[English]
EVIDENCE
[Recorded by Electronic Apparatus]
Thursday, November 8, 2001
• 0932
[English]
The Chair (Mr. Andy Scott (Fredericton, Lib.)): Order. Members of the committee will recognize that I've lost my gavel.
I call to order the 48th meeting of the Standing Committee on Justice and Human Rights. Today we're considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act, and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.
This morning we have, for the first panel of the day, the Honourable Warren Allmand, president of Rights and Democracy. Did I get that right, Warren?
Mr. Warren Allmand (President, Rights and Democracy): Yes.
The Chair: Appearing as individuals are Professor Reg Whitaker from the Department of Political Science, University of Victoria, and distinguished research professor emeritus of York University; and Professor Stuart Farson, Department of Political Science and research associate at the Institute for Governance Studies at Simon Fraser University. On behalf of the Evangelical Fellowship of Canada we have Bruce Clemenger, the director, Centre for Faith and Public Life, and Dr. Janet Epp Buckingham, legal counsel.
Welcome all. We have found that our deliberations have a tendency to take us right up to the very end of our time allotment, so I'm not going to take any more time on pleasantries. We'll go first, according to my list, to Warren Allmand.
He would probably correct me if I didn't say you are asked to make a presentation in the vicinity of ten minutes. I've received a couple of warnings here this morning. I will indicate in some fashion or other—in the absence of my gavel, I'll have to figure that out—at ten minutes, and I won't really get aggressive until we're at about twelve minutes.
Mr. Allmand.
Mr. Warren Allmand: Thank you, Mr. Chair and committee.
I'm appearing before this committee as president of Rights and Democracy, formerly known as the International Centre for Human Rights and Democratic Development. It's an independent Canadian institution with an international mandate.
Our mission is to defend and promote democracy and human rights in the international arena. Consequently, I will refer to those relevant human rights instruments ratified by Canada, and discuss to what extent these instruments are honoured or violated by Bill C-36. I will also discuss this bill on the basis of my experience as Solicitor General for a period of four years in the 1970s.
• 0935
I might say at the beginning that a proper analysis of
this bill is an enormous task, and I won't go into much
detail. But because it is an enormous task, this is a
major reason why the committee should have a sunset
clause, as recommended by the Canadian Bar and the
Senate committee. There should also be the oversight
recommendations and the officer of Parliament, proposed
by the Senate.
These are important because it's impossible to do a proper review of this bill in the short time you have. The sunset clause is necessary, not only because it will take time to get a clear picture of the full implications of the bill, but also because these are exceptional measures to deal with exceptional threats.
Once the exceptional threats are dealt with, we should return to normal legislation. If at the time of the sunset clause the exceptional threat still exists, the measures, in whole or in part, can be legislated again. I prefer a three-year sunset clause, as suggested by the Canadian Bar Association.
I said I would refer to the relevant major human rights conventions and instruments that relate to this bill. They are the UN Charter itself, the UN Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.
I understand the Minister of Justice has stated that Bill C-36 has been examined with respect to the charter, and in her view it respects the charter and meets the test of the charter. I have not had an opportunity to examine her testimony before this committee, so I don't know if she means the bill meets the requirements of the charter through the use of article 1, the derogation clause, or without the use of article 1.
I say this because there are also derogation clauses in the universal declaration and in the International Covenant on Civil and Political Rights. Since Canada is committed to these two instruments, this committee should assure itself that the exceptional provisions of Bill C-36 meet the conditions of those derogation clauses, as well.
The derogation provisions in the International Covenant on Civil and Political Rights are found in article 4. I was going to read that article to you, but I haven't got time. You can read it. If you do, you will see that the conditions are quite strict for derogating from the international covenant. It seems to me that in Bill C-36 there are possible derogations from the International Covenant on Civil and Political Rights in its article 14, article 9, article 17, and article 19.
If this is the case, the requirements of article 4, the derogation clause, must be complied with. You will note in reading it that the government that derogates from the international covenant must declare a state of emergency; the derogations must be strictly restricted to the exigencies of the situation; they must not be consistent with other international obligations; there must be no derogation from certain articles in the international covenant; and finally, the derogating state must inform all other states' parties and the Secretary General of the United Nations.
Furthermore, article 4 says the state party must advise the Secretary General when the derogation will end. Otherwise there must be, in accordance with the covenant we ratified, a sunset clause.
When we ratified the International Covenant on Civil and Political Rights in 1977—and I was in cabinet at that time—we did so with serious intent. When you ratify an international treaty, it must have some meaning, some impact, otherwise it is simply public relations double-talk and even hypocrisy. The international covenant has to be meaningful and respected in this country. The universal declaration also has a derogation clause in article 29(2), but it is more general, with fewer conditions.
I don't want to give the impression that the government shouldn't be taking measures to combat terrorism. The cruel and horrific attack of September 11 against thousands of innocent civilians was a massive violation of the universal declaration, article 3, dealing with the right to life, liberty, and security of the person. It was also a violation of the international covenant, article 6, the inherent right to life.
Governments have a responsibility to protect these rights, but in doing so they should take great care in protecting other rights. As the Canadian Bar and the Senate committee stated, the government must strike a delicate balance between collective security and individual liberties.
I would now like to deal with some of the provisions of the bill that cause me concern. To begin with, I have a lot of difficulty with the list of terrorists provided for in proposed subsection 83.01(1) and proposed section 83.05, where the Solicitor General may recommend that certain individuals and groups, called “entities”, can be put on the list of terrorists without hearings or trials. Of course, one can take place afterwards to have the names removed, but even there it is fraught with difficulty.
• 0940
I have had some experience with such matters, both as
president of Rights and Democracy and as Solicitor
General. You will recall last August—the House was in
adjournment at that time, but on August 18 and 20—it
was discovered that the RCMP and CSIS had put together
a threat assessment list, which included, among others,
Amnesty International, Greenpeace, the Council of
Canadians, several Canadian trade unions, and our
centre—Rights and Democracy—and many others.
I wrote to Mr. MacAulay as Solicitor General on August 21 expressing my outrage that there was such a list and that we were on it and requested an explanation. I have copies here of my letter and the articles to give to the clerk so they can be distributed. But I must tell you I have yet to receive either an acknowledgement or an answer to my letter—an explanation of what this list was, why we were on it, and why the other groups were on it.
By the way, this was all before September 11 and before Bill C-36.
There was also a case—I won't go into the details—where at the MacDonald commission in the 1980s there was testimony that the RCMP had put a wiretap on me on the instructions of a corporal to an undercover agent in which he, according to the testimony before the MacDonald commission, had me branded as a “communist son of a bitch”.
Some hon. members: Oh, oh.
Mr. Bill Blaikie (Winnipeg—Transcona, NDP): I would have said Liberal myself.
Mr. Warren Allmand: In any case, the point is that while this assessment wasn't accepted by the commissioner or the senior officers, it shows the kind of assessment being done at the lower levels of the RCMP. Also, there was a case when I was Solicitor General where one of my cabinet colleagues came to see me one day protesting that the RCMP had recommended against the hiring of a young woman for his personal staff because, according to the RCMP, she was a lesbian and a communist. The woman denied these charges when she heard about them, and the minister, who had known the woman personally for some time, insisted that I investigate—which I did.
It was found on investigation that the information was the result of inquiries made with neighbours in the large apartment building where the woman lived, and since she lived with three other girls, they presumed she must be a lesbian—and that went into the record. Similar investigations were made at the University of Toronto, where she was a student, and they said, well, she had belonged to a left-wing club; consequently, she was a communist.
She was finally hired, but I tell you this to indicate how information is gathered and how such lists are made. I can give you many other examples but I don't have time this morning.
Mr. Chair, if all the people administering this act were universally wise, intelligent, well trained, and fair-minded, then maybe we could safely live with such provisions. But they are not, even if improvements have been made over recent years, and I submit to you that the list provisions in this bill are extremely dangerous.
I'm also concerned, of course, with the definition of “terrorist activity” and “terrorist group”, which I believe has the potential of catching innocent people under several other sections, including the lists I just referred to: financing terrorism; the freezing of property; participating, facilitating, instructing, and harbouring; investigative hearings; and preventive detention.
I'm particularly concerned with paragraph (b) of the definition of terrorist activity, which could criminalize some of our work at Rights and Democracy whereby we assist human rights and pro-democracy groups in certain countries such as Burma—where, in my view, the terrorists are in government. In many other cases the terrorists are in government and are terrorizing innocent populations who are simply standing up for their rights.
For example, in Burma it's a 15-year sentence for simply owning a modem or a fax machine. In China, just recently—three weeks ago—three innocent individuals were convicted for carrying on a conversation on the Internet with respect to democracy. I'm cutting back my material, but we've had similar experiences where we think we could be caught under this definition for assisting groups abroad in Tunisia, Pakistan, Nigeria, Rwanda, the Congo, and Colombia.
For example, when Nigeria was under the military dictatorship, we helped finance an offshore clandestine radio station broadcasting pro-democracy information into Nigeria. When they talk about directly or indirectly facilitating groups that might oppose and might lead to some sort of violence, I'm very concerned about that.
• 0945
Also, in looking at this definition, I'm wondering how
certain United States presidents might fare for their
work with the CIA in assisting the Contras against the
Government of Nicaragua in the 1980s; or their action
to bring down the elected government of Allende in
Chile, to be replaced by a dictator, Pinochet; or the
kidnapping of Noriega in Panama. Maybe they would all
be caught under that definition, as well. Maybe that
would be a good thing.
Part of the difficulty in the present context is the fact that the coalition to fight terrorism includes many countries that have no use for democracy and human rights. Of course, as a result of that, we end up with contradictory positions on our values and our human rights.
I want to submit that this bill is lacking in other ways. The preamble sets out the purpose of the act and says it contains comprehensive measures to deal with terrorism, but there is no mention in the preamble or in the bill of attacking the causes that generate it, an environment of poverty, injustice and hopelessness, which leads to instability, resentment, hostility, revolution, violence, and even terrorism.
Finally, I have to point out that the bill has other serious implications for international human rights. In the universal declaration and in the preamble of the universal declaration, and in article 28 again—which I won't read—it says that all states have an obligation to strive for the advancement of all the rights in that document.
So I think we have to ask, what kind of model are we putting forward for our brothers and sisters who are suffering as victims of terrorist governments throughout the world? How does Bill C-36 fit with the obligations I just referred to under the international covenant and under the universal declaration? To what extent does Bill C-36 undermine the international human rights system? September 11 was a massive violation of human rights. But are we doing things in Bill C-36 that are further weakening the international human rights system? In the long run, how can such measures, where we derogate ourselves from human rights obligations, lead to greater security and safety for our people?
In conclusion, I'd say yes, let's get those who committed the atrocities of September 11 and bring them to justice, but let's do it within the parameters of our democratic ideals and values.
Thank you very, Mr. Chairman.
The Chair: Thank you very much, Mr. Allmand.
Mr. Warren Allmand: I didn't know what my time was. It was like a race.
The Chair: You were slightly over, but we are aware that you cut your speech in half. So we appreciate that very much.
As Mr. Allmand and I share the distinction of being probably the only people in the country who are former solicitor generals and chairs of the justice committee, I see my future. Oh, God.
Some hon. members: Oh, oh.
The Chair: Thank you very much, Mr. Allmand.
Next on our list is Professor Whitaker.
Professor Reg Whitaker (Individual Presentation): I would like to address this committee on a particular aspect of this bill that I think has perhaps not been given the amount of attention it should.
I think there are really two different projects that are incorporated in this bill. The one that has attracted the most attention, and this is the way in which it has in fact been presented by the government, is as an emergency response to an emergency situation, extraordinary powers to meet an extraordinary challenge, that of terrorism. I will want to look at that. But there's also embedded in this bill something else; that is, a kind of proto-national security act. Because this latter project is neither admitted nor advertised, I would almost characterize it as a covert national security act. Let me go through both of these two faces of the bill very quickly in brief.
First of all, I will discuss it as emergency anti-terrorist legislation. Of course, in this country we do have some experience—in two world wars, the Cold War, and in the October 1970 crisis—of the use of emergency measures for emergency situations. But I'd like to focus particularly on the aftermath of the use of the War Measures Act in October 1970 on the basis of an apprehended insurrection, evidence for which was in fact never forthcoming.
• 0950
A successor government replaced the War Measures Act
with the Emergencies Act. The Emergencies Act,
instead of using a maximum emergency power for any
situation, specifies four levels of emergency in
ascending order of gravity and specifies special powers
graduated to the level of the emergency involved.
Moreover, the Emergencies Act makes it clear that this will
only be in place as long as the emergency endures. I
think there are important clues here to how Parliament
should act in this current situation.
I think when emergency powers are sought there should be two tests applied. The first I would call the proportionality test: that is, that the remedy proposed is proportionate to the specified threat. The second is the expiration test: that the extraordinary powers will lapse at the close of the emergency.
To deal with the last one first, there has been a great deal of attention paid to the notion of a sunset clause or sunset clauses. I would add my voice to that, but I don't want to spend too much time on that, because I actually fear that there has been too much attention paid to this question and the expectation that if in fact sunset clauses are added to the legislation at appropriate places the problems with the legislation are in fact solved. And I would say that this is definitely not the case.
I do think that on matters such as preventive arrest, investigative hearing, and the list of terrorists, it is in fact incumbent on the government to have something like a sunset clause, because these are extraordinary powers that expand the power of the state, challenge the rights of individuals and of civil society in ways that cannot be justified on a long-term basis.
On the proportionality test, I think applying this test to Bill C-36 on the anti-terrorism provisions yields mixed results. I would accept that on preventive arrests and investigative hearing there are sufficient grounds that have been established and that there are sufficient safeguards in place so that these extraordinary measures do meet the proportionality tests. They do not at the moment, of course, meet the expiration test.
The definition of terrorism is the most important issue with regard to the establishment of the list of terrorist organizations. I have considerable difficulties with establsihing this list. I think the notion of a government official prescription list of organizations in civil society is in fact a very dangerous precedent, and certainly it's something that should, if it is accepted, be subject to a sunset clause. But on the definition of terrorism, I would simply note that, on the whole, the definition is a reasonable one under the circumstances, and while the definition of terrorism is not perhaps satisfying from an academic point of view, it is probably from a legal point of view.
I would add something about one clause that has drawn attention, the one about lawful advocacy, protest, dissent, or stoppage of work. That is, while I don't doubt the government's good intentions on this point, there's a legitimate concern that a certain spectrum of behaviour that is not terrorist but is not lawful—it is involved in notions of civil disobedience and so on—is not caught here. The simple removal of “lawful” from the definition would in fact reduce this problem significantly.
The last points I want to make, in general, are about the provisions about evidence. I want to make two points about that. First of all, there's nothing new here. In my experience as somebody who has in fact on many occasions acted as an expert witness on behalf of a number of very high profile security deportation cases in this country, I can attest to the fact that there really is nothing new here. This is business as usual. It is in fact, as far as I can see, an attempt by the government to in effect proof their processes against the Stinchcombe decision, to avoid the spread of the application of the Stinchcombe decision from criminal to security matters. I don't think this was probably necessary anyway, but they've done it.
• 0955
I want to make the point, and perhaps we can discuss
this at length later, about the serious problems that
face anybody who is in the situation
of coming before, for example, a deportation
proceeding and is not made aware of the evidence
against them, and about the difficulty that counsel have in
actually defending somebody in this situation. And
in fact some decisions that have gone through
have been thrown out by the Federal Court. The
government doesn't always get it right, but in fact
they have tipped the balance very far in the direction
of the government against the individual, and nothing
in this legislation in fact will amend that.
Now I come to the main point I wanted to make. That is, the elements of what one could describe as a proto-national security act. I had the impression when I first saw this bill, knowing what various agencies and departments around Ottawa have wanted for a number of years with regard to national security legislation, that it was almost as if a circular had been sent around that asked everybody what they wanted, and they sent back their answer, and it was incorporated into the bill.
There are a number of elements here. The CSE, the Communications Security Establishment, is given a statutory mandate for the first time. The Official Secrets Act is replaced with a new and updated act under a different name. Finally, there are serious changes to the Access to Information and Privacy Acts.
Very briefly, on the CSE, many of us have been arguing for some time that the CSE should have a mandate, and I am very pleased to see that it's here. But with regard to the specific issue that has drawn most attention—that is, the mandate to intercept communications in Canada—there are serious questions about the authorization and about review of that, even though there are some safeguards about non-retention of information that does not relate to terrorism. The accountability mechanisms that are simply brought over from the CSE without a mandate—that is, the CSE commissioner—I think are not really sufficient. If we're having a new national security act, what we really should have is a proper oversight and review mechanism that relates to the entire field of security and intelligence in the Government of Canada, not to particular organizations.
In regard to the changes to the Official Secrets Act, I draw, in particular, your attention to proposed section 19 in the new act, which has to do with economic espionage. This is a contentious matter; I think it deserves debate. It has nothing to do with terrorism, absolutely nothing. It has no connection to terrorism, but it raises a number of issues, as does the entire new Official Secrets Act. It requires study and debate. This is not something that could be subject to a sunset clause, because this is obviously designed to be an enduring part of the government's national security legislative framework. But it's not going to get the kind of debate that it should have when in fact this is being slipped by in the guise of anti-terrorist emergency legislation.
Finally, I come to the last point, and in some ways this is the one I feel most strongly about. This is about the amendments to the Access to Information Act, the Privacy Act, and the new Personal Information Protection and Electronic Documents Act, particularly clause 87 of the legislation, which amends the Access to Information Act in such a way that any material that the government or the minister deem to be relating to national security, international relations, and defence is excluded from the Access to Information Act. That is even a stronger exclusion than exists for cabinet confidences, which in fact expire after 20 years and then become subject to the act.
• 1000
I think there is no justification for this. The
government has never provided a single example of a
breach of confidence that has resulted from an attempt
to use the access act. In fact, ex parte
proceedings can take place and have taken place in the
courts on appeal so that there is no chance of
information leaking out.
I think the serious point here is that these clauses, if they're left in, will in fact gut in a very serious way the Access to Information Act, and I can't overemphasize this. I know the Information Commissioner has also been here and said similar things.
This is a very serious matter. When one recalls the original point of the access act, that governments should not be able to cover up political embarrassment, incompetence, corruption, or anything else, the kind of scope that's left here to a government we simply have to trust not to misuse its power is a very serious matter.
In conclusion, I would simply say that to the extent the elements of a new national security act are embedded within this emergency legislation, this is an objectionable procedure. Parliament requires the kind of time, sober reflection, expert opinion, etc., on these other elements, which they are not getting in the gravity of the present crisis.
The Chair: Thank you very much.
Professor Farson.
Professor Stuart Farson (Individual Presentation): Thank you, Mr. Chair.
I would like to thank the committee for the opportunity of presenting my views on the bill today.
They are informed by two perspectives: one from that of an academic who's been interested in this field for the better part of two decades; the other from my experiences having worked as the director of research for the special committee of the House of Commons that reviewed the legislation in 1989-90 for the CSIS Act and the Security Offences Act. So I have, I think, very distinct views from that experience on the whole subject of review, oversight, and accountability.
Having said that, it seems to me we have here an omnibus bill that is very extensive, and the committee is being asked to look at this in an extremely tight timeframe without really having a very clear, definitive idea of what the nature of the threat is, both to Canada and to Canadian interests. When that happens, I would suggest Canadians need to be concerned about legislation of this scope in two respects: one is that it's overarching; the second is whether there's a likelihood it will have mission creep over the years to come.
While I'm of the view the current circumstances would suggest that prudence demands the government take important steps to take a more offensive posture toward terrorism, I believe we would still have a definitive yes to both of my questions of concern.
I'd just like to, if I might, remind the committee—and I know Mr. Lee, at least, will be fully cognizant of this—that some 11 years ago, just as the Cold War was ending, Parliament did review the CSIS Act and the Security Offences Act, and made some 117 recommendations. All but three or four of those recommendations were totally ignored by the government of the day, which does talk to the significance of review and the impact it is likely to have, even when committees operate in a non-partisan manner, which that committee clearly did.
The very last recommendation of that committee was to establish a national security act. That would have included, according to the committee's determination, not only the CSIS Act and the Security Offences Act, but also enabling legislation for the Communications Security Establishment, changes to the Canada Evidence Act, and the totally revamped Official Secrets Act.
So I would suggest to you that what we're actually seeing here in Bill C-36 is, as Professor Whitaker suggested to you, a revamped or extended national security act, without the inclusion of the CSIS Act and Security Offences Act. It is going to be a piece of legislation Canadians are going to have to live with for decades to come.
• 1005
If that's the case, I would suggest there are at least
three points the committee needs to look at: can it
look at the long-term consequences; does the
legislation have a system of review, oversight, and
accountability in place that is appropriate; and are
there important aspects of the bill that are clearly
omitted? Regarding the latter, I would suggest there
are.
In terms of the details of the bill that I think the committee should be very concerned about or give very close attention to, I would suggest, as others have done, the area of preventive arrest and investigative hearings really does change Canadians' notions about Canadian criminal law. As such, not only should there be a sunset clause, but if the legislation is allowed to continue, that sunset clause provision should be there on a regular basis.
I think also in terms of the definition of terrorist activity and terrorist group, I would be particularly concerned, and I think this has already been expressed to you, about the possibility that disturbance of political meetings could be incorporated within the net. I would like to see that clarified in the legislation to make it so that many of those who would, for example, appear at anti-globalization protests would be allowed to do so without being labelled specifically as terrorists.
As Professor Whitaker has indicated to you, there are and should be concerns in this committee about the nature of secret evidence. I would simply suggest that this committee, I would like to hope, would look very carefully to ensure those who are on the receiving end of the state's interest in them here are properly looked after to ensure there is not abuse.
I also would like to add my voice to the concerns over changes to the Access to Information Act. I find the terminology in the bill very worrisome. I think it's overarching. I think it's unnecessary. The government, to my mind, already has adequate enough powers to exclude information under the current legislation. I do not see any need for this, and I would ask that you take steps to recommend its removal from the bill.
In terms of interception of private communications by the Communications Security Establishment, I don't know whether the committee has a copy of my brief, but I've gone into it in some detail. I would simply suggest there is perhaps a question of whether there should be a warrant requirement for CSE when it is dealing with the possibility of including Canadians in this interception process.
I'd like to conclude my remarks by talking about a number of matters that deal with review, oversight, and accountability, and whether there is a suitable regime in place. Review, oversight, and accountability in the Canadian system are not interchangeable terms, and they get handled, in large part, by three different institutions.
For review, we have a system in place now by which the processes are handled largely by independent review bodies such as SIRC, or the commissioner of the CSE. We have a belief in accountability that requires responsible ministers to be answerable in and to the House of Commons. Hopefully we have—and I think this is the current weakness in the system—an oversight mechanism so legislatures can give real meaning to review, and as a consequence, be able to hold ministers properly to account in Parliament.
I would suggest also that oversight is not merely about compliance. If we think it's just about compliance, we're missing half the issue here. It should be also about whether the institutions are effective and efficient, and whether they have the capacity to do the jobs Canadians believe they should do.
If you look at clause 145 of Bill C-36, it requires a review of the provisions and operation of the act within three years. This review may be undertaken by the Senate, by the House of Commons, or by a committee of both. But I would suggest to you that none of these possible committees that might be set up under the legislation will be able to do an effective job unless you and Parliament take steps to ensure that certain things take place beforehand.
• 1010
I would suggest to you that you need to have a system
in place where you are prepared to put committee
members under oath, where your staff is adequately
vetted and security cleared, where you operate in a
secure environment when you see secret documents, and
where you are prepared to hold certain of your meetings
in an in camera environment. I think these steps I've
suggested to you should specifically be incorporated
into the legislation. Without them you will end up, I
think, with the same set of circumstances the special
committee of the House of Commons experienced in 1989.
That is, they were told, “sorry, you can't see this”, or,
“we can't tell you that for reasons of national
security”. I think this committee has already
experienced that answer from one of the ministers.
There are some specific problems with aspects of the review mechanisms that are in place. First, the appointment of the commissioner of the Communications Security Establishment is optional, not obligatory. I think there should be a commissioner's office set up.
I would also note that the appointment of supernumerary judges may actually cause problems for Parliament. Perhaps I could take you back once again to the experience of the special committee. The committee wanted to establish whether it could look at the affairs of the Federal Court. Parliament found that it did not want to entertain that because it was concerned about the relationships between Parliament and the judicial branch of government. I would flag that.
I would also flag a couple of other points. There are elements in the bill that are left out. Intelligence collected abroad and foreign intelligence assessments are not covered, but perhaps they should be. As to oversight by Parliament prior to the review, there should be a provision in the bill for that. You will need, as the Senate has suggested, an officer or a committee of Parliament that is able to look at the aspects of the bill people wish to apply a sunset clause to.
Finally and very importantly, I would like to suggest to you that there needs to be in the legislation—because this is legislation that is going to prevail for decades to come—a provision that looks to and accepts the premise that oversight by Parliament should continue beyond the three-year period. In other words, there should be regular reviews by Parliament not just of this but with respect to the broader parameters of the security and intelligence community.
Thank you, Mr. Chair.
The Chair: Thank you very much.
Now we'll go to Dr. Buckingham and Mr. Clemenger for ten minutes.
Mr. Bruce Clemenger (Director, Centre for Faith and Public Life, Evangelical Fellowship of Canada) We wish to thank the committee for the invitation to appear.
We appreciate the importance of complying with our international obligations with respect to terrorism. Believing that governments are established to do good, to seek justice, to punish evildoers, and to defend the vulnerable, we are in principle supportive of just laws that establish peace, order, and good government.
The government and this committee face a difficult task in legislating measures that will thwart terrorist activity and enhance the security of Canadians. In so doing, the government must balance our fundamental freedoms and principles of justice with limitations on these very freedoms for the purposes of our collective security and the protection of the innocent. We pray that God will grant each of you wisdom.
The Evangelical Fellowship is a national association of evangelical denominations and organizations. Our members include churches and relief and development organizations that are involved in religious and humanitarian work around the world.
In our comments this morning we will analyse the bill from the perspective of registered charities that are engaged in international humanitarian work. Many other aspects of this bill are of concern to us, most of which have been brought to your attention by other witnesses.
Dr. Janet Epp Buckingham (General Legal Counsel, Evangelical Fellowship of Canada): I know that you have heard some strong language on this bill, and I'm going to continue that tradition a bit, because the consequences of some parts of this bill for registered charities are extremely serious. From the perspective of a registered charity engaged in international work, I would ask you to imagine the following scenario.
• 1015
Imagine a situation where there are only two possible
punishments a judge can impose. The first is
institutional death by electric chair, and the second
is institutional death by hanging. In Bill C-36, part
6, deregistration for a charity is death by electric
chair. Criminal sanctions are death for a charity by
hanging.
Second, imagine a situation where the number of infractions is small, but they are defined in a very broad way. The infractions include everything from financing to facilitating to acting in association with terrorism. Facilitation is defined so broadly that it does not require criminal intent. Terrorism is defined so broadly that it includes everything from non-violent civil disobedience to the murder of innocents. Regardless, for a charity the penalties are just two, institutional death by electric chair or death by hanging.
Third, imagine a situation where there is no real trial before the sentences are imposed. This is a situation a charity could find itself in if evidence is considered to be in the nature of a state secret.
Our concern is that even if Christian charities engaged in overseas work do not face these ultimate penalties—death of a charity, that is—there will be a significant chill on their overseas work. Now, the question is, what kind overseas work are we talking about?
Mr. Bruce Clemenger: Many years ago I visited a UNHCR refugee camp in Thailand. It was on the border of Cambodia—or Kampuchea, as it was at that point—and had some 30,000 Khmer Rouge refugees, some of whom from time to time would conduct raids into Kampuchea. Two organizations, one religious and the other not, were contracted by the UN to provide medical aid and food to the refugees.
Here's another situation. A Christian charity provides medical-dental care and other humanitarian assistance in a remote Central American village in a region controlled by outlawed militia groups. The clinics are there with the permission of the militia, who may from time to time avail themselves of the medical and dental services or the food they provide the inhabitants in that region.
In neither case does the definition of armed conflict arise. In both cases the humanitarian aid provided may, under the broad definitions of this bill, be considered to be participating in or contributing to terrorism, particularly under the proposed Criminal Code section 83.18. The definitions of “terrorist activity”, “terrorist group”, and facilitating terrorism are important because there are new criminal offences of facilitating terrorism in this bill.
We feel that these are overly broad and could include legitimate protest and dissent. Christians under repressive regimes have engaged in mass protests or dissent that are considered illegal in those countries. We are concerned that if Christians in Canada partner with overseas churches and Christian organizations—and this would be true of Muslim entities or Sikh entities and so on—they could be found to be facilitating terrorism under the definitions of Bill C-36.
Dr. Janet Epp Buckingham: Getting specific here, I want to go through a number of concerns and recommendations we have with respect to Bill C-36.
First, the definition of terrorist activity includes a requirement that the motivation be political, religious, or ideological. We are asking that the motivation section be removed because we feel that terrorism is terrorism and should not be defined by motivation.
Our second point is that the definition of terrorist activity could include civil disobedience, such as stopping an essential service. Now, this obviously could include such essential services as roads or hospitals. While there is an exemption for lawful advocacy protest or dissent under repressive human-rights-denying regimes, there is no lawful dissent allowed. If Christians mount a demonstration, it is considered illegal.
We are asking that this part of the definition be removed. This would leave terrorist activity defined only as including violence or threat of violence.
Our third point is that a terrorist group is defined as including both listed entities, which you've heard quite a bit about, that have been listed by the government as well as organizations that have facilitated or carried out terrorist activity. There is uncertainty in proposed paragraph 83.05(1)(a) about who may be considered a terrorist entity, and a Canadian organization could face sanctions even though the entity was not considered a terrorist entity at the time. What is needed is a common definition that is used internationally and affords a process to enable Canadian verification of claims and due process for groups placed on the list.
• 1020
Fourth, the definition of “facilitating terrorism”
includes providing assistance even if you did not know
the organization was planning a terrorist activity or
whether or not it actually carried one out. We are
asking for a requirement that facilitation be
intentional and with knowledge before the fact.
These points are all related to the definition section, and obviously this is a key area, because much follows from how these things are defined.
Our second major area of concern relates to participating in or contributing to an activity of a terrorist group. This is a new criminal offence for those who fall under this section. The definition of participating in or contributing to an activity of a terrorist group is overly broad. This relates particularly to proposed paragraph 83.18(3)(d). It includes
There are some other sections that relate to this as well. Our concern is that legitimate humanitarian assistance would be criminalized by this bill. This relates back to the examples Bruce gave a few minutes ago.
We are asking for these sections and others impacting on legitimate charitable activity to either be removed or amended to make it clear that legitimate charitable and humanitarian assistance is not included in this definition of “participating in or contributing to the activity of a terrorist group”.
Another area of concern is the section that allows the federal government to intercept communication between Canadians and foreigners. We are concerned this will have a negative impact on confidential communications between missionaries in sensitive areas and their home offices. We are asking that there be some warrant requirement for this interception, such as a requirement on the Government of Canada to show justification for intercepting the communications.
Then, of course, part 6 of Bill C-36, which is a separate act under this omnibus bill.... We are concerned about the provisions here that will allow the Government of Canada to issue a certificate that will prevent a charity from being registered as a charity for a period of seven years. We are concerned that given the broad definitions, many charities may be at risk of having this kind of certificate.
There is a lack of due process and opportunity for defence if a charity is faced with a certificate. Much of the evidence will be suppressed as a matter of national security. This leaves a charity without an adequate opportunity to defend itself. In addition, there is no appeal or review process. We are following along with the CBA recommendations that part 6 be removed from Bill C-36.
Mr. Bruce Clemenger: In conclusion, we are concerned that the very breadth and vagueness of the definitions of “terrorism”, “terrorist group”, and “facilitation of terrorism” will adversely affect the ability of some organizations to provide international humanitarian assistance. The scope of this bill is expansive: it applies to individuals, groups, governments, within Canada and without. It goes beyond international conventions to include activities interpreted to affect economic interests, international relations, or those affecting the security of an individual person.
Christian organizations are prepared to be publicly accountable; indeed, charities ought to be publicly accountable. However, Bill C-36 sets up a situation where it is not clear whether one is acting lawfully. This puts religious organizations that fund overseas work in an untenable situation. They seek to provide assistance, often in the most conflict-ridden situations, to those who are in the most need, but they will face constant uncertainty as to whether they are acting legally.
Thank you.
The Chair: Thank you very much.
Now for seven minutes we'll hear from Mr. Toews.
Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.
I thank all of you for your very informative presentations. I found them all very balanced and very insightful.
We've heard testimony today—and it confirms much of the testimony we've heard—that the entire act needs to be debated and there is a lot of difficulty with this debate occurring in the context of this omnibus bill. There are areas of the bill that have nothing to do with terrorism. It has been a grab bag of legislative wishes on the part of departments, and this does concern me.
• 1025
Parliament clearly does require time. However, the
government knew it had to act promptly on this area as
early as 1995, and it did nothing in respect of serious
conventions regarding the suppression of terrorism or
the suppression of terrorist financing. Now we're put
in this position where international and other security
concerns demand prompt action on the part of the
government.
I sympathize with the government in this respect, and yet there are many concerns that need to be addressed in order to properly focus the desire of the government to address the issue of terrorism. For me it indicates a need for an ongoing review and accountability of government.
Experts have told us the situation we are in is not exceptional. Rather, September 11 was the culmination of many years, many decades. And the response of a free and democratic nation—and of all free and democratic nations—will occur over many years and not simply for a brief emergency period. I believe the British expert on terrorism, Dr. Wilkinson, indicated to us it will take decades.
Police and security forces are concerned about a sunset clause being put in because they have to marshal their scarce resources to address this issue. If there's going to be a sunset clause in three years, there may be a reluctance to embark on long-term activities that might only result in an end to the investigation and the loss of any benefit that might have occurred from putting their resources into it.
As parliamentarians we want to ensure appropriate security steps are taken. Many parliamentarians have advocated for a sunset clause because they're very concerned about the failure of the review system. We have seen reviews and deadlines come and go. They simply don't happen. So how do we meet the concerns of both sides on this issue—the government needing prompt, long-term response to terrorism versus the very genuine concerns you have raised here today?
Clearly there needs to be an effective and mandatory review set out by the legislation on an ongoing basis so there are reports tabled on a periodic basis—whether it's three months, six months—a review conducted by an independent body. I agree with the Senate's recommendations in that respect.
However, if the government chooses not to go down the road of the sunset clause, is there another alternative—a review, for example, that might be effective by bringing it not to a committee like this, where ministers and members of Parliament could bury the legislation, as it has been buried in other situations, but directly to Parliament for debate and decisions, along with the materials gathered from an ongoing review? I'm trying to find some kind of compromise to address both sides of this issue that we've heard.
Mr. Warren Allmand: As for the suggestion by the Senate of having an officer of Parliament, I look on an officer of Parliament as a sort of ombudsman reporting not to the government, but to Parliament—like the Auditor General or the Commissioner of Official Languages—who would oversee and present a report on a periodic basis, at least yearly, assessing the implementation. Of course the officer would need some staff to do this.
Then, just as you get from the Auditor General or from the Commissioner of Official Languages or from the correctional investigator, who brought down a report last week, someone does the investigating and oversight and then reports. Then you're not getting it from a partisan point of view, but from an official who reports to Parliament, not to government, like the Auditor General.
• 1030
I think this would be, among the other things
that have been presented, a good response to your
question.
Mr. Vic Toews: Could that in fact be a satisfactory solution as opposed to a sunset clause, if we build an effective mandatory review to Parliament? I'm trying to explore these possibilities.
Mr. Warren Allmand: I would like both.
The Chair: Professor Whitaker.
Mr. Reg Whitaker: Those are important issues that you've raised, and I think we have to keep the notion of a sunset clause in some perspective here.
First of all, it clearly cannot be a sunset clause over Bill C-36 as a whole. However, I think there is a good case to be made for a sunset clause attached to specific sections, where there is an extreme shift in the relationship between the rights of the individual and the powers of government. I would particularly point to the areas of the investigative hearing, preventive arrest, and the list of terrorists.
Mr. Vic Toews: Quickly, what about also the issue of the information commissioner, that area, which strikes me as fundamental to a democratic society? Ministerial accountability and the release of information to Parliament strikes me as fundamental.
Mr. Reg Whitaker: Yes, absolutely. There, I think the case is even stronger. I think those clauses should be stricken from the act altogether. A sunset clause would be a second-best alternative, but certainly if they're not going to take them out, they should be seen as emergency measures, not something permanent.
I think the point about a sunset clause here is that it's probably more important as a symbolic step. It simply says Parliament does not accept the notion that we are going to have our society permanently changed because of the threat of terrorism, that we're not going to in effect give that kind of a victory to the terrorists that we would permanently change our way of doing things and make ourselves a less free society in the long run simply because this kind of threat has been posed.
But on the other point, about review, absolutely, and that was part of the argument that I wanted to make here. To the extent that this is a national security act, along with the CSIS Act and the couple of other pieces of legislation that we already have, what is really important would be to have proper oversight review and accountability, and that should be, first of all, on a basis of the whole field, not simply attached to particular institutions, to particular agencies.
Perhaps one might talk about a beefed-up SIRC, having responsibility for the entire field, but in conjunction with a parliamentary committee—which in fact was not the case in the past, and it certainly wasn't an effective partnership in the past, but it could be ideally.
Prof. Stuart Farson: I would only see a sunset clause as applying to those aspects of Bill C-36 that dramatically change our concept of criminal law. The issues for me are preventive arrest and investigative hearings, and I do not accept the police position or the intelligence position that this would somehow add a chilling effect on their processes of investigation. Sunset is essential to that, and I reiterate Professor Whitaker's point on this.
The Chair: Mr. Bellehumeur, seven minutes.
[Translation]
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I would first like to thank you for your comments. From the beginning, like you, Mr. Allmand, I have thought that we need to focus on two aspects. There is the review issue and perhaps also the mechanism, as in the case of the Senate. There is a need for review powers and investigation powers. This body must not be connected to the government. It really must be independent, and there needs to be a sunset clause. I would like to echo a point made by two or three witnesses. It is true that we have spent a lot of time on the sunset clause.
It is true that we have spent far too much time on that subject, but we need to keep in mind that where we started off was a long way from our goal. The Minister of Justice said at the beginning that there would be no sunset clause. The only way that we could make the minister listen to reason was to have witnesses call for such a clause over and over again.
• 1035
It seems that the minister got the message. We will find out
for sure on Tuesday, November 20th, when she appears here.
The more I listen to the witnesses, the more I wonder whether we are not going about things the wrong way, whether we are using the wrong approach. I will explain. The Criminal Code of Canada contains provisions that should have been enforced. An adequate investment should have been made in their implementation. We already have tools to fight terrorism or other such activities. We did not use them in the past and now, for emergency reasons—I do not want to underestimate what happened on September 11th, it was terrible—that event is being used to ram through legislation, when we should be taking the time needed to ensure that we are not making any mistakes, which is what I think is happening here.
The more I hear witnesses, the more I see that one or another part of the bill is problematic. It is never the same from one witness to the next. It depends on their particular expertise or area of interest. Without going so far as to say that the bill is poorly drafted, it is clear that it was put together very quickly and examined very quickly.
The alarm bells went off in 1995, and the government did not seem to want to take action. As we well know, customs and the border have been like a sieve for many years. It is well known that a lot of money laundering is done in Canada and that Canada has signed international conventions but has not put them into effect. So now the government wants to make up for lost time and do so very quickly.
Today I am wondering whether we are not going about things the wrong way and whether the committee should not draft a report similar to the Senate report, providing general recommendations, rather than adopting the bill clause by clause. Should we not report back to the Minister of Justice, so that she and her officials can draft another bill that she can bring back to the committee for consideration, so that we can be sure that no mistakes are made. Even if we put in a sunset clause to take effect after three or five years, those mistakes will be in force for that time.
During those three years, mistakes will be made. Many people have talked to us about the 1970s and as a Quebecker, I could tell you some things about that as well. Mistakes can also be made regarding refugees or charities that are on the list. Mr. Allmand, your organization was on the terrorist list before this legislation. If the bill passes, the list will be secret. Who will be on the list? Perhaps even the Bloc Québécois.
Are we not making a mistake here, and should we not take this time instead to give general direction to the minister, so that she can go back and do her homework? There might be less pressure on her than during the period following September 11th, and she can come back to us with a bill that is more consistent with our Criminal Code and better suited to our institutions and our know-how, which is different from that of the United States, Great Britain and France. That will be my only question, and I believe that it is a very important one.
[English]
The Chair: Excuse me, we're being called to vote. Normally I think this would be, on a procedural vote, a half-hour bell, but they're trying to gather members to go and see if they can't do this more quickly than that. So—
[Translation]
Mr. Michel Bellehumeur: Could I finish? [Editor's Note: Inaudible]... half an hour. Maybe we could let the witnesses answer that question and then leave.
[English]
The Chair: Okay, we will proceed, if we could get clarification, please. Go ahead, Mr. Allmand.
Mr. Warren Allmand: Of course the committee can do whatever it wishes. If it has the political will to do so, you can make several reports. You can make an interim report such as the Senate has made, and you could put out certain sections of the bill and ask that others be left for greater consideration. So in answer to the question, yes, it's possible.
• 1040
I personally have tried to analyse this bill. I've
analysed many bills as a member of Parliament, as a
lawyer, as a minister, and here I was, sitting
down at a big table with 17 pieces of legislation and
11 international conventions, trying to cross-reference
the sections of this bill. It would take a year to
really know the full....
You have to re-read it and re-read it before you see
all the implications. It's a very difficult task that
they've asked you to do in a very short time. I think
parts of the bill require a lot of time.
The Chair: Professor Farson.
Prof. Stuart Farson: For me, there are things in the bill that, if it were passed today, would be totally unacceptable. I'm not satisfied with the oversight review, an accountability mechanism that's in place. However, I am in favour of the government passing a national security act. But I reiterate what other people have said: that needs fuller time.
Mr. Allmand may have a very good idea, which is for the committee to accept parts of the bill and to suggest that the government put other parts into perhaps a subcommittee of this committee to study in further detail.
The Chair: We'll go to Mr. Blaikie, for seven minutes.
Mr. Bill Blaikie: Mr. Chairman, apparently it's the Alliance that's up to mischief.
An hon. member: We get blamed for everything. We're trying to hold the government to account; that's all.
Mr. Bill Blaikie: I have a couple of things, Mr. Chairman. First of all, I think both Mr. Allmand and the Evangelical Fellowship have pointed, as have other witnesses, to the problem of Canadian organizations having some of their actions criminalized through their support of organizations in other countries, the ones that are resisting, in one way or another, dictatorial regimes or oppression of one kind or another.
An example the fellowship might be familiar with is the relationship between some Christian churches and people in the Sudan who are being terrorized by a government there. If you have a relationship with people in the southern Sudan who are branded as terrorists by the Government of Sudan, who may themselves actually be the real terrorists, funded by Canadian oil money.... This is another example of what could be wrong with this legislation.
You may want to comment on that, but I want to give some of my time to Mr. Allmand, who said he didn't have enough time to go through, because what we say we're doing here is abiding by, at least in some aspects of the legislation, our commitments at the United Nations. We're ratifying and implementing all these conventions, and yet, if I heard Mr. Allmand correctly, it may be that at the same time, in other aspects of the bill, we're actually in violation of the covenants that we've signed, if we're not meeting the conditions that are set out for this kind of legislation when we derogate from certain commitments that we've made in these other covenants.
So I wonder if you could expand on that, and certainly if the fellowship has something to say about the situation in Sudan, as an example, that would be helpful as well.
The Chair: Thank you.
Mr. Allmand.
Mr. Warren Allmand: In my view, as I said, to derogate from the International Covenant on Civil and Political Rights, there are very strict conditions, and they're set out in article 4 of the international covenant. It seems to me that there has been in Bill C-36 an attempt to derogate from the international covenant.
So far, we have not followed the conditions of the derogation clause article for the international covenant, which says you have to declare a state of emergency, you have to advise your state parties, the other state parties, you have to advise the Secretary General of the United Nations, you have to draw your derogations very strictly, and so on.
• 1045
I think it's incumbent on the committee to have their
research staff look at that. I don't know if this has
been raised already. Here we've ratified a very serious
international convention, a key convention, that we
say is the basis of democracy in many parts of the
world, and if we don't follow it ourselves, how can we
ask other countries to live up to human rights
standards that we're not living up to ourselves?
The articles that I think are being violated are article 14 of the international covenant, article 9, article 17, and article 19, dealing with freedom of expression and freedom of information. Both Mr. Whitaker and Mr. Farson have referred to the changes in our access to information, well, there are provisions in the international covenant dealing with that, especially article 14 of the international covenant.
In my view, there are certain derogations, and if we're serious about the international human rights system—and Canada has always said they're a strong supporter of it—then let's live up to the obligations we have in there. Again I ask the committee to look at that, because I haven't been able to do the complete research that is necessary, but I'm convinced that we haven't followed the provisions of article 4 on derogation.
Mr. Cotler could advise you on that as well.
The Chair: The research staff will in fact, as I'm advised he has before, follow your lead.
We'll go to the Evangelical Fellowship.
Dr. Janet Epp Buckingham: Thank you for raising the issue of Sudan, because that is one that several organizations that are under our umbrella have expressed concern about.
The concern is really twofold, and the Sudan is but one example. In Indonesia, Vietnam, and many other areas of the world, humanitarian organizations must operate under permission from an organization that may be considered a terrorist organization, and certainly those operating humanitarian assistance in southern Sudan must sign a memorandum of understanding with the SPLA.
That's a difficult situation to determine under this legislation, because it may be armed conflict there. In some other areas of the world, it's definitely not armed conflict. But then you run into this situation of not being certain whether this is or is not included.
Another issue that's raised there is the secrecy of information that may be provided by these foreign governments. If the Canadian government receives information from the Sudanese government and then proceeds against a charity on the basis of that information, many organizations that operate in Sudan would consider that information very suspect, but if it's considered to be a matter of national security, they may never know what information is being provided. They may not be able to test the veracity of it.
So it raises two concerns. One is that very good humanitarian assistance may be caught, and secondly, determinations may be made on the basis of very suspect information, made all the worse by Sudan being one of our allies in the war against terrorism, and there may be some political concessions that are required to be made to that government. So these issues all become part of the international relations process, which is of grave concern to the humanitarian assistance agencies working in those areas.
The Chair: Thank you very much.
Professor Whitaker.
Prof. Reg Whitaker: I would add that there's another aspect to this charitable funding issue and the list of terrorist entities. I draw attention to the clause about facilitating terrorist actions, which could result in someone, a person or a group, being placed on the terrorist list, yet there is no requirement that such facilitation be knowing.
I would simply point out that in some cases, particularly where you're dealing with situations—and I point to the Palestinian groups, where there has not been a Palestinian state, as we understand it—political groups have sometimes acted as channels for humanitarian and developmental assistance. At other times, some of these groups have engaged in violent actions, but in fact even the Government of Canada has channelled aid in some cases, for example to the PLO, as being the appropriate place for assistance to schools and hospitals and so on. Yet in the context of this bill, I think there's a serious question about people who might get caught up unknowingly in this.
• 1050
The Chair: Thank you very much.
We'll go to Mr. MacKay, for just a few minutes—probably not the whole round, Peter, but we'll come back to you when we come back.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): I want to thank all the panellists. Your testimony has been extremely helpful and has reiterated and further underlined the necessity to make some fundamental changes to the bill before us.
I couldn't help but be struck by the comment by Mr. Allmand that he's pored over this legislation, and if someone of his cerebral capacity is having difficulty patching this all together for us lesser mortals, it's a real herculean task to try to make these cross-references, for certain.
I believe it was Mr. Farson who drew to our attention the difficulty associated with the permissive aspect of the granting of wiretaps here, and the need for oversight, which appears to be completely optional in terms of the reading of the act itself. It says the commissioner or Communications Security Establishment “shall” review, in section 8, yet in the enabling part of the legislation it says it “may”. Therefore, the government is under no real obligation to set up this oversight committee at all. So I think the “may” has to be consistent with the “shall”.
As well, I was struck by the comment about the necessity of government advising the person or organization that may be the subject of denial of a certificate based on information that comes from outside the country, and the reliability, the veracity, of that evidence.
My reading of that is that even if it's not a national security risk, we have this broad definition of international relations. There's a very recent example of where the government, in my view, acted very inappropriately, and that was at the APEC meeting to prevent harming the feelings of President Suharto. And we know what resulted at that APEC meeting in Vancouver, all done for the stated purpose of avoiding harming international relations with a very suspect leader and country. So there appear to be several huge inadequacies, difficulties, that have to be remedied if this bill is to go through.
I wanted to direct a question specifically to the issue of proving religious, ideological, or political motives.
Mr. Allmand is a former Attorney General of this country, and as someone who is very familiar with criminal justice, you would know that the mens rea requirement is going to be virtually impossible to prove. I hearken back to a comment Mr. Bellehumeur made. The existing Criminal Code provisions, for example for murder, treason, and mischief, all carry in some instances very severe penalties.
Why would a prosecutor in this country, be it a provincial or federal prosecutor—again, it's ambiguous in this legislation who would have the jurisdiction—burden himself with this element of proof beyond a reasonable doubt of motive, when it appears to me that would be virtually impossible to prove? And to what end? Increased criminal sanctions? Well, for murder or treason, it's maximum life imprisonment. For parole ineligibility, well, make your case.
But I have real difficulty believing any crown attorney would embark on a mission to prove what was in the mind of the individual when they committed the terrorist act. What if it was motivated purely by hate, as was suggested by a witness here the other day? That wouldn't meet any of those intent provisions.
The Chair: Thank you, Mr. MacKay.
You have an opportunity not often accorded a panel—you get a little while to think about this as I suspend so we can go vote. We'll return immediately following the vote.
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• 1124
The Chair: I call the 48th meeting of the Standing Committee on Justice and Human Rights back to order, as we raced away to vote. I think Mr. MacKay had put a question or some questions to the panel, and I'm looking for their eagerness to respond.
Mr. Warren Allmand: Would you please repeat the questions? I was taking notes but was distracted. I know they're very specific. Could they very briefly be put to us again?
Mr. Peter MacKay: Certainly.
On the permissive elements of the oversight in the legislation concerning setting up a federal commissioner—this has to do with the CSE—I believe I'd asked a specific question regarding the necessity of elements of secrecy, and relying on other countries' information, and the veracity of that information, and whether we were really overstepping the bounds in relying on that information and having no mechanism or necessity under this bill to disclose it to those who essentially are being informed upon to the government.
• 1125
Finally, I had a question with respect to other
countries having concerns about Canada's secrecy. That
appeared to me to be part of the rationale for
countries having concerns about Canada's privacy and
information laws—for which I can't see any evidence
whatsoever. We have cabinet confidentiality; the
privacy and information commissioners have no ability
in the current acts to force disclosure. They can ask
for review, but they cannot actually disclose. Is this
essentially information-withholding overkill on the
part of the federal cabinet, in this instance?
The Chair: Professor Farson, you may go first.
Before we start, let me just explain what we're going to do for the balance of this session, so that people can frame their answers, perhaps, within that time context. I had originally planned to extend, and we will be extending past 11:30, but we won't be able to extend the full half hour because some of the panellists in the next panel have to leave quite quickly. Therefore, I intend to complete this round with Mr. MacKay, then the Liberal side will split seven minutes on this side, and then I'll ask each of you to make brief closing comments to try to capture those things we would normally capture in the context of the debate. Then we'll excuse the panel and call the next one.
Mr. Peter MacKay: I did ask a specific question to Mr. Allmand—
The Chair: Yes.
Mr. Peter MacKay: —just before we left, about whether a crown attorney would be liable to proceed under these sections, given the onerous nature of having to prove political, ideological or religious motivation—whether that is something that would even be invoked, even with the increased sanctions and parole ineligibility. I suspect a crown attorney would simply want to secure the conviction and then go for aggravating circumstances on sentencing rather than try to get over the hurdle of what was in the person's head beyond a reasonable doubt.
The Chair: Mr. Allmand.
Then we'll go to Mr. Farson and we'll finish off this round.
Mr. Warren Allmand: I agree with you, we could do without item (b)(i)(A) in the definition of “terrorist activity” and the need to prove that motive. But I must say, most of the groups I deal with overseas readily admit what their ideological and political objective is. It usually is to re-establish democracy or to bring democracy. They have no problem—and we would have no problem—but there are many other cases where you don't admit it; it would be difficult to prove. And as you said, what purpose does it serve to prove it if you're really getting at terrorism?
The Chair: Thank you.
Professor Farson.
Prof. Stuart Farson: If I may, I'll just mention a few things I didn't have an opportunity to say in response in my earlier presentation.
Right now the mandate of the commissioner is just to look at complaints and compliance with the law. I think there is a big case to be made for the commissioner also to be asked to look at the question of whether the law is adequate with regard to safeguarding the privacy of Canadians. The adequacy side is important, as is a mandate to look at the effectiveness and efficiency of the CSE and the capacity it has to do the job.
If you go back to look at some of the academic literature related to the 1970s and 1980s, there was a period when I think it suffered from a tremendous lack of funding and technology.
I'd just add those two points.
Also, perhaps you might want to look at the whistle-blowing capacity of the commissioner. Right now it only relates to the CSE component. You might want to look at whether there is a need to include those parts of National Defence that also deal with signals intelligence.
The Chair: Mr. MacKay.
Mr. Peter MacKay: Is your reading of it that there's a mandate to share information? This is something that came up. Would those who avail themselves of warrants under National Defence, in listening, pick up information about, let's say, a domestic crime or something not related to terrorism? I see this as saying there's no bar on their passing that information along to RCMP or CSIS. If so, it would very much allow police to circumvent normal rules of warrant and wiretap.
The Chair: Thank you, Mr. MacKay.
Professor Farson, and then Mr. Clemenger.
• 1130
Prof. Stuart Farson: I haven't found a bar, so I think you're probably right.
The Chair: Mr. Clemenger.
Mr. Bruce Clemenger: On the issue of motive, the reason I gave the example of the UNHCR refugee camp was that one organization there was explicitly religious; the other one was not. With the motivation clause, does that mean the one would get caught in the legislation and the other would not?
Secondly, in terms of motive, I'm really concerned about having those phrases there. On one reading—John Rawls' comprehensive doctrine kind of approach—anything would be ideological, philosophical, or religious: it captures everything, so it's useless. On a narrow reading, it excludes other motivations like greed, etc.
I would much prefer the UN Security Council resolution 1269, in 1999, number 1, which “unequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation...”.
Why not just go after the criminal, terrorist acts? Leave motivation out, because as you also mentioned, how do you investigate what was in the mind of the criminal?
This actually relates to the other clause, 88, which deals with hate crimes. We're very sympathetic to measures that would protect religious property from violent acts, but we are still concerned about criminalizing motive itself. We're not sure how that would play out and whether it invites the state into delving into what is appropriate and what is inappropriate religious belief, for example.
The Chair: Professor Whitaker.
Prof. Reg Whitaker: To respond to your earlier comments about information overkill, I think it's absolutely correct that the provisions about the freedom of information and privacy acts are unnecessary. At this moment, under existing law and procedure, information that's accepted by the Government of Canada in confidence from foreign governments, for example, is one of the clauses under the act. More than that, evidence about it will not be inadvertently disclosed in court, because in fact ex parte proceedings can take place if it's appealed to the Federal Court.
Finally, the government even has the power under the existing act—and I know they've done it to me on an access request—that they can refuse to disclose whether a record exists or does not exist on the basis that disclosure of that information would in fact be a breach of national security or an international confidence. They can do that under existing legislation.
It defies my understanding why they need this gutting of the Access to Information Act when in fact they have all the power to do what they say they're concerned about in the existing law.
The Chair: Thank you very much.
Mr. McKay and Mr. Lee are going to split seven minutes, and then I'll allow the panel to close. Mr. McKay.
Mr. John McKay (Scarborough East, Lib.): Mr. Chairman, thank you.
You introduced Mr. Allmand by saying your careers are parallel: former solicitors general, former chairs of the justice committee. Then Mr. Allmand told us he is now on the RCMP-CSIS threat assessment list. You have seen the future, Mr. Chair.
Some hon. members: Oh, oh.
Mr. John McKay: Since I've had to shrink seven minutes to three and a half, I'll be very brief.
I have two questions to Mr. Allmand. First, can you advise—as probably the unique person in Canada able to talk from both sides of this issue—how that list process is done: what the internal review processes are, and how the list is created?
Secondly, you made reference to the fact that under international conventions, when you're derogating from the rule of law you have to advise the international body that an emergency will end. In other words, there are sunset clauses, as I understand it, in our international conventions. Can you advise how that process actually works?
To Professors Whitaker and Farson, there has been some argument that the bill should, instead of being presented as an omnibus bill, have been presented as a discrete, stand-alone bill—your argument concerning a national security act. The fear has been expressed that it will bleed into other areas of criminality: mission creep, as you called it. I'm interested in your comments on that.
To the EFC representatives, you certainly articulated the issue of charity chill in terms of your activities. Could you expand on charity chill as it relates to fund-raising?
The Chair: Mr. Lee.
Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.
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Mr. Allmand, you were Solicitor General back in the
1970s. At that time, as Solicitor General you would
have been the person who authorized warrants under the
Official Secrets Act—these were pre-CSIS days—and
they would have been involving national security,
wiretapping, and some kind of surveillance.
The writs of assistance also existed at that time. So
because the current bill proposes that the defence
minister have the ability to authorize electronic
surveillance to protect communications security, do you
have any advice to the committee on whether that is
doable? Do you remember anything from 25 years ago
that might be useful to us in considering the Minister
of Defence's proposed ability to authorize electronic
surveillance?
The Chair: Thank you very much.
Mr. Allmand, I'll bridge it across and also consider this the opportunity that I mentioned.
Mr. Warren Allmand: First, with respect to how do these lists come about, I presume you're asking about previous lists, and not the list that's referred to in this bill, because in this bill, in proposed section 83.05 and following, it more or less sets out how the list is brought about. It's brought about, it says, if “on the recommendation of the Solicitor General, the Governor in Council is satisfied”, etc. But the point is how does the Solicitor General get the names of the entities? He gets them from the flow of information coming up from the bottom, or from foreign agencies, which was already discussed, whether it's the CIA, the FBI, or the Mossad, or whatever around the world.
The problem with the way it comes up, in my experience, as I can point out with a few examples, is that sometimes the people who are channelling up this information from the bottom don't have the training. They didn't in those days, although now with CSIS it's supposed to be better. In the days of the security service of the RCMP, people who were trained to do traffic patrol later became part of the security service, and they were good policemen but not good intelligence officers and they weren't always able to distinguish what was legitimate dissent and what was.... We had people at the time confusing the Parti Québécois with the FLQ, things like that.
The problem with these lists is of course the Solicitor General makes recommendations, but these are coming from Victoria to Newfoundland, and from the Northwest Territories down to Windsor, from operatives all over the place, and some of them are good and well trained, and wise and sharp, and others aren't. I think how you ensure that you get better information is recruitment, training, better resources, etc., using those resources more effectively.
With respect to derogation, as I say, in article 4 of the International Covenant on Civil and Political Rights, if you want to derogate from the international covenant, it says what you must do. I haven't been able to look at what they call the general comments of the human rights committee that's set up under that statute, who interpret the international covenant. I didn't have time to look at all their comments with respect to these different issues. But it seems to me that if you really want to respect international human rights in the system, you should follow what's set out in the derogation clause, and I don't think we have, unless it's been done without the public knowing about it.
In answer to Mr. Lee, yes, when I was Solicitor General the head of the security service, which would be equivalent to the head of CSIS, would come to me, or the Commissioner of the RCMP, asking me to sign warrants under the Official Secrets Act. They would come with some background information. Sitting where I was in Ottawa and not knowing everybody in Canada, it just so happened.... To give you an example, one day there was a gentleman's name on there who I happened to go to high school with who was an Arab Canadian, born in Iraq, and was the most peaceful person you could imagine. He was a professor, and they had him down as being a terrorist, more or less, who should be subject to.... I said, “Look, I know this person very well, and he's very sympathetic to the Palestinian movement politically, but he is not a terrorist. I think you should go back.” They went back and found out that what I was saying was correct and withdrew his name. I just happened to know that person.
I could give you other examples where there were some other cases where I happened to know the individuals, or people came to me. I mentioned the case of a minister who was in the cabinet with me. He was going to hire this person and at the bottom they had described this person as a communist and a lesbian, but I think that came up because of poor judgment and training, and also the way they do this very often. When they're doing these security checks, they go around and ask people in the neighbourhood, do you know Derek Lee? What do you think about him? Of course if you get in the wrong house, they may say the wrong thing.
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Very often your dossier is put together by a lot of
what I call anecdotal information, but it gets into
the dossier. So this is why it's dangerous. You need
protection. You need checks and balances. You need an
independent ombudsman.
SIRC, which was referred to, has a mandate with respect to CSIS that we didn't have back in those days. They're all sworn into the Privy Council and they can look at this information. But their mandate is much narrower than what is required by this bill.
The Chair: Thank you, Mr. Allmand.
Professor Whitaker, please.
Prof. Reg Whitaker: On the question of the omnibus bill and whether it should be broken up, I agree. This really is the burden of my remarks, that the proportionality test I spoke of in relation to an emergency is clearly not met when in fact there is a great deal in here that goes well beyond the extent of the present terrorist threat. This is not to say that these elements that go beyond are wrong or inappropriate; it's simply to say that they should and deserve to have a proper stand-alone debate and to be judged on their merits on their own, not in the moment of crisis that we're facing and under the gun, as you were facing, of very rapid deadlines against that crisis.
The Chair: Thank you.
Professor Farson.
Prof. Stuart Farson: I'm very much of the same point of view as Professor Whitaker in regard to what he said. I would just add to the issue of mission creep that was raised: where would the mission creep be? I think that in the definition of terrorist group, to take that into certain types of protest is quite a potential.
On access, on what is going to be allowed under the legislation, I think that could be interpreted much more broadly than it might otherwise be.
The connections with criminal activity I think is another area where there may be overlap and unintended consequences.
So I would point to those three areas.
The Chair: And the EFC?
Dr. Janet Epp Buckingham: Yes, thank you.
I think the issue of fund-raising is a very important one. You can imagine that with the breadth of this bill as it currently stands, where providing, facilitating, or participating with directly or indirectly, and then being a charity trying to raise funds for particular projects in Palestine or southern Sudan, obviously nobody's going to want to give to you, because they may be subject to criminal sanctions. It's going to be very difficult to have a board of directors, who obviously will be the ones who would face sanctions if the charity is found to be facilitating terrorism.
From our perspective, I think the most urgent issues are the broad definitions, because they do seem to catch so much, and so many organizations look at them and say this could apply to this project, and this project, and this project. There are Canadian charities doing a lot of very excellent work in conflict-ridden situations, and these have the potential to do a lot more to alleviate terrorism than to participate in terrorism.
Thank you.
The Chair: Thank you.
Our apologies for the brief interruption, but don't think for a second that it diminishes in any way the value you've brought to our deliberations. I would thank you and excuse you and ask of everyone that we do the exchange of name tags and so on as quickly as possible. One of the next panellists has to leave at 12 o'clock.
I suspend momentarily.
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The Chair: I reconvene the 48th meeting of the Standing Committee on Justice and Human Rights. I'm going to go quickly to introduce our panel.
Before us as organizations are the Canadian Association of Labour Lawyers, the Muslim Congress of Canada, the Coalition of Muslim Organizations, and the National Organization of Immigrant and Visible Minority Women of Canada.
Our first presenter, Mr. Aziz Khaki, is the gentleman I referred to earlier as having to leave, so we're going to go directly to his presentation. He will probably be leaving in the middle of someone else's presentation, so we'll make that point right now.
Mr. Khaki.
Mr. Aziz Khaki (Vice-President, Muslim Congress of Canada): Thank you very much, Mr. Chair. I appreciate your accommodating me. I need to run.
The brief I am presenting is on behalf of the Council of Muslim Communities of Canada and the Muslim Canadian Federation. I thought there should be a voice from the west coast, so I am very happy to be here this morning.
I would like to extend to all of you my traditional Islamic greeting of peace: as-salaam alaikum wa rahmatallah wa barakatu. May peace be upon all of you.
I will begin with quoting, from his foreword to the Charter of Rights and Freedoms, our great Prime Minister, the Right Honourable Pierre Elliott Trudeau, who used these words:
Further, Chief Justice Bora Laskin, on May 4, 1972, stated:
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I would at the outset like to state that we endorse
the brief presented by the Coalition of Muslim
Organizations here with me this morning. I will deal
here with a number of very serious concerns the Muslim
community has in regard to a number of provisions and
segments of Bill C-36.
By now it is very clear that the Muslim community has strongly condemned the unbelievable acts of terrorism that occurred on September 11, 2001, in the United States of America. We have always maintained that terrorists have no religion; they have no humanity. But in dealing with the issues of terrorism and terrorists, we should be careful. We should not deny to a segment of our society human rights and human dignity under the pretext of a struggle against terrorism.
We feel strongly that one of the major weaknesses of Bill C-36 is the lack of a clear definition of terrorism. It talks about terrorist activities. It makes references to elements of terrorism, but is not able to clearly state what terrorism is. We believe one of the reasons for this is that we have not been able to deal with why people act in the way they do.
On the issue of a clear definition of what constitutes terrorism, I would like to state that when I attended a briefing session on Bill C-16 in Ottawa in February of this year, we had a long discussion on the issue of defining terrorism. Finally we were led to believe that it is for politicians to decide what the definition of terrorism is going to be. We were faced with a similar dilemma when discussing the immigration bill, Bill C-11.
At the information session for Bill C-36 held two weeks ago, we were told that the charter safeguards are covered under the bill. However, it appears a person can be detained if he or she is suspected of having connections with organizations that promote terrorism or is involved in activities that can lead to acts of terrorism—and again, terrorism is not defined very well.
Also, if a person is suspected of terrorism or is capable of carrying out an act of terrorism—such as financing a terrorist organization or money-laundering for suspected terrorists—under preventative arrest, in order to prevent an act, the person can be detained for 24 hours and then either be released or appear before a provincial court judge, not a justice of the peace. If the provincial court judge is not easily accessible, the person can be detained for 72 hours. The reasons for the detention may not be released for security reasons, but can be produced before the Federal Court judge in camera, who will then rule on the legitimacy of the detention.
Considering the present environment after September 11 in regard to terrorism, the finger is pointed very much toward people of colour, especially Arabs and Muslims. The current impression given is that certain segments of our society are either less loyal, or less Canadian, or both. It is definitely a violation of human rights of an individual or a group, especially Arabs and Muslims.
The flow of information is one of the pillars of a democratic society. It helps one to make an informed decision. Withholding of information will definitely deny the fundamental right to obtain information necessary for the defence. It is the violation of this fundamental right, because information won't be available for the accused to make an informed decision and this will really handicap any defence.
In the case of citizens, as in cases dealing with people applying for refugee status, it is very likely the impression will be given that certain countries, or for that matter certain faith groups, produce terrorists.
The implementation of the provisions in the bill is one of its weaknesses. Provisions in the bill may give the impression that they are free of bias, but in their implementation there is a great likelihood of bias against certain groups or individuals, especially Arabs and Muslims. While it is not the intention of the legislation to hurt, and its provisions do not necessarily target Arabs and Muslims, in their application their impact will be disproportionately felt by this group.
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The powers to peace officers, immigration officers,
and customs officers are almost unlimited. In order to
excel in their work, it may happen that these very
hard-pressed officers will ignore the basic rights of
the people. A few weeks ago a person was detained in
Victoria as he was trying to fly to the United States
of America. He was detained for seven hours and then
released with an explanation that it was a case of
mistaken identity.
We are fully aware that we are blessed with one of the best police forces in the world—if not the best. However, we must not lose sight that if it were to operate within the provisions of Bill C-36 when it is enacted, it will have a very challenging task.
We, the citizens, need a lot of safeguards if we are to function free of fear, free of being detained without any cause, merely on an assumption that a crime may be committed. We also feel the structure of Bill C-36 creates a strong possibility of the violation of our civil and human rights when it comes to the implementation of the bill. There is very strong fear in our Muslim community that our members will be subjected to harassment if enough safeguards are not provided.
There has been quite a discussion about including a sunset clause, or a review of the legislation after three years. While we feel this may be of some help, we are more concerned about the provisions of the bill at this time and in their immediate application and are looking for very substantive change.
The day before yesterday, at a meeting I attended in Vancouver, the director of the public complaints commission stated that he would like to hold information sessions for police officers if Bill C-36 is enacted, to explain to them their functioning under this new act. This was very constructive thinking; however, it will not have the desired effect if Bill C-36 is allowed to pass without a number of changes.
When the tragic events of September 11 happened, we were all very sad and disturbed. The first thing we did was to look to our inner spirit, our spiritual strength. We were immediately supported by churches and religious groups who stood in solidarity with us for peace and harmony—but above all peace. Whatever the final fate of Bill C-36, we should consider putting in place a mechanism—such as a committee or advisory committee—to monitor the situation after implementation, and the impact of implementation as it unfolds.
Arabs and Muslims and people of colour are very much concerned about the gap between the principle and the action in dealing with the protection provided under Bill C-36.
I would like to end my presentation with a quotation from the Archbishop of Canterbury from September 13, 2001, in which he reminded us that the Statue of Liberty in New York Harbour is still shining as brightly as ever. He concluded his message to the American people with a profound warning that “The tree of liberty must be planted in the soil of justice”.
Thank you very much.
The Chair: Thank you much, Mr. Khaki.
Mr. Aziz Khaki: It was a pleasure, Mr. Chairman, to appear before this committee. Thank you very much.
The Chair: And now I go to the Canadian Association of Labour Lawyers, represented by Steve Barrette and Ethan Poskanzek.
Mr. Steve Barrette (Canadian Association of Labour Lawyers): Thank you. I think I can still say good morning, as I look at the clock.
The Canadian Association of Labour Lawyers has actually given a brief in English and French to members of the committee. We're an organization of lawyers who represent trade unions, whether in law firms or in trade union legal departments. There are approximately 250 of us.
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I am a member of CALL, as is Mr. Poskanzek, and
with me is Sean McGee, who is another
member, and Michael Gotthiel, who is an Ontario
vice-president.
Our submission, both our written submission and particularly the remarks I'm going to make in the ten minutes we have, focuses on the definition of terrorist activity in the bill. In particular, it addresses the proposed legislation as it affects the free functioning of trade unions in Canada, the rights of Canadian workers to engage in what traditionally has always been understood to be proper, appropriate, and legitimate trade union activity, and more generally the rights of Canadians to engage in legitimate forms of protest, dissent, and advocacy.
We reviewed the transcript of the proceedings when the Commissioner of the RCMP appeared before you on, I think, October 23, and to a large extent his views parallel our own. He emphasized that the definition required some work and, in his view, ought not to be intended to prohibit legitimate dissent, whether through work stoppages, picketing, or traditional advocacy or protest. We agree with that, but the intent and what's actually written in the proposed bill are two different things.
In our brief, particularly on page 3 of the English version—I'm not sure of the page in the French—we set out some of our concerns with the breadth of the proposed definition of a terrorist act. I want to begin by focusing on clause 4 of the bill, amending section 83.01 of the Criminal Code, and in particular on proposed item 83.01(1)(b)(ii)(E). That's the provision that's set out at the bottom of page 2 in the English version of our brief and that relates to causing:
Now, we have a number of concerns with this provision from a trade union point of view. First of all, there's no definition of “essential service, facility or system”. It could obviously be very broad and extend to a variety of undefined government services, such as fire or police services, municipal services, and health services. The withdrawal of services by transit workers or hospital workers could potentially be considered to be terrorist activities if for one reason or another it was unlawful.
Similarly, more generally beyond the trade union context—and I think you've heard this example from other witnesses before the committee—a blockage of a road by Canadians exercising their right to engage in political protest could be caught by the legislation if for one reason or another it was unlawful because it involved trespass, mischief, or whatever.
Now, particularly around strike activity, there's no doubt that Canadians have differed both in terms of provincial laws and federal laws and just according to their views about whether a particular strike at a particular time ought to be lawful or not. However, until the proposed definition in Bill C-36, no one before has ever suggested that this sort of activity should be criminalized or be considered terrorism. In fact, the whole thrust of our labour laws has been to remove from the criminal process the regulation of labour disputes and confine it not to the courts but rather to expert labour tribunals.
In our view it would be regrettable and very much against our traditions to return to the criminal law as a vehicle for the control of legitimate trade union activity. We say, don't label trade unions and the workers they represent as terrorists, nor subject workers to the risk of life imprisonment if they direct a work stoppage or picketing that is found to be unlawful because it violates federal-provincial law or some municipal law.
Now, there is of course an exception for “lawful advocacy, protest, dissent or stoppage of work”, but the exception is the problem. It is very easy...and certainly we can say this as members of an organization that represents trade unions and workers. A strike may be considered to be illegal because a municipal bylaw is violated, because the picketing happens to prevent people from going to work for five or ten minutes, because the picketing takes place on private property, because leaflets are handed out, or because a strike takes place a day before the legally set time. All those events could be made unlawful, potentially be caught as terrorist activity, under the legislation. In our view, that can't be. Despite the horrible events of September 11, that isn't at all what we ought to be worried about, nor should we be criminalizing and labelling it as terrorist activity in this country.
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It is true also that the definition requires the
terrorist activity be committed—this is in proposed
item 83.01(1)(b)(i)(A)—“in whole or in part for a
political, religious or ideological purpose”. We have
at least two difficulties with that. First, in the
context of trade union activity or just generally
speaking, it's very difficult to determine whether
something is in fact motivated by a political,
ideological, or religious purpose.
In fact, there's a recent Supreme Court of Canada decision that came down in October in a case called Advance Cutting, where the Supreme Court of Canada held that requiring individuals to belong to trade unions in the context of the Quebec construction industry is to enforce ideological conformity on Canadians. That's what the Supreme Court of Canada has said, so the suggestion that there's some protection for trade union activity by the requirement that the motivation be political, religious, or ideological is in fact of no help. You could still end up swallowing up legitimate trade union activities, whether they're lawful or not, and protest activities in general.
Another concern we have was also expressed by the Canadian Bar Association when it appeared before you. That is, focusing on the motive in respect of whether something is or isn't terrorist activity by singling out political, religious, or ideological views may itself run afoul of provisions in the Charter of Rights and Freedoms. In our view, terrorism is not terrorism because of its motivation but because of the act itself.
What do we propose? I should add that we still had a number of other concerns with the scope of the definition, and those can be found at the bottom of page 4 and the top of page 5 of the brief, but let me quickly come to what we propose or suggest.
First of all, we agree with the Canadian Bar Association that proposed item 83.01(1)(b)(ii)(E) ought simply to be deleted. It adds nothing to what is contained in items (A), (B), (C), and (D) of the definition and so is unnecessary. It's overkill, and it will swallow up what we as Canadians have always viewed to be a cherished activity. Existing laws are more than sufficient to deal with interference or disruption of essential services, particularly in the labour context.
If proposed item 83.01(1)(b)(ii)(E) were to be maintained, which is obviously Parliament's prerogative, at the very least the word “lawful” before “advocacy, protest, dissent or stoppage of work” ought to be omitted. Advocacy, protest, dissent, and work stoppages—and I would add that picketing ought to be specified as well—whether lawful or not, don't turn the people engaging in them into terrorists in this country, and legislation ought not to make that definition.
In fact, we would propose that there be a clear provision in the bill that, in the labour context, provides that the withdrawal of services—picketing or other similar trade union activities—is not considered to be a terrorist activity within the meaning of the proposed legislation.
Finally, with respect to the definition of terrorist activity in proposed item 83.01(1)(b)(i)(A), for the reasons I've given it's our view that the reference to “political, religious or ideological purpose, objective or cause” ought to be deleted. But we're concerned—and a number of groups have called for this—in that we recognize that to some extent this limiting definition is intended to limit the reach of the activity caught by the legislation, which is commendable.
Simply deleting it, however, wouldn't be sufficient. Instead, this committee ought to consider recommending replacing proposed items 83.01(1)(b)(i)(A) and (B) with a provision that would more appropriately catch the kind of activity that happened September 11 and that we're all justifiably concerned about as Canadians. It would, in proposed paragraph 83.01(1)(b), involve a “criminal act or omission” rather than just “an act or omission”—because the kinds of activities we're talking about are criminal already—committed by persons who know or who ought reasonably to know that the act would likely induce terror or widespread fear among the public. In our view, it's the act itself and the consequences of the act that are the particular features of terrorism that ought to be caught here.
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Finally, in the ten seconds I might have left,
we join with others in
calling for sunset provisions in this legislation for
two reasons. First, given how close we are to the
events of September 11, it would be appropriate three
years from now, or a reasonable period from now, to
consider with the distance in perspective one would
then have the appropriateness of some of these
provisions. Moreover, as I think the United States
Congress recognized, one of the benefits of a sunset
provision is to provide some clear oversight and a
deterrent effect in terms of the administration and
application of legislation.
Thank you.
The Chair: Thank you very much. That was very well done.
I do find people overestimate the length of a second, but we'll....
Mr. Steve Barrette: In the Supreme Court of Canada they turn a light on. At least I don't have that.
The Chair: Next we're going to the Coalition of Muslim Organizations. Representing them are Ziyaad Mia and Khalid Baksh, for ten minutes.
Mr. Ziyaad Mia (Muslim Lawyers Association, Coalition of Muslim Organizations): Thank you.
[Witness speaks in his native language]...in the name of God, the compassionate, the merciful.
Good afternoon Mr. Chair, members of the committee. It's a pleasure to appear before you today to share our views on Bill C-36, the Anti-terrorism Act.
My name is Ziyaad Mia. Appearing with me is Mr. Baksh. We're members of the Muslim Lawyers Association, which is part of the Coalition of Muslim Organizations, on whose behalf we are here today. The coalition represents more than 140 Muslim organizations across Canada, and we represent a significant proportion of Canada's more than 600,000 Muslims.
Justice is one of Islam's core values, so much so that the Koran directs Muslims to always stand for justice. Muslim Canadians share the fear, anxiety, and pain arising from the events of September 11, and we endorse prudent and wise steps taken to ensure the safety, security, and peace of all Canadians. However, the coalition is gravely concerned that this bill as drafted does not serve justice; rather, in many ways, this bill could become a tool of injustice against many innocent Canadians.
Canada is a land of immigrants, with many of us drawn to this great and beautiful country because of its tolerance and respect for human and civil rights. My own story is a lot like that. I was born in South Africa while apartheid was a going concern. Ultimately, my parents made the difficult decision to leave their family and home to come to Canada, precisely because Canada offered us the basic human rights that were denied us in the land of our birth. A similar story is echoed in the experiences of many Muslim Canadians. The principles of fairness, equality, and tolerance along with the values embodied in the Charter of Rights and Freedoms are very precious to so many people who have made Canada their home.
Muslim Canadians find it unbelievable that the government would introduce legislation that places our most precious values at risk. Bill C-36 strikes the wrong balance between civil rights and security.
Drafting a law is much like building a house. You have to start with a strong foundation. Even if your house has appealing windows, doors, and walls, the structure will eventually collapse if the foundation is unsound. The foundation of this bill is unsound, and as a result, the provisions that spring from this foundation are also fundamentally flawed. The definitions in this bill, namely “terrorist activity” and “facilitation”, are its foundation.
You've already heard from a host of witnesses regarding the errors in these definitions. You've heard stories that heroic individuals like Nelson Mandela and Mahatma Gandhi would probably be labelled as terrorists under this bill.
However, heroes are not the only targets of this bill's loose definitions. As a teenager, I supported the work of the ANC and advocated for the demise of the repugnant apartheid regime in South Africa. Under Bill C-36, even an ordinary person such as myself would be labelled as a terrorist. The flaws in these definitions will result in devastating human consequences.
Terrorist activity is so broadly defined that many innocent Canadians will be caught in the bill's net. Take, for example, a Canadian involved in refugee or aid work abroad. They could be labelled as a terrorist based simply on the accusation of a foreign government.
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If this isn't troubling enough, then consider that a
group or individual may be labelled as terrorist by the
Solicitor General acting through an administrative
process, without any oversight, and relying heavily on
secret evidence and the politics of the day. This
evidence is considered secret because the person
concerned is excluded from seeing that evidence or
hearing the specific accusations against them.
This process not only offends every principle of fairness and justice, it is also blatantly contrary to the charter's guarantee of fundamental justice, the presumption of innocence, and the right to a fair trial. This bill gives those repressive governments that would accuse those people just one more tool to persecute their enemies abroad.
The drafters of this bill have naively attempted to package the deep and historic complexities of geopolitics, economic disparities, culture, faith, and ideology into a little box. This miscalculation vividly illustrates the bill's fatal flaws.
Venturing further into unexplored legal territory, the bill's preventative arrest provisions fundamentally alter a cornerstone of our legal system by undermining a litany of the charter's protections. These include the right not to be arbitrarily detained or imprisoned, the right to due process, and basic principles of the rule of law. Preventative arrest is a hallmark of a paranoid police state, not a free and democratic society.
The bill also makes criminals of innocent Canadians through the invention of facilitation as a terrorist offence. The absurdity inherent in this is that one may be guilty of facilitation, whether or not one is aware that they are facilitating an activity that is terrorism. This means that Canadians who act on good faith with charities, or the charities themselves, may be subject to severe criminal and civil penalties without ever having committed a criminal act.
Muslim Canadians are actively involved in charitable causes around the world because our faith calls on us to act charitably toward others. Under this bill, the charitable work of Canadians is at risk because simple acts of generosity may be sanctioned by the bill's imprecision. The absurd reality is that these people, without committing a criminal act, could be defined as terrorists under this bill.
What are the consequences then of being blacklisted by the government as a terrorist? You can be listed as a terrorist on the accusation of a foreign government in a secretive process. Your property can be seized. You can be arrested and detained without charge. You may be tried without you or your lawyer seeing the evidence against you, and you can be imprisoned for extraordinarily excessive terms.
The adverse impacts of this bill will not be remedied by judicial oversight and post-factum vindication. Stern judicial sanctions of the state's violation of rights make great case law, and may even serve to assuage societal guilt for wrongs done against innocent individuals and communities. However, case law will not repair ruined families, regain lost livelihoods, or rebuild friendships and trust fractured by the suspicion, innuendo, and stigmatization sown by the overzealous acts of the state. These very real consequences can only be avoided through prudent forethought, open debate, and a genuine respect for civil rights and the rule of law.
The coalition is extremely concerned that not only will the application of this bill be focused on Muslim Canadians, but the impact will be compounded by the lack of procedural and charter safeguards in the listing of terrorists, the investigative process, and the criminal justice system, all of which will serve to compound the discriminatory impact on them. In short, this bill will likely infringe section 15's equality guarantee.
Muslin Canadians acknowledge we must combat terrorism to ensure public safety. In undertaking the effort to combat terrorism we must exercise prudence, forethought, and caution. Haste and imprecision in such a venture are surely a recipe for disaster. This bill requires full, open, and inclusive debate. These hearings must not be the last step in that process.
Wisdom advises that we should use the existing tools at hand because they are tested, familiar, and reliable. Terrorism is a complex phenomenon, and it follows that solutions to terrorism must not be simplistic. Put simply, fear makes bad policy.
• 1220
A more comprehensive approach to dealing with
terrorism necessarily requires that the government use
its existing powers, and call upon and use its many
other tools to their fullest extent. Diplomacy,
peacemaking, support for representative government,
and an approach to international relations that is
imbued with a vision of equity and fairness will all go
much further to eliminate the threat of terrorism than
a bill that threatens the rights of Canadians.
Thank you.
The Chair: Thank you very much.
We'll now go to the National Organization of Immigrant and Visible Minority Women of Canada, Dr. Anu Bose.
Dr. Anu Bose (Executive Director, National Organization of Immigrant and Visible Minority Women of Canada): Good afternoon, Mr. Chairman and members of the committee.
The National Organization of Immigrant and Visible Minority Women thanks you for the opportunity to appear before it on Bill C-36, the proposed omnibus bill, or the Anti-terrorism Act.
The National Organization of Immigrant and Visible Minority Women of Canada is a non-profit, non-partisan, and non-sectarian organization, whose mandate is to ensure equality for immigrant and visible minority women within a bilingual Canada. Recently we appeared before the Senate on Bill C-11, the Immigration Act.
[Translation]
As I am an anglophone, I would not want to torture the Quebec members with my French.
[English]
Bill C-36 is, in the words of the Canadian Bar Association, a far-reaching legislation. It was cobbled together in the wake of the horrifying events of September 11. Canada's response to the tragedy has been to produce an omnibus bill that may, in the short run, create a false sense of security, but in the long term threatens to erode our hard-won rights and freedoms enshrined in the charter.
We ask that the bill be so crafted as to fulfil the government's need for controlling terrorist activity, but without breaching any charter rights. NOIVM believe, as do several other organizations, that the word “terrorist” is too broadly defined in the bill. The UN and the Canadian courts have refused to define the term. Nelson Mandela, a Nobel Peace Laureate, could then be branded a terrorist. Could Gerry Adams, the leader of the Sinn Fein, a guest of one of your colleagues and a member of the Northern Ireland legislature, also be branded a terrorist?
The government's definition of who is a terrorist and who is not has been known to change with its foreign policy and diplomatic considerations. The definition of such terms is too onerous, important, and sensitive a task to be left to the will and whim of peace officers. It is for Parliament to provide the leadership and the definitions.
NOIVM are concerned that clause 4 as it stands may be used against Canadian citizens engaged in legitimate forms of protest, including strike action. How are the opponents of globalization who marched in Quebec City and in Vancouver to be labelled, and the nurses and civil servants who struck work earlier this year?
We are also concerned about the criminalization of fundraising for what we consider good causes. The provisions allowing for the maintenance of a government-designated list of terrorist entities have insufficient procedural guarantees and are, to say the least, controversial. As we speak, members of NOIVM are raising funds for the Afghan Women's Mission and the Revolutionary Association of the Women of Afghanistan. Does that make us terrorists?
NOIVM, as a representative of the immigrant and visible minority communities, is concerned about the potential for disparate impact in much of Bill C-36. David Harris, professor of law and values at the University of Toledo law school and an authority on racial or ethnic profiling, has warned that we can overdo it. Racial profiling, he maintains, often sweeps innocents into the mix. According to him, awareness is the key to successful interdiction.
A recently appointed senator of South Asian origin has expressed her wariness on racial profiling. We would ask the members of this standing committee to be mindful of the relevance of the disparate impact theory when voting on Bill C-36.
• 1225
We support the Senate's recommendation that a separate
committee of the House of Commons and a committee of
the Senate undertake a review of the operation of the
bill. We support that the annual report be sent to
Parliament by the Minister of Justice, a detailed
report, without compromising national security, that
would delineate actions taken under Bill C-36. We also
support the Senate's recommendation that Parliament
appoint an officer of Parliament to monitor as
appropriate the exercise of powers provided in the bill
and that this officer table a report to both houses on
all the topics mentioned by the Senate.
NOIVMW supports the recommendation of the Canadian Bar Association that Bill C-36 be amended to include a three-year sunset or expiry clause, except for those provisions that relate expressly to protections against religious and racial intolerance.
I move, Mr. Chairperson, to speak on money laundering because that is what I did my doctorate in, money laundering in the informal economy and the institution of Hawala as practised in India. Unfortunately, an arrest here and an arrest there will not address this problem, since a great deal of money is transferred around the world through an informal underground clearing-house system that swaps money to move funds from place to place. It has been described in some detail in Hilary Mackenzie's article in The Ottawa Citizen of October 20, and I would refer your researchers to that.
It is a situation based entirely on trust, contrary to Fukuyama's characterization of developing countries as low-trust societies. There are no rules, no regulations, and no direct communication between the parties. All the transactions are done through the broker, who gets a percentage as a commission. It's cheap, efficient, and a welcome change from nationalized banks with extortionate rates, bureaucratic procedures, and surly clerks. FINTRAC would be well advised to keep this on their research agenda.
We are concerned as to who will foot the bill for national security. The Honourable Minister of Finance has led us to believe that he does not have in mind incurring a deficit in his budget. So where are the moneys to be found, especially now when economists tell us that we are experiencing a mild recession due to the fallout from September 11? Will there be further cuts in spending on health and education, which will affect the most vulnerable sectors of our society, especially those from visible minorities? Will our social capital base be further eroded? Will Canada's international aid budget, which is at a 30-year low, be further jeopardized in the present climate? Even the president of the Public Policy Forum has seen fit to warn the federal government that the preoccupation with terrorism could compromise future competitiveness and living standards. Forty-four percent of Canadians now have inadequate work-based skills and are unable to function in the knowledge economy.
In conclusion, the NOIVMW constituency is composed of women, some of whom have had to flee from terror, oftentimes state directed or state inspired, in their countries of origin. They and their families came to Canada to rebuild their lives and live in peace. They certainly do not wish to be victims of terror from within or without. NOIVMW asks you, the elected representatives of the Canadian people, to look for a balance between individual liberty and collective security. To let national security concerns trump our cherished freedoms would be to hand the victory to the very same terrorists that this bill purports to control.
[Translation]
Thank you very much.
[English]
The Chair: Thank you very much.
We'll now go to Mr. Fitzpatrick for seven minutes.
Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Thank you very much, folks, for your very informative presentations.
We live in a liberal democracy, and I mean liberal with a small “l”. I think that in a liberal democracy it has always been a disturbing idea or concept that the state tries to pry into our minds to determine what our private thoughts are in terms of religion, politics, and ideology.
• 1230
There are certain aspects of this definition
that I think are causing concern to people of
all stripes in terms of that sort of subject. Even
beyond that, to me the phrase “political,
ideological, and religious” in a cultural sense is a
mile wide and a mile deep. I'm not exactly sure what's
excluded by that definition. So those are some
concerns with the definition.
Another comment that has been made—I've heard it over and over again, but I'm not exactly in agreement with it—is why are we concerned about economic matters? I take issue with that. This is more than just acts of violence. If somebody shuts down our energy source in January, we have problems. The way our financial system works in this world today, with the global economy and so on, if somebody can shut down the information systems that the financial services sector relies upon, we have big problems. I really do think that terrorists are bent on destabilizing society through whatever ways they can. So to confine something to a pure act of violence is not sufficient in this area. I think they would use any means available to them to achieve their purposes. If they could destabilize our economy, our system, or our way of doing something, they would do so. I just want to make that comment.
I want to zero in on the idea of mistaken identity under this concept. With all due respect, the people on the U.S. list are predominantly of Muslim and Arab background. What I've heard about the Canadian list is that it's the same thing. I'm quite sure there are a lot of common names in the Arabic and Muslim communities.
I'm just thinking about this thing. If it were in a different context, and the name of John McKay, Andrew Scott, or John Maloney were put on a list and the money-laundering provisions were in place, with the requirement to report all the financial institutions and having the ability to freeze and close down things and so on, I think we would probably realize that there would be a lot of injustice occurring with that sort of system.
This is a concern I have with the listing provisions. If a mistake is made, I think it could have very harmful effects on a lot of innocent people. There really isn't a lot of protection in there if you want to get your name taken off. You can apply to the Solicitor General, and if the Solicitor General is sympathetic to your cause, your name might be taken off. But other than that, there isn't a whole lot more in the bill. That's something I would like the spokesman from the Muslim community to address. We've heard from union people and other groups, and that's something I would like to hear.
I have had a look at the Senate report, and I think they've done a very thoughtful analysis of this piece of legislation. I'd be curious to hear your response to their proposals with regard to this bill.
The Chair: Mr. Mia.
Mr. Ziyaad Mia: Thank you.
I think you raise a good point, that in the context of the definition, which is quite unique, you're not talking about the bill, you're now talking about the motivation for the bill as to whether it's political, religious, or ideological. That is obviously a quagmire you don't want to enter, because, as you rightly mentioned, it's going to catch many people, and the government shouldn't really inquire into your politics or religion as long as you're a peaceful person.
As Muslims we're really concerned that this kind of contextual definition would capture a lot of Muslims. Our concern is that a lot of these offences may be neutrally drafted, but given the current climate of fear of Muslims and that sort of thing, a lot of Muslims are going to be impacted by this bill. That's just one of our concerns, that this context should go.
• 1235
As you mentioned, the lists you've seen have primarily
Muslim names on them. That's a great point you raise,
because most of the lists that are out there have
Muslim names. Whether people with Muslim names carry
out terrorist acts, people with Muslim names don't have
the monopoly on terror, unfortunately. People all over
the world, with different names and different faiths
that they claim to adhere to, commit terror.
So the problem there is that I think you're going to politicize the thing. If today the Muslims are the poster boy of terror, they'll be on the list. Twenty years down the road, if it's the Irish or someone else, then it will be them.
Just to be practical, Muslims would say we have grievances against the Israeli actions in Palestine or the American actions against Iraq. Would those be terrorist? Bombing of Iraq surely inflicts terror for political reasons, to intimidate a population and a government to act in a certain way. That fits the bill as terrorism. Would then the United States Air Force be on the terrorist list?
So I think it's the politicizing of it that's the problem, that's going to catch a lot of Muslims, and I think then the disproportionate impact is the issue.
I think Mr. Baksh had a couple of points as well.
Mr. Khalid Baksh (Muslim Lawyers Association; Coalition of Muslim Organizations): One of the things we note is that, for instance, the Ontario Securities Commission has created its list, and when you go through the list, I'm in complete agreement with you; they're Muslim-sounding names. Whether they're Muslim or not remains to be seen, because that's an individual choice. A lot of the agencies are definitely Islamic-type agencies, or agencies from at least countries where Muslims are.
There are some on there that strike us as quite strange. For instance, Rabita Trust is on the list. Rabita does incredible work around the world in terms of charities. They do great work in terms of developing and helping developing economies.
One of the biggest things about this is that this list is out there, and certain names will be similar to certain names. We have 1.2 billion Muslims around the world. Of course there are names that are going to be there. One of the worst things that's going to happen with this is it's going to chill aid; it's going to chill the charities.
The Chair: Thank you.
Monsieur Bellehumeur, seven minutes.
[Translation]
Mr. Michel Bellehumeur: I'd like to thank you for your presentation this morning.
Your briefs and comments confirm a lot of things. They corroborate a lot of other testimony we've heard. I think the central point of Bill C-36, if there is one, is the major definition of "terrorist activity". The first part, referring to international conventions, is not a problem. The part concerning "made in Canada" terrorist activities is the problem.
Quite honestly, even by making amendments to the bill, it seems to me we'd have to go all the way back to square one. We'd have to start all over again, adopt a new definition, because contrary to Mr. Fitzpatrick, I don't believe in the idea of economic terrorism. That's something else. If there's no electricity because there's a virus in the computer system, that isn't terrorism. If you blow up a dam, that's terrorism. I think we have to make a distinction here.
The definition of "terrorist activity" is very broad. Even economic intimidation could be considered as an act of terrorism under this definition. I could name you a lot of Canadian businessmen and several banks, if you just think about our interest rates, who are also into intimidation and they're certainly not considered as terrorists. American protectionism, if you apply the definition word for word, could be judged as being economic terrorism.
That's only one aspect. I understand this part is the one that interests the union the most, if one thinks of illegal demonstrations and others. Let's consider the rights of the individual, temporary detention and the right to a lawyer. One wonders if a lawyer will be present during the interrogation of any individuals arrested but not accused of anything. I know they have a right to a lawyer, but when will the lawyer show up?
• 1240
Let's talk about wiretapping. All that was written very
quickly, as the Minister of Justice admitted herself. At the
beginning of the crisis, the Canadian Alliance wanted
anti-terrorist legislation and the minister said we didn't need
any, and I'm of the opinion we don't need any. We have all the
tools we need. All we have to do is use them properly. Maybe we
should implement certain international conventions. I share that
opinion. Maybe we should reinforce some elements in the area of
hate crimes. I also share that opinion. On the other hand, I'm
against the fact that we're having a knife held to our throats to
pass this legislation quickly.
My single and only question, and I already put it to the other group, is this. Do you think I'm making a mistake if, as a legislator representing his constituents, I try to improve this bill? Isn't my role to send to the Minister of Justice those amendments that I would like to see in the act as well as the Senate's report? Should I ask her to go back, do her homework and come back and see us quickly so that we can take the time to examine the whole thing and to give enough time to other specialists to examine our report, the Senate's report and the new bill? Wouldn't it be more intelligent to do that seeing as this is something serious? As a background, the government is telling us that, finally, there's no indication that terrorists are targeting Canada. Yes, there is some urgency in view of the events of September 11. Don't we have time to write better legislation as there is no indication that Canada is in the crosshairs of international terrorism?
[English]
The Chair: Mr. Mia, and then Mr. Barrette.
Mr. Ziyaad Mia: I think you've just summed up our point.
I'll start with your latter question, which was, what should you as a representative do? I think that is really the pith of being here, that you are the representatives of the Canadian people, and this committee is sort of the focus of the legislative scrutiny. As you know, the great parliamentarians in common law in England, and so on, have said you have responsibility now to look at this and worry about our rights, and be a check, basically, on the protection of our rights.
I think what you raised is an important point, and the answer I would give you is that you would have to go back with a clean conscience to your constituents and say, this is not good law. This is hastily drafted. It's complex. I went to law school, and I don't understand everything that's in here. There are pieces that don't even make sense and that are poorly drafted.
The impact on rights is so significant, especially in the climate of fear that we have, that if we throw these loose tools out there, you're going to be hurting a lot of innocent people. As I mentioned in my statement, case law is great to read at school, but it's not going to put your family together. People who are preventively arrested, take someone who's working in a factory, if they don't show up for work, their job is gone. That's it. You know what I mean? Oh, sorry, Ziyaad, we know you're a good guy, but you've been arrested. One, you're gone for three days, and you lose your job; and two, the taint is that you're a terrorist. We have evidence from our community that the RCMP has come to look and talk to people and actually tip off the employers, saying that guy is applying for a job here; you might not want to hire that guy. There's no charge, just the hint and the taint.
The thing is, the tools are there. We need the diplomatic tools on one front to really deal with international relations, to hit the root cause of terrorism—that's what the government says—not the symptoms of terrorism. September 11 was a symptom, and I think the Criminal Code is sufficient. The government has mentioned in its news release and in all its press statements that the Criminal Code already criminalizes hijacking, murder, everything that happened on September 11. In the United States, they would probably face the death penalty, if they still lived.
You can look at section 21 of the Criminal Code, the parties offences. That is so broad that anyone who is a party to an offence in this code or an accessory after the fact, or who assists someone committing an offence is therefore liable for criminal responsibility.
You want to talk about planning? The government says we need this law because we have to catch these really devious people who are out there planning long-term acts, and the Criminal Code isn't sufficient.
• 1245
Section 465 of the
Criminal Code is on conspiracy. If you read that, it
says a conspiracy between two or more people who conspire to
commit any offence, here or abroad. To conspire in Canada
to commit an offence abroad, where it's illegal under
that jurisdiction's law, is an offence here. If you
conspire abroad to commit an act in Canada that is an
offence under this code, you're caught by that as well.
That's sufficient. These tools are there.
What are we saying? We're saying let's take the code and play with a few definitions. Let's impose religion, ideology, and politics onto it and make a big mess of it. I think we have this. I'm not saying all of the Criminal Code is valid under the charter, but it's stood the test of time. It's been vetted; we've had it there.
If you say we really have to punish terrorist offences to set an example here, this bill actually has consecutive sentencing, which is quite disturbing, because some of the offences are to facilitate, participate, and harbour terrorists. It's so loose that by committing one act, unknowingly you'll trip up on three offences. You'll be guilty of three offences.
Under this legislation, for every indictable offence committed that's a terrorist act, you are liable for life imprisonment for each of those. Even Paul Bernardo, sicko that he is, is serving concurrent sentences. We're going to say that anyone who does a tiny offence, which is then bumped up because it has some terrorist connotation, would be serving 75, 100 years or more. I think that's unconstitutional and it's unconscionable in this country.
The other thing is you can just amend the sentencing provisions to say that's an aggravating circumstance.
The Chair: Mr. Barrette.
Mr. Steve Barrette: In an ideal world, yes, the answer is let's go back and get it right the first time. I suspect we're not living in an ideal world, and I suspect that sooner rather than later we're going to be through third reading of this bill and so on. Given this political reality we're facing, let me try to respond to this issue around the question of economic terrorism.
The difficulty is actually the legal definition of “intimidation”, and the language in the proposed bill that talks about any act that seeks to compel anyone to do or not do anything. With that broad language, yes, I think in fact the proposed legislation is overly broad.
We point out in the trade union context that the courts have already looked at the tort of intimidation. It's considered to be intimidation for workers to threaten an employer to breach a contract of employment. Hardly should we be considering that sort of activity to be terrorism.
In fact, I agree with you that certain acts directed at the economy alone can in fact be, and ought to be, considered terrorism, but not an economic interference or disruption standing alone. The very essence of our economic system is we have economic interference and disruption all the time. As Canadians, we have to recognize that this is part of being Canadian. But where that economic disruption or interference results in any of the events specified in (ii)(A), (B), and (C) of the definition—that is, death, serious bodily harm, endangerment to life, or serious risk to health or safety—then the fact that it's an economic act coupled with those effects or that intent ought to in fact quite properly, if the other aspects of the definition are improved, amount to a terrorist act. But economic disruption or interference standing alone as proposed in (E) is, in our view, too broad and unnecessary.
Finally, I want to re-emphasize something I said in my initial comments, and it's in answer to a question asked earlier. In terms of this inclusion of political, religious, or ideological purpose, objective, or cause, some have have recommended that it be taken out altogether. We understand the spirit behind that proposal, because it is offensive and probably doesn't really get at what we collectively mean by terrorism. But the one advantage to (b)(i)(A) is in fact it attempts at least—and I think to that extent we ought to recognize this—to put a limit on the otherwise very broad language.
We think there ought to be a replacement limit—not an inquiry into one's political, religious, or ideological motivation or purpose, but rather an inquiry into whether the person committing the act knew or ought reasonably to be taken to have known that the likely consequence of the act was to induce terror or widespread fear among the population. That's in fact what we collectively mean, I think, and that's a way to fix, or at least attempt to try to fix, if the bill is going to pass, that part of the definition.
• 1250
The Chair: Thank you very much.
Save some of the answers for the good questions I'm sure Mr. MacKay is about to put.
Mr. Peter MacKay: Thank you, Mr. Chair. I appreciate your optimism.
I want to thank all the panellists for their very excellent presentations. We are literally overwhelmed, as I think are many of you, when you start to break this bill down and go through it with a fine-toothed comb. The legislation is complex, it's comprehensive, and casts a very broad net in some of the definitions, as you rightly pointed out. I think you've articulated in the past 40 minutes very much of the same sentiment that is emerging here, the consistent theme that this bill could very well create more terror than it will prevent.
I'm particularly worried, frankly, about the resource aspect, which certainly doesn't appear to be present right now, which can impact on the application of the bill. There have been stories prior to this bill coming into effect of members of the Arab and Muslim community being caught up already because of similarities in name, because of descriptions, and then being denied the right to counsel. There is a real fear, I believe a legitimate fear, on the part of new Canadians who may not be familiar with the rights they have upon landing on Canadian shores.
You've pointed out, Mr. Mia, in very explicit terms the lack of judicial oversight that exists here, the inability to get before a judge. And I think your synopsis is extremely apt and articulate, in that one of the very founding principles of justice is the ability to make full answer in defence. But how can you make full answer in defence if you don't know what that charge is, or what the allegation is? That extends to listing. You may not even know that you are listed, let alone have the opportunity to rebut some allegation.
I have a question for you, and any of you with knowledge of the international scene perhaps can answer this better than most. We have heard consistently from the Department of Justice and the minister herself that many of the reasons behind the necessity of tightening Canada's grasp of information, bypassing the information and privacy commissioner, doing away, to a large extent, with the access to information provisions, allowing the issuance of a certificate that completely cloaks government information for reasons of national defence or security, or the other nebulous definition of international relations.... Is there a sentiment out there somehow that Canada has weak access to information laws? Is there a sentiment among countries that somehow, if they pass on information to Canada, currently, the information will be leaked?
It appears that the most recent examples in the Canadian context have not been from any bureaucrat, they've been from the politicians themselves, who have leaked the information. It was not through any access to information requests, or independent officers of Parliament. Are you aware of other countries requesting that Canada somehow tighten the grasp they have on information?
Finally, on this issue of reputation and recourse, you are so right. Once that genie is out of the bottle, once you've been questioned at work or otherwise, or the feeling is out there, nobody can give you that reputation back. Nobody can give you the interest that you've lost on your assets that have been frozen. So not only is there very little in the way of judicial or parliamentary oversight, but there is certainly nothing explicit in this act that says here's your compensation route, here's where you go once you've been questioned and released, this is the office where you go to seek recompense for what has happened to you, and here's where we're going to somehow try to rehabilitate your reputation and your economic security.
I wonder if you would like to comment on that.
The Chair: Mr. Baksh.
Mr. Khalid Baksh: To answer your first question, obviously we don't have access to foreign governments. We don't have access to foreign security people, so in terms of what they are thinking about Canada's security situation in terms of information, we can't answer on that. We can tell you that from a grassroots level, from talking with our members in our community, the basic fundamental Canadian values are being promoted and respected around the world.
• 1255
One of the main reasons Muslims come to this country
was because those fundamental values here. Those
fundamental values are respected by the judiciary, our
security people, the government, and fellow Canadians.
That's a very important aspect.
The human impact you're talking about is real. We're sitting here today. There are over 140 Muslim organizations behind us. The vast majority of Canada's Muslims are in those organizations. Canadian Muslims are taking a look at this and saying this is real; the fear is real. The fear is not just because of this legislation; the fear is what's happening right now.
In the brief we've provided to you at appendix B, there's a list of statistics. I'm sorry, maybe all of you don't have it. Listed there are 105 incidents we know about that have been reported. They were racially motivated, hate motivated, and profiling motivated. This is a small minority of the cases we know about. I personally have dealt with many that have not been reported.
I'm a lawyer. I operate a practice in Toronto. Since September 11, many Muslims have contacted me to get advice on the backlash, the racial profiling, and the hate that has been out there from their fellow Canadians, the police, and what they see as government sources.
In addition to that, you put a bill such as this into play, a bill that attacks the very fundamental values of why we're in this wonderful nation, and that whole aspect of fear continues. The fear is real, the fear is palpable, and it's out there. So the real human impact is going to be there.
For Mr. MacKay, no compensation is going to repair the lives that are going to be ruined as a result of this bill.
The Chair: Thank you very much.
Dr. Bose, were you trying to get my attention?
Dr. Anu Bose: I spent the last twenty years working in Asia, the last five in Central Asia in the former Soviet Union. Nowhere was Canada perceived as being weak. It was perceived as what the British would call a nice bunch of people—sort of vapid, boring, but nice.
I've never seen or heard, in the last twenty years in all the countries in which I've lived, Canada described as anything other than a good place to be. I was told how lucky I was. I came to Canada after I had been a student in America at the end of the Vietnam War. I came to Quebec because I was more than just bilingual in those days, but twenty years in Britain and the colonies has changed that.
The Chair: Before we go to Mr. Mia, I want to advise members we are extending the hours to compensate for the push-back as a result of the vote.
Mr. Mia.
Mr. Ziyaad Mia: I have just a couple of quick points.
• 1300
In terms of information being loose in Canada, I think
Mr. Manley was quoted either earlier this week or late
last week in New York at a trade event just
championing that none of these people came from Canada;
our ship is pretty tight here; there's nothing
happening here that you need to be worried about. So
it's a mixed message here. Which is it? Is it black
or white?
Mr. Peter MacKay: That was pre-Bill C-36.
Mr. Ziyaad Mia: That's right.
Mr. Peter MacKay: He's saying now it's safe.
Mr. Ziyaad Mia: That's right. He was saying this didn't come through Canada; there's nothing to worry about up here. We're not sort of, “loose lips sink ships” up here.
Just on my personal experience with freedom of information, in the environmental context—I'm a regulatory lawyer—you try to pry a little piece of information out of the government that has nothing to do with national security, it's a pretty tough job.
I suspect the checks and balances in the Privacy Act, PIPEDA, and all those other pieces of legislation are already there. They're not going to leak something to you that they don't want to. The checks are there, so I don't know why they need to clamp down on information.
The other troubling aspect is this loosening of the privacy protections in the legislation, where say Revenue Canada has something on you and the fisheries department can't share information. You don't want this big brother thing happening. This bill is eroding some of those protections where CSIS can say “Let me look at Mia's tax form and then see what else he's been up to. Has he been arrested for anything?”, that sort of thing, and mixing it together.
On reporting, I'll just give you an anecdote. I'm a regulatory lawyer. I don't do criminal law or anything. I was at the mosque at our coalition meeting preparing for this. People, just guys, were coming up to me and asking me what they should do. These people were immigrants. We've been to law school, we've blended into the society well, we know the ways of Canada. But these people were Somalis, five years in the country.
They're scared of authority, so they may not report to the police. Then the police are at your door. The police came with a warrant—no charge—for some kind of offence, took this man's computer and everything and won't return it. He keeps calling them. It's little things like that.
Mr. Peter MacKay: It makes them more vulnerable to disclose information about their clients.
Mr. Ziyaad Mia: That's the other thing—solicitor-client privilege. You're obliged, under the FINTRAC and others, to disclose money transfers and financial transactions. You're also caught by one of the participation offences. Participation offence 83.17(3) says you participate, contribute to, or facilitate an act where you provide a benefit or skill. So if someone in the community is charged and we represent them, I'm giving them a benefit. If they flip around and pay me, that's a benefit to me, so I could be caught by that.
The Chair: The last response is to Mr. Barrette, and then we'll go to the other side. Mr. Barrette.
Mr. Steve Barrette: Just one quick point, if lawyers ever can be quick, and the evidence is to the contrary, I think.
If the very real human tragic consequences of the bill, if this committee or Parliament passes it without significantly reworking it, aren't enough to dissuade this committee or Parliament from passing it, at the very least this is a compelling reason for a sunset clause.
There is the sort of oversight and quite frankly deterrent effect with which the various authorities are empowered under this bill, in terms of the exercise of their powers and potential abuse of those powers. If there isn't at least a knowledge that three years from now there's going to be a real meaningful opportunity, which given the time constraints being imposed we don't really have now, to take a second look at this bill without that sort of constraint, we're basically authorizing this to go on forever. That would be unconscionable, in our view.
The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Thank you.
Mr. John McKay, for seven minutes.
Mr. John McKay: Thank you, Mr. Chairman, and thank you all for being here.
I'll address the question generally to the panel. We have been repeatedly told that this bill is charter-proof, whatever that means. There's a suspicion that may not be entirely true. If you were going to challenge this bill, and I think it will be challenged inevitably, how would you go about that analysis? What would be your attack points, given there is a sentiment that this bill in some form will pass? Where do you see the points where this bill will really be vulnerable?
• 1305
The Vice-Chair (Mr. Chuck Cadman): Mr. Mia.
Mr. Ziyaad Mia: I'll try not to be a time hog this time.
Just to sum it up, if this bill is charter-proof, I think the Titanic was waterproof.
I'm not going to take you through the whole legal analysis. I'll give you the hit points. I don't know if you have our written submission, but when you do get it, we have the Oakes test, which I'm sure some of you are familiar with, on the charter. The Supreme Court laid out this test of the section 1 analysis.
Section 1 basically says that all the rights and freedoms in the charter are guaranteed, except where the government has the onus, if they do infringe them, to justify demonstrably that they're consistent with the free and democratic society. Chief Justice Dickson, a great jurist of the Supreme Court, outlined in Regina v. Oakes, in 1986, the basic Oakes test, which it's called, and it walks you through it.
Basically there are three elements to the Oakes test. You need a government objective. The objective here is quite large, that terrorism represents a substantial threat to Canada and we need to deal with that in many ways.
The first arm of the Oakes test is basically the rational connection. There has to be a rational connection between the measures taken. So the measures taken in this bill must be rationally connected to the objective outlined by the government, which is to combat terrorism.
We think it fails the rational connection right off the bat, because the objective is quite broad, and as I believe Mr. Bellehumeur may have pointed out, it's not clear what the threat is or how substantial is, and the measures in here are so broad that they're going to catch many innocent people. They're not going to catch the terrorists or the potential terrorists. So it's not rationally connected to the objective.
The second point is minimal impairment where the state is justified in violating rights. One case was the drunk-driving RIDE programs. Those were justified because your rights were infringed, but it was for a greater good. But it was a minimal impairment. It was a quick stop, they sniffed your breath and gave you your coupons, and you were on your way. But minimal impairment means you need to be very precise when you're reaching your objective, in how much you impair rights. So it has to be the minimum infringement to get your objective.
Obviously, as I've mentioned, I'm not going to walk through all of it. Your right to a full answer in defence, section 9 of the charter, sections 10 and 11, all that is violated in section 7. We outline that in our submission.
The third arm is proportionality. At the end of the day, this is probably the most important arm of the Oakes test. You take the effects of the measure—so Bill C-36 in all its effects in infringing rights—and you weigh that against the rights of the person and the objectives, and it has to be proportionate.
What I state here is that you don't use an anvil to kill an ant. That's basically the proportionality test, and that's also tied into the rational connection. If you're rationally connected and you don't want to hammer the thing, if it requires a hammer, you don't use an anvil, that sort of thing.
I think it's going to fail probably on all those grounds. Usually the Supreme Court lets you go on the objectives, but I think it will fail on all those grounds.
As you walk through our submission, you'll see the specific violations. I think rights upon arrest or detention, due process, right to full answer in defence, the equality guarantee and the prohibition against cruel and unusual punishment are all violated, and they can't be demonstrably justified as valid.
Mr. John McKay: Before I hear from Mr. Barrette, going back to the objective part and the evidence that would be in front of a court, if it's circumscribed evidence, it's a summary of evidence or something, and so the actual real material is only known by the crown and the judge, doesn't that lead into a bit of a Kafkaesque scenario where we've achieved demonstrability because we say it's demonstrable, and your objective test then goes out the window. Is that a fair comment?
Mr. Ziyaad Mia: In establishing its objective, I think the government needs to go there, and normally, because pieces of legislation are policy documents, the objectives are policies as well. They'll bring statistics and economics for economic legislation. In this case, they'd probably bring security information.
• 1310
But you've hit on an interesting point: How are we
going to demonstrably justify the substantial threat of
terrorism to Canada when this legislation provides for
secret evidence? Will they then say “Trust us on the
objective; we can't show you the evidence, but
trust us, this is a substantial threat”?
Mr. John McKay: That takes one leg out of the Oakes test.
Mr. Ziyaad Mia: I suspect if that leg falls, you have no objective there that can be demonstrably justified.
Mr. John McKay: So it would cut both ways, then.
Mr. Ziyaad Mia: Right.
Mr. John McKay: I see.
Mr. Steve Barrette: A substantial portion of my practice is actually acting for trade unions and the Canadian Labour Congress, which I think was here yesterday, around Charter of Rights issues. As far as I know, the bill doesn't actually bring about a revolution in our legal system such that the Minister of Justice can now determine what is and isn't constitutional. Ultimately, whether it's charter-proof or not, it depends on what the Supreme Court of Canada says.
I think the way to answer your question is, if you look at the first 15 sections of the charter, on section 1 it's the Oakes test, the Oakes section 1 justification test. But a better way to ask might be, what sections wouldn't be violated? Those are probably the voting rights provisions, and maybe the mobility rights provision. But other than that, we have an assault on freedom of expression and freedom of assembly because of, among other reasons, the overbreadth of the restrictions imposed on legitimate protest and trade union activities, certainly. We have a bill that is certainly potentially one that would be found to violate both the freedom of religion and the prohibition against religious discrimination contained in section 2(a) and section 15 of the charter.
We have a bill that simply overrides the fundamental legal rights that are contained in sections 7 to 14 of the charter in a number of areas, some of which have been outlined today, and others have been contained in other briefs before you, and we have a bill that, in all those areas, is one that is calculated to chill the exercise of these fundamental freedoms.
So sure the government can try to justify the bill under the Oakes test, and we'll see how deferential the courts might end up being to Parliament in this situation. Some have suggested that a sunset clause in the bill would actually make it more charter-proof. I'm not even sure about that because of the significant intrusion in these multiple areas of constitutionally protected rights and freedoms.
Mr. John McKay: Would a sunset clause send a certain signal to the Supreme Court that Parliament did feel a level of discomfort with this legislation but felt that it was appropriate?
Mr. Steve Barrette: Do you want me to answer that question?
The Chair: Yes. My intervention was aimed at Mr. McKay.
Mr. Steve Barrette: Right. Well, I'm sure it will be aimed at me soon.
In that sense, I suppose a sunset clause might be a two-edged sword, but certainly there is some merit to the view that some have put forward, that to the extent the legislation is temporary and emergency in nature, the court might be more willing to uphold it if it thought it was permanent.
But I should add, there are certainly cases—and I can't remember the name of the case right now, but my colleague might—where the court has said, despite something being temporary, if it's an infringement, it's an infringement, and the temporary nature of suspending wholesale people's rights and freedoms isn't going to justify it.
So I'm not sure it's complete protection. Certainly, in our view, if there is going to be legislation, it would be preferable to have a sunset provision than not to have one.
The Chair: Thank you very much.
Mr. Fitzpatrick, for three minutes.
Mr. Brian Fitzpatrick: I want to tip the teeter-totter back a bit, because we've heard a lot of witnesses here, and people have said terrorism has always been around. But something that is very clear to me, and I didn't have to hear witnesses to hear this, is that we're in an age where terrorist organizations have the ability to create mass destruction that we couldn't have fathomed before. Looking at the towers is evidence of that alone, and you have to be pretty naive not to appreciate that reality. These organizations, the al-Qaeda network, I'm convinced are out to destroy everything that we stand for in the west. That's their goal, and they're not going to quit until they achieve it.
We've had witnesses here—I think it was Mr. Whitaker—who said that the al-Qaeda network is perhaps the most powerful transnational organization in the world today. This is a powerful organization by any scale, and I want to bring it back to that focus.
For people to say we don't need to act or we don't have to take steps in the face of this sort of thing, I think we're being naive. We have a new landscape.
• 1315
In regard to your reference to the Criminal Code
provisions, I agree with many of the points you
mention, but there are things I see in this bill that I
don't think are covered in the Criminal Code. The
powers of surveillance, ministerial orders, the
investigative hearings, and some of the arrest and
detention powers surpass what exists in the
Criminal Code.
In all honesty, in dealing with people of the al-Qaeda type I'd be the last to say some of these tools are not necessary. I put that out, but my own point of view is these things may be necessary but let's make darn sure we have checks and balances to make sure people don't abuse these powers and go astray. I certainly wouldn't be one to say these things are not necessary tools in fighting this new paradigm of international terrorism with itspower to cause mass destruction of everything we stand for in North America.
The Chair: Thank you, Mr. Fitzpatrick. You've got a response.
Mr. Baksh.
Mr. Khalid Baksh: Well, first of all, concerning the alleged fact that al-Qaeda or some other organization may be involved, it may be involved. Not all Canadians are involved; not all Muslims are involved; not all Muslim Canadians are involved. To bring in such a wide-sweeping act with powers that are going to stigmatize each and every Canadian is just wrong, based on that.
The other thing is you have to understand we are not saying don't take the steps. We're saying as Canadians—as Muslim Canadians—that we must act against terrorism. We're in complete agreement we must act against terrorism. We're not in favour of terrorism; no Muslim is in favour of terrorism. You've heard statement after statement after statement from different Muslim organizations in Canada, from different Muslim governments, from international agencies—all against that.
One thing, though, is that you're talking about the terrorists attacking our fundamental values. Well, guess what? This bill is a fundamental attack on our values. This bill itself is the attack. If you allow things like this, you allow someone to come in and clean your house out—clean yourself out of every right you have—what you are in fact doing is bowing to the terrorists. You're allowing them to win by cleaning out the house.
With regard to the Criminal Code sanctions, I'll turn you over to Ziyaad.
The Chair: I'm going to go to Mr. Barrette first, but we will come to Mr. Mia in a moment.
Mr. Barrette.
Mr. Steve Barrette: We focused our submissions on the definition of terrorism itself, which is sort of a linchpin for the whole bill. I dare say any activity al-Qaeda is involved in would be caught by the most restrictive definition of terrorism one could come up with. It's caught by the existing Criminal Code, for instance, just in terms of the scope of the kind of activities they engage in. I don't think in order to prevent—and I agree with you that's obviously the evil we're trying to prevent.... I'm sorry?
Mr. Brian Fitzpatrick: Prevention, that's what we're looking at—not after the fact; that's too late.
Mr. Steve Barrette: Absolutely, and it may well be that certain increased surveillance mechanisms and so forth are appropriate—but in regard to activity that is truly terrorist, not in regard to an over-broad definition of activity that could affect the rights of ordinary Canadians in this room simply to attend a political protest, or march, or engage in lawful or unlawful picketing or strike activity.
Just to focus on the definition of terrorism proposed in the bill, it does far more than accomplish the objectives you and I agree about; it sweeps up activity that we probably agree ought to be protected. As we point out just at the very outset of our brief, Amnesty International, in its recent appeal to the European Union and its members states around the same issues we're grappling with here, said—and I think this is appropriate—we have to be very careful to ensure that the aim of security does not undermine the very rights it seeks to safeguard. So yes, let's capture the real terrorists, but let's not make of us all terrorists.
The Chair: Thank you.
Mr. Maloney.
Mr. John Maloney (Erie—Lincoln, Lib.): I think you made the comment that this act will chill charities. I think there's no question there will be a higher onus, from an administrative point of view, on the responsibility to ensure that the funds raised through charitable activities in fact go to charitable activities and not to subversive activities. Is this such a bad thing?
• 1320
Mr. Khalid Baksh: I beg your pardon?
Mr. John Maloney: Is it such a bad thing to ensure funding does not go to subversive organizations or activities?
Mr. Khalid Baksh: First of all, again to use Ziyaad's expression, this is using an anvil as a tool where a simple hammer might do. It is putting a chill on charities—and let me say this straight out—not just Muslim charities; it is putting a chill on charities across Canada. You heard in the previous session one of the speakers speak directly to this.
She said people are afraid, because if you're sending money to a charity and the money's being sent overseas, no matter where it's being sent—to central America, South America, Africa, Asia: wherever it is—if that region of the world is in political turmoil, there is a chance the money you're sending may be sent to an organization that is against what the government is doing. That government can then come back and say, “This organization is bad.”
The dollars, the money, the clothes, the powdered soup—whatever it is that's being sent over—may be caught up in this expansive definition. We are seeing right now, even before Bill C-36 is in place, that there is a chill on charities. Bill C-16 was in front of the committee. Bill C-16 was tabled, and for good reason. All of a sudden, a few months later, we have Bill C-16 still tabled and they're trying to get this charity stuff in through the back door again.
There is a chill on what's going on.
The Chair: Mr. Mia, there was a question put by Mr. Fitzpatrick relative to the adequacy of the Criminal Code. Would you—
Mr. Ziyaad Mia: I can address that. I can just give you one quote as well.
Mr. Fitzpatrick, I agree with you the context is that we're all scared. I mean, Muslims are scared. I want everyone to know that Muslims are scared as well. We're doubly scared, because some of us are walking around scared of our fellow citizens as well as of being blown up somewhere.
Unfortunately, the reality of terrorism is that it's now in North America. For the rest of the world, they're living this day to day; it's not new. When I was in South Africa.... Johannesburg is today the most violent city on earth, but for black South Africans, that was the case for their whole history.
I'll get quickly to the Criminal Code provisions, just to keep it short. I think it's sufficient, and there are points you've raised. I mentioned earlier that section 21, the parties provision; section 465, the conspiracy provision—they're sufficient to capture all the things we want to do. If we need tiny little tools to be precise in catching some other thing, that's what we do: format a little amendment to deal with those things.
I don't have a problem with item (b)(i)(A) of the terrorist definition, because the activities covered are all international carriage of transport, protection of international persons or UN personnel—that's fine. If you kill someone, it's wrong. But what you're talking about is surveillance, that we need to listen in on things. When you read our brief—I hope you will—we elaborate on that. This goes too far. It lets the government intrude on mere suspicion. It allows the government to listen in on all sorts of things, just saying okay, CSE is just going to listen in on all the telephone calls. We'll scramble through them, and whenever some Arabic word comes up, we'll listen to that. Whether you catch a terrorist or not....
I hear a lot of people saying that if you're innocent, it doesn't really matter, does it, because it's done for your own good. Well, I've heard that a lot in other societies, and I think frankly it's wrong, because if I say as-salaam, alaikem on the telephone as a Muslim, CSE's going to pick up that call. Whether I talk about my cat or my dog or whatever, it's none of their business; that's the point. The government has no business listening in and intruding on our privacy. That's the problem with surveillance: it's not checked.
The Criminal Code has proper requirements and oversight for surveillance and wiretapping. The organized crime provisions are quite broad, and they can use those as well.
With respect to ministerial orders, this is purely an administrative process where one man or woman issues a certificate and lists you. The consequences—we went through those—are quite severe for you or your family, whether you're charged or not. And it's not clear whether you're aware that you're listed. The judicial review process around it is quite ridiculous. So that basically violates fundamental justice section 7 of the charter and the rule of law.
The investigative hearing process violates the right to silence. You can be compelled to speak, and if you don't speak, you're imprisoned.
With the arrest and detention provisions—I mean preventative arrest—the right to counsel's probably at risk. You don't know the charge—section 10, section 9. In going through this...those are the legal rights in the charter. Look at the highlights and the red marks. It wasn't hard to critique this bill. It wasn't a big job to find the errors in it.
• 1325
All of these safeguards that are there to protect our
liberty are being undermined by the loose giveaways in
this bill: a little bit here, a little bit there, and
what do we have left—nothing, basically. That's the
problem. Use the tools and the safeguards, and where
you need extra tools, go for those.
May I just answer the one question about charities?
The Chair: Yes, but very briefly, because I want to finish the second round.
Mr. Ziyaad Mia: I'll answer very quickly.
I agree with you that we need to catch people who are culpable, who are doing these things, so we need precision. But you know very well that secret evidence from foreign governments...if you're working....
The Egyptian government is a dictatorship. Take the Muslim Brotherhood, or some other organization that engages in civil disobedience but also helps people through acts of charity. If you support someone who helps that group, you're going to be caught, because they might rat you out to CSIS. If you help the Red Crescent in Palestine, you might be ratted out by the Israeli forces because you're helping people who might then go and be civilly disobedient.
The Chair: Mr. Bellehumeur, you have three minutes.
Mr. Michel Bellehumeur: No.
The Chair: Monsieur Grose, you have three minutes, and then we'll hear from Mr. MacKay.
Mr. Ivan Grose (Oshawa, Lib.): You can answer my question yes or no. You'll probably enjoy that.
To absolutely no one's surprise, my question is from a trade unionist point of view. If I were a trade unionist, should I be troubled by this bill?
The Chair: Mr. Barrette.
Mr. Steve Barrette: Yes.
Mr. Ivan Grose: Thank you.
The Chair: It was an easy question to answer.
Mr. MacKay.
Mr. Peter MacKay: It occurs to me more and more in listening to all of the evidence that what we have here is a very wide calibre net, in fishing terms, or a filter, in mining terms, that is letting everybody fall through, whereas the instrument we need has to be very fine and meant to catch the big fish or the big rocks that are causing the harm.
Unfortunately, Mr. Owen isn't here today, but he referred yesterday to this issue of the right to silence. He says that in Canada there is no right to silence. There is no invoking of that right. Well, there is. If you're under arrest, there is a right to silence, until you get to court—and if you are the accused, you have the right not to take the stand. You have the right to silence upon arrest, absolutely. It's one of the first things they tell you: you have the right to remain silent; you have the right to contact counsel. That's gone—completely abrogated—and in these investigative hearings not only are you compelled to give oral testimony, you're also compelled to go out and bring back any tangible evidence the police may demand of you.
You're also co-opted.... Mr. Mia talked a bit about this, about how if you are working even in a business and the police come in and say they want you to work with them to produce documents or evidence, you're compelled. You're deputized by the police against your own business or your own organization or your own people. This is a very broad net we've cast, for certain.
Do you feel, even with sunsetting, even with oversight—which isn't there yet, but if we were to add certain provisions of parliamentary committees or officers, or judicial officers to provide oversight—this is, as Mr. Bellehumeur termed it, a rotten apple we just can't polish? Is it something that—sadly—we're going to have to completely revisit?
It appears to me more and more, when the parallels are drawn between existing provisions of the Criminal Code, that again, Mr. Mia, your testimony has been bang on. We can charge people now with murder, with acts of terror, intimidation, treason, mischief, the party sections. We are politically posturing here in somehow trying to suggest that this act is going to stop horrific events like the ones we saw on September 11. Surveillance and the policing powers are different; but this creation of new offences and the casting of a broad definition in these areas doesn't appear to do it.
It may give people some mental security, but in terms of actual security, it doesn't do the trick. In fact, it creates more terror than it prevents.
The Chair: I want to go to Mr. Mia first just to make amends for my oversight. Mr. Mia.
Mr. Ziyaad Mia: That was well put.
Ultimately, you're politicians and we're all watching. If at the end of the day this thing has to go and you have to hold your noses, obviously we're not just going to sit back.
• 1330
We have to have a sunset clause. We have to have rigorous
oversight of this thing. We need a parliamentary
officer or someone from the judiciary.
You'll read our recommendations. Please read our brief, because there's a lot more in there. If we have to pass this thing, we recommend that someone table a bill every year to assess whether the threat, the objective, is still there and what the impacts on Canadians are.
You've hit the nail on the head. Nobody wants to let the skunk out of his little kennel, but this is politics. The Prime Minister—I'll say it—is appeasing our allies and our neighbours, our biggest trading partner. I'm not immune to knowing that trade is the issue here, and we need to be seen to be doing something by going beyond our current code and saying “We're going to get these guys”.
But even if they pass it for show and nothing happens, the risk is that these things are on the books. In our submission we say that today we are supposedly targeting terrorists. Tomorrow these tools are there to target dissidents or anyone who's not popular—OCAP in Ontario, APEC protesters, Jaggi Singh, those sorts of people. They're going to be swept up in this.
Being from South Africa.... You don't want to give up your liberties that easily. Please, don't let it happen. Because once that cat is out of the bag, you're never getting it back in. I like cats, and I know you can't get them back in.
In closing, if you want pure safety and security, in Nazi Germany and Fascist Italy the trains ran on time and they were very secure, but is that the price we want to pay?
The Chair: Mr. Baksh.
Mr. Khalid Baksh: I'd like to add one thing to what Mr. Mia was saying.
If this goes through, if there is a review process, it's extremely important that it include representative from the affected communities. That includes minorities; that includes women; that includes both racialized minorities and religious minorities. You have to keep us in mind, because, quite frankly, we're the ones who are going to get hit by this bill.
The Chair: Mr. Barrette, you have the final word.
Mr. Steve Barrette: There's some solace, of course, for members of this committee or Parliament in including a sunset clause in the legislation, and that's good. But you all need to be very careful. Using the crutch of a sunset clause to make yourselves feel better about protecting rights in this bill isn't enough, because the linchpin of the bill—the definition of terrorist activity—is so broad that allowing it to stand for a three-year period would be unacceptable, and no sunset clause is going to cure that.
The Chair: Thank you very much.
I want to thank the panel for your patience with a little interruption. I want to thank colleagues. Your interventions today have been very helpful and, as Mr. MacKay said, have hit on some of the issues we've been struggling with. You've done a very good job of being our last panel, so thank you very much.
The meeting is adjourned.
