Citizenship and Immigration Committee on Nov. 9th, 2006

[Alex Neve]

They must be addressed, but in conformity with human rights obligations.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

He goes on to say that Parliament has weighed the interests at stake, those of the litigant and those of the community, and has made a choice that recognizes the right to collective security while prescribing a procedure in which a judge is endowed with the necessary independence and impartiality to decide whether disclosures of information can be made, the type of disclosure, the evidence, and so on.

Would you not agree with me that there has to be some balancing of rights in this whole issue? Or would you say there doesn't need to be a balancing provision?

[Alex Neve]

No, it's not about balancing rights here. It's about ensuring that rights are protected in the context of ensuring security. It's not about choosing one or the other. It's about doing both at the same time.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I think the court, so far, has been saying that you need to protect national security interests with the least limitation on personal rights, but there would be, in certain circumstances, some limitations.

If you were to accept that there were some limitations, do you have a suggestion as to how that might be done better than the process we now have for security certificates, in terms of perhaps a friend of the court or an advocate to look at the evidence? Or are you saying let's just do away with the security certificate process as we now have it and deal with it in a fashion that is totally outside of that?

[Alex Neve]

There are different views among organizations. Amnesty International hasn't said necessarily to abolish the security certificate process. We have said it needs a wholesale reform to ensure that it meets international standards. We don't think a special advocate, modelled at least along the lines of the approach that has been taken in the U.K., addresses the concerns, because special advocates do not have the kind of relationship with the individual accused that's necessary to ensure effective defence. There are occasionally other models that have been used that maintain that relationship, that even once a special advocate has had access to secret evidence they do still continue to have the relationship with the individual concerned, which has to be central.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Perhaps I could just stop you there. You say you don't advocate the absolute abandonment of the security certificates, but is it correct, and am I reading this right, that the Coalition for Justice for Adil Charkaoui is actually asking that the security certificate process be abolished altogether?

[Mary Foster]

Yes, we've taken that position.

As I said, central to us is that there's an equality of treatment between citizens and non-citizens. Whatever the model it comes up with that meets that I think is left to experts who work on legal issues. But whatever that looks like, it needs to separate national security concerns specifically around non-citizens as opposed to citizens. There should be an equal treatment on the basis of fundamental human rights between citizens and non-citizens. That is our position.

[The Chair, Conservative, Norman Doyle]

That completes our seven-minute rounds. Now we'll go to our five-minute rounds, and we'll go back and forth until everyone who wishes to be heard is given the opportunity to be heard.

We'll go to Mr. Telegdi.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much.

“Security certificate” as such is a real misnomer, especially when we take a look at it in an historical context. You can look at the abuses that have taken place in Canada under the name of security certificates. You depend on untested information from the RCMP, CSIS, and international spooks, and we saw the result of that. We saw the result in what happened with the Arar case. Not only were there initial suspicions when Arar was sent to Syria, but when those security forces had information to clear him, they chose to cover up.

If you look at the United States, there are all sorts of examples of what has been done under the name of security. I agree with you in total when you say that you can't delink security from human rights, because essentially the greatest abusers of human security have been governments under the guise of security. When Thomas Jefferson says that those who give up freedom in the name of security deserve neither freedom nor security, that's exactly what happens. If you look at history and at countries, the greatest abuser of security has been the state apparatus of terror, and this is the really unfortunate thing. You cannot compromise the justice system, because as soon as you do, it becomes like a cancer, and if you have untested evidence going before the courts, which is happening right now under security certificates, then you really have a problem.

Madam El-Fouli, you're right; Saddam Hussein got a heck of a lot fairer trial than your husband is getting, and we really have to change this. Madam Foster, I really caution you about saying it's not happening to citizens; it's not happening to citizens because the citizenship committee has refused to pass the legislation that would have made security certificates part of the process. I think it's important for that to get out to Canadians as much as possible--the whole concept that my security as an individual is tied in to the security of my human rights, and that if you compromise human rights, you end up doing so much damage that it's really quite incredible.

Madam El-Fouli, I don't know how to respond to you in terms of what's happening to your husband, except to say there's a member of Parliament who happens to believe in human rights. I really am ashamed when I go down to those holding cells and see what's happening to those people who are not sentenced, who have not been charged, who have not been found guilty of anything. They are there on nothing more than suspicion, and the state doesn't have a case against them. If they had a case against them, they would have proceeded. As a democratic nation, we really have to make sure we fight for those values.

I have a question to the panel. What kind of education have you done as to how this whole security certificate issue has now gone into the IRPA? I voted against that, and I will certainly be supporting Mr. Siksay's motion if it ever gets through, gets drawn. It is just to show how gradualism under the name of security has really compromised our freedoms.

[Alex Neve]

I can speak for my own organization. Amnesty International has done a lot of work, especially in these last five years. We have been focusing on this very worrying national and global debate about security and human rights, very much trying to underscore the point that you've just highlighted as well--the fundamental connection between security and human rights. Security that is pursued in disregard for human rights will of course always be precarious, and human rights will always be tenuous if they're not based on a firm commitment to security within national societies. It's one and the same.

We have in many materials--campaigning materials, brochures, and publications--highlighted the security certificate issue as a Canadian example of the fact that this isn't a debate playing out only with respect to Guantanamo Bay or other parts of the world, but an issue that confronts us as Canadians. We do need to take it seriously. It's a human rights issue that needs to be addressed. In addressing it, we hopefully convey a strong global sense of leadership as to what Canada thinks about the whole issue of security and human rights.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Telegdi.

We will go to Mr. Devolin, for five minutes.

[Barry Devolin, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you for being here today.

As many of the good questions on my list have been asked, I'm down to some different ones. I want to thank all of you for being here today.

I think it's fair to say, on behalf of all of us who visited the detention centre last week in Kingston, it made a powerful impact on us in many ways.

I am not a lawyer, but as I listen to this discussion about the balancing out of overlapping or potentially conflicting interests in terms of personal rights versus national security, I guess what I wonder about is the threshold you have to get over to get a particular verdict in some sort of proceeding. In a criminal process, it's beyond a reasonable doubt, so it's set very high. I am not a lawyer, but I appreciate that there is the reference to what would be called the balance of probabilities, and it's my understanding that in the very famous O.J. Simpson trial, while they failed to meet the beyond a reasonable doubt standard in a criminal court, they actually did meet the balance of probabilities in a civil trial. That was how he was found not guilty criminally, but was actually sued for millions of dollars in a civil court.

Today we heard reference to “reasonable grounds to believe”, and I'm thinking that if a balance of probabilities means there's a better than fifty-fifty chance that it's true, I don't know if reasonable grounds to believe are 50%, or maybe even lower than that—maybe 20% or 30%. That's where I see this sitting, so when someone gets off an airplane in Canada and there are some reasonable grounds to believe they may pose a threat to Canadian security, the notion that a person could be detained seems reasonable to me. But the question is, for how long, and what is the actual process that needs to be put in place then? It also seems reasonable to me there can't be an indefinite holding pattern that never lands.

If Canada were to set up a situation where, once someone has been detained, and until a process were launched.... I'm not comfortable with the notion of just moving it into a normal criminal court system, where beyond a reasonable doubt is the test, because then you could easily have a situation where you're 90% sure there's a problem, but because it's not beyond a reasonable doubt, you would actually release the person and say okay, you're free to go.

Just from a practical point of view, in other countries, is that the test they use once someone is detained, such that there is a process where the evidence is brought forward—whether it's in a closed court or with a special advocate are details—with a lower threshold? Is it a possibility, theoretically, to have such as process in Canada? There would be a hearing process, and whether it's a balance of probabilities or beyond a reasonable doubt, or whether some new phrase is established.... I do think at the end of the day that if things are not entirely clear—and I suspect they're usually not—the national security of Canada, on some level, should trump the rights of a non-citizen.

[The Chair, Conservative, Norman Doyle]

You have one minute left.

[Barry Devolin, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Could you give me a 40-second answer? Sorry, but it's such a good question, maybe the chair will give you some extra time.

[The Chair, Conservative, Norman Doyle]

We're fairly tight on time, because I've made a commitment that everyone who wishes to question the witnesses is going to get in. The motion states that this is at the discretion of the chair.

Go ahead, sir.

[Alex Neve]

This is a concern right around the world. Certainly, off the top of my head, there are not other nations who, when proceeding under immigration proceedings, use the high standard of beyond a reasonable doubt necessary in criminal proceedings.

I think the reason so many organizations are saying that criminal law is really what needs to be pursued here is a combination of the fact that this isn't just any old immigration proceeding.... Number one, there are almost always very serious human rights concerns at stake, such as torture, arbitrary arrest and detention, who knows, but there are serious abuses waiting at the other end of the deportation. There is also the fact that serious allegations are being made about security concerns. Immigration remedies don't get to those either, as they just brush them off our doorstep and make them somebody else's problem, perhaps increasing the possibility the person will be able to continue with plans, and maybe even eventually mount an attack of some kind that will bounce back towards Canada.

So we need to be looking very seriously at the criminal law system, because that's the best way to deal with it.

[The Chair, Conservative, Norman Doyle]

Thank you.

Ms. Deschamps.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

First of all, I would like to thank you very much for testifying today. It is touching and extremely moving. I realize that we’re dealing with many reasonable expectations, for example, Supreme Court decisions, from which will result extensive consultations and studies on possible options, etc.

The question I’m asking myself, however, is the following: are the Criminal Code and Canadian laws not sufficient in such situations? Why is Canada, with its Charter of Rights and Freedoms and the international conventions it has signed, not in a position to take action in the matter of security certificates? Are there other countries in the world that are currently taking the same measures and issuing security certificates? Does this exist elsewhere in the world?

[Christian Legeais]

I do believe it exists. First, contrary to what is stated in certain documents, security certificates existed before 1991. So there is a whole series of other cases that have either been forgotten or remain unknown.

But the main argument is that security certificates truly reveal the current rights crisis in Canada. Let’s take the example of deportation to torture: international and humanitarian laws recognize as an absolute that people cannot be deported to torture, disappearance or death. It is an absolute. European courts recognize this, but in Canada, as the government underscored in its response to a hearing request for Mohamed Harkat’s conditional release, the government does not subscribe to the notion of absolute rights. So on one hand, there is the notion of a made-in-Canada policy that recognizes that it’s very wrong to deport someone to torture, but on the other there is the notion of a made in Canada policy that says it can be done in extenuating circumstances.

This notion comes from the belief that rights are not absolute, that human beings are not entitled to them by reason of their humanity, but that laws can limit them. According to one of the foundations of the Canadian Charter of Rights and Freedoms, in Canada, rights must be exercised in a reasonable manner and it is the very essence of the definition of rights that is causing this crisis.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

I have another question from more of a humanitarian perspective. First, I believe that the conditions of detention faced by those under security certificates could easily be corrected or at least improved. As for the families, they are victims of the situation.

How do you live in these conditions? You’re in a no-win situation. You have to deal with the family and financial responsibilities. The same is true for those being detained and for those on conditional release. What is life like for these people? How do they live?

[Mona El-Fouli]

I'm glad you asked this question, because I really wanted to answer it.

Actually, first of all, I'd like to tell you that my husband has been here for almost ten years, most of this time among people. He didn't show any threat or any danger to anyone. That's the first thing.

Secondly, there are other people who are being released under conditions in which that could happen. There are very strict conditions for Mr. Charkaoui and Mr. Harkat. It's going to be difficult for a family like mine or Mr. Jaballah's, because there are older children who need to live their lives, and they want to interact with their parents too. Those strict conditions are going to really affect the whole family, not only the detainees. They're really affecting us at the moment. They're really affecting us and affecting the children. Last time when we were here, my son had written a letter to the Prime Minister, and he said, “Mr. Prime Minister, you're not only jailing my dad, you're jailing our hearts with him”.

[The Chair, Conservative, Norman Doyle]

Go ahead.

[Mona El-Fouli]

I believe the procedures can go on when the men can be bonded with their families, but at the same time we have to understand and take into consideration that the children need to feel the interaction between parents and children. There are children who have activities outside of the house. There must be a way for the fathers to be with the kids in let's say soccer or other activities or school activities, so that the children can feel the family structures too.

[The Chair, Conservative, Norman Doyle]

Okay, thank you very much.

Ms. Foster, I detected you're just dying to make a comment here. Go ahead.

[Mary Foster]

I'd like to respond to the question about the impact.

Under Mr. Charkaoui's conditions, he's not allowed to leave home without the accompaniment of his mother or father. Because he needs to work to pay for their rent and their family's livelihood, his mother has been forced to go and sit with him all day long in his work. She even wanted to volunteer, but she can't because the day care is in a different building, so she can't leave. Her life has been put on hold. The entire family's rights are being violated under these conditions. She wants to go out and find a job, but she's not able to for fear of jeopardizing his job, which pays for their rent. It's a terrible situation.

As for the children, Khawla, Adil's oldest child, was two and a half when this process started. Her aunt told me the other day that she saw a police officer on the street. They were close to home, and she ran home. She had developed a panic and a fear that her father would not be there when she got home. It's had a devastating impact on the children. It's the uncertainty of not knowing when this is going to end or how it's going to end--if they're going to get deported to torture, if he's going to be picked up and put in prison--that is devastating the families.