The House is on summer break, scheduled to return Sept. 15

Evidence of meeting #2 for Subcommittee on the Review of the Anti-terrorism Act in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was security.

On the agenda

Members speaking

Before the committee

Stockwell Day  Minister of Public Safety
Vic Toews  Minister of Justice
Bill Pentney  Senior Assistant Deputy Minister, Policy Sector, Department of Justice

3:40 p.m.

Conservative

The Chair Conservative Gord Brown

Order, please. We'll call to order this second meeting of the Subcommittee on the Review of the Anti-terrorism Act of the Standing Committee on Public Safety and National Security.

We'd like to welcome the two ministers, Mr. Day and Mr. Toews, to the committee today.

Minister Day.

3:40 p.m.

Okanagan—Coquihalla B.C.

Conservative

Stockwell Day ConservativeMinister of Public Safety

Thank you, Chair, and thank you, honourable members, for the good work you do on this committee.

I want to thank the members of the subcommittee for offering me this opportunity to appear today. I also want to congratulate them for all the good work that they will continue to do in reviewing the Anti-terrorism Act.

The review you're conducting is mandated by section 145 of the act, as you know.

The ATA constitutes an essential component of an effective security framework and it represents a crucial means to protect Canadians and their families.

The act provides us with tools to combat terrorism, and safeguards to ensure that these tools are used appropriately. The threat environment has not diminished, as you know. Twenty-four Canadians lost their lives on September 11; thousands of Americans and others also did. Since then, terrorist attacks have continued in more than 30 countries, including the nightclub bombing in Bali, where Canadians were killed, the trains that were bombed in Madrid, the school and the tragic incident in Beslan, the London Underground, a bus in London, and of course recent arrests here in Canada.

These tragic events remind us that terrorism is a constant international threat.

It's international in nature, and so it's going to require an international response. We need to collect and share information to respond to and to prevent attacks here on Canadian soil.

Intelligence-gathering is the lifeblood of our efforts to detect and disrupt this sophisticated and global threat. The UN recognized the value of intelligence and called upon all states to intensify and accelerate the exchange of information; they did that in Resolution 1373, in 2001.

This act has helped us to ratify and to implement other important international agreements, international recommendations on terrorist financing, and other UN Security Council resolutions against terrorism. The ATA has provided us with the means to stand with our allies around the world in fighting terrorism.

We recognize that intelligence alone will not forestall an attack. We need cooperation; we need support of all Canadians, from all backgrounds. Security and intelligence law enforcement agencies in Canada are reaching out to communities to more effectively communicate with Canadians. They're working within the framework of Canadian law and reflecting our democratic values. In some communities there can be misconceptions at times, but I and the agencies under my direction are doing all we can to address that.

We will continue to work together to establish a relationship with ethnic and cultural groups in our society who may feel isolated or ignored.

I meet with the cross-cultural round table on security. They engage in long-term dialogue on national security issues. I met with members of the round table as recently as Monday, and also in February. I'm encouraged by their ongoing support for open dialogue.

In Toronto, there were a series of arrests made. When I was at the G-8 meetings with other G-8 ministers responsible for security just last week, that was a major matter of interest to them in terms of what had been happening in Canada, because the G-8 countries, as with most countries around the world, are experiencing similar problems.

The RCMP and CSIS meet regularly with representatives of ethnocultural communities to address their concerns. The feedback I get from those meetings is very positive. People are very pleased that they can actually talk to, hear from, and give feedback to members of our policing and intelligence agencies in community settings and community meetings.

Prime Minister Howard of Australia reminded us in his speech to Parliament that “terrorism will not be defeated by rolling ourselves into a small ball and going into a corner and imagining that somehow or other we will escape notice”. Wishful thinking is not a policy, and failure to act is not an option. Combating terrorism requires that we have tools that are appropriate to defend ourselves.

The Anti-terrorism Act is precisely one of these tools. Thanks to this legislation, it is more difficult for terrorist organizations to operate both here in Canada and abroad.

The ATA contains important preventative measures to stop attacks before they start and to give us safeguards, and it's appropriate that we review those.

The ATA gives us the ability to lay charges and to prosecute terrorism offences. The charges against the 17 individuals arrested on June 2, as you know, fall under the ATA. And they're now before the courts.

Terrorism is fuelled by dollars, and in 2004-05 FINTRAC, which is Canada's financial intelligence agency, provided financial intelligence on 32 suspected cases of terrorist financing activity and other threats to the security of Canada. Providing these disclosures to law enforcement and intelligence agencies is vital and is a key element in efforts to cut off the supply of funding to terrorists. Through its listing provisions, the Criminal Code, as amended by the ATA, provides another ongoing means to curtail the ability of terrorist groups to raise funds, thus reducing their ability to operate in Canada. Listing provisions are just another part of an international effort, spearheaded by the United Nations.

We've recently listed the LTTE, Tamil Tigers. By denying this group the ability to operate in Canada, we're making our communities safer. The LTTE uses a variety of terror tactics to achieve its objectives, including attacking political, economic, religious, and cultural targets as well as targeting civilians. The government is determined to help ensure new Canadians who have come to this country that they can come here knowing they can live a life of freedom and won't be subject to campaigns of fear or intimidation.

Through the ATA we also protect the integrity of charities by preventing organizations that support terrorist activities from obtaining registered charitable status.

The ATA is working. It is making Canadians safer. It takes a measured approach that protects our safety and security, but it does not come at the expense of our liberties. Canadians understand that terrorism is a direct threat to their way of life, and public opinion polling shows that Canadians know that the values we cherish depend on the security we enjoy in our homes, in our communities, and at our borders. Canadians rightly expect that their government will do all it can to keep them safe from harm. It's vital to the social and economic well-being of Canadians to have the freedom to raise our children and see them pursue their dreams, and to live our lives without fear.

Some people have pointed to the fact that many measures contained in the act have not been used, or have been used very sparingly. That frequency of use is evidence that indeed we are being careful with these provisions. It does not speak to the necessity of their conclusion, but it speaks to the care and sensitivity with which they're used.

Civil liberties have not been sacrificed under the ATA. Many fears were expressed at the time the law was drafted that it could be used extensively. Those fears have been proven to be unfounded. Police and other agencies are using the powers provided by the ATA in a very careful, prudent, and responsible way, and checks and balances are integrated into the use of all the powers and provisions. The ATA is a necessary tool in fighting against terrorism.

There are other tools at our disposal, for example, security certificates. This process has been used carefully over the years, and it's a widely understood process. It's been in place since 1978. It's rarely used. It happens when somebody arrives at our borders and is deemed by security and intelligence to be an extreme danger and threat to Canadian society. At that point those individuals are offered the opportunity to return to their country of origin. Should they decide not to return, should they want to go through our very generous and extended appeal process, then they're allowed to do that. That's a process that takes a number of years. Since they've been deemed to be extremely dangerous, they're offered the choice of appealing that designation but remaining in detention while their appeal goes on, or again, returning at any time--they can leave the detention centre and return to their country of origin.

This particular process has been used only six times since 2001. It's been upheld by the federal courts as lately as September 2005, and now, as you know, it's going before the Supreme Court to have its constitutionality judged. Six people since 2001 is not a sign of something that's been overused, when you compare it to the fact that every year between 10,000 and 12,000 people are removed from Canada through a variety of immigration measures.

The government has taken decisive steps to protect Canadians and their families.

Our budget includes $4.1 billion over two years to protect Canadian families and communities, to ensure security at our borders and to improve our state of readiness in terms of public health threats.

I'll conclude by informing you that we will invest $303 million over the next two years to implement a border strategy to promote the movement of low-risk trade and travellers within North America, while protecting Canadians from security threats. We will be investing $95 million over two years to bolster security for rail and urban transit.

On June 23 our country will observe a national day to remember victims of terror. It marks the anniversary of the 1985 Air India bombing, the worst terrorist attack in Canadian history, when 329 innocent people lost their lives. It reminds us that the work is not done, the threat is ongoing, and vigilance is necessary.

You've heard expert witnesses describe the current threat environment, you know the nature of it and the challenge we face, and you bring invaluable expertise and perspective to this issue. The skill of our law enforcement and intelligence communities and the strength of our legislation will allow us to meet the threat of terrorism in Canada.

I thank you for your work, for your advice, and for your input.

3:50 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you, Minister Day.

Minister Toews.

3:50 p.m.

Provencher Manitoba

Conservative

Vic Toews ConservativeMinister of Justice

Thank you very much, Mr. Chair.

I would like to thank the subcommittee for inviting me to appear to discuss this important legislation. I'd also like to indicate that I have two officials here, Bill Pentney and Doug Breithaupt, who are both officials in my department and who perhaps can answer some of the more technical issues that I cannot address.

I know that some of you were involved in the review of the Anti-terrorism Act in the last Parliament, a review that was interrupted by the election. Others among you are new to this particular study, although I've no doubt that your experience and expertise will contribute significantly. The Minister of Public Safety and I both look forward to your comments and recommendations.

The Anti-terrorism Act is divided into various parts that deal with the Criminal Code, the Security of Information Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, amendments to other acts, and the enactment of the Charities Registration (Security Information) Act. The act includes comprehensive measures to prevent and suppress terrorism. It permitted Canada to become a party to UN treaties against terrorist bombings and terrorist financing, as well as the Convention on the Safety of the United Nations and Associated Personnel. It has also allowed Canada to comply with various UN Security Council resolutions and with other international commitments. So it's very important in that international context.

We need to be sensitive to the concerns raised by various communities in Canada, and I want to make it clear that it is terrorism that is the target of this legislation, and not any particular ethnic or religious group.

The Anti-terrorism Act includes key provisions of the Criminal Code to address acts of hatred, and it clarifies that the communication of hate messages using new technologies, such as the Internet, is a discriminatory practice under the Canadian Human Rights Act. The act is a key element of our legislative framework for combating terrorism. It represents an effective, measured, and proportionate response to the terrorist threat.

Some may suggest that the Anti-terrorism Act is unnecessary. I strongly disagree. The emphasis on preventing and pre-empting terrorism attacks is an important feature of the act. Evidence of this preventative approach can be seen in the range of offences, which aim at dismantling and disabling the terrorist network itself, as well as in tools such as recognizance with conditions and investigative hearings. As I have stated elsewhere, the act's emphasis on prevention continues to be necessary. For example, for those persons who are willing to kill themselves in order to commit terrorist crimes, after-the-fact deterrence is no punishment whatsoever.

In addition, as to the importance to be accorded to the prevention of terrorism and how it differs from organized crime, I refer you to the testimony of Lord Carlile, the independent reviewer of the U.K. anti-terrorism laws, given to your predecessor committee last year.

Let me briefly address one aspect of the Anti-terrorism Act that I commented on last week: the motive requirement of the “terrorist activity” definition. As I've said elsewhere, the motive requirement is an additional element that must be proven by the prosecution. I recognize that some previous witnesses have expressed concern that the motive requirement could be perceived as singling out particular groups in our society. Indeed, I stated that on prior occasions while I was in opposition.

The motive requirement narrows the definition of terrorist activity and prevents the terrorism offences from expanding into other areas of the Criminal Code. I would be interested in the committee's comments on the elimination of that motivation requirement, or indeed on redefining terrorist activity, perhaps along the lines of what the French, the Americans, or the Germans have done, without reference to political, religious, or ideological motivation. But the law's approach to this issue--and I'm speaking about this specific law as opposed to this issue--has included a great deal of caution against laws that are overly broad.

I do, however, note the RCMP commissioner's very recent comments in respect of the motivation requirement, and I would commend his testimony to you in that respect.

I will now turn to two provisions of the Anti-terrorism Act that will cease to apply in early 2007 unless their application is extended by a resolution passed by both Houses of Parliament. I respectfully submit to this subcommittee that both provisions should be extended.

First, the act provides for the imposition of recognizance orders. This has sometimes been called preventative arrest, but in fact the power of the police to arrest a person without warrant, and to bring him or her before a judge to have conditions imposed, is quite limited in scope. Generally, before this provision may be used, the relevant Attorney General must first consent to its use. After obtaining this consent, a peace officer then lays information before a provincial court judge.

The peace officer may only do this if two conditions are met. First, he or she must believe on reasonable grounds that a terrorist activity will be carried out. Second, he or she must suspect on reasonable grounds that the imposition of a recognizance with conditions, or the arrest of the person, is necessary to prevent the carrying out of the terrorist activity. The judge then causes the person to attend before him or her, for example, by issuing a summons.

This provision is only available under strictly defined conditions, and is subject to numerous procedural safeguards. The object of this provision is to assist law enforcement officers in disrupting terrorist attacks, and the onus is always on the state to justify the imposition of conditions. If the court is not satisfied that conditions are necessary, the subject is released.

The imposition of conditions to prevent offences before they occur is not exceptional in Canadian law. Conditions are imposed when a person charged with an offence is released on bail. The recognizance provision of the Anti-terrorism Act are based on the recognizance powers of section 810 of the Criminal Code, which are intended for use in dealing with domestic violence, organized crime, and serious sexual offences. Those provisions have consistently been found to comply with the Charter of Rights and Freedoms.

The other provision that needs to be extended before next year is the power to hold investigative hearings under the Criminal Code. Where there are reasonable grounds to believe that a terrorism offence has been or will be committed, a court may issue an order for the gathering of information. A peace officer may only apply for this order after obtaining the consent of the relevant Attorney General. If the order is granted, the judge may order a person to attend a hearing before a judge, answer questions, and bring along any relevant documents or items in their possession.

An investigative hearing is not a criminal prosecution. The person compelled to appear is not an accused, but a witness. In that sense, it's very similar to the American grand jury proceeding. The provision explicitly states that the person appearing has the right to counsel. The process is for the purpose of gathering information that may assist the investigation and prevention of terrorism offences.

At such a hearing the charter right against self-incrimination is fully enforced. The subject may be compelled to answer questions, but any information or thing entered into evidence, or evidence derived from the evidence obtained from the person, cannot be used to prosecute the person for any offence except perjury or the giving of contradictory evidence. There is also protection from the disclosure of privileged information.

As you know, the Supreme Court of Canada in June 2004 upheld the constitutional validity of the investigative hearing provisions. The Supreme Court has noted that the protection against self-incrimination actually goes beyond charter requirements. This is not an unprecedented procedure, and other jurisdictions have more extensive or similar procedures.

Some witnesses before this committee's predecessor argued that these two powers should not be renewed because they have hardly been used at all. However, the frequency of the use of these provisions is not the measure of their importance. Numerous provisions in our Criminal Code are infrequently employed. The hate crimes provisions and the offences of hijacking or treason come to mind. They are nevertheless still an essential part of our criminal legislative framework.

As the Supreme Court of Canada has stated, the challenge for a democratic state's answer to terrorism calls for a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the fundamental value of the rule of law. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy.

The Anti-terrorism Act was carefully constructed to protect Canadians against national security threats, while continuing to respect and promote the values reflected in the rights and freedoms guaranteed in the Charter of Rights and Freedoms. It is a complex balance, but one that I believe is effectively accomplished in the Anti-terrorism Act. This legislation is part of a sophisticated tapestry designed with the express goal of protecting our fundamental freedoms and preserving our democratic values.

The importance of this law cannot be stressed enough. We need tools to fight acts of terrorism when they occur. We have seen that the likelihood of such acts is indeed real. Canadians must feel certain their government has done all that is necessary to protect them from terrorism, while respecting their individual freedoms.

We look forward to your recommendations as we continue to look for ways to improve the operation of the Anti-terrorism Act. I wish you every success in the completion of the important work before you. I would be pleased to receive your comments and questions.

Thank you.

4:05 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you, Minister Toews.

Round one will be for seven minutes, and we're going to call upon Mr. Wappel.

Tom Wappel Liberal Scarborough Southwest, ON

Thank you, Mr. Chairman.

Thank you, Ministers, for appearing today.

The previous incarnation of this subcommittee in the previous Parliament began its work by hearing from your predecessors and ended its work, prior to beginning discussion on a draft report, by hearing from your predecessors, and we are beginning our hearings here by hearing from you.

I was interested in listening to determine whether I could detect any change in position whatsoever between the former Liberal government's position on this act and the current Conservative government's position on this act. As far as I can tell from the evidence that the two of you have given so far, I can't see a scintilla of difference. Would you agree with that?

4:05 p.m.

Conservative

Vic Toews Conservative Provencher, MB

Generally speaking, I would agree with that. I followed the debates very closely in this respect, and I think the prior government and the prior Minister of Justice recognized the delicate balancing act that needs to take place.

The only comment I would make is that in the past I have expressed some concern about the definition of terrorism activity. I only commend that issue to you for your consideration. I'm not necessarily suggesting any changes, but I think it is an issue that needs to be examined. It's something that I raised many years ago.

I note that some of the groups that came in front of the committee a few years ago expressed that the phraseology of the motivation to be proven, the political, religious, or ideological motivation, may lend itself to racial profiling or similar kinds of concerns.

At the same time, I've now heard the RCMP commissioner, and I must admit that the evidence I heard was second-hand. His statement seemed to imply that he would like to see it removed or, if the motivation clause were removed, without stating whether he preferred that or not, he could then use this to attack organized crime.

An issue you might want to look at is whether that would be overly broad or whether that would be acceptable in a free and democratic society.

4:05 p.m.

Conservative

Stockwell Day Conservative Okanagan—Coquihalla, BC

From the point of view of those responsible for the services that provide our policing and intelligence gathering, I also did not see any major departure from the previous government in terms of their stance, the ability to equip, and keeping our policing and intelligence services in check.

Tom Wappel Liberal Scarborough Southwest, ON

Thank you.

I would like to explore the definition of terrorism activity for a moment, in a minute.

What I found curious about a complex bill like this is that, when asked, neither previous minister offered any suggestions for amendment whatsoever, as if the act was perfect as written. I know the Minister of Justice has suggested that we consider looking at the motive and that sort of thing.

I'm asking specifically, are there any specific amendments to the act that either of you would like this committee to look at?

4:05 p.m.

Conservative

Stockwell Day Conservative Okanagan—Coquihalla, BC

I can say first from my point of view, leaving the legal justice matters to the Minister of Justice, that I look at the work of this committee as helpful and valuable and necessary, clearly, even by legislation, and I don't want to presume upon the committee when I come to a committee like this. I like to hear from you, take your suggestions, and give them thoughtful consideration.

There are some other issues also. As you know, the O'Connor review is going on right now. We anticipate there will be some suggestions coming from that...well, there may or may not be, but I think there will be, so I don't want to presume on those either. I would like to get all the information about concerns and insights that have been raised. From my point of view, if there are things related to policing and intelligence gathering that need to be addressed, then certainly I would come before this committee again with those suggestions.

4:10 p.m.

Conservative

Vic Toews Conservative Provencher, MB

I would like to simply point out, and I think reinforce what you said, that this bill has proceeded on a remarkably non-partisan basis from the onset. Yes, there were differences, but I think generally speaking we all agreed that the aim was a noble one and we wanted to do the best job possible.

In terms of possible amendments, we don't come here with any specific agenda to seek broader powers. But we are in fact very interested in what this committee and the Senate committee is thinking about this matter.

The one point that I think the committee should look at is the sunset clause in respect of the investigative hearings and recognizance orders, that these will cease to apply in 2007 unless their application is extended by a resolution of both Houses of Parliament. For me, these are very important tools in the fight against terrorism. I wouldn't want those to be suddenly lapsed for a reason of an election or other times when the House wasn't sitting. That would concern me. I would be interested in this committee's consideration or recommendation of whether it could be accomplished in another way, perhaps a regular review of the provisions of the act, mandated by legislation, rather than the legislation itself collapsing and then we're left with a hole in our safety net, so to speak, when we might require it.

It's not that I shy away from parliamentary or committee oversight, but I'm wondering whether this is in fact the best mechanism to accomplish that for what I consider rarely used but very important tools.

Tom Wappel Liberal Scarborough Southwest, ON

I'm not clear, Minister Toews, on your comments about motive. I presume you're referring to paragraph 83.01(1)(b), talking about what I see as a threefold test. There has to be an act committed in whole or in part for political, religious, or ideological purposes, but not only for those purposes. That has to be in conjunction with intimidating the public, etc., and that also has to be in conjunction with intentionally causing certain effects.

So it's not only that you happen to believe in a particular religious ideology, which is only one of three things, but you also have to do two active things that would then bring it into the definition of terrorist activity. I'm curious as to why that somehow implied religious intolerance.

4:10 p.m.

Conservative

Vic Toews Conservative Provencher, MB

I'll be very brief because I know the member's time is short, but it is an important issue.

This means that a prosecutor has to prove, as an essential ingredient of the terrorist activity or crime, that there has been political, religious, or ideological purpose. So think of a group that arises out of a particular religion but is not necessarily a part of that religion. These individuals believe they are carrying out a particular religious mandate.

The concern that has been expressed by some is that to collect evidence of religious motivation may unfairly impact on that religion when it doesn't have anything to do with that religion. You stigmatize a religion unfairly by calling forward that evidence.

Now that phrase seems to have been adopted more by Commonwealth countries based on the British model. The British, for some reason, have adopted that, probably arising out of their terrorist experience in Great Britain itself. It has been adopted by Australia and some other Commonwealth countries. Canada has adopted that as well. But if you look at the American legislation and other European legislation, that motivation element does not appear.

I'm wondering why we chance the risk of so-called racial profiling in a prosecution when it's not necessary in other countries to have that element.

4:15 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you.

Monsieur Ménard.

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Ministers, I thank you both for having agreed to appear before us at the beginning of this exercise that has been undertaken by our subcommittee, and also for having acquainted yourselves with the presentations that had been made previously.

You have already answered the first question that I wanted to put to you. Mr. Wappel has asked that question. I know that in your view, even though Parliament acted in a state of emergency, in haste, because of the circumstances, it has produced a practically perfect legislation requiring few improvements. It seems that this was not the view held by the Parliament that passed the legislation.

Could I suggest a few improvements? Don't you believe that in hearings where the judge receives some ex parte evidence, it would be beneficial, in order to respect our general legal principles, to have what is called an amicus curiae, or a friend of the court, that is a lawyer whose security clearance is the highest possible and who could cross-examine the witnesses in order to better inform the judge who must make a decision?

4:15 p.m.

Conservative

Vic Toews Conservative Provencher, MB

As you know, this issue is currently on appeal to the Supreme Court of Canada. During the Supreme Court hearings held last week, several models were suggested by counsel for the appellants and intervenors. The government believes it would be prudent to wait for the Supreme Court judgment before making any policy decision on this issue. However, if the committee wishes to make recommendations, we would suggest that the following considerations be kept in mind.

First, consideration could be given to questioning whether a special advocate could offer a significant advantage in terms of fairness over the current model, whereby designated judges of the Federal Court can and do ask probing questions to test the government's case.

Second, relevant consideration would be given to issues related to solicitor-client communication and the need to ensure non-disclosure of sensitive information. I understand that in the British experience, where these advocates are, several prominent counsel have refused to act in that capacity because of the impact on solicitor-client privilege. So that would be a consideration.

Whatever we do, I think it's clear that no model is going to be a panacea. No system can both protect sensitive information and ensure that the person concerned fully knows the case against them. It's a difficult balancing act, but if the committee wants to look at some of the British experience on the amicus curiae, or special counsel, more detail could be given than I can offer at this time.

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

We could examine what has been suggested to us by some people. The Federation of Law Societies of Canada, in order to solve these problems, has suggested that the amicus curiae be only allowed to contact the detained person's lawyer, so that the aforementioned person could feel perfectly confident to tell anything necessary to his or her lawyer, and the amicus curiae could thereafter receive his instructions from that other lawyer. I don't know whether you have examined this suggestion, but I have found it really original. If it was implemented, the detained person could be completely open to his or her lawyer.

I see that you are still waiting for our suggestions in this regard and that it is not because the case is before the Supreme Court that Parliament will be prevented from improving the legislation.

We have already discussed the type of custody that is being imposed on people who have not been found guilty of anything. When I saw the previous government decide, even before we had made any suggestion to them, to open a special prison to detain these persons, I thought they had understood the kind of suggestions that we were about to make. But I must say that we never expected that, by opening a special prison, they would make the custody of these persons who are not accused of anything and who are presumed innocent harsher than that of the people who are accused of ordinary law crime.

Do you intend to see to it that these prisons are compliant? I would suggest a test that appears in the Charter of Human Rights and Freedoms of Quebec, that is that these persons must be treated in accordance with their status as being presumed innocent, since in this case, they are not being accused of anything.

4:20 p.m.

Conservative

Stockwell Day Conservative Okanagan—Coquihalla, BC

All prisoners in Canada, including those you are talking about, have all powers and all the rights of ordinary prisoners who are detained in our institutions. We are complying fully with Canada's legislation in terms of their rights. There are also organizations such as the Red Cross that can make inspections of the inmates' living conditions. They are living in vary humane conditions and that can be verified. We allow visits by families and lawyers.

The previous government was of the view that it was not right to detain these persons together with prisoners who have committed crimes in Canada. This is one of the reasons why we have a new institution for them. It is quite clean and I can assure you that the conditions of custody are quite humane.

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Minister, I believe that your intentions are pure, but if you read the same newspapers as I do, you will find that this is not what has been observed, quite the opposite.

4:20 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you, Mr. Ménard.

Mr. Comartin.

Joe Comartin NDP Windsor—Tecumseh, ON

Thank you, Mr. Chair.

Thank you, Ministers Day and Toews, for being here.

I'll just pick up where Mr. Ménard left off. I have to challenge you, Minister Day. You have three members of the five who are subject to certificates on a hunger strike in Kingston right now. To describe their conditions as humane....

You have one, Mr. Jaballah, who in five years hasn't been able to touch his children. He has only been able to see his children through thick walls of plastic or glass. He doesn't even know what he's faced with because so much of the data is claimed for national security.

By any standards, especially, again, when he hasn't been charged, how do you see that as humane? And what is the justification? I understand--and I want to give you a little defence here--that we've only started in the last few months to put them in federal custody as opposed to putting them in the provincial prison system.

From the attempts this committee itself made for those three members about a year ago to try to get the provincial government in Ontario to change, I know we've not had any justification as to why personal contact is not allowed with family members, including in Mr. Jaballah's case his very young children.

4:25 p.m.

Conservative

Stockwell Day Conservative Okanagan—Coquihalla, BC

I'll comment on a number of your observations, and I'll also include Mr. Ménard's last statement.

With all due respect to free media, which I certainly respect and I will always defend, surely, sir, you don't accept everything you read as always being truth or reality without verifying it. I'm not suggesting there is an attempt otherwise, but it's always good to check--as I know you do--two, three, or four sides of any story. The media may well present one side of the story or one person's view, but they don't always present the other side.

As far as the hunger strike goes, there are medical practitioners who regularly check on prisoners. This is not an uncommon occurrence within detention systems, to see prisoners who choose to go without food for a period of time. Some of them may go without a meal or two a day, some of them go without food during the day, but they take sustenance during the evening. They are also checked regularly by medical practitioners. They are allowed family visits.

Again, they are free to leave these facilities at any time, should they decide to go back to their country of origin. I realize some would also suggest that depending on what country that is, they may face repercussions. I respect that. That's why they have the appeal process.

I guess the bigger question is--and I would put it back to you--do you think there should be no provision? When we live in a day where terrorists have claimed the lives of thousands of people--and in this heightened atmosphere of terrorist activity, I'd be curious to know your view--do you think there should be no extra security provision at all for Canadians, especially one that has been tested by the Federal Court, as I said, as recently as September 2005 to be constitutional?

I know it's being tested again, but it has been tested a number of times. It is a constitutional process. The facilities are checked regularly by a variety of people. They are allowed contacts with their families; they're allowed access to a telephone, and reading and writing materials; they can have daily outdoor exercise and essential medical and dental services.

Are you saying there should be no extra security provisions at a time of heightened concerns related to possible attacks on Canadians? I'd be curious to know that. I'm not asking that rhetorically; I'm asking it sincerely.

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Should we answer that question?

4:25 p.m.

Conservative

The Chair Conservative Gord Brown

Yes, if you wish.

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Of course not. You know the answer. You put the question in such a way that it is not a question, it's an argument.

We're here to try to attain that balance between the basic rights in a civilized country against the threat of terrorism. When I asked you to check on the real situations of the prisoners who should be kept better than the other prisoners, why you would ask us a question as if we are against.... You know very well that we think there should be measures. We think there should be measures on those measures. That's one of the things I was going to suggest, and I will do so in the second round.

Thank you, Mr. Chair, for allowing me to answer