistant commissioner, Mr. Proulx, of the RCMP will indicate how they provide support in reference to this particular venture.

As you know, we have the Immigration and Refugee Protection Act, which came into force on June 28, 2002. That in fact replaced the Immigration Act. It contains a variety of provisions that give the state the ability to remove individuals from Canada. The focus I'll be making in my presentations will be on the security certificate process.

There have been a number of high-profile cases recently that we've seen played out in the press. We have a complete list of the certificates that have been issued since 1991. That list, I believe, has been prepared and made available to the committee.

The relevant section in the current act is section 77, which is the provision that allows for the Solicitor General and the Minister of Citizenship and Immigration to co-sign a certificate indicating that a person is a member of an inadmissible class on grounds of security, violation of human or international rights, serious criminality or organized crime. The regime there provides a framework for judicial control. All matters related to that are referenced to the Federal Court for determination as to the reasonableness of those certificates.

Under that particular process, the government can seek to remove an individual from Canada on grounds that are specifically stated, but more importantly, because of the unique nature of that application, it can be based upon classified information.

Section 78 of the legislation provides the ability for the Federal Court judge to review all of the materials in their entirety. It is the judge who makes the determination as to whether or not information is relevant. If he determines the information is not relevant, then the Crown will withdraw it from consideration.

The judge, upon examining the classified information, determines how much of it can be made available to the individual concerned by way of an unclassified summary. That is provided to the individual.

There is a requirement in the act that the summary must include sufficient information to enable the individual to be reasonably informed of the circumstances giving rise to the certificate, but this does not include anything, in the opinion of the judge, that would be injurious to national security or the safety of any person if disclosed.

It's important to note that the information that is excluded from the summary is traditionally excluded in judicial proceedings. In other words, if we had a criminal case we'd be making an application under the Canada Evidence Act, or if we had an Access to Information Act case, that information likewise would be withdrawn from public disclosure because of the harm it would cause.

The kinds of things we're talking about excluding would be details concerning human sources, technical sources, intelligence-gathering techniques or methods, and third-party information that has been provided in confidence on the basis that this is the premise on which the information is shared with Canada. So it is vital in terms of national security that such information be protected.

The unclassified information or summary is provided to the individual, as I indicated, with sufficient information regarding the substance of the allegation as determined by the Federal Court judge--who is the judge reviewing the case.

¹ (1535)

There has been a lot of discussion recently regarding these certificates. They're often linked to the events of September 11 and the anti-terrorism act. I think it's important for us to clarify that the use of these certificates predates the events of September 11, 2001. In fact, the government has been using this particular instrument for well over a decade. We've provided a chart for you of those particular cases, and you'll note that the first certificates were issued back in 1991.

More importantly, because anything we do in this country clearly has to comply with the Charter of Rights and Freedoms, those certificates and the process surrounding their use have been validated by the courts. The Supreme Court of Canada, of course, has looked at it and made that very determination.

One of the earlier cases was in 1992, when the Supreme Court, in the case of Chiarelli, looked at it as an immigration matter. It was dealing with what was then section 39 of the Immigration Act, the removal of a permanent resident from Canada. That case was based upon the alleged criminal activity the individual was believed to be involved in.

Many of the attributes of the process followed at that time were similar to the ones that were found in section 40.1 of the Immigration Act, and currently in section 77 of the Immigration Act. In particular, as we heard comments about secret trials and things of this nature, the Supreme Court of Canada in that case examined the issue of in camera, ex parte proceedings and found that they in fact were appropriate.

I'd like to note right now that a lot of those decisions by the Security Intelligence Review Committee, when they were challenged, were challenged to the Federal Court for a Federal Court judge to look at. So we later looked at that and moved that issue right to the Federal Court, since they were going to be an arbiter in these cases in any event. That's why you saw in section 40.1 and section 77 that we removed the permanent residents cases and put them before a Federal Court judge to make a determination.

The Supreme Court of Canada at that time, in applying the charter, looked at it and pointed out that there was a difference, in terms of people who were not citizens. If you came to this country as a visitor and you didn't have citizenship status, you had no right to be here. Then the state had the ability to decide who could be here, and to provide different treatment for those people.

The Supreme Court ruled in that case that it was not necessary for the individual to be given details of the intelligence investigative techniques or sources to be used to acquire the information upon which the two ministers formed their decision in releasing the certificates. The Supreme Court of Canada indicated quite clearly that there were valid state interests in protecting these sources and techniques. The court said it was necessary to balance the competing interests of the state and the individual, and to fulfill the requirements of fundamental justice it was not necessary to give the individual the details of investigative techniques or sources used to acquire that information.

So this criticism that we see sometimes launched against this process has been looked at by the Supreme Court of Canada from 1992 on. We've had other cases since that time, where the court has looked at the process and said this was a balanced process for balancing the competing needs of the state and the individual, and that the rights of fundamental justice had been addressed in this area.

Since that time, in January 2002, we've had the cases of Suresh and Ahani that went up to the court. There were other issues that were at stake there. There was a decision on whether or not an individual who was found to be inadmissible should be returned to a country where there was risk of torture, because Canada is clearly a signatory to the convention against torture.

The court, in looking at that issue, made reference back to the process that was described under section 40.1 of the act, which is now section 77. It talked about that in terms of describing the statutory provisions as extensive, and aimed to ensure that certificates under that section were used fairly and allowed meaningful participation of the person involved. So as late as 2002, the Supreme Court of Canada referenced back to that and said that we had a balanced process.

In addition to what the Canadian courts have done with that process, the European Court of Human Rights, in 1996, cited what was then the immigration model under section 39--the Canadian model of judicial control in national-security-related removal cases--as an example of a process that both accommodated legitimate security concerns about the nature and source of intelligence information, yet accorded the individual a substantial measure of procedural justice. You're dealing with two competing interests here, and how do you square the circle?

¹ (1540)

It's my information as well that the United Kingdom subsequently changed their legislation, and in fact they were influenced significantly by the Canadian model in terms of how you address these competing interests.

Given that the certificate security process has been proven to be an effective tool in terms of national security and has withstood constitutional challenges, those provisions in fact were introduced into Bill C-36, the anti-terrorism legislation. We in fact have provisions there dealing with deregistration of charitable organizations that may in fact find themselves supporting activities that are believed to be terrorist activities. So that model was carried forward and you'll see it expressed in various provisions of Bill C-36.

Those are the comments I'd like to make at this time. Now I'd like to turn it over to the director of the intelligence service.

The Chair: Mr. Elcock, carry on.

Mr. Ward Elcock (Director, Canadian Security Intelligence Service): CSIS has a very specific role to play in the security certificate process. Removing individuals who are regarded as national security threats is sometimes the best option for a number of reasons, among which is the fact that there may not be enough evidence for criminal charges, although there may be enough evidence to conclude that the individual is a serious threat to national security. They may not have committed a criminal act, but yet may still. There may be enough information and evidence to conclude that they are a threat to national security and their removal may have the effect of disrupting their network and/or plans.

The preparation and presentation of a section 77 case--i.e., a security certificate case--is generally the responsibility of CSIS, although it's not necessarily limited only to us. CSIS provides both ministers, the Minister of Immigration and the Solicitor General, with a security intelligence report, or SIR, which makes the case for inadmissibility under the Immigration and Refugee Protection Act. Assuming the ministers agree, the signed security certificate, the SIR, and the unclassified summary are then submitted to the Federal Court of Canada. CSIS personnel testify in support of the security certificate in both in camera ex parte sessions and in open court.

Because of the serious implications of issuing a security certificate, the preparation by CSIS of the supporting documentation is both deliberate and rigorous. Several conditions must be met before CSIS even considers preparing a SIR, not the least of which is because of the resource demands. Each one of these cases costs well in excess of $1 million. The individual must be assessed as a significant threat to the security of Canada. CSIS must possess sufficient threat-related information and intelligence to proceed. That information must, in our judgment, be both reliable and from multiple sources. The removal must be of strategic value in light of CSIS's investigative priorities. In other words, you're not going after little fish.

CSIS must have sufficient releasable and open source information to support the unclassified summary document. The SIR must also obviously present a reasonable argument why CSIS believes the individual is inadmissible to Canada as defined in the Immigration and Refugee Protection Act. The preparation of the SIR entails an exhaustive review of all information collected by CSIS in a number of ways. That SIR is a very detailed document whose contents are meticulously facted--and that to us, Mr. Chairman, means that everything we write down is connected to facts that we have solid reason to believe are accurate.

The SIR is prepared in consultation with CSIS's operational branches and legal services and is approved by senior management and by myself. Since 1991 only 27 security certificates have been issued. Clearly, that's not a routine procedure, but a targeted procedure that enables the government to enforce the inadmissibility criteria in the Immigration and Refugee Protection Act in cases where there is sensitive national security-related information.

Since 9/11only five security certificates have been put forward, including that of Mr. Ernst Zundel. They can hardly be viewed in that context as a disproportionate response.

A review of all security certificates demonstrates that while some have been directed against Islamic terrorist extremists, they have also been directed against Russian nationals engaged in espionage, Sikh terrorists, Hindu terrorists, secular Arab terrorists, and a right-wing extremist. Therefore, it would be difficult to argue that security certificates are used against any particular ethnic group.

Let me also add, Mr. Chairman, as I think Mr. Kennedy mentioned, these are not secret trials, as some have alleged. This is hardly a Star Chamber. These are trials in which information that must remain secret is presented, but they are nonetheless not in and of themselves secret. The process sets out to balance the rights of the accused within the necessity of safeguarding those sources and methods by which Canada is protected at the same time as ensuring that Canada can respond to issues of those within our borders who, while not citizens of Canada, seek to use Canada as a refuge or as a place from which they might attempt to carry out other acts.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Elcock.

Ms. Deschênes.

¹ (1545)

Ms. Claudette Deschênes (Director General, Intelligence, Department of Citizenship and Immigration): Thank you.

(Technical difficulty--Editor)...provide it to citizenship and immigration. We then provide it to our minister for signature so that both ministers have read the material and signed off on it. They can be issued against permanent residents, as well as foreign nationals, using foreign nationals as the new term under IRPA--people who are not permanent residents of Canada.

Once both the ministers have signed, foreign nationals are detained automatically while the reasonableness of the certificate is decided by a Federal Court judge. Permanent residents may also be detained on the authority of a warrant that would be signed by both the Solicitor General and the Minister of Citizenship and Immigration. In the case of a permanent resident, he or she must be brought before the Federal Court within 48 hours for a detention review and subsequently every six months until a determination is made on the reasonableness of the certificate.

If at any time a Federal Court judge feels it's not reasonable to detain, a permanent resident will be permitted to leave and go free. To determine the reasonableness, a Federal Court of Canada judge will review all the classified information provided by the Minister of Citizenship and Immigration and the Solicitor General in the absence of the person concerned. The judge will ensure the confidentiality of the information if in his or her opinion its disclosure would be injurious to national security or to the safety of any person.

The person concerned is then provided with a summary of the classified information. This summary is then part of the public record. The judge will also then hear evidence and testimony from the person named in the certificate before making a decision on the reasonableness of the security certificate.

When a security certificate is issued, all other pending immigration proceedings are suspended until the Federal Court makes a decision on reasonableness. The person named in a certificate can make an application for a pre-removal risk assessment, called PRRA, under the new legislation. On request, then, the judge will suspend the proceeding in order for the minister to make a decision on the pre-removal risk assessment. In making a decision concerning the PRRA application, the minister or his or her delegate, depending on the circumstance, will take into consideration the applicant's submissions and assessment of the risk faced by the applicant if returned, and whether the applicant represents a danger to the public or to the security of Canada.

During the processing of the PRRA, the minister may seek assurances from an applicant's country of nationality that the applicant's human rights will be protected upon return. The judge will then review the lawfulness of the minister's PRRA decision and the reasonableness of the certificate. If the judge determines that the certificate is unreasonable, the certificate is quashed and the client can leave detention. If, however, the judge decides that it is reasonable, then the certificate automatically becomes a removal order. The Federal Court decision cannot be appealed, and every effort is made to remove the applicant as quickly as possible. A foreign national may apply to the Federal Court for release from detention if he or she has not been removed from Canada within 120 days after the certificate has been determined to be reasonable.

In conclusion, from the perspective of CIC, the security certificate is only one of the tools available to protect the safety and good order of Canadian society. CIC may also choose to proceed with an admissibility hearing before the immigration division of the Immigration and Refugee Board. A certificate is only issued for removal purposes when there is information that needs to be protected for security reasons.

I will now pass the microphone to my colleague, Assistant Commissioner Richard Proulx, who will speak on the RCMP role in enforcement.

¹ (1550)

[Translation]

Assistant Commissioner Richard Proulx (Criminal Intelligence Directorate, Royal Canadian Mounted Police): Thank you. Mr. Chairman. members of the committee, I am going to do my presentation in French.

I am going to talk to you about the RCMP's role with respect to immigration and Canada's national security. The RCMP plays two roles. As the national law enforcement agency, its main responsibility is to investigate crimes that are a threat to Canada's security. It is also responsible for gathering intelligence on criminal activity, and this helps it to conduct its investigations and to fulfil its protection mandate. The RCMP is determined to gather and analyze intelligence on criminal activity, to prevent and respond to terrorist acts, and to combine its technical and scientific investigation resources with those of its main national and international law enforcement and government partners. In performing its duties, the RCMP works closely with Citizenship and Immigration Canada.

Let's take a look at the relationship between these two organizations. We investigate criminal activities related to immigration and the enforcement of warrants. We are responsible for investigating offences under the Immigration and Refugee Protection Act, the Citizenship Act and the Criminal Code, including offences related to citizenship, passports, fraud, forgery and conspiracy. We work in partnership with Citizenship and Immigration Canada; I will say more about this relationship in a moment. We also work with major international partners; Interpol is a good example of that.

Over the years, the working relationship between the RCMP and Citizenship and Immigration Canada has evolved into a truly integrated partnership. The way events have unfolded in recent years has given rise to a greater convergence of interests between Citizenship and Immigration Canada and the RCMP, particularly in the areas of organized crime, terrorism, war crimes, economic fraud and criminal intelligence. The RCMP and Citizenship and Immigration Canada share enforcement responsibility for the Immigration and Refugee Protection Act and the Citizenship Act. Their partnership has grown to include the following : exchanging intelligence, communications, research, fingerprinting and verification, intelligence and fake documents, investigations and prosecutions as well as RCMP presence at citizenship ceremonies.

A recent report of the Auditor General pointed to the need for a renewed relationship between the RCMP and Citizenship and Immigration Canada. The memorandum of understanding defines the working relationship between the two organizations. It sets out a working framework for cooperation and communication with respect to common activities and interests, and includes a mechanism for regular review of the relationship, and conflict resolution. The memorandum of understanding has to be flexible enough to allow for regional and local agreements that are responsive to distinct operational realities.

A joint national committee made up of an equal number of members of the RCMP and Citizenship and Immigration Canada was struck under the memorandum of understanding. Members of the committee will act and make commitments on behalf of their respective organizations. Regional and local joint committees were also established under the memorandum of understanding. They are responsible for policy and program implementation in their respective geographic areas. The national joint committee meets at least once a year, or more often if necessary, to examine and evaluate activities. This year's report will soon be completed.

Thanks to funding for the Public Safety and Anti-Terrorism initiative, the RCMP and Citizenship and Immigration Canada have set up integrated enforcement teams for the Immigration and Refugee Protection Act in Montreal, Vancouver and Toronto. The mandate of these teams is to reduce threats to Canada's security by classifying outstanding immigration warrants in order of priority, by apprehending wanted persons and by ascertaining threats to national security. The teams are divided into three different geographic areas, and each area has its own issues. The teams actively communicate with one another if there is an immigration problem or situation that might go beyond the limits of their territorial jurisdiction. All relevant operational intelligence is shared quickly and entered into the appropriate bases.

¹ (1555)

The overall goal of the Immigration Act integrated enforcement teams is to detect, locate, question and apprehend people who could pose a threat to national security after entering Canada illegally. These units have a tremendous capacity to generate and gather intelligence to be used in developing crucial intelligence on criminal activity that may assist investigations related to national security or organized crime. All useful information is entered into the appropriate data bases. These teams are versatile and perform multiple functions, as set out in their mandate.

That concludes my presentation, Mr. Chairman.

[English]

The Chair: Thank you very much. It was a very useful review, at least of the certificate process and the work of your various departments and agencies.

I would just note that of the current list of detainees we have seven security certificates, some 23 initially detained under section 55 and section 58. Your presentation didn't go into too much detail on the sections 55 and 58 procedures. Colleagues here may wish to gather more information on that in the questioning.

I'll go, as we usually do, to the official opposition. We'll have initial party rounds of seven minutes each and then we'll go to five-minute rounds.

Mr. Toews.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, and I want to thank the witnesses for attending the hearing.

I want to get the process clear in my mind. One of the witnesses made the statement that when the security certificate process commences, the immigration and refugee applications, if there are any, are then suspended. Is that correct?

Ms. Claudette Deschênes: That is correct.

Mr. Vic Toews: Following the conclusion of the security certificate process, can those immigration or refugee applications be recommenced?

Ms. Claudette Deschênes: If the certificate is found to be reasonable then it's an automatic removal order and the processes do not recommence. So we're moving then to deport someone.

Mr. Vic Toews: So those processes are no longer available to the subject matter of the certificate process.

Ms. Claudette Deschênes: That is correct.

Mr. Vic Toews: So that's the refugee and the immigration process. What about pending criminal applications, what happens to those if we intervene with a security certificate process?

Mr. Paul E. Kennedy: The two are actually two separate issues. The criminal process will continue. Normally a judgment has to be made as to which of the tracks you wish to proceed down. Clearly if there's a minor criminal issue at stake and deportation is available to you, that may be the route you are going to proceed with.

We also have other cases where a person is illegally in the country and has engaged in a crime for which a significant penalty would be imposed. Those people in fact are tried, convicted, and incarcerated. Normally when it comes up to their parole eligibility, at that period of time usually their departure is expedited from the country, but they serve their time.

We have had Charles Ng, who would be a classic case of someone who is wanted in another jurisdiction and was tried, sentenced, and served time in Canada. In that case I think he was extradited back to the United States.

So you have to make a judgment on the level of criminality and what you're going to achieve.

º (1600)

The Chair: If I may, on a real technical matter, logistical really, we're advised that the microphones currently being used by the witnesses are not able sometimes to be operated independently. So our controller wishes to advise that you should consider yourselves on-mike all the time. Secondly, don't try to turn it off, because it might have the unintended result of turning off the other mikes. So just let the controller operate the mikes. Thank you.

Mr. Vic Toews: Thank you very much.

Arising out of those answers, then, when a subject of one of these certificate processes is convicted of a criminal offence, the certificate stays valid indefinitely and that judge's removal order stays valid indefinitely?

Mr. Paul E. Kennedy: I don't believe we've had an instance where the certificate process has occurred in the instance you're talking about. I can only recall of one incident, the Chiarelli case itself, where an alleged member of organized crime activity, who was not charged with criminal activity in Canada, was found to be a member of organized crime, so he was an inadmissible person in the country. A certificate process was used because there was classified information that had to be protected. In that case, the certificate was upheld and he was removed from the country.

Mr. Vic Toews: So without proceeding, then, on any particular criminal charges.

Mr. Paul E. Kennedy: No, because he had not committed a crime in Canada.

Mr. Vic Toews: Perhaps it's still a moot point, but what are the criteria then that would determine whether or not you would proceed on a criminal proceeding? Does it have to be a drug offence, a serious sexual assault, a violent assault of other sorts?

Mr. Paul E. Kennedy: I don't know. Would you know, Richard?

A/Commr Richard Proulx: If a person has committed an offence, of course, we'll consult with the crown prosecutor, who will decide to lay criminal charges or not.

Mr. Vic Toews: I have one other brief question. After the judge finds the certificate reasonable, or deems it reasonable, there was a statement made that there is no appeal of the order, but that doesn't preclude judicial review, does it?

Ms. Claudette Deschênes: Yes, it does preclude judicial review under the new Immigration and Refugee Protection Act.

Mr. Paul E. Kennedy: Maybe we could add one thing, because I made reference to a number of Supreme Court of Canada cases.

Clearly there is an ability, and there has been a right exercised by individuals, to challenge the constitutionality of various precisions and decisions taken, and that has occurred. One was about whether or not the proceedings were actually fundamental justice. Another one was a subsequent decision by the Minister of Immigration. Once there was a certificate she was asked to exercise her discretion not to return a person to a country in which they may face a risk of torture. That process and the decision-making there was subject to a charter challenge. So there are always ways, certainly, in which the charter can be invoked, and those things have in fact gone up to the Supreme Court of Canada.

Mr. Vic Toews: But generally speaking, no writs or orders or whatever we call them--certiorari, mandamus, habeas corpus--are applicable to this kind of proceeding, then.

Mr. Paul E. Kennedy: I'm at pains to say “never say never”. The regime doesn't contemplate that, but they have had collateral attacks, bringing actions in other courts. As a former lawyer, you know how hard it is to deter lawyers from pursuing remedies. So the legislation doesn't conceive of an appeal from the decision of the Federal Court judge who sustains the reasonableness of the certificate, but there are always collateral attacks on the process that do occur from time to time.

Mr. Vic Toews: All right, I'll leave it for now and perhaps we can continue on with someone else.

º (1605)

The Chair: Thank you, Mr. Toews. We're almost right on time.

Monsieur Laframboise, for seven minutes.

[Translation]

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you very much, Mr. Chairman.

You really stressed the fact that the rights of the State need to be protected when they come into conflict with individual rights, probably because some people have gone to court. You stressed that, Mr. Kennedy, in your presentation. There is something that worries me. In your text, you make a point of saying that it is not a matter of secret trials, but these people are individuals! The procedure for issuing security certificates affects foreign nationals or permanent residents. My question on individual rights is the following : at what point in the process is the individual questioned? Is he or she questioned? Does anyone speak to the person?

Ms. Claudette Deschênes: I will answer the question as far as immigration is concerned. When a case is argued in federal court, a summary is prepared and given to the individual once the judge has studied the classified information and decided whether the information must remain confidential for reasons of source protection or because of the way the information was gathered. The judge may speak to the person, who may call witnesses to present his or her version of the facts. The summary that is given to the individual explains why he or she is felt to be a danger to Canada's security.

Mr. Mario Laframboise: Given that we are all entitled to make full answer and defence, can the individual be accompanied by a lawyer who can examine and cross-examine the witness and even ask the RCMP questions? Is the procedure the same as what any citizen is entitled to? Is it a similar procedure?

[English]

Mr. Paul E. Kennedy: Yes, the regime is very exhaustive. If I can make simple reference to you, I have the case here of Suresh and the Supreme Court of Canada. In a document at page 9 it says “In August 1997, after 50 days of hearings...”. So what you have is an actual full hearing in a court. The individual is represented by counsel. They cross-examine the witnesses the state provides. They lead their own evidence. They have extensive submissions. In that one particular case the hearings lasted 50 days.

It is like an ordinary proceeding. The only difference we have is that we go to the judge in camera to say: “Judge, there are certain provisions in here that are classified, and if they are released publicly they will damage sources, ongoing investigations, techniques or confidential relationships. Will you edit those things out judicially and provide a judicial summary that can be provided to the other side?”

So that's the balancing that occurs. Once that occurs, then the other things are.... Witnesses take the stand, they testify under oath, they're cross-examined, and the person and his counsel can be as vigorous as they wish in terms of the conduct of those proceedings.

[Translation]

Mr. Mario Laframboise: If I understand correctly, there is automatic detention once the security certificate is issued in the case of a foreign national, and it's on a case-by-case basis for permanent residents. Can you give some concrete examples of cases involving permanent residents? What kind of detention is involved? Can you give some examples of how you might proceed?

Ms. Claudette Deschênes: I'm not sure I understand your question.

Mr. Mario Laframboise: I'm referring to page 7 of your report.

Ms. Claudette Deschênes: I can't give any concrete examples. Since I began working on this kind of case, detention has always been sought for permanent residents. However, even though a security certificate was issued in the Suresh case, he is not currently in detention; he has been released, but on condition that he report to immigration.

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Mr. Mario Laframboise: Is Suresh a permanent resident?

Ms. Claudette Deschênes: Yes.

[English]

The Chair: Thank you, Monsieur Laframboise.

We have three seven-minute rounds to go. I'd like to go to Mr. McKay for seven minutes, then Mr. Clark, then Mr. Nystrom for seven.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair, and thank you, witnesses.

This Parliament, or maybe it was the previous Parliament, passed Bill C-36, which caused us all a lot of angst, and yet in this instance you chose not to use the provisions of Bill C-36 and to resort to the provisions in the Immigration Act. What's the reasoning behind that decision?

Mr. Ward Elcock: I'm not sure which instance you're referring to, the security certificates, the 27...?

Mr. John McKay: Yes, all of these folks.

Mr. Ward Elcock: All of these individuals are foreign nationals or landed immigrants. None of them are Canadian citizens.

In many cases there is information that allows us, as I said in my remarks, to conclude that the individual is a national security threat because of what we know about them, their connections to various individuals or organizations, etc. But they may not yet have committed a criminal act. If you think of the 19 terrorists who carried out the attack on the World Trade Center, I don't think any of them had committed a criminal act before they drove the airplane into the building. So in some cases to deal with people you know are a threat, particularly when they're not citizens of Canada, have not yet reached that stage in securing status in Canada, they can be removed.

Mr. John McKay: I'll put the question another way. If these people, all or some, were citizens of Canada, would you have had to resort to Bill C-36?

Mr. Ward Elcock: If all these individuals were citizens of Canada, absent the situation where you could demonstrate that somebody had secured their Canadian citizenship fraudulently or whatever, the only course you could pursue would be to look at the provisions of Bill C-36.

Mr. John McKay: So there's nothing really that precludes your using Bill C-36 against people who are refugees or landed immigrants, non-citizens if you will?

Mr. Ward Elcock: No.

Mr. John McKay: Does going the route of the Immigration Act give you an array of remedies greater than Bill C-36 would otherwise give you?

Mr. Ward Elcock: No, it simply gives us a remedy in respect of somebody who's not yet a citizen of Canada. The acquisition of citizenship of Canada is by definition something many people aspire to. It's a right many people would like to achieve. If one has not yet achieved that position, one doesn't get the protections of the status, and the Parliament of Canada has provided that people who are regarded as a threat to security or indeed who are members of organized crime groups, for example, can be removed from the country.

Mr. John McKay: Is the risk assessment or the preparation of the certificate any different and is there any difference in the preparation of the case when you're dealing with a citizen as opposed to a non-citizen?

Mr. Ward Elcock: There would be some substantial differences in terms of a criminal prosecution under Bill C-36 and this procedure, yes.

Mr. John McKay: So potentially it sets a higher standard under Bill C-36 than it does under the Immigration Act.

Mr. Ward Elcock: In respect of a citizen of Canada, the standard would be higher under a Bill C-36 prosecution.

Mr. John McKay: So in some respects it's almost a no-brainer when you're dealing with a non-citizen to use the remedies of the Immigration Act.

Mr. Ward Elcock: It depends, as Mr. Kennedy pointed out with respect to some criminals, and the same could be said of some individuals who have terrorist connections. There may be cases where you believe they should be tried in Canada. There may be cases where they have committed crimes elsewhere, they are wanted for crimes elsewhere, or they are suspected of crimes elsewhere where you may want to deport them. It's not an up and down judgment. You have to look at each case and come to a conclusion.

Mr. Paul E. Kennedy: May I add something to help you a little bit?

One of the things we tried to do when we put Bill C-36 forward was to provide the state with a range of tools, one of which was criminal prosecution. Others dealt with terrorist financing and another was obviously the removal process we had.

But one of the things you cannot criminalize retroactively is activities. As of December 24, 2001, terrorist activities were defined and a certain mens rea was put in place that allowed us to say that is a terrorist offence, and we could prosecute for it. That did not apply prior to this date, so activity before that would not have been captured.

The other issue is, you can remove people who have yet to commit criminal activities in Canada under the Immigration Act, so it's a proactive tool. The evidentiary levels and standards are different. Under the Criminal Code it's beyond reasonable doubt; here it's whether or not there are reasonable grounds to believe.

The evidence you leave in court is viva voce, prima facie evidence. We've given the ministers the ability here to use hearsay evidence, not classified and not subject to the normal techniques. There's a whole range because there are different interests that are engaged in terms of a criminal trial and the stigma of incarceration as opposed to that person being removed from the country.

The courts themselves have looked and said these are different scales, and if you're a citizen even, the regime that's in place is different from the one for a person who is not entitled to be in the country, as opposed to a citizen who is in the country. So there are different standards, different rules of evidence, and different remedies you avail yourself of, depending on the facts of the case.

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Mr. John McKay: So were you given the choice, you would almost always go to the immigration remedy, as opposed to the Bill C-36 remedy.

Mr. Ward Elcock: No, not necessarily.

Mr. John McKay: No? Give me an example of when you would prefer to use--

Mr. Ward Elcock: The difficulty, Mr. Chairman, with a hypothetical example is, who knows? You can construct endless hypothetical situations, and I don't want to get into the business of trying to invent hypotheticals because you can always pick holes in the hypothetical. What we look at are real cases, real individuals, real connections, and real terrorist organizations, and we make a judgment about what is the best way to handle each particular case.

I don't make them on the basis of we have a list of hypothetical cases, and it slots into this one or it slots into that one, and we'll go in this direction or that direction. We look at each case and make the judgment about how one should best proceed in each particular case.

The Chair: Thank you, Mr. McKay.

We'll have Mr. Clark for seven minutes.

Right Hon. Joe Clark (Calgary Centre, PC): Thank you.

Mr. Elcock, you replied to Mr. McKay very emphatically. Something must guide you in making the decision as to which remedy you would use. Can you elaborate? I'm not inviting hypotheticals, but I am interested in what led to the very emphatic response you gave.

Mr. Ward Elcock: My emphatic response was simply that one could not simply say we would always prefer to do an immigration deportation rather than a criminal prosecution. The reality is, it would depend on looking at the specific case and coming to a conclusion about what the facts of the case were, what evidence you could bring to that particular case, how effective that evidence was going to be, how good it was, and whether you could make a case on either side.

Mr. Joe Clark: I think the committee is interested in knowing the criteria that guide decisions of this kind, and if you could help us at some subsequent time in indicating what might guide those decisions, I'd appreciate it.

You said, I think, that the majority of the section 77 cases were initiated by CSIS. Who else would initiate them?

Mr. Ward Elcock: I think the RCMP may have done some under the criminal provisions; it's conceivable that the RCMP could initiate one.

Mr. Joe Clark: Have there been instances in the period 1991 to now when a minister has declined to accept the recommendation to proceed with a certificate?

Mr. Ward Elcock: I can't remember a case where we've put a certificate forward and a minister has said no.

Mr. Joe Clark: You would remember one if it had occurred.

Mr. Ward Elcock: There might be, Mr. Chairman.

Mr. Joe Clark: So there hasn't been one.

You indicate that your information--I'm on page 5 of your document--comes from reliable, multiple sources. Can you elaborate a little bit on multiple sources? What I'm getting at is I presume these are different types of sources; they're not different members of the same family.

Mr. Ward Elcock: No, Mr. Chairman. The information we would have could be information from foreign services. It could be information from our own wiretaps and other operations we might have run. It could be information from human sources. It could be information from our own investigations abroad. It comes from a variety of sources.

Mr. Joe Clark: And you don't proceed unless there has been information from more than one genre of source?

Mr. Ward Elcock: That's right. I think there's a perception, and I've seen some committee hearings before where some seem to believe that we operate on the basis of secret denunciations rather like the committees of citizens did back in the days of the French Revolution. We don't. If we don't have enough information to justify a proceeding against an individual, we don't proceed.

º (1620)

Mr. Joe Clark: How serious a limitation is it to have to have sufficient releasable and open-source information to justify an application for a certificate?

Mr. Ward Elcock: It's important, Mr. Chairman, because the judges will want and have always wanted to make sure as much information as possible is released to the individual. They would like the process to be as open as they can make it, and we've certainly sought to live with that requirement from judges.

The reality is, in some cases we may not be able to do it. The reality is, in some cases we may be able to bend over backwards and do it. The reality is, in some cases we may find a way to do it. How far we would go would depend, again, on the nature of the case, the weight of the evidence, and the seriousness of the case, and again, you have to make those judgments on the specific cases.

Mr. Joe Clark: Have you ever not proceeded with a certificate because you could not find sufficient...?

Mr. Ward Elcock: No.

Mr. Joe Clark: I don't want to quarrel with words, but I noted that there was a slight difference between what is written on page 6 and what you said, in that you talked about Sikh terrorists and secular Arab terrorists, and then you said “a right-wing extremist”. I wonder if that was advertent or significant. The right-wing extremist, I presume, is Mr. Zundel.

Mr. Ward Elcock: That's correct.

Mr. Joe Clark: Was that an exceptional circumstance? Do you anticipate there will be other actions taken on the basis of extremism? And how do you define extremism?

Mr. Ward Elcock: One could easily characterize some of the other individuals as terrorists or extremists, whichever one you wanted to choose. “Extremist” can cover a fairly wide variety of sins.

Mr. Zundel is certainly a widely known and a very serious extremist on the right-wing side. I'm not sure I would go so far as to call him a terrorist, but an extremist he certainly is.

Mr. Joe Clark: Madam Deschênes, you indicated that occasionally these would be signed by the minister's delegate. Who's the minister's delegate?

Ms. Claudette Deschênes: I'm speaking about the pre-removal risk assessment. The certificate would always be signed by the minister.

Mr. Joe Clark: There's an indication that three of the security certificates have been quashed. Are those the only three that have been quashed since 1991?

Mr. Ward Elcock: Yes. I think one of those is the first Jaballah hearing. So in effect only two have been finally quashed.

Mr. Joe Clark: When judges are making their decisions with regard to applications, is there a set of criteria by which they come to that decision, and is that public or publishable?

Mr. Ward Elcock: I'm not aware of--

Mr. Joe Clark: You're not going to second-guess judges?

Mr. Ward Elcock: No, I'm not in the business of second-guessing judges. I'm not aware of any set of standards that they apply to these cases, apart from what has been in their various judgments and is therefore in essence a public document.

Mr. Paul E. Kennedy: By the way, it's done in other fora as well. If there is a criminal trial where we have a wiretap application, it can be reviewed by the trial judge. The judge looks at the affidavit file in support of the first application, and the judge does the same thing: he edits out and decides what can be provided or not. So this editing function is done. In Bill C-36 there's an amendment to the Canada Evidence Act to give the judge that kind of power. Previously, we'd say it can't be disclosed for national security reasons. What was happening was that everyone was denied access to it. So we've given the judges the power to create these summaries, and that can be used right now in a criminal proceeding where classified information occurs as well. We trust our judiciary to do the right thing.

The Chair: Thank you, Mr. Clark.

Next is Mr. Nystrom, for seven minutes.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you very much, Mr. Chair.

What would be the average length of time between when a foreign national is detained under the security certificate and their case would be reviewed by a federal judge?

Mr. Ward Elcock: I can't give you a precise period of time, but the period of time between somebody being detained and being dealt with by the court is relatively short in the scheme of things. It's not a long period. From then on, to some extent, at least in the court proceedings, it's really a matter of the court calendars and the positions taken by the counsel for the defence, who obviously needs time to prepare and so on.

º (1625)

Mr. Lorne Nystrom: Can anybody else add anything to that?

Mr. Paul E. Kennedy: I think there's a seven-day requirement in the act. When the application is made, the materials are referred to the judge right away. In terms of when the person is arrested, I think there is a first appearance within seven days. So it engages the court process very quickly. Mr. Elcock is correct about what happens after that. Then it depends on counsel asking for an adjournment to prepare or to line up other witnesses, just as you would in any adversarial process.

Mr. Lorne Nystrom: You say it's a relatively short period of time before the trial. How many weeks or days are you talking about?

Mr. Ward Elcock: Again, once you're into that, you're into how long the defence needs to prepare, and that's essentially beyond our control.

Mr. Lorne Nystrom: In terms of your experience with the certificates when the people go to trial, do you have problems in terms of charter rights because of the speed of the process?

Mr. Ward Elcock: I don't recall a case where the issue of a speedy trial has been raised. There have been some concerns about the deportation process itself after the decision has been made that the certificate is reasonable. If my memory is correct, there was some question about constitutionality, but it hasn't been raised in any of the trial processes that I'm aware of.

Mr. Paul E. Kennedy: Going back many years, I'm sure we've had ones where people have asked for habeas corpus, to be released because there are no bail provisions and case law as to whether or not the judge could release you on bail.

There's the case of Mr. Ahani, who was an alleged Iranian assassin. He'd been around for many, many years. After the certificate was upheld, he pursued it to the Supreme Court of Canada through a series of hearings on all sorts of things. I think his is the only case where there was a significant period of time, and in that instance it was due to the series of challenges in order to stay in the country and not go back to Iran.

Mr. Lorne Nystrom: Is the time within which these people are dealt with reasonable, in your opinion?

Mr. Paul E. Kennedy: The legislation is geared to enforce the state once a certificate is signed and the person is arrested, to get the matter before a judge expeditiously and to get it before a judge in an open hearing expeditiously. After that, it would be no different from your being arrested on a serious criminal charge, if you were before the court. The courts have mastering control of the process and they will look to counsel when counsel is ready. Clearly they're not going to force a counsel on for an individual who's not prepared to go, and prejudice his or her rights. That's a normal dynamic of a court process.

Mr. Lorne Nystrom: It seems to me that one of you said that some information is kept in camera. How would you determine what information needs to be protected in camera?

Mr. Ward Elcock: It's a case of us saying to the judge in a particular case that there is certain information that needs to be kept in camera. That may be information that would identify human sources. It may be information that would identify other investigations. There are a variety of things that would cause us to say to the judge that it would be inappropriate and it would be damaging to national security if this information is revealed. It's then up to the judge to decide whether in fact he agrees with us or disagrees. And we have some discussions with judges periodically on these subjects. If he agrees with us, then it would be the case of putting forward a summary of that information to the individual. That would be included in the papers they had, which would give them some sense of what the information was but would not identify, for example, a human source or whatever.

Mr. Lorne Nystrom: So you do have a list of criteria. The judge makes the decision. Have you built up a caseload of this over the years, or is each case really an individual case?

Mr. Ward Elcock: No, I guess I would approach it more like this, Mr. Chairman. There are certain things we need to protect. Yes, if judges begin to decide that sort of thing does not need to be protected, then obviously our view of what needs to be protected would change slightly. Generally speaking, it's really what it is we need to protect, and that really comes down to sources and methods.

Mr. Lorne Nystrom: My last question would be on the assurance that the individuals have rights to a public trial. Is there any infringement upon that in any way because of the criteria, or is that protected by the judge in terms of his decision or her decision?

Mr. Paul E. Kennedy: Well, as I indicated, we've obviously appeared before Parliament. The Supreme Court and Parliament gave us these powers. They've been around for a significant period of time. They've been challenged and they've gone up to the Supreme Court of Canada. The Supreme Court of Canada says they are consistent with the charter, and they've been used as models by other jurisdictions. I don't know who's left to go to to give us some assurances that we have in fact struck the right balance in terms of competing interests. There's no one left to turn to to give us a Good Housekeeping seal of approval.

People who obviously don't like these things are going to complain about it. People who want another piece of information that you don't provide will say “I can't have a fair trial unless you give it to me”, but the courts have recognized and articulated that there are competing state interests. The state interests are ones that allow the state agencies to protect the public. If those things are disclosed, your investigative capacity disappears. If your investigative capacity disappears, the public is at risk.

That's what the courts have recognized. These things have to be protected. They said it is not essential for these people to know these particular things, to know the case they have to face and the allegation, and to respond to it. They've spoken right to it.

º (1630)

Mr. Lorne Nystrom: I have one last question, Mr. Chair, I'd like to ask the director of CSIS.

Many years down the road, when you're retired and sitting in a rocking chair, when you're starting to think back, would you think that CSIS had too much power in this regard or not enough power? Could you take us into your confidence? We certainly won't tell anyone.

Mr. Ward Elcock: In this respect, Mr. Chairman, this is a very onerous process for us. On the process we go through in terms of generating the documents we do in making sure they are “facted”, in making sure they're built on as solid evidence as we can collect, I think my people have done a tremendous job in each of these cases. As I said, they're enormously resource-intensive. By the end of it, it costs us well in excess of $1 million to do one of these cases. These aren't fly-by-night, built-on-one-accusation cases. It's expensive. It's difficult. It's onerous.

We have proceeded on the cases we've proceeded on because we've made a judgment in those cases that the individuals are serious threats and that we need to proceed.

The Chair: Thank you, Mr. Elcock and Mr. Nystrom.

I'll look to Mr. Sorenson. As an accommodation to our official opposition, Mr. Toews is going to use Mr. Sorenson's time.

Is that okay?

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I didn't know I had time. He was going to finish off, but I can ask a question.

The Chair: Whatever you think, Mr. Sorenson.

Mr. Kevin Sorenson: On the $1 million resourcing before you issue a certificate, explain that. I got that wrong already, I can tell by your response.

Mr. Ward Elcock: No. Ultimately, many of those cases--

Mr. Kevin Sorenson: (Inaudible--Editor)

Mr. Ward Elcock: Each one is going to be different. It costs us a different amount each time.

Mr. Kevin Sorenson: What about time? In some of these certificates that have been issued, when you take it for granted they're foreign nationals, they're in the country, and all of a sudden, obviously, you believe there's a risk and you have to issue a certificate, what's the timeline usually?

Mr. Ward Elcock: I don't have a hard and fast timeline for you. It's a matter of some weeks. But remember, in most cases this is information we've been collecting for a period of time. In some cases it may be information we've been collecting for a period of years in respect of a particular target, a particular individual or a particular group. So in a sense you could argue that it goes back even further than the decision to start the SIR in respect of a specific individual and actually prepare that document. When we actually have to write an SIR, it can be done relatively quickly, depending on what we have in our files, depending on the information we have, depending on how many other places we have to go and check, and so on.

Mr. Kevin Sorenson: Do you ever hesitate--

Mr. Ward Elcock: It's a very individual thing. All I meant by the million dollars is these are substantial cases, and in many of them it will cost us, in terms of the resources we throw at it and the costs we incur in doing it, a substantial amount of money.

Mr. Kevin Sorenson: Are you ever hesitant to make that filing for application of the certificate--you recognize that you need to do it as quickly as possible but you feel that you don't have the resources to bring before the judge?

Mr. Ward Elcock: No. In those cases where we believe that we need to proceed by way of a security certificate, we've gone ahead; we have not drawn back because we didn't have enough money to do it or whatever. It has been, I think, an effective process. While it is expensive and onerous, it is nonetheless effective and therefore an important process.

Mr. Kevin Sorenson: Earlier--and I'm not 100% clear on exactly who it was who was referring to it--you were talking about deciding whether the charge would be laid in Canada or it would be sent back to another country. It may have been dealing with a criminal charge. Is that what you were referring to? The certificate is something different, but you were talking about a criminal charge?

º (1635)

Mr. Ward Elcock: No. I think the question I was asked was whether we would always, in the case of an immigrant or foreign national, proceed by a security certificate, which leads to the deportation of the individual, as distinct from trying, with the RCMP, to put together a Bill C-36 case, under the terrorism legislation, to actually prosecute somebody, and I simply said there isn't an absolute up or down. Yes, there will be many cases where we will proceed by an SIR. It is conceivable that there will be cases where we would proceed by a criminal prosecution, and we would obviously have to proceed by a criminal prosecution if it was somebody who had Canadian citizenship.

Mr. Kevin Sorenson: Is it ever a consideration what sentence this individual may get in a foreign country, as compared to Canada? Is that part of the rationale for dealing with it here or sending it back?

Mr. Ward Elcock: In some cases they may not have committed any crime anywhere else, so they may not be sentenced to anything anywhere else. The issue is deporting them from Canada.

The Chair: Thank you, Mr. Sorenson.

Mrs. Jennings for five minutes.

[Translation]

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chairman.

Thank you for your presentations. I think my colleagues have adequately covered the issue of security certificates, the number of people, the number of security certificates that have been issued since 1991, the number of certificates upheld by the court, under what conditions, etc.

There has been a lot of media coverage of Project Thread, and it seems that none of the individuals were arrested and detained under a security certificate, since their names are not on the list we were given that was updated September 23. So it was done under the provisions of the Immigration and Refugee Protection Act.

In addition to arguing that the act is unfair and opposing it, council for some of the detainees have claimed that there has been abuse of certain powers. I am well aware of the current system for dealing with complaints of abuse of authority.

In the case of the RCMP, there is the RCMP Public Complaints Commission, as well as the RCMP External Review Committee. There is another committee, the SIRC, which has quite a review power. I would like to know what there is for immigration. Where can a person turn if he or she feels that powers of arrest were exercised abusively or illegally, whether or not the act is fair or there is any evidence? What independent review mechanism is there for people to make complaints?

Ms. Claudette Deschênes: I would answer that the current system is always reviewed by independent decision-makers.

[English]

If we arrested someone and are detaining them, we have to provide our case to an independent member in front of the Immigration and Refugee Board, which is one process to ensure that we are doing things according to the act, and so on.

CIC does not have an independent overseer of the department. So if there were a feeling that we had arrested unfairly, they would have to take us to civil court. They would take us to court for abuse of power. There is not an oversight--

Mrs. Marlene Jennings: There's never been any discussion about putting into place an independent system of oversight of CIC, given that CIC has what people would characterize as police powers, policing or law enforcement powers, whereas CSIS and RCMP have that oversight? That's a real issue. That's what you see in the paper all of the time.

Take away the argument that we are opposed to Bill C-36 or we are opposed to immigration officials having law enforcement powers, take away that whole argument. Simply on the actual application of those powers, there are continuously allegations in the media and in the public that they've been used in an abusive fashion by immigration official agents.

Has there ever been any debate within CIC about whether or not it might be a good thing to have some kind of independent oversight that helps to deal with that perception--and the perception may not be rooted in reality--in the same way CSIS and RCMP have those oversight bodies?

º (1640)

Ms. Claudette Deschênes: I would make sure we all understand that in the cases we're talking about, they were arrested by the RCMP, which could be overseen. I think, from the perspective of the department, every one of our decisions is open to judicial review and review by an independent body. I think that at this moment we feel there are sufficient guarantees and checks and balances.

Mrs. Marlene Jennings: Thank you.

The Chair: Thank you, Ms. Jennings.

I'll look to Mr. Wappel for five minutes.

Mr. Tom Wappel (Scarborough Southwest, Lib.): Thank you, Mr. Chairman.

I'm wondering, did the witnesses provide us with this list? Yes. Okay, thank you.

I have a couple of questions on it, if I may, before I turn to something else. What does the word “pending” mean?

Mr. Paul E. Kennedy: Which word?

Mr. Tom Wappel: “Pending”. It's in relation to three cases--

Mr. Ward Elcock: All it means, Mr. Chairman, is that the process of deportation has not yet been completed.

Mr. Tom Wappel: But all court applications and everything are finished and it's just a matter of the deportation.

Mr. Ward Elcock: In both cases the certificate was found to be reasonable.

Mr. Tom Wappel: And there are three that are currently before the court and then one that's being reviewed by CIC. Why is Suresh being reviewed, because of the statements in the court decision, or why?

Ms. Claudette Deschênes: Because of the Supreme Court decision that said we had to provide the applicant an opportunity to make his case concerning his fear of returning to his country.

Mr. Tom Wappel: And that's been around for a long time, one of the older cases.

Anyway, what I note is that about three of them were quashed, so you have 10% quashed--more or less--90%--

Mr. Ward Elcock: In effect, only two, Mr. Chairman.

Mr. Tom Wappel: I beg your pardon?

Mr. Ward Elcock: In effect, only two were quashed.

Mr. Tom Wappel: Yes, you said something about that earlier, Mr. Elcock. Could you just clarify that? You were talking about the first case, Sarah Smith, or Joseph Smith?

Mr. Ward Elcock: No, the first certificate taken against Mr. Jaballah was dismissed. We took a second certificate back against Mr. Jaballah and the court found it was reasonable.

Mr. Tom Wappel: Is he on this list twice? Yes, he is.

Mr. Ward Elcock: Yes, he is.

Mr. Tom Wappel: I thought I counted 27, so the 27 would include him twice, basically. I've got it. Thank you.

Could any of these individuals have been picked up under section 55?

Mr. Ward Elcock: Mr. Chairman, section 55 is not a provision we would have anything to do with.

Mr. Tom Wappel: Can anybody there answer that question?

Mr. Ward Elcock: In point of fact, we proceeded against them under the provisions of section 77--probably 40(1), the original section--because we believed they were a serious threat and we set out to remove them, to secure deportation of those individuals. In a sense, that's using the most effective provision. There are other provisions in the act that allow CIC to take other actions, but I can't comment on what they would need to do.

º (1645)

Mr. Tom Wappel: We have somebody from CIC here who can comment, presumably.

Ms. Claudette Deschênes: Yes, these individuals could have been picked up under section 55 as being a danger to the public, or considered inadmissible to Canada.

Mr. Tom Wappel: So it's a judgment call in each case, is it, as to which section you use, 55 or 77, is that right?

Ms. Claudette Deschênes: Pardon me?

Mr. Tom Wappel: It's a judgment call as to which section you use, 55 or 77, is that right?

Ms. Claudette Deschênes: It's a judgment call in terms of what information we will then use in the process.

Mr. Tom Wappel: This is what I'm trying to get at. Is the judgment call based on whether or not you wish to reveal information?

Mr. Ward Elcock: I think there is some confusion, Mr. Chairman. The section we have something to do with is the security certificate, section 77. When we look at section 77, we would be looking at either removal and conceivably, if we had enough information or evidence, the possibility of securing a criminal prosecution, or advancing toward a criminal prosecution under the provisions of Bill C-36, not under the Immigration Act.

There are provisions that allow CIC to take action in respect of refugees or landed immigrants in Canada that allow them to deal with other situations, particularly perhaps at the border, but that's not something that....The judgment about a criminal prosecution or section 77 is very different from the decisions CIC would take under its own legislation.

Mr. Tom Wappel: Under its own legislation. This is all one legislation, is it not?

Mr. Ward Elcock: It is, but I guess because of the reality that we have the intelligence available to begin the process--it could also be, as I said, the RCMP--we are largely the initiators of any action taken under section 77. It requires a dual signature of the Minister of Immigration and the Solicitor General, but it is generally we who begin the process.

Mr. Tom Wappel: All right, so basically section 77 is used by CSIS initially and section 55 is used by CIC initially. Is that how it generally works?

Ms. Claudette Deschênes: Section 55 would normally be based on an investigation. It may be with the help of our partners in terms of finding something, but normally, yes, CIC would use a section 55.

Mr. Tom Wappel: Thank you.

The Chair: Thank you, Mr. Wappel. Unfortunately, we got to five minutes there.

Five minutes to Monsieur Laframboise.

[Translation]

Mr. Mario Laframboise: Thank you, Mr. Chairman.

Mr. Elcock, how big is the immigration component of your service? Is there a designated number of employees? Immigration makes up what percentage of your operating budget?

[English]

Mr. Ward Elcock: We have a large component of the service, a security screening branch, that does review security clearances for government officials, but also undertakes, on behalf of CIC, review of immigration applications and also does review of refugee claimants in Canada. So a large chunk of our operations is directly related to supporting CIC in terms of specific applications for immigration, refugee claimants, and so on.

[Translation]

Mr. Mario Laframboise: What do you mean by a large chunk? Is it half, 50 per cent, 60 per cent?

[English]

Mr. Ward Elcock: No, it wouldn't be. I can't give you an exact number, but it wouldn't be half. I don't even think it's 30%. Probably a good 60% of our resources would be dedicated to counter-terrorism, so it wouldn't be anywhere near those numbers.

[Translation]

Mr. Mario Laframboise: Do you know how many individuals are currently under investigation? I am not talking about people for whom a certificate has been issued. How many individuals are currently under surveillance? You are building cases against people, do you know precisely how many?

[English]

Mr. Ward Elcock: I can't give you a number. I have said in the past, Mr. Chairman, that we are looking at something in the order of 350 targets and roughly 50 different organizations. I've also said since then on a number of occasions, because that claim quickly became immersed in concrete, that the numbers go up and down on any particular day, week, or month. The reality is that we're always looking at new targets, we're always looking at old targets, just concluding that they're not really a threat, discarding them and looking at others. So on some days it could be as high as 500 or 600 and on other days it might drop to 250.

The numbers are, in some sense, an interesting artifact, but not very relevant to anything.

º (1650)

[Translation]

Mr. Mario Laframboise: Thank you.

[English]

The Chair: Thank you, Mr. Laframboise.

Mr. Clark and then Mr. Pratt.

Mr. Joe Clark: Thanks very much.

Let me take advantage of Mr. Kennedy's and Mr. Elcock's presence to remind me if there are any intelligence gathering or security operations of Canada that are not under the review of SIRC. Are there in National Defence? Are there in Foreign Affairs?

Mr. Paul E. Kennedy: Yes. SIRC's mandate is to look at the activities of Mr. Elcock's organization, because it's within the portfolio of the Solicitor General. And as the chair pointed out, there's a separate organization that's in place to look at the activities of the RCMP. There are other intelligence agencies in Canada. We have the commissioner, obviously, for the Communications Security Establishment, and a former chief justice of the Supreme Court of Canada is the commissioner who looks at their particular activities. So there are others.

I believe the Privy Council Office has produced some sort of little booklet that is an overview of Canada's security intelligence agencies. I don't have it in front of me, but it shows what agencies do what thing in this particular area.

Mr. Joe Clark: Is there any reason why there should not be a more comprehensive oversight function by a SIRC-like body or by SIRC?

Mr. Ward Elcock: At the end of the day, Mr. Chairman, it's not really for any of us to advise on that subject. We exist with the review that Parliament has imposed in the CSIS act. One might well ask whether the kind of review that SIRC does of us is necessarily applicable to other organizations that don't have the same functions or powers as we do, but at the end of the day that's an issue more for ministers and for Parliament than it is for us.

Mr. Joe Clark: Can I go back to Project Thread? That seemed to have arisen almost haphazardly--correct me if I'm wrong--with the information about the Ottawa Business College. Is that impression correct? If not, is there a current practice or plan to gather information about accredited Canadian schools in any more systematic way?

Mr. Ward Elcock: We were not involved in any way in Project Thread, Mr. Chairman.

Mr. Joe Clark: Someone was.

Ms. Claudette Deschênes: I think what I would say is that whenever we have information to lead us to have a concern about a school, we will investigate and do what's necessary. Whenever an applicant, for example, makes a request to go to a school where we have doubts, there are set procedures to follow. In this case, Project Thread, I think it's quite clear that it was not haphazard, that we were investigating, and that there was a framework to it. These people were detained under the Immigration Act because we believe they had violated it and were inadmissible. We detained them because we were concerned that they wouldn't show up for their hearings. After the warrant and collection of information, we also had suspicions that we needed to investigate on the security front.

Mr. Joe Clark: So you followed the individuals in this case. Do you also follow the institutions, or is there any intention to give more attention to institutions that might be considered comparable to the business college?

Ms. Claudette Deschênes: We work very hard with the provincial governments and the universities and academic areas to set up systems and systematic ways. We are continuing to explore ways to ensure that when there are issues, we can follow them up.

Mr. Joe Clark: How do you work with the universities or the provinces? Is it simply with respect to criteria that have to be followed by various institutions? Is there an inquiry into particular institutions?

Ms. Claudette Deschênes: We also, whenever we have issues, do specific investigations of institutions and work with the provincial authorities on that.

Mr. Joe Clark: Is there a requirement on the part of institutions, or a practice, to report information to you that might seem suspicious to them?

Ms. Claudette Deschênes: At this moment in time, there is not.

Mr. Joe Clark: Thank you.

The Chair: Thank you, Mr. Clark.

Mr. Pratt, for five minutes.

Mr. David Pratt (Nepean—Carleton, Lib.): Thank you, Mr. Chair.

My question concerns the list of people who have been dealt with pursuant to the security certificates. It concerns whether or not, in the course of the investigations that would have been conducted surrounding each of these individuals, it would have been essentially standard operating procedure to contact allied American, British, or Australian intelligence organizations to determine what they had by way of information on each of these individuals. Is it safe to say that this is the normal procedure?

º (1655)

Mr. Ward Elcock: We exchange information with a number of services, including some of the services you mentioned, on a regular basis. I'm not sure we would necessarily go to somebody in respect of a specific SIR. In most cases we would have enough information already assembled--some, as I said, from our own investigations, whether in Canada or abroad, some from intercepts we might have done, some from allied information from a wide variety of sources around the world.

Mr. David Pratt: Wouldn't you want to get as much information as possible on each of these individuals? Surely that's what allied intelligence organizations are for, to cooperate with information, especially when it regards terrorists.

Mr. Ward Elcock: If we needed additional information, Mr. Chairman, we would go to them. In most cases we would have sufficient information by the time we decided to do a search, which would come from a wide variety of sources.

Mr. David Pratt: In terms of the mechanics of how contact would be made with other allied intelligence agencies, how would it normally be done? Would it be done by CSIS, or would it be done by Immigration, done by the RCMP...?

Mr. Ward Elcock: Normally it would be done by us.

Mr. David Pratt: In terms of the flow of information between, let's say, allied intelligence organizations and us—the Canadian intelligence apparatus—on these sorts of things where allied governments are taking actions against individuals pursuant to similar laws that they have in place, how would you characterize the flow of information, in terms of who provides more to whom? Are we getting more than we're giving, or are we giving more than we're getting?

Mr. Ward Elcock: I don't have a specific answer for you. I'm not sure we have ever sat down to do a direct comparison, but we share an enormous amount of intelligence, collected either in Canada or abroad, with our allies.

Mr. David Pratt: Surely you have general impressions after going over the files.

Mr. Ward Elcock: The reality, Mr. Chairman, is that there are organizations that are bigger than us and there are organizations that have a broader reach, but in some cases we have a better niche to exploit and better access than some other organizations do, and we can play a bigger role in one area, while somebody else may play a bigger role in another area.

Mr. David Pratt: Thank you, Mr. Chair.

The Chair: Thank you, Mr. Pratt.

If I may, colleagues, I have a couple of questions myself. Mr. Toews had asked for an additional round, and there may be other members who will as well.

Could I ask one of you to briefly walk us through some of the acronyms on the departmental sheet showing the security-related affiliation of each of the individuals under the security certificates? A lot of them we recognize, but what about the GIA on line four? Mr. Elcock is probably very good at this.

Mr. Ward Elcock: GIA is an Algerian organization.

The Chair: Thank you.

PKK.

Mr. Ward Elcock: PKK is a Kurdish organization. It now actually has a different name. I've forgotten what the acronym stands for exactly, but we usually think of it as the PKK, a Kurdish terrorist organization.

The Chair: Thank you.

Then there are two others there, the MEK and SVR.

Mr. Ward Elcock: The MEK is Iranian based and was supported by the Iraqi government and operated largely out of Iraq. You will recall that there were some demonstrations in Canada at one point when they attacked the Iranian embassy. It's an anti-Iranian-government terrorist organization.

The SVR is the Russian intelligence organization.

The Chair: Thank you for that.

Mr. Joe Clark: What about Force 17?

Mr. Ward Elcock: Force 17 is PLO.

» (1700)

The Chair: Thank you.

I'm now going to address the work that would have gone into the second set of detainees, those detained under sections 55 and 58 under Project Thread.

Mr. Elcock has been here many times as a witness, and CSIS certainly has, but as we understand it, the information that CSIS develops on the intelligence side and puts forward is subjected to quality controls all the way through. Within CSIS itself, it has its own processes; plus there is TARC; then you have the Federal Court; then the Solicitor General's sign-off; then SIRC; and then you have this committee; and the inspector general; and it goes on. So we're reasonably assured that CSIS comes forward with a quality intelligence product.

In the sections 55 and 58 arrests and detentions, warrants were required. The information used for those warrants does not all necessarily come from CSIS; it may have come from Immigration Canada, and it may have come from the RCMP. It does not have the same kinds of quality controls, which is the thrust of my question. I don't know who I should ask, but how do Canadians know that quality information is coming through and going forward with the warrants?

I'm assuming these warrants were signed off by a justice of the peace somewhere. Maybe you might indicate that to us too, because that's the only point of check; it's the only pinch-point check on the section 55 arrests.

So could you please provide us some description of how you assure quality, especially in light of the fact that the RCMP is now using the integrated national security enforcement teams, INSETs, which involve local and provincial police forces. So you have information coming in from all over.

Ms. Claudette Deschênes: I just want to clarify that the immigration warrants for Project Thread were issued because we believed those people were inadmissible.

The Chair: Did you issue the warrants, or did a judge issue them?

Ms. Claudette Deschênes: They were immigration warrants.

The Chair: Issued by whom?

Ms. Claudette Deschênes: In terms of detaining them?

The Chair: Who signed the warrants?

Ms. Claudette Deschênes: For detention?

The Chair: Yes.

Ms. Claudette Deschênes: Immigration officials.

So in terms of the detention issue, they were detained because we believed they were inadmissible to Canada and would be unlikely to appear for a procedure or process for us to hear that. That's all the warrants were issued for.

The Chair: Their continued detention, of course, is based on a security suspicion, as I understand it from the press. Is that correct?

Ms. Claudette Deschênes: They are being continued to be detained because they are unlikely to appear, some of them because we have issues about their identity and some because there is a reasonable suspicion that they may be inadmissible on grounds of security and that we need to further investigate. Those are the grounds that are deemed.

That case has been put in front of an adjudicator who is looking at that independently and is deciding yes or no. In three cases, when they looked at those cases they decided no, they should be released on conditions. All the others were found to be warranted to remain in detention.

The Chair: Well, unfortunately I'm out of time, but you know what my next question would have been.

We'll go to additional rounds for members. I have Mr. Toews.

Mr. Vic Toews: Thank you.

Just in respect of the decision of the minister on the PRRA application, the testimony was that the minister may seek assurances from the country of nationality that human rights will be protected upon the return of that individual.

We heard another context, of course, very recently in the press where the Minister of Justice received certain assurances, I believe it was from Trinidad and Tobago, that an individual who was to be sent back to Trinidad and Tobago to face a murder charge would not face a death penalty. That's clearly as a result of a Supreme Court of Canada decision that the minister must seek that assurance if the removal is to be lawful.

In respect of this context, the testimony, as I understand it, is that there can be assurances that human rights will be protected. What standard is insisted upon in respect of human rights? We know with the death penalty it's quite easy: the guy is either hanged or not. But in respect of human rights, it's perhaps a little more difficult, because what we would maybe consider to be an acceptable standard here in Canada is one thing, and what they may in another country view as acceptable is quite another. So not only is there the issue of what is the standard we insist upon, but how do we follow up that this standard in fact is being applied?

» (1705)

Mr. Paul E. Kennedy: I'll try to deal with part of it. Obviously immigration isn't my area, but last night I forsook TV for the opportunity to read a Supreme Court of Canada decision.

Mr. Joe Clark: You didn't watch the Ontario debate?

Mr. Paul E. Kennedy: But I will vote. I will exercise my democratic right to vote.

In the Suresh case--I've got a copy of it here--the court at that time dealt with whether or not Mr. Suresh would be returned to Sri Lanka and whether he would face the risk of torture. The court, to deal with that specific interest, looked at it in the context of fundamental justice and the issues of cruel and unusual punishment.

Clearly, in the context of the death penalty, as an example--or torture, because Canada had signed the conventions against torture and we don't have torture permitted under our law--the things that we find objectionable in Canada, torture, death penalty, and so on, were things that would have come into consideration in terms of what you would seek assurances for.

That case, if you wish to forsake one of your evenings to read it, outlines some of the factors. But at the end of the day, they still reserve to the minister the decision, even in the rare case where the person may go and face torture. And it may be appropriate in balancing competing interests that Canada--the minister--might still appropriately do that. It would be quite unusual, but you could do it, in terms of your primary responsibility is to Canada.

If you're looking at the factor, I think I'd ask myself, is this cruel and unusual punishment that the person is being exposed to, such that it would be an affront to the decencies of Canadians? That might be a criterion. After that.... I refer to Mr. Elcock's statement that you're always weighing competing interests, recognizing, as I said, in the odd case that at the end of the day you might say you do go back because Canadian requirements demand that you go back.

Mr. Vic Toews: I know that here in Canada we've developed judicial interpretations, the principles of fundamental justice, but in order to assure Canadians or the judges that human rights will be protected, is there any standard the minister incorporates in terms of saying, “and by the way, I hope you follow certain guidelines or standards or UN conventions”. Would that be referenced in any particular order?

Then again, the question is how do you follow that up? I mean, once a person disappears into a country of 100 million or 200 million, who knows what happens to them?

Mr. Paul E. Kennedy: Well, I haven't been party to those. I know that certainly Foreign Affairs and the Minister of Immigration--and the case you referred to flowed out of the Supreme Court decision on Burns and Rafay for the Minister of Justice--have to get their assurances that they will in fact honour their commitments to us.

I don't know if Madam Deschênes can add anything in terms of her particular minister.

Ms. Claudette Deschênes: I think what we would say is that we seek to get assurances that our international obligations will be respected. For example, it is surprising that in Hani we were then able to.... We wouldn't systemically be following up in each of these cases, but I think we'd be aware of what has happened.

I mean, we are balancing those two. If there's a risk of torture, we'd be very careful about that, but we'd be balancing with the national interest. Right now the Suresh decision of the Supreme Court is what is pushing us toward what we will or won't be able to do. So it's a new area.

The Chair: Thank you, Mr. Toews.

Mr. McKay for five minutes, and then Mr. Wappel.

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

I thought I heard Mr. Elcock say he had nothing to do with Project Thread. Is that correct?

» (1710)

Mr. Ward Elcock: That's right, Mr. Chairman.

Mr. John McKay: So Immigration Canada detains all of these folks, 23 of them in total--I think a couple have since been released--and it's done on the basis of your own investigation, your own material, correct?

Ms. Claudette Deschênes: Again, I'd like to clarify that in this case we did not issue the warrant because of the security issue. We issued the warrant because these people were illegally in the country and inadmissible to Canada. They had multiple identities and had been involved in fraud with the school.

After that, based on a joint investigation with the RCMP, information came to light that caused us to have a reasonable suspicion that there might be something in terms of security that we needed to investigate. That was the argument we put forth to keep them in detention while we worked with the RCMP and CSIS to find out if there was an issue there or not. What I think we tried to do was balance the right of the individual with ensuring that the security of Canada was well protected. We didn't go out to arrest them for security reasons.

Mr. John McKay: It's just that it's kind of curious that these folks get put into security and yet CSIS has absolutely nothing to do with any investigation of them up until that point. You arrest them on the basis of immigration issues rather than on the basis of security issues.

Ms. Claudette Deschênes: Let me give you another example--

Mr. John McKay: And then after the fact, you say, well, we think there might be some security issues that arise, so you the RCMP, and you CSIS, go and investigate.

Ms. Claudette Deschênes: No, we got information and we said we will detain them, and we will make an argument to detain them for identity, in some cases, and for flight risk; they may not appear for their hearing. As well, for some of them, there were issues there, and we said there was reasonable suspicion, so we wanted to investigate more. That is what is in the Immigration Act and that's what we tried to--

Mr. John McKay: But wouldn't a more comforting pattern of security be that the argument be made prior to the arrest of these folks, that CSIS and RCMP be alerted that these folks are--how shall we say--“behaving suspiciously” in some manner or another? Wouldn't that make Canadians feel a bit more comfort that the three organizations are in fact talking to each other?

Ms. Claudette Deschênes: Well, I would say that when a situation happens, I think we have to judge based on the information we have. In this case, some of the information came after the fact, and caused us to say, okay, let's try to detain them for a little longer while we investigate.

Mr. John McKay: After the fact meaning once you had them in detention.

Ms. Claudette Deschênes: Because of the serious immigration inadmissibility issues.

Mr. John McKay: All right. The irony, of course, is that in Scarborough, Ottawa Business College is about three kilometres from the Immigration Canada offices. In fact, a good baseball man could hit the office. It's just curious that this is going on underneath one's nose.

Thank you.

The Chair: Thank you, Mr. McKay.

Mr. Wappel, for five minutes.

Mr. Tom Wappel: Mr. Chairman, I just want to go back to something here.

Madam, you're making a distinction about security. If I understand section 77 correctly--and perhaps I don't--security isn't the only reason why you might ask for a section 77 certificate. It doesn't have to be security. It can be membership in the Mafia, which one might say is automatically a security issue. But you at Immigration Canada can also pick people up for security reasons as defined in section 55 , which refers to “danger to the public”. And one might argue that would be a security reason, that you want to protect the Canadian populace.

So in Project Thread, you were making a specific point that the person was inadmissible and there were grounds to believe they wouldn't appear. But it's equally possible that you could pick them up because they're inadmissible and because they may be a threat to Canada.

Ms. Claudette Deschênes: In danger to the public, often we would consider criminality issues.

Mr. Tom Wappel: Right, but the wording is “danger to the public”. That's pretty broad, and it can be interpreted in a lot of ways. Again, I'm going back to where I was in my previous questioning. Clearly, very few cases are section 77 cases--27, in fact--and yet there must be many section 55 cases, and many immigration warrants, picking people up. So somebody has to make the judgment call that the 27 cases are so serious that a certificate is warranted.

I'm trying to figure out, what's the primary rationale for making that decision? Is it because you wish to keep the information secret or is it because of the nature of the criminality? You can pick up a Mafia boss under section 55, can you not?

» (1715)

Ms. Claudette Deschênes: Yes.

Mr. Tom Wappel: You can also pick up a Mafia boss under section 77, correct? So there has to be a determination made as to which one you're going to use, and clearly, most of the time you use section 55. I'm suggesting to you that the reason you would use section 77 is to keep information confidential, which makes sense, since under division 9 in the act it says, “Protection of Information”. It doesn't say “Protection of Canada”, in that sense, or “Protection of the Individual”, it says “Protection of Information”.

So is it reasonable to say--and this is all I'm asking--that section 77 is primarily used when you want to keep information secret?

Mr. Paul E. Kennedy: Yes. As I indicated to you at the beginning, we had the Chiarelli case at the Supreme Court of Canada, which dealt with a chap who was an alleged member of organized crime. There was a need to protect the information. There was a need to have that judgment brought as to what could or could not be disclosed in the summary to be prepared. And that is the only instance where it has occurred.

In most of the occasions where you would have criminality, the object is to try someone in open court. The information normally is collected with that in mind. Therefore, you could lead it in a normal immigration hearing or you could lead it on an extradition hearing, because it's your intent, when you go back to the country, if that's where the person's coming from, to try them there.

Clearly, then, with open information, and most criminality fits in that case, you wouldn't have to have recourse to section 77. There may be cases, though--and certainly in the future there will be now that we have criminalized terrorist activity--where you may want to use that. Again, it might be an ongoing member of an organization, and you'll want to use the unique provisions under section 78, with the judicial summaries and so on.

As I've indicated, we've also tweaked the Canada Evidence Act to give us some capacity there, too, but this is designed specifically for that in an immigration context, lower evidentiary thresholds and so on.

Mr. Tom Wappel: Thank you very much for that answer.

Thank you, Mr. Chairman.

The Chair: Thank you.

I have a question. I'm advised, through our research, that associated with the commencement of the detentions in Project Thread there was an amount of personal property seized by somebody. I'd like to ask you...and forgive me for scrutinizing. You'll understand that one of the purposes of this committee is to further the rule of law and ensure compliance with the law. Under what authority was the personal property seized? Who seized it? Who signed the warrant? What's happening in that regard?

And who can I ask that question of, Immigration Canada or the RCMP? I could also ask what role the RCMP may have had in developing Project Thread.

A/Commr Richard Proulx: On Project Thread, Mr. Chair, we have an ongoing investigation right now, so I'll have to be very careful in terms of what I'll be saying here. We might lay criminal charges very soon in this case, if need be, so I have to be very, very careful here.

We used a search warrant signed by a judge.

The Chair: Under the Criminal Code.

A/Commr Richard Proulx: Under the Criminal Code.

The Chair: In relation to specific charges...?

A/Commr Richard Proulx: I believe it was for an immigration offence, being illegally in Canada. Again, I will have to check that out for you, because I don't have the exact answer for you, unfortunately. If I'm wrong, I will come back to this committee and make sure you have the right information.

So, yes, we had a warrant, yes, we seized documents, and it's being reviewed as we speak.

The Chair: Documents and other materials?

A/Commr Richard Proulx: And other materials.

The Chair: Okay. Well, it won't be productive to probe too much, as there is an ongoing investigation at this time.

Back to immigration, based on my previous line of questioning. The execution on Project Thread evolved without a judge of any court seeing it. However, the immigration department routinely does warrants and detentions. I understand that. You're saying that the primary thrust of the immigration initiative was not security--I may be putting words in your mouth--but immigration inadmissibility.

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Ms. Claudette Deschênes: That's correct. We were looking at people who were inadmissible to Canada, who had used fraudulent means to obtain student authorizations. We had information that they might be using multiple identities. That was the basis of it.

The Chair: Are you at liberty now to indicate the source, the general source, of that information on the multiple identities that led the immigration department to conclude that there was inadmissibility?

Ms. Claudette Deschênes: Well, it was part of an investigation that was started when an officer in a mission overseas interviewed an applicant, had doubts, and started...and asked the question. Then our enforcement officers followed up and did an investigation, working with the RCMP.

The Chair: Okay, that's fine. Thank you.

Any other questions?

Mr. Clark.

Mr. Joe Clark: Just very quickly, is CSIS now involved in the cases emanating from Project Thread?

Mr. Ward Elcock: We have reviewed some of the material that was seized.

Mr. Joe Clark: Does it end there, or does that lead you to maintain your interest?

Mr. Ward Elcock: No, we don't have any interest in those particular files.

The Chair: I see no further indication of a desire to question.

On behalf of the committee and the House, I want to thank each of you for appearing today. We all recognize that you have significant responsibilities in the envelopes in which you work, and your time is valuable. So we thank you for coming today and for enlightening us on this important current issue.

We're adjourned.