Bill C-493 (Historical)

Elimination of Racial and Religious Profiling Act

An Act to eliminate racial and religious profiling

The purpose of this enactment is to prevent individuals from being stopped or otherwise investigated by enforcement officers wholly or partly on the basis of the individual’s race, colour, ethnicity, ancestry, religion or place of origin.
The enactment prohibits the practice of racial and religious profiling. It also requires enforcement agencies to establish policies and procedures to eliminate racial and religious profiling, including the collection of data sufficient to determine whether enforcement officers have engaged in racial or religious profiling.
The enactment requires the Minister responsible for an enforcement agency to submit to Parliament in each year a report of the agency on racial and religious profiling.

Criminal Code

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am very pleased to have the opportunity to speak to Bill S-3 again, because I have spoken previously on it.

I would like to spend a few minutes retracing where this bill came from. I was a member of Parliament when this bill came forward in its first incarnation. It was Bill C-36, the anti-terrorism legislation. It came forward after the attack on the World Trade Center towers on September 11, 2001. It went through the House very quickly.

I remember at that time getting up to speak to the legislation. In fact, the NDP caucus opposed the legislation. We believed that the path being taken by the then Liberal government in this massive new venture of anti-terrorism legislation was not warranted.

We had grave concerns at that time about the impact it would have on life and civil liberties, particularly on Canadians who were originally from the Middle East, who were part of the Canadian Arab or Muslim communities, because after September 11, there was a shift in what was taking place in our society. Many things changed, one of which was the legislation that came forward.

The debate was not that long. In fact, one of the concerns the NDP had back in 2001 was how quickly the legislation was being pushed through Parliament. This was very serious legislation that made very significant departures from the process of law that we understand in this country. We said that the two clauses we are dealing with today, seven years later, were particularly offensive.

Because there was so much debate about those two clauses, which happened to deal with investigative hearings and preventive detention, it was agreed by the government, finally, that those clauses could be sunsetted. They would come under a review so that Parliament would have to examine the legislation and those specific clauses again.

The Anti-terrorism Act passed very quickly. The Bloc at that time may have opposed it as well, I am not sure, but it was basically the NDP and maybe the Bloc who voted against it. The Conservatives and the Liberals voted for it. We knew it would come back for debate and of course that happened. We had that debate a short while ago, because we knew those two clauses would become null and void unless they were somehow continued or reintroduced by March 1, 2007.

On February 27, 2007 there was a vote on those two clauses and, interestingly, they were defeated. It was a very important moment in the House of Commons to see that after a full debate in the House by all political parties, the NDP, the Bloc and some members of the Liberal Party defeated those amendments.

The government has reintroduced, with virtually no changes or very small changes, the same two amendments dealing with investigative hearings and preventive detention. The NDP is standing for the third time to speak out against this legislation.

These clauses have actually never been used. They are an affront to a democratic society. They create a path and a process that we do not want in this country.

Whenever I have spoken at community meetings or public hearings about security issues, more often than not, people voice their very significant concerns about the kind of legislative initiatives that are being undertaken as a result of September 11, and about how much has changed in our society in terms of security. Many people have been targeted, particularly visible minorities.

I want to pay tribute and respect to the organizations that have never given up in speaking against this kind of legislation, and this legislation in particular, whether it is at parliamentary hearings or at hearings that have been organized in the community. There are people in this country who have remained vigilant even in the face of sometimes a public appetite to have greater security measures. There have always been organizations like the B.C. Civil Liberties Association, the Canadian Bar Association, the Canadian Arab Federation, the Muslim Association of Canada and many others who have always come forward to warn and alert parliamentarians about the dangers of this legislation.

It is very important that we remember that. Sometimes in the furor and frenzy of when things happen, people feel threatened and insecure, and it is very easy for governments to play a very opportunistic role, to play on those fears and to bring in the kind of draconian legislation that we have seen with the Anti-terrorism Act.

We have come to see over the passage of a number of years now that that legislation was not needed. Therefore, it is somewhat concerning and surprising that yet again we are debating this bill, that we are debating these two particular clauses. The Conservative government, with the support of the Liberals, is prepared to re-enact these amendments that have already been voted down by the Canadian Parliament.

When I speak to my constituents, they are very concerned about what is taking place in this country. For example, this weekend is the fourth annual summit of the security and prosperity partnership. It is taking place in New Orleans. Our trade critic, the member for Burnaby—New Westminster, is one of the members who will be participating in a very broad people's summit, as opposed to the leaders' summit in New Orleans that is going to be discussing what is called the SPP.

The Council of Canadians, the Communications, Energy and Paperworkers Union of Canada, CEP, the United Steelworkers, and many other organizations will be heading to New Orleans, probably today, to participate in the SPP people's summit. Just as we saw at Montebello at the leaders' summit, where the Prime Minister of Canada, the President of the U.S. and the President of Mexico met behind closed doors to discuss security and trade issues, that will take place in New Orleans.

I am very glad that those members of civil society, and there are 30 organizations that are hosting the people's summit in New Orleans, will be there to push for and demand accountability from these leaders, who are trying to further this incredible agenda, the economic, political, cultural and security agenda between our three countries, and the integration of Canadian society politically, economically and culturally into the United States.

Many people are hugely concerned about this. I wanted to raise this today as we are debating this bill because I think that they are very much related. We have seen so many different processes that we are not even barely aware of. Sometimes we get leaked information. Sometimes we find out about what is going on, but all of these processes are taking place behind closed doors.

There are some people who have access. Business elites have access to this process. In fact they have their own forum for raising these issues and bringing them to government. In terms of the Canadian Parliament, people generally, or organizations or the labour movements, civil society, have no access to this process. A lot of this process, in terms of the security and prosperity partnership has to do with security measures in developing a common front of security measures, a merging of the American system with the Canadian system.

We know that anytime we cross the border. There are many of my constituents who, for no apparent reason, have experienced terrible interrogation and investigation at the border, and sometimes have been refused, all under the guise of security.

It really comes back to the broadness of the bill and what it represents. Although the bill has very specific measures in it, to me, former Bill C-36 and Bill S-3, the one we are debating today, exemplify this environment of heightened security, of control by the state, of the clampdown on civil society, the clampdown on individual rights and liberties. This is something that we should really stand up against.

I am very proud that in the NDP we have done that historically. Whether it is the War Measures Act in Quebec, whether it is the internment of Japanese Canadians during the second world war, there are these moments in our community's history where we have to make a decision as to whether or not what is being laid down has a basis and merit, or whether it is actually, in the long run, undermining the fundamental principles of a democratic society. We in the NDP believe that the anti-terrorism legislation did just that. It fundamentally changed Canadian society.

There was a feeling at the time that this really would not affect many people. It was somehow those people; it created an environment of them and us. It is a very dangerous situation when we identify a group of people as being a threat. That is precisely what this legislation does. We have to take the attitude that when civil liberties of any minority, whether it be religious, ethnic, sexual orientation, gender or whatever it might be, any discrimination, any singling out is not only a threat to that group, but it is a threat to all people.

Even if we do not feel immediately threatened or if we do not feel that we are the ones who are being targeted, we have a responsibility to speak out in defence of civil rights and civil liberties for all people. In my community there are people who feel very strongly about that. They are very concerned about the direction that we have taken in the last seven years.

It was actually because of the anti-terrorism legislation that a few years ago I introduced a bill to eliminate racial profiling in Canada. It was a very interesting experience to introduce that bill. When I introduced it, I held a number of hearings across the country, and I was quite taken aback by the response I got in different cities from people who came forward with personal experiences about having been targeted. It has always taken place.

Racial minorities in this country have always been targeted, but it escalated and went off the charts after September 11. I heard from people that it was both random and systemic. The chances of being held up at the border, particularly at airports but also at ground crossings, greatly increased if one looked like a member of a certain community, if one was Muslim, or wore the hijab, or was a member of a minority from the Middle East. That became very clear in talking with people and hearing about people's experiences.

The bill that we introduced to eliminate racial profiling is very important. I am very pleased that the bill has been reintroduced by my colleague from Burnaby—Douglas and it is now Bill C-493. We hope it will come forward for debate in the House one day because I think there is very strong support for that bill.

We also know the experience of Maher Arar and the horrendous situation that that one individual faced in terms of a complete denial of his basic human rights. He was sent to the U.S. with Canadian complicity and then to Syria, where he remained in jail for so long. He was tortured. It was only because of the work of his wife, Monia Mazigh, his family, his community and broader civil society that the issue finally came forward and there was a public hearing.

It is again one of those moments in Canadian history where people feel that a grave injustice was done, although it is good to know that because of the public pressure, there was a public hearing and finally an apology made.

However, what that family went through is something that probably none of us will understand or be able to relate to because it was so deep, so grievous and so harmful. We must learn from that experience.

In light of all of those things that have happened, here we are in 2008 debating whether or not two clauses in the bill should continue. We have already voted once that they should be defeated, that they should be left null and void as a result of the date the sunset clauses came into effect.

I would hope that we in the House could abide by that. We have had a vote. It was taken in February 2007. The clauses were defeated by 159 to 124 members. I am hoping that might happen again this time. The Conservative government has reintroduced these clauses and is hoping they will go through.

I am hoping very much that there is enough expression, will and solidarity in the House from the NDP, the Bloc and maybe some members of the official opposition that we can again defeat these amendments as unnecessary.

We look at our global community and Canada's part in that, and read about what is taking place in the world today. People do not want to see this kind of legislation. This legislation will not do anything to stop food riots, to improve food security, whether in Canada or around the globe. It will not do anything to improve the health of developing nations, eliminate starvation or help the millions of children and families who are suffering needlessly because of the incredible inequities in resource development and wealth distribution on our planet.

This legislation does not address those issues at all. In fact, it exacerbates a global system that is based on U.S. domination in terms of foreign policy and the war in Iraq, and certainly Canada's involvement in the war in Afghanistan. All of these things are connected.

Yet, if we talk to people and ask them what they are worried about and what they want to see us, as parliamentarians, focus on, people will tell us that they want to look at legislation, programs and policies that actually improve equality and social justice in our world. They want to see us focus on those priorities and to deal with those terrible inequities that exist.

I am coming to the conclusion of my comments today and I am glad that I was able to speak to the bill, as I have before. I will speak whenever it is necessary, as will my colleagues in the NDP, because we believe that we play a very important role in the House of standing up.

We take our role very seriously. We come here to vote. We do not sit on our hands. We challenge the government's agenda and we speak for a majority of Canadians who, if they had a direct vote in this, would not be supporting this legislation, Bill S-3, today.

I hope that when we get to the vote, there will be enough members of the House to defeat this, as we did before, and to recognize that these amendments are not necessary. They have not been used. They are not needed. We should focus our attention and our priorities on the issues Canadians really want us to in terms of building healthy, safe communities, respecting our environment, and promoting social justice in our world.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to have this opportunity to speak to Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). This bill raises some very important issues and fundamental questions about our justice system and our respect for civil liberties and human rights. I believe that this legislation compromises key principles of our justice system.

I want to begin with a quotation cited by Yusra Siddiquee, a representative of the Canadian Muslim Lawyers Association, when he appeared before the Senate committee studying this bill. He quoted Justice Binnie of the Supreme Court of Canada, who said:

The danger in the “war on terrorism” lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.

It is important to keep this in mind. We have to remember that these provisions and ones similar to them in many other countries grew out of the period immediately following the September 11, 2001 attacks on New York and Washington, a period when all of us were concerned for our security and anxious and fearful.

There are two major provisions in the bill before us, one for investigative hearings and the other for preventive detention. These were part of the Anti-terrorism Act that was passed in the period immediately following September 11, 2001. In that original legislation, these particular provisions sunsetted after five years.

Under the terms of the sunset clause, the provisions of the Anti-terrorism Act relating to investigative hearings and recognizance with conditions were set to expire on March 1, 2007 unless extended by a resolution passed by both Houses of Parliament. A government motion to extend the measures without amendment for three years was defeated in the House of Commons on February 27, 2007 by a vote of 159 to 124, and the provisions ceased to have any force or effect.

That was the right decision. I am glad that the House took that decision. Now the government has reintroduced these provisions in this new legislation and that is the wrong decision. Both of these measures fundamentally compromise key principles of our justice system.

Let us consider first the provisions for investigative hearings. These provisions force someone to testify before a judge if he or she is suspected of having information about terrorist activity that has already occurred or that might occur. This provision directly compromises the right to remain silent, one of those fundamental principles of our justice system.

The refusal to testify at an investigative hearing can lead to one year of jail time. This can also reduce the right to silence for persons who are questioned by the RCMP or CSIS, in that if they are uncooperative with a police investigation, the possibility of having to go to an investigative hearing can be used to compel cooperation and compromise their right to remain silent.

Not everyone who chooses to remain silent is guilty. People may have very legitimate fears and concerns, such as fears and concerns about their own personal safety, for instance. Given the broad definition of terrorism in the Anti-terrorism Act, this provision is a problem, and the definition has come in for criticism over the years as well.

Many members who support this bill have said in debate that these are extraordinary measures that will be used in only the most serious of circumstances. I appreciate what RCMP Assistant Commissioner Mike McDonell said before the Senate committee. He stated:

First, and most importantly, the RCMP recognizes that these provisions were intended for extraordinary situations and, as such, we approach them with restraint.

My preference would be to not go down that road until it is proven clearly that the measures already at our disposal are not effective in dealing with the challenges of terrorism faced in our country. Those good intentions are noble, and I believe the commitment made by the assistant commissioner is sincere, but as the expression goes, the road to hell is paved with good intentions.

These provisions represent a very serious departure and in reality could be used against people who are legitimately protesting or are viewed as dissidents by our society. They could be used to harass or even imprison such people.

This provision also puts a judge in the position of having to oversee an investigation. This is not the practice of our justice system and is not something that most judges have any experience with. This is a major departure, since investigations in our system are undertaken by police authorities.

Jason Gratl, the president of the B.C. Civil Liberties Association, put the concern this way:

The primary difficulty with investigative hearings is that they distort the functions of the judiciary and the Crown. In essence, the course of order-making power of the judiciary is brought to bear on an investigation. That power places prosecutors in the role of investigators, which is unlike their usual role. It also places the judiciary in the position of presiding over a criminal investigation.

The other provision, preventive detention or recognizance with conditions, is the other key part of this bill. Again, this compromises a key principle of our justice system: that one should be charged, convicted and sentenced in order to be jailed.

This provision would allow the arrest and detention of people without ever proving any allegation against them. It could make people subject to conditions on release, with severe limitations on their personal freedom, and again, even if they have never been convicted of any crime.

Jailing people because we think they might do something criminal is very problematic, to say the very least, and it is easily apparent how such a measure can be easily abused. It is very similar to the provisions of the security certificate legislation in our Immigration and Refugee Protection Act. Under that legislation, five men remain either in jail or subject to incredibly strict release conditions, house arrest conditions, even though they have never been convicted of any crime in Canada.

Hassan Almrei remains in jail at the Kingston Immigration Holding Centre, a double maximum security prison. He has been there for almost seven years now, ever since just immediately after September 11, even though he has never been charged with, let alone convicted of, any crime.

Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah and Mohammad Mahjoub are prisoners in their own homes, guarded by their spouses and others. These situations are very unjust. It is wrong for this to be included in the immigration legislation. It is wrong to include this same kind of measure in our anti-terrorism legislation.

These measures open very serious files on individuals, files alleging that they have some connection to terrorism. These files are opened on people who have never been convicted of any crime. They can be based on allegations that have never been proven. How do they defend themselves in such circumstances?

In this corner of the House, we believe that the Criminal Code is the best way to deal with issues of terrorism. The NDP justice critic, the member for Windsor—Tecumseh, in his minority report on the Anti-terrorism Act review, said the following:

There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for premeditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.

Moreover, when judges exercise their discretion during sentencing, they will consider the terrorist motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.

I can think of no offence related to terrorism that is not already included in the Criminal Code. I can think of no circumstance of a crime committed as part of an act of terrorism that would not be dealt with in the strictest, toughest way by our courts.

For instance, counselling to commit murder is already an offence under the Criminal Code. Being party to an offence is also a crime.

The crime of conspiracy is well established under the Criminal Code and deals with the planning of criminal activity. Let us be clear. In the conspiracy category, no crime actually has to be committed for someone to be found guilty of conspiracy under the Criminal Code.

We also have hate crime legislation that outlaws the promotion of hatred against a particular group.

It should also be noted that peace bond provisions already exist in the Criminal Code and can be exercised when there are reasonable grounds to believe that a person's life or well-being is threatened by another person. This provision has similar power to preventive detention, but more significant safeguards are built into the Criminal Code provision. No one has demonstrated to my satisfaction that this existing provision will not meet the needs of dealing with terrorist activity.

As Denis Barrette, spokesperson for the International Civil Liberties Monitoring Group and la Ligue des droits et libertes has said:

—Canadians would be better served and better protected if the authorities rely on the standard provisions of the Criminal Code. The use of arbitrary powers and the lowering of the standard of proof are no substitute for police work carried out in compliance with the rules. Indeed, these powers open the door to miscarriage of justice and the significant likelihood of damaging the reputation of individual citizens...

If our police and intelligence authorities do not have the resources they need to investigate potential terrorist acts and to charge those responsible, then we should review their needs immediately.

We cannot consider the bill without considering the question of racial and religious profiling. Racial and religious profiling is a problem in terrorism related investigations and prosecutions. It is a reality for many Canadians, especially those in the Arab and Muslim communities, but also to other people in other racial minority groups.

The provisions of Bill S-3 do nothing to reduce such concerns or to protect Canadian citizens from such profiling. We have to struggle with the experience of Arab and Muslim communities in Canada in the post-September 11 period.

Imam Zijad Delic, the national executive director of the Canadian Islamic Congress, and formerly the Iman of the mosque in my community, brought some of the concerns of Canadian Muslims before the Senate committee. He noted their position that the Criminal Code could deal fully with terrorism-related crimes and that it best balanced security with human rights. He also noted that ensuring all Canadians participated fully in our society without having to be regarded with suspicion was very important. He said:

Education, engagement, participation and institutional integration through inclusion are far better alternatives....moving forward with good faith will create the atmosphere of trust, cooperation and engagement we need to make progress.

He also made a very direct plea at the committee when he said:

On policies and practices, profiling Canadian Muslims is an issue on which the Government of Canada and Canadian Muslims differ significantly. Muslims cannot accept that we are profiled as a security threat to our own country. If government policy is not engaged in profiling, its actual operational practices speak differently, as evidenced by many cases in Canada. Please do not give our law-and-order people more power without appropriate accountability....Canada does not need laws that will prevent its citizens from feeling accepted, embraced, safe and secure. Canada needs to rethink its approach toward this bill and to focus on bridge-building between government and the many communities and groups that make us the unique mosaic we are.

There is an important message in his statement. We must pay clear attention to the effect that legislation like Bill S-3 and its extraordinary provisions have in our communities, the effect that it will have on some law-abiding, honourable Canadians. If the legislation increases their insecurity, if it does not promote their safety, how can we believe that somehow it adds to the overall protection of Canadian society?

J.S. Woodsworth, the first leader of the CCF, once said, “What we desire for ourselves we wish for all”. We would be well advised to struggle with the meaning of that in the context of developing anti-terrorism and security measures that are experienced positively by all those Canadians who seek peace and justice, respect the law, promote values of equality and oppose terrorism.

I should point out that the NDP has a proposal to address racial and religious profiling in Canada in Bill C-493, which I tabled in the House. The original version of this bill was tabled by the member for Vancouver East and after consultations with members of the Arab, Muslim, black, aboriginal and South Asian communities, it was revised and re-tabled as Bill C-493.

That bill states that enforcement officers from the RCMP, Canada Customs, Canada Revenue Agency, the immigration department, Canada Border Security Agency, those operating under the Aeronautics Act or CSIS must not engage in racial or religious profiling. Those agencies must collect data to ensure this practice is not engaged and must put in place explicit policies and procedures to prevent it and to respond to complaints. They must also undertake an analysis of racism and how it functions in the context of the particular agency.

Racial and religious profiling is hugely detrimental to the stability and success of Canadian society. It must not be tolerated in any form. We must be explicit in our condemnation of it and ensure it is prohibited in law.

Denis Barrette also stated at the Senate hearings on Bill S-3:

These laws are used in emergencies, where fear and panic are at the forefront—somewhat like what happened at the time of September 11, 2001.

Fear is never a good adviser. It is rather in moments of peace and quiet that the importance of preserving rights and freedoms should be rationally assessed. It is obviously important to defend them in difficult times, but we must plan for how to protect them in difficult times.

It is easy to protect rights and freedoms in peaceful times. We must provide for the unpredictable and ensure that, in a moment of panic, legislation does not result in innocent victims because it was poorly conceived or because it was dangerous or useless.

I say clearly that I am opposed to Bill S-3 and the revisions it makes to the Anti-Terrorism Act, to reintroduce investigative hearings and preventive detention. We should instead let the Criminal Code of Canada do the job, a job it is fully capable of doing. We must also ensure that our police and intelligence authorities have the resources they need to carry out their investigations effectively and with respect for all Canadian citizens for human rights and for civil liberties.

Elimination of Racial and Religious Profiling Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

moved for leave to introduce Bill C-493, An Act to eliminate racial and religious profiling.

Mr. Speaker, I am pleased to table, seconded by the member for Vancouver East, a private member's bill entitled “An Act to eliminate racial and religious profiling”.

The bill seeks to ban racial and religious profiling by federal law enforcement agencies and officials. I and my NDP colleagues have been very moved and often angered by the experiences of racial and religious profiling shared with us by constituents and other Canadians.

The impact of this practice has been serious and costly to those who have been its victims, and to our society. Such actions by law enforcement officers and agencies are based solely on false stereotypes. It is not good public policy nor is it good law enforcement practice, plain and simple.

This is an updated version of a bill introduced by the member for Vancouver East in the last Parliament. It defines racial and religious profiling as an action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin, rather than on reasonable suspicion to single out an individual for greater scrutiny or different treatment.

The bill would require the RCMP, customs, immigration, airport screening officers, and CSIS agents to eliminate racial and religious profiling. Those agencies would report to Parliament on their progress. They would also required to have a working analysis of how racism functions in their law enforcement context. Victims of racial or religious profiling would have access to the Federal Court to seek relief or remedy.

(Motions deemed adopted, bill read the first time and printed)