Thank you very much.
I want to thank the committee for having invited the Canadian Civil Liberties Association to appear. I will make the first part of my remarks in French and the second in English.
The Canadian Civil Liberties Association has existed since 1964. It has always worked to defend the rights and freedoms of Canadians. We will make four proposals as part of our submission.
The first is that in its current form, Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) contains major flaws and problems that must be remedied.
Secondly, like other rights and freedoms advocacy groups, we question the need to proceed this way and to adopt the bill in its current form.
Finally, I won't repeat what has been said by my colleagues, but I simply want to present the international context surrounding the bill. I will begin with that proposal.
This is an opportunity for us to take a sober look at provisions adopted in 2001, which expired in 2007 because of a provision, and to determine now if they were appropriate and necessary.
This is being done in a context where we hear the United Kingdom is preparing to review the use of control orders which had been used consistently as of 2001.
One of the reasons why many people say that Bill C-17 is not that dangerous is that these measures have not been used excessively by our police forces. Despite that, it creates a precedent in terms of commitment and in the context of international law. It becomes a precedent for other countries in the world who will look to and use the Canadian precedent.
The only guarantee that Canadians had in the face of these powers is that they were not abused and were almost never used. The same will not be true in other countries. Given Canada's leadership role in terms of international human rights, it is important to look at whether this is the right time to introduce a legal tool which fundamentally questions some of the principles around which our system is organized. That is one of our proposals.
I won't repeat what my colleagues have said. I just want to stress a couple of ways in which the bill stresses our system and its fundamental tenets. There are three tenets, I think, of our system that are at odds with the premise and the economy of the bill, and I think that's why we, as civil libertarians, are searching within this bill for guarantees.
The first one is that, obviously, we live in a system where judges are not inquisitorial judges. They are judges who work and are trained in the context of contradictory evidence. Indeed, I think one of the ways in which we have been able to fine-tune our system of counter-terrorism.... Canadian civil liberties all support the idea that the government has a duty to engage in counter-terrorism. What we're debating here is whether this is the best way. It's not to question the effort; it's to ensure that indeed it does what it seeks to do.
We have responded in other contexts by insisting there be special advocates, to ensure that judges are not put in a position to be inquisitorial. They're not trained for this; it is incompatible with the way in which they are proceeding. But this is not present here. Contrary to what happened after the Charkaoui decision, we are not seeing here a recognition that there needs to be.... If you're going to take someone and threaten his or her liberty in front of a judge in a context where the judge will have to rely on the information provided, you need to balance this by having at least a special advocate. That's what we've learned in other contexts, and I think this, indeed, should be looked at in this context as well.
The second tenet of our system that I think is fundamentally challenged by Bill C-17 is the one referred to earlier. It's the fundamental tenet that you ought not to be detained, arrested, or subject to punishment unless there is a format or a framework by which the accusations and the evidence against you can be tested and at the end of the day you are found to be guilty or not, and that's the end of it.
This process allows preventative detentions that threaten the concept of strong protection through habeas corpus. It creates a fracture in our legal thinking, and that's why people react to this with such visceral fear. It was a great advancement in law and legal thinking to insist that a king not be able to put people in jail simply because he was afraid that something might happen to threaten public order. The writ of habeas corpus was a great advancement in saying it is inappropriate to detain people without having a process to fundamentally challenge the evidence on which you are being detained. That's why people react with such fear to this case in which preventative detentions are being normalized in the process.
Finally, the third principle of our system is that there is no obligation for Canadians to cooperate with the police. Here, they are forced to come and give testimony in front of a judge. As Kent Roach has said numerous times, some people will tell the truth, some people will lie, and indeed they will not cooperate more because there's a threat of being incarcerated.
Now, let me go through the different dispositions and look specifically at some of the challenges they present and some of the ways in which they ought to be.
In our view, the bill should not proceed. It's not necessary and it's not the way to go. But if it is to proceed it must have additional guarantees that are not there.
The first guarantee is under proposed section 83.28. There is no guarantee that this indeed will not be relying on evidence obtained under torture. That's a significant issue. What we would suggest is that there be a commitment that there be included a specific reference saying that there is an affidavit from CSIS, an affidavit from the police, which is being recognized by the judge, as to the evidence's not having been obtained under torture.
We're insisting on this not only because there is a general prohibition around the world against torture and Canada should be part of it, should be an instrument, a model on this. It's also a good signal to say to other countries that whatever evidence they would want to lead in will not be acceptable. But what is interesting as well is that it protects our system from being polluted by the fact that some evidence obtained under torture may have found its way somewhere. If everybody along the system has to guarantee that to their knowledge—and they do the investigation—the evidence has not been obtained under torture, we improve the guarantee that the system will not inadvertently be an instrument of perpetrating torture.
One concern that has been raised, and I think my colleague has raised it, is that it does not protect testimony from being used in proceedings outside of Canada. This was mentioned by the Supreme Court. This is not in the bill; it should be in the bill.
As well, it should not be used against members of the family of people who testify. That's another aspect. Many people who could be compelled here will be shunned for sure by their community but will expose themselves to great dangers, and there's no provision here to ensure their protection.
I know my time is running out, and I just want to make sure that.... Let's see: no special counsel proceeding has been.... There has been no guarantee that no evidence has been obtained under torture....
There are no boundaries to the conditions that can be imposed by the judge, and I think there should be a way in which these conditions are reviewed and found not to be unnecessary.
Finally, there's no right of appeal. There should be a right of appeal.
