Subcommittee on the Review of the Anti-terrorism Act Committee on June 21st, 2006

[The Chair, Conservative, Gord Brown]

Yes, thank you.

We're going to give Mr. Comartin another extra minute or two now.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

We're posing the question to Mr. Comartin on the broader issue because, from what he was asking, he was going beyond just the facilities, he was reflecting on the broader provisions. So that's why I'm asking him the question.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'll adopt Mr. Ménard's questions. Specifically, if you're asking me whether they should be prevented from having physical contact with their children, my answer to you is that this is a special provision that this state should not be imposing.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

Joe, with respect, I'm asking the broader question out of interest and not rhetorically, but sincerely, because we're here to glean advice from you.

Do you think the Government of Canada, with a provision like the security certificate...? And that's why I specifically referenced that, as late as September 2005, the Federal Courts upheld it. But you seem not to like that provision. Do you think the government should not have that provision? That's what I'm asking.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I think the basic answer to that is you also have to look at the other decisions, both in Charkaoui and Harkat, where courts have looked at it and said, we're now at a stage where these people, in effect, are no longer a risk to the degree that they have to be held in custody. And the sense I have of the other three cases is that we're probably in the same stage and that we should be looking at advanced provisions for security where they're allowed out into the general community because they're no longer a threat. That's what we should be working on.

Mr. Toews, I want to say this to you. By depending on the courts, you're falling into the same trap as your predecessor did. You accused them in a number of other sectors of relying too heavily on our courts and, as parliamentarians, as governments, of not assuming our responsibility. So I'd like to go to that since my time is short.

One of the provisions we saw as a real hindrance in these cases is that you're taking evidence, to a large degree, not from our own reliable sources of information, whether it's CSIS or some of our other intelligence agencies, but from information that's coming from international sources. And in a number of cases, as we saw in the Maher Arar case and any number of others, it was very suspect and may in fact be the subject of torture to some of the witnesses.

I think we're going to hear from Justice O'Connor--and I'd like your view on this, if we get it from him--a strong recommendation that the amount of evidence that's classified, to what degree it's classified, and who has access to that information would now be determined not by our security services, not by our intelligence services, but by an independent, well-trained—and that's a factor—judge or panel of judges. Would you be interested in pursuing that kind of approach? I'm suggesting to you, Mr. Minister, that you're going to get that from Justice O'Connor in his report.

[Vic Toews, Conservative, Provencher, MB]

I don't want to prejudge Justice O'Connor's report, but what I would be very concerned about is to have someone analyzing evidence and not understanding the full context of that evidence. That, for me, is a very serious problem. And if that analysis is going to be done on strictly legal principles—and by legal principles I mean our British common law statutory interpretation type of system—if that's how we're going to do it, by respecting the rules of hearsay, opinion evidence, and the strict formal rules of evidence, and then trying to apply those standards to evidence gathered by security services around the world, I think you're going to have a huge difficulty in accepting much of the evidence that is considered. So I would just caution against applying court standards, in terms of testing the evidence, and standards that security forces need to rely on in terms of making an assessment.

The context, as well, has to be borne in mind. This is not a criminal process with respect to the security certificates. It's a civil administrative process, where the person is in custody, is detained, and the individual does have the right to leave. Now that situation might not always be the best alternative, but the concern that security forces may have is, what is the alternative? Do we release that individual here?

So am I interested in Justice O'Connor's comments? Absolutely. Would we consider those comments? Absolutely. I think we have to take it with a caution about simply trying to make this into another legal process in the same way as you would prove, for example, a criminal offence and those types of standards, because it's a very different process.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

I would just like to add, Mr. Chairman, that it's obvious by our presence here and the comments we've made that we support in general the cautious use of security certificates and that provision in law.

Joe, I would still like to hear if you support that in general.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Do I support the use of security certificates? No, I'm opposed to the use of security certificates.

We have to come up with an alternative system. The special advocate alone is not enough. I think we have to give more authority to special judges, specially trained judges, who do understand, as Mr. Toews has just been saying, this balance that has to be struck. It can't be the criminal balance; I understand that. On the other hand, the standard we're using now within our intelligence services--that is, they make the call on what can be produced and what can't be--is way too low in a democratic society.

[The Chair, Conservative, Gord Brown]

Thank you, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Chair, I think you used some of my time.

[The Chair, Conservative, Gord Brown]

Yes, but you've used a lot more than that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have one quick one that I want to ask Mr. Toews and perhaps Mr. Day as well.

[The Chair, Conservative, Gord Brown]

Mr. Comartin, we'll go back around. I'm sorry, you've had way more than regular time.

We'll move to the government side now, and Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

My question might be somewhat utilitarian, because that's the part of the legal system I come from. My question would be basically to Mr. Day, but please step in, Mr. Toews, if you feel there is something pertinent from the justice end.

I'm very concerned about not only those people we have at our border, but the people we are training to apprehend those who would dare commit acts of terror against Canadians. I'm going to ask you a very broad question. You can say what you're doing now and what you propose to do.

Do you find that our border personnel, law enforcement, and prosecutors have sufficient training and equipment to do their jobs? How and by what means do you determine that? What do you see as the near and distant future? I'm talking about our CSIS personnel as well as the RCMP and our border guards.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

First of all, for border officers themselves, the training is very extensive. It includes being trained to the same level as police officers to perform arrests under certain conditions. An example is drug seizures. Last year, there were 6,700-and-some drug seizures at the border. There were a number of seizures of illegal firearms and other contraband. They have to be trained in all of that legal process. As you would know as a long-standing police officer, you have to be trained even in the area of arrest and even in terms of other people's legal rights, etc., so they're very well trained in that.

The one area of training being added now is on sidearms for border officers. They will have to go through extensive training, obviously, for that purpose. That's the border officers themselves.

When it comes to the issue of security certificates--because we're still talking about protecting our borders here--we've had six people since 2001, as we've said. When the intelligence is gathered and the reports are made on people in this case, those levels of security and intelligence are gathered by different agencies altogether. Those are our intelligence agencies within the RCMP, so they have a very different level of assessment and training.

Then when an assessment is made, as rare as it has been, the intelligence gathering and that information are also subject to judicial review. In fact, security services, not the border officers themselves, will make the suggestion.... Border officers will flag if a concern comes up as they're checking on the individual in question, but when the research shows that there is a significant danger to Canadians--and that assessment is made by intelligence officers--it is still subject to a judge; the judge will determine if he or she agrees with the information that's gathered.

So it hits the border officer level first, then our intelligence agencies, and then goes all the way to the judicial level before a final determination is made. When you add up all those layers, the training is pretty extensive--not that a mistake couldn't be made, but it's a pretty extensive network.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Toews, do you believe Canada has the legislative tools necessary to ensure we are able to apprehend and prosecute those who would commit acts of terror against Canada?

As a little comment, I'll say that it seems some people think we're too tough. I happen to meet more people who think we need to do more in that respect, and that we need to have those tools heightened as opposed to lessened. Have you a comment on that observation?

[Vic Toews, Conservative, Provencher, MB]

I understand. I meet people who are concerned about security making the same kind of comments. Any time a nation is under threat, or perceived threat, people ask those questions constantly, and that's good.

At this point, I believe if we look at our act itself, the Anti-terrorism Act, and compare it to those in other free and democratic societies--European primarily, American, Australian--I would suggest Canadian legislation is not the toughest. Certainly other acts of other countries have much more stringent proceedings and processes available to them, and those have been upheld in free and democratic societies as appropriate measures.

Perhaps I should simply speak on my own behalf. I'm here to hear from the committee to see whether the committee recognizes any specific concerns, powers you would like to see added, perhaps study other pieces of legislation from other countries. At this time, my concern more than anything is something Minister Day touched on, and I think we're addressing it through our budget—the additional money we've put aside for more front-line officers, border security, more federal prosecutors, and others who will give us tools on the ground to use the legal tools we have.

I think the issue of border security is not simply to pass a piece of legislation. You've got to be prepared to enforce it. We have to look at the issue of our ports, which our government is examining, and certain commitments have been made in that respect.

Although my primary responsibility would be the examination of the legislation, I would suggest some of the steps Minister Day has been taking to strengthen security at ground level should be addressed at this time, and I'm very pleased our government is moving in that direction.

I come back to the comments of Mr. Wappel. I think we're in agreement with the bill as passed.

Is it perfect? I don't think we should be patting ourselves on the back too soon. We cannot anticipate many situations, but given the response after the September 11 attack, I think the committee and the House did a remarkably good job, working on a non-partisan basis.

Might issues be fine-tuned? We've heard some suggestions respecting Justice O'Connor's recommendations. Will we look at them? Absolutely. Will we consider what the Supreme Court of Canada has got to say? Yes. Are there other issues like what the Commissioner of the RCMP just recently stated? Should we look at those issues? I think yes, and I think you have full authority in this committee.

[The Chair, Conservative, Gord Brown]

Thank you, Minister.

We're going to move to round two now, which will be five minutes.

Mr. Cullen.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chairman.

Thank you, Minister Day, Minister Toews, and the officials.

Some have argued in the last many months that things have changed in Canada. I think it's within the context of the arrests in Toronto. I'm not quite sure, but I would argue that things really haven't changed, that we knew this kind of activity was going on in Canada. In our briefings, CSIS referred to that.

What has changed is that we have a new government. Just to reflect on what Tom Wappel, my colleague, said, what we're hearing from the new government is that generally.... Mr. Toews, you've raised the issue of the definition of terrorism, but generally you're comfortable. As you've said, you're anxious to hear from the committee, but the thrust is largely the same.

I had a couple of questions with respect to the arrests in Toronto.

One, I'm a little confused. I've read in some secondary information that the tools of preventative arrest and investigative hearings, those tools in Bill C-36, were not used for those particular arrests. I wonder if you could clarify that.

Second, it seems there was a lot of cooperation between CSIS, the RCMP, the CBSA, provincial police, and other law enforcement. Would you confirm that--that there was a high level of cooperation, and that the levels of coordination have improved significantly over the last many years?

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

It has been reported on, so it's public, and the agencies themselves were very forthright in talking about high levels of cooperation. I think, Roy, that does reflect a cultural change within policing and security organizations themselves.

It could be argued...let's say, if you want to go back a number of years, 15 or 20 years--this isn't unique to Canada but applies to the United States and other agencies--agencies, being proud of what they do and somewhat protective of what they do, had in the past developed a bit of a silo approach to things, and because of concerns about that, information sharing might have been more limited. The culture now, and the reality that the threat of terrorism is real, has really compelled policing agencies to work together to share information.

I think I know where you're going in your question here. I would agree that this type of operation reflects that shift in culture. When I talk to people in the different agencies, not just within RCMP and CSIS but even within different policing agencies municipally or provincially, they do all reflect on that. They have a sense that we need to work together. They have their appropriate areas of jurisdiction, but the proper sharing of information to protect the safety and security of Canadians is being done willingly and appropriately, in my view.

As for your other comments about the investigation itself, it's ongoing to a degree and things have been filed before the courts, so I would prefer not to comment on any of those at this point.

[Roy Cullen, Liberal, Etobicoke North, ON]

But can you comment on whether or not the preventative arrests or investigative hearings provisions of Bill C-36 were used, or are you not at liberty to comment on that? Can't you comment on this? It's sort of relevant to the review of Bill C-36, but if you can't comment.... I've read the reports in the press and I'm anxious to know if they were used or not, that's all.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

As I understand the ATA and as has been publicly commented, certain provisions under the Criminal Code were applied, and we'll see how that weighs out in court and if they were directly a result of the ATA or not. Further evidence will come forth on that.

[Vic Toews, Conservative, Provencher, MB]

Perhaps I could intervene. I don't think it's appropriate to comment on that. I'm very concerned about making any specific comments in respect of that particular investigation. Most of us, certainly I myself, would only be speculating in that respect, and I suggest that if police officers are at liberty to disclose that information, call them directly, because they are responsible directly for the investigation. I would suggest you might want to conduct that kind of hearing in camera before you decide to reveal anything.

I don't think it's appropriate to discuss that matter, but what I would like to discuss, and it's just sort of taking off--

[Roy Cullen, Liberal, Etobicoke North, ON]

My time is limited, so perhaps you could cut to the chase.

[Vic Toews, Conservative, Provencher, MB]

And I'll be very quick. It's to your credit that you've raised the issue, but in an indirect way.

The whole issue of sharing of information, I think, is very important between various agencies. And one of the things that I think are beginning to concern people more and more in the security and policing fields is the cooperation now between terrorists and organized crime. In terms of legislation, does our terrorist legislation properly dovetail with organized crime legislation? Is there a disconnect between the two when we're investigating essentially the same common activity, if there is interaction between a terrorist group and organized crime?

That is an issue that I think is ripe for exploration in terms of possible legislative analysis. Whether that's in the context of this act in particular, or otherwise, I would leave to the committee.