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View Matthew Dubé Profile
This is in response to the comments made by a gentleman from the justice department. My amendments don't remove our ability to freeze assets. It would require them to do so through the courts.
I want to refer to that paper from Professors Forcese and Roach that I mentioned. First, I want to address the point of other democracies. I'm sure both professors would not appreciate selective quoting, but the format of our exercise doesn't easily allow for the type of elaborate thought we might want to pursue in this type of complicated matter. At this writing, 54 groups are on the latter list. As a side note, we know on the public safety website how many are listed on this list. We don't want to do the same thing for the no-fly list. That's a debate that has passed this evening.
It says that this is a “broader list than in some other democracies—notably Australia and United Kingdom. The majority of the listed groups are Islamist terrorist groups, but the list also includes [other groups]”.
It goes through an enumeration, then continues:
As a result of the definitional formula in section 83.01, there are two sorts of terrorist groups in Canada’s criminal law: a group identified and listed as such by the executive per paragraph (b); and, a group that is not listed, but which meets the functional definition in paragraph (a), as assessed ultimately by a court....
This is a process that my amendments would obviously keep in place. They add, in brackets, “typically when a person is prosecuted for their conduct in relation to that group”.
Most of the time, when someone is committing a terrorist act, terrorism charges are not even brought because the heinous acts that they have already committed provide sufficient material in the courtroom for the prosecution to move ahead.
The paper continues that paragraph (b) listing has proven mostly irrelevant. Until recently almost all action in Canadian criminal law has been in relation to paragraph (a) groups, those being the groups that have been proven such in a court of law. It also notes:
Legal commentators have raised concerns about whether executive listing under paragraph (b) will satisfy Charter standards when relied upon in criminal trials to supply an essential element of a criminal offence.
I apologize, I would read faster, but I'm trying to be mindful of the interpreters. It notes further below:
The argument is that paragraph (b) substitutes a closed executive listing process for the proof beyond a reasonable doubt on the basis of public evidence that an alleged group has as one of its purposes or activities facilitating or carrying out any terrorist activity. The fact that the Charter argument has not yet been decided by a court may reflect the relative lack of reliance on executive listing mechanisms in terrorism prosecutions in Canada.
Chair, I would move to—I apologize, I'm losing myself in my own notes. Further on to the notion of the terrorism financing. It says, at the time of the paper:
Only six of Canada’s 26 completed criminal cases to date involved entities listed by the government (that is, a paragraph (b) group). Canada’s single terrorism financing conviction involved a donation by the accused to the (listed) Tamil Tigers. The modest, 6-month sentence in this case may reflect the fact that the non-remorseful accused sent only $3000 to what he believed was a justified cause, but it also appears to qualify, if not question, the executive’s initial proscription decision.
The footnote adds:
One of us has previously suggested that the light sentence in this and similar financing cases in Australia “demonstrates how proscription of terrorist groups simplifies a complex situation where both governments and organizations such as the Tamil Tigers have abused human rights.”
I think the discussion around the situation in India, notably, has shown us how there can be issues on both sides of these debates. That was from Ken Roach's paper “The 9/11 Effect: Comparative Counter-Terrorism”, from 2011.
I appreciate that the committee has given me much indulgence. I felt the need to read some of that into the record again, knowing that as a political science major, two professors would probably not appreciate selective reading of a very long and complicated paper. I hope that committee members will take the time to read it. Hopefully, they've already had the time to read it. I believe the support for my amendments hinges on work that's been done in papers such as this.
Again, I'll conclude by saying I'm always open to studying ways to ensure better public safety. As we've seen, notably in the debate around returning ISIS fighters, everyone agrees that we want anyone who would commit heinous acts to be behind bars, but at the end of the day, we have to acknowledge that we have due process and we have the Charter of Rights and Freedoms. If we want to maximize our success, there are complicated questions around this, and this is one of them.
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